Cited and principle applied in The Baltimore, 8 Wall. 386, 19 L 465, holding award of full value of vessel and cargo lost, erroneous, where vessel could probably have been raised; The Cambridge, 2 Low. 26, F. C. 2,334, allowing only damages as for a partial loss where vessel could have been repaired; The Monitor, 3 Biss. 27, F. C. 9,711, where damage measured by cost of repairs and demurrage; The Quaker City, 19 Fed. 143, allowing actual repairs made necessary to old, weak boat, struck while moored, by tug maneuvering in slip; The Howard, 30 Fed. 282, and O'Neil v. The I. M. North, 87 Fed. 271, allowing collided vessel repairs corresponding to her previous condition; The Moonlight, 50 Fed. 480, allowing actual damage to old boat. Cited also in Cannon v. The Potomac, 3 Woods, 166, F. C. 2,386, where demurrage allowed while vessel laid up for repairs; The Utopia, 16 Fed. 509, holding market value when destroyed the measure of damages; Pettie v. Boston TowBoat Co., 44 Fed. 383, holding rotten condition of sunken boat could atiect amount of, but not liability for damages. Cited, arguendo, in The H. F. Dimock, 77 Fed. 234, 235, 83 U. S. App. 647, holding measure of damages for pleasure yacht sunk in collision, the actual cost of replacing it.

8 Wall. 315-320, 18 L. 76, THE SUFFOLK COMPANY v. HAYDEN. Patents.— A description of an improvement for which patent had already been applied, contained in a second application for a patent by same person in the same field of art, does not constitute abandonment of such first application, p. 318.

Cited and principle applied in Thomson-Houston Electric Co. v. Winchester, etc., Ry., 71 Fed. 206, reviewing cases, and S. C., 71 Fed. 404, 38 U. 8. App. 55, reversing S. C., supra, holding subsequent application for and prior issuance of subsidiary patent did not affect validity of subsequently-issued broader patent first applied for; Independent Electric Co. v. Jeffrey Mfg. Co., 76 Fed. 989, reviewing cases, holding description of improvement without claim in application for patent, not an abandonment, where followed before patent issued, by another application claiming it; Thomson-Houston Electric Co. v. Ohio Brass Co., 80 Fed. 724, 725, 726, 54 U. S. App. 26, 27, 28, reviewing cases, where prior patent for improvement described earlier invention for which patent had first been applied for but granted later.

Patents.-There is no objection to patentee applying anew for patent on improvement previously applied for and not acted on, after patent issued for further Improvement in same art on application wherein first improvement was incidentally described, p. 319.

Cited in Jones v. Sewall, 3 Cliff. 591, F. C. 7,495, questioning necessity for second application for same patent, when first improperly rejected; Butler v. Shaw, 21 Fed. 327, where patentee

simultaneously prosecuted appeal from rejection of application and filed new application for portion of first. Cited, arguendo, in Simonds, etc., Co. v. Hathorn Mfg. Co., 90 Fed. 210.

Patents. Of two patents to same person for same invention the one last granted is void though first applied for, p. 319.

Cited and followed in Miller v. Eagle Mfg. Co., 151 U. 8. 197, 38 L. 127, 14 S. Ct. 314, reviewing cases, holding second of two patents for same invention void; Jones v. Sewall, 3 Cliff. 575, F. C. 7,495, holding void subsequent patents for same invention issued to inventor's grantee; Mathews v. Flower, 25 Fed. 830, holding patent could not be issued for anything included in former patent issued to applicant; Palmer P. Fire Co. v. Lozier, 90 Fed. 745, 62 U. S. App. 681, holding same as cited cases. Cited also in The Barbed-Wire Patent, 143 U. S. 280, 36 L. 157, 12 S. Ct. 445, and McMillan v. Reese, 1 Fed. 727, both holding, arguendo, the second of two patents issued same applicant for same invention, void.

Distinguished as to facts in Eagle Mfg. Co. v. Bradley, 35 Fed. 297, reversed in Miller v. Eagle Mfg. Co., 151 U. S. 186, 38 L. 121, 14 S. Ct. 310, holding patents not identical; American, etc., Telephone Co. v. United States, 68 Fed. 565, 33 U. S. App. 236, where the two patents not issued to same person.

Patents.- Improvement in interior arrangements of elongated trunk used for cleaning cotton, held distinct from improvement in shape of the trunk, and so capable of being separately patented, p. 319.

Cited in Palmer v. John E. Brown Mfg. Co., 92 Fed. 929, holding a "mechanical movement" distinct from its application to a particular art, and each susceptible of being separately patented.

Patents. In absence of established patent or license fee, general evidence of value of use of improvement is admissible as basis for estimating damages for infringement; damages must be estimated therefrom for period of infringement only, p. 320.

Cited and principle applied in Judson v. Bradford, 14 Fed. Cas. 10, holding general evidence admissible on question of damages where only one license proved; Wooster v. Thornton, 26 Fed. 276, where damages determined from other evidence than license fee. Followed in Brickill v. Mayor, 60 Fed. 102, 8 U. S. App. 503, reviewing cases, and Cassidy v. Hunt, 75 Fed. 1014, collecting cases, holding jury should consider utility and advantage to defendant in using patented machine, in estimating damages; Campbell v. Mayor, 81 Fed. 187, holding evidence of the saving to the infringer by using the patented device, admissible on question of damages. Cited also in Packet Co. v. Sickles, 19 Wall. 617, 22 L. 204, holding measure

of damages was the established rate for license to use the invention; Birdsall v. Coolidge, 93 U. S. 70, 23 L. 805, holding where established royalty plainly exceeded actual damage resulting from limited infringement, latter was true measure of damages. Cited. arguendo, in Root v. Railway Co., 105 U. S. 198, 26 L. 978, reviewing cases, exhaustively discussing rules for measure of damages in infringement cases; Tilghman v. Proctor, 125 U. S. 144, 31 L. 666. 8 S. Ct. 898, collecting cases, upon measure of damages in action at law for infringement. See also brief note to 5 Biss. 353, F. C. 14, 272.

Explained in Everest v. Buffalo, etc., Oil Co., 31 Fed. