the engine man of another train of the same corpo-
ration upon an adjacent track; and cannot maintain
an action against the corporation for the negli-
gence of the engineman in driving his engine too
fast and not giving due notice of its approach, with-
out proving negligence of the corporation in em-
ploying an unfit engineman.
1003
2. A statute which provides that a bell or whistle
shall be rung or sounded sixty rods from any high-
way crossing, and until the highway is reached,and
that "the corporation owning the railroad shall be
liable to any person injured for all damages sus-
taine " by reason of neglects to do, does not make
the corporation liable for an in 'ury caused by neg-
ligence of the fireman in this respect, to a fellow
1003
Idem,
MAXIMS.
Randall v. Balt. & O. R. R. Co.,
1. Utres magis valeat quam pereat.
Pritchard r. Norton,
2.The Sovereign is not liable to be sued in any ju-
dicial tribunal without consent.
3. Nullum tempus occurrit regi.
Fink v. O'Neil,
4. Volenti non fit injuria.
Fitzpatrick v. Flanagan,
5. Caveat emptor.
Wooden-Ware Co. v. U. S.,
4. A decree nisi in foreclosure must find the
amount due, for non-payment of which, according
to the terms of the decree, the property must be
sold; and a substantial error in this will vitiate
Idem,
subsequent proceedings.
5. Where, by the terms of the mortgage, the entire
debt does not become absolutely due on the default
to pay interest, except at the election of the trust-
ees as declared and notified by them to the mort-
gagor, the right to foreclose for the whole debt must
be established by such declaration and notice; the
Idem,
default to pay interest alone is not sufficient.
6. T..e right of the mortgagee in such case to re-
payment, not of the unmatured principal sum of
deem, and thus prevent the sale, is preserved, on
the debt, but merely of the interest then actually
due and in arrears.
7. In a suit to foreclose a second mortgage upon
a railroad, a court has power to order the receiver
claims, payment of which is indispensable to the
before paying the first mortgage to pay certain
171 business of the road, including claims for materials,
repairs, and ticket and freight balances, some of
196 which claims are yet to be created and others were
contracted even more than ninety days before the
211 receiver's appointment.
1. The extension of a flume over premises sought
to be held as a mining claim, and their use as a place
of deposit for the waste material from an adjoining
claim is not such an expenditure upon them as will
sustain the claim under the Act of 1872, re-enacted
in the R. S.
Jackson v. Roby,
2. In a suit to determine conflicting mining claims
to public lands under sec. 2326 R. S. if there has been
no work done on the premises by either claimant,
plaintiff or defendant, the finding should properly
be against both.
8. In an action by the patentee of a placer claim
to recover possession of a vein or lode within its
boundaries, an answer alleging that the vein or lode
was known to the patentee to exist at the time of
applying for the patent, and was not included in
his application, well pleads the fact which, under
section 2333, R. S., precludes him from having any
right of possession of the vein or lode.
Sullivan v. Iron Silver Mining Co.,
MORTGAGES.
Miltenberger v. Logansport R. R. Co.,
8. On a suit for foreclosure of a second mortgage
on a railroad where a receiver is asked, the first
mortgagee is a proper party and in such case the
res in the hands of the court, and subject to sale, is
the entire mortgaged property, and not merely the
equity of redemption.
9. The right of a second mortgagee to all the in-
come of a receivership created under a bill in fore-
first mortgagee is not a party.
Idem,
closure, filed by him, is limited to cases in which the
10. On a suit in foreclosure in the District of Co-
lumbia a personal judgment against the debtor de-
Dodge v. Freedman's Sav. & Trust Co.,
fendant may be given for any deficiency after ap-
plication of the proceeds of the sale of the lands.
11. One who lends money in good faith on the se-
curity of a trust-deed of lands shown to him to be
unincumbered on the records, has the legal title
ous trust-deed of said land which had been released
and is entitled to priority of payment as against the
indorsee of a promissory note secured by a previ-
Williams v. Jackson,
by the trustees, although in violation of their trust.
529
12. The Statutes of Illinois relating to the redemp-
tion of mortgaged property from sales under the
decree of the Federal Courts, examined.
SEE APPEAL AND ERROR, 1, 14, 26, 27, 39, 45, 50, 51, tion first to the mortgagor,then to judgment credit-
1. Where by the terms of a railroad mortgage a
mortgagor's right of possession terminates upon
default of payment of interest on any of the bonds,
the trustees, or on their failure to do so, any bond-
holder may file a bill to foreclose; but unless the
mortgage expressly stipulates that the whole debt
shall be due in such a contingency, the decree must
be nisi, and on payment of the sum then due no fur-
47
ther proceedings can be had until another default.
Chicago and V. R. R. Co. v. Fosdick,
2. A clause in a mortgage that the trustees"upon
the written request of the holders of a majority of
the said bonds then outstanding shall proceed and
collect, etc.," gives the trustees no power to act
without such written request.
ors, is a rule of property obligatory upon the Fed-
eral Court, the latter may prescribe the mode in
which redemption from sales under its own decrees
may be effected.
14. The rule in the U.S. Circuit Court for the Nor-
thern District of Illinois, requiring a judgment
creditor to pay the redemption money to the clerk
of that court and not to the officer holding the ex-
ecution, sustained.
15. A law changing the rate of interest on bids at
mortgage sale applies to all sales made thereafter
but the purchaser is entitled to the rate prescribed
by law when he purchased.
16. The existing laws with reference to which the
mortgagor and mortgagee must be assumed to have
contracted, are those only which in their direct or
necessary legal operation controlled or affected the
Idem,
obligation of their contract.
17. An agreement merely to take land subject to
sume and pay off the incumbrance. The grantee,
a specified incumbrance, is not an agreement to as-
without words in the grant importing in some form
that he assumes the payment of the mortgage, does
Elliott v. Sackett,
not bind himself personally.
18. The payment of interest on a mortgage by a
grantee of the equity of redemption, is not incon-
sistent with his claim that he did not assume the
payment of the mortgage.
678
1121
19. Mortgages given by co-sureties, each to the
1. If the negligence of a railroad company con-
tributes to, that is to say has a share in producing an
injury to an employé, the company is liable, even
though the negligence of a fellow-servant was also
contributory.
Grand Trunk R. Co. v. Cummings,
2. A railroad company is liable to an employé for
damages caused by the incapacity of another em-
ployé, if his incapacity was known to the company
or could have been learned by ordinary care; i. e.,
such diligence and precaution as is commensurable
with the perils or dangers likely to be encountered
by him.
Wabash R. R. Co. v. McDaniels,
605
3. It is culpable neglect for the managers of a rail-
road to leave a freight car standing on the side track
so near the main track as to make a collision with
an approaching train inevitable.
4. It is not contributory negligence for a passen-
ger to ride with his elbow on the sill of an open win-
dow, when by a collision his arm is jarred outside of
the car and broken.
constitutes effect of; conveyance subject to mort-
gage.
Elliott v. Sackett,
Mortgage defined; nature of.
N. O. Banking Assn. v. Adams,
NEGLIGENCE.
912
erty not subject to the Writ.
Matthews v. Densmore,
the officer is liable for the wrongful seizure of prop-
678
7. The President has the power to supersede or re-
910 move an officer of the army by appointing another
954
in his place, by and with the advice and consent of
the Senate.
Responsibility of master to servant for careful-
ness and competency of co-servants.
Wabash R. Co. v. McDaniels,
Balt. & P. R. R. Co. v. Fifth Bapt. Church, 739 dismissed from service, except upon and in pursu-
REMOVAL OF CAUSES.
Actions against officers; section 643, R. S.
Civil rights; state decisions; removal of causes;
when denied.
NUISANCE.
SEE DAMAGES, 2.
1. That is a nuisance which annoys and disturbs
one in the possession of his property, rendering its
ordinary use or occupation, physically uncomfort-
able to him. For such nuisances a court of law
will give damages, and a court of equity will re-
strain if continuous.
Balt. & Potomac R. R. Co. v. Fifth Bapt.
Church,
2. The right of a religious corporation to recover
for a nuisance, and the liability of a corporation to
respond in damages for causing such nuisance, are
not affected by their corporate character, but are
739
the same as those of individuals for a similar wrong.
Idem,
3. The grant of powers and privileges by the
Legislature to do certain things as to a railroad com-
pany to bring its trade into a city does not carry
with it immunity from damages for private nui-
sances resulting directly from the exercise of those
powers and privileges.
Idem,
4. It is an actionable nuisance to build one's chim-
ney so low as to cause the smoke to enter his neigh-
1. If a public officer sees fit to allow the money of
the Government to be paid into the hands of his
agent or servant, during his absence from his office,
it is a good payment to him, and the risk is with him
and his sureties and not with the government.
8. Such power was not withdrawn by the provis-
ion in sec. 5, of the Act of 1866, 14 Stat. at L., 92, now
embodied in sec. 1229, R. S., that "no officer in the
military or naval service shall, in time of peace, be
ance of the sentence of a court-martial to that ef-
954
fect, or in commutation thereof."
9. When a Secretary of the Government is re-
act through officers under him.
quired to give information on any subject, he may
10. Where the Constitution or laws of a State do
not require a township treasurer to be a resident of
the township, the removal of a treasurer from a
township does not of itself vacate his office so as to
invalidate the service of a summons upon him as
such officer.
Salamanca Township v. Wilson,
1. A covenant reciting that it is made between a
certain party of one part and "S., and such other
of S. & Co.," and repeatedly mentioning "S. & Co.
parties as he may associate with him under the name
at the time of signing the agreement were to be
parties of the second part," signed "S. & Co.." suffi-
ciently shows that all the persons associated with S.
Seymour v. Western R. R. Co.,
joined as parties of the second part, and they may
all unite in an action.
103
2. The general owner of property and a sheriff
Geekie v. Kirby Carpenter Co.,
who had it in possession by attachment, may be
joined as plaintiffs in an action of conversion.
5. Parties to an action whose interests are not to
be affected by maintaining or reversing a decree
need not be parties to an appeal therefrom.
Basket v. Hassell,
PARTITION.
SEE JUDGMENTS, 4, 5.
1. A decree in partition in chancery does not, like
a writ of partition, at common law, transfer or
change the legal title to any of the property, unless
by force of some statute.
2. Where a receiver of public moneys charged
himself with money paid by preemptors for public
lands, the sureties on his official bond cannot in an
action thereon, set up irregularities in the proceed-
ings and claim that the payments were unauthor- PARTNERSHIP.
ized and that they are not liable therefor.
1. Upon the death of a partner, unless a partner-
deceased commence proceedings to liquidate the
ship creditor or the personal representatives of the
affairs of the partnership, there is nothing to prevent
a surviving partner from dealing with partnership
make a valid disposition of it.
property as his own, and, acting in good faith, to
2. It is not a fraud upon partnership creditors to
apply to the payment of individual debts, goods be-
longing to the surviving partner, which never be-
longed to the partnership, merely because they had
been mingled with the stock formerly belonging to
the firm.
McGinty v. Flanagan,
PATENTS FOR LANDS.
SEE LANDS, passim.
1. A horizontal plate attached by a vertical arm
to a carriage door, having been long in use as a step
cover, the arms serving as a wheel fender, there is
no invention in extending the width of the arm so
as to dispense with the horizontal plate; but join-
ing it to the step and having it yielding and flexible,
so that its elasticity may keep the door open and
closed, is patentable.
2. Where the specification and first claim of an
original patent for manufacturing counters for
boots and shoes, were intended to cover an elongated
heel shaped former, eccentrically set upon its shaft,
against which the material of which the counter was
to be made was pressed by a revolving roller or roll-
ers, and the first claim of the re-issued patent was
expanded so that it might cover a "former" circular
in cross section, concentrically set and revolving in
the semi-circular groove of a stationary mold, by
which the material was pressed against the former,
the re-issue is void for covering more than the origi-
nal.
76
3. Where patented cotton ties, consisting each of
a buckle and band, are manufactured and sold by
the owners of the patents and stamped "licensed
for use once only," and defendant buys them after
first use, the bands being cut, as scrap iron, and
makes of the pieces a new band which he sells with
the old buckles thereon to be used in baling cotton,
exactly as in the first use, it is an infringement.
Cotton Tie Co. v. Simmons,
79
4. Quære: whether the sale of the old buckles
alone would be an infringement.
79
5. Where the claim of a re-issued patent is for a
different invention from that described in the origi-
nal patent, the re-issue is void.
6. Where an orig.nal patent is for a mechanism,
a re-issue which covers the process by which the re-
sult is obtained without regard to the mechanism, is
invalid.
Idem,
110
7. A structure not designed for the same purpose
as a patent in question, and which no person look-
ing at or using it would understand was to be used,
and that in fact never was used for the same pur-
pose, does not deprive the invention of novelty.
Clough v. Mfg. Co.,
134
8. The first person who applied a valve regulation
of any kind to a combination of a gas burner with
tubes, etc., is entitled to hold all valve regulations
applied to such a combination, as infringements.
Idem,
134
9. Improvements on an existing patent in gas
burners, which allow them to be made in two pieces
instead of three, and at less expense, and varies the
construction so as to leave the flame always in one
position, are new, useful and patentable.
10. The assignee of a patent, with claims also for
damages for previous infringements, cannot by bill
in equity enforce the claims assigned; his remedy is
at law in the name of his assignor.
271
11. A suit brought to recover consideration for the
transfer of an interest in letters patent, in which no
issue is made touching the construction of the pa-
tent, or its validity or infringement, is not one aris-
ing under the patent laws of the United States, and
cannot be removed from a State to a Federal Court,
where all the parties are citizens of the same State.
Albright v. Teas,
295
12. The fact that defendants had licenses to use
other patents under which they were manufact-
uring goods, does not give them the right to litigate
their cause in the United States Courts, because cer-
tain goods, which they asserted were made under
the other patents, the plaintiff asserted were really
made under his.
20. Patents should be granted only for some sub-
stantial discovery or invention which adds to our
knowledge and makes a step in advance in the use-
ful arts. The exercise of invention must be some-
what above ordinary mechanical or engineering
skill.
Idem,
21 Although letters patent of a third person are
not set up by way of defense in an answer to a claim
of infringement, if the invention was actually put
into use, their date being undisputed, they may be
evidence to defeat the patent in suit for lack of pri-
ority.
Idem,
22. A patent for a sheet metal washboard with
transverse and longitudinal grooves crossing each
other, is not infringed by one with diagonal grooves
crossing to form diamond shaped projections.
Duff v. Sterling Pump Co.,
23. Corrugated metal washboards with channels
for water to run off being previously in use, the pa-
tent should cover only the form shown and de-
scribed in the patent.
30. A patented combination for drying meal, which
includes an automatic conveyor to remove the meal,
is not infringed by a similar combination without
the conveyor.
31. Prior printed publications which describe the
process covered by a patent so fully and clearly as
to enable persons skilled in the art, to which the in-
vention relates, to carry on the process will defent
a patent obtained for such process.
Downton v. Yeager Mill. Co.,
789
32. Public use of an invention with the consent of
the inventor, for more than two years prior to the
application for a patent renders the patent void.
Manning v. Isinglass Co.,
33. A transfer of the exclusive right to make, sell
and use, in a specified territory, for five years, a pa-
tented product is only a license, which does not
carry such right to any one but the licensee person-
ally, and such right does not, on his death, pass to
his administrator so as to authorize a suit at law,
founded on the license, to be brought in the name
of the grantor, for the use of the administrator, to
recover damages for an infringement of the patent
committed after the death of the licensee, by the
manufacture and sale of the product in said terri-
tory.
862
34. A claim for an article of manufacture, to wit: a
bale of plasterers' hair consisting of several bundles
inclosed in bags, and compressed and secured to
form a package, does not describe a patentable in-
vention.
Oliver v. Rumford Chem. Works,
870
35. In deciding whether a patent covers an article,
this court may take notice of matters of common
knowledge or things in common use.
870
36. The product of an old process applied to old
materials is not patentable.
870
37. The first claim of letters patent No. 147343,
granted 1874, to the double pointed Tack Company,
as assignee of Purches Miles the inventor, for an
"improvement in bail ears" does not in view of
what existed before in the art, set forth any patent-
able invention.
Tack Co. v. Two Rivers Mfg. Co.,
38. The second claim of the patent does not set
forth a patentable combination, but only an aggre-
gation of parts.
39. A patent for "an anti-friction guide which is ad-
justable so as to accommodate different thicknesses
of saw blades, and to compensate for wear in com-
bination with the upper portion of a web saw
blade," which is actuated from below and alternate-
ly pushed and pulled, does not cover the use of an
endless band saw passing over wheels and running
constantly in one direction towards the table on
which the stuff lies, and having a tension over the
peripheries of the wheels.
40. Using a two grooved wheel, adjustable laterally
so that a saw can run in either groove when desired,
does not infringe a patent for a smooth faced wheel
so adjustable as to bring different parts of the sur-
face in contact with the saw as desired, when
wheels laterally adjustable were old, as also was the
device of running a saw in a groove.
41. Claim 1 of letters patent No. 87241, granted
1869, to Riley Burdett, for an improvement in reed
organs, defined and construed.
42. A reed board with two sets of reeds, and a third
partial set, was made and put into an organ by one
Dayton, prior to the invention of Burdett; and,
such organ being put in evidence, it was held that
the alleged infringing organs contained nothing
which, so far as said claim was concerned, was not
found in such prior organ.
1058
43. As to claim 2, it was held, that, in view of the
state of the art, there was no invention in making
the length and size of the valve opening greater or
less in a reed board.
44. The omission to claim sub-combination in the
combinations claimed, the existence of such sub-
combinations being apparent on the face of the pa-
tent, is in law such a dedication of them, if new, to
the public, that a re-issue, to cover such sub-combi-
nations in revocation of such dedication, cannot be
availed of to the prejudice of rights acquired by the
public before the re-issue was applied for.
Clements v. Odorless Apparatus Co.,
PAYMENT.
SEE ACTIONS, 1.
ASSIGNMENT OF CLAIMS, 1.
OFFICERS, 1.
1. One appointed occasional weigher and meas-
urer, with a salary of $2,000 per annum when em-
ployed, who makes out his bills for services, deduct-
ing Sundays, and accepts pay thereon, cannot after-
wards insist on having pay for the Sundays.
2. When a debt due to a deceased person is volun-
tarily paid by the debtor at his own domicil in a
1. A rule of court, that where a defendant insists
on a claim by way of set-off, founded on a written
instrument, he cannot "be put to the proof of the
execution of the instrument, or the handwriting"
refers only to proof of the
of the opposite party, unless an affidavit is filed
"denying the same,
genuineness of a seal or of handwriting, and not to
any matter which goes to show the invalidity oth-
erwise of an instrument; i. e., that it is illegal be-
cause made on Sunday.
4. In a suit on bonds where a statute requires no-
proof of execution, unless the plea is verified, an
affidavit denying that they were issued within a cer-
tain specified time, raises the question of their va
Chickaming v. Carpenter,
lidity if not issued within that time.
5. An order sustaining a defendant's demurrer,
and giving the plaintiff leave to amend, does not
preclude the plaintiff from renewing, or the court
from entertaining, the same question of law at the
Post v. Pearson,
subsequent trial on an amended declaration.
6. It is clearly within the discretion of a court to
Opelika City v. Daniel,
permit an amendment of the complaint before trial.
7. Where a bill alleges that the exemption from
taxation of a railroad passed to and vested in the
complainant below, the truth of the allegation is
not admitted by a demurrer to the bill. A fact im-
possible in law cannot be admitted by a demurrer.
Louisville & Nashville R. R. Co. v. Palmes, 922
8. A demurrer admits all facts well pleaded.
Sullivan v. Iron Silver Mining Co.,
1028
9. Under the Colorado Code of Civil Procedure, as
at common law, facts may be pleaded according to
their legal effect, without setting out the particu-
lars that lead to it; an necessary circumstances
1028
implied by law need not be expressed in the plea.
Idem,
PLEDGE.
|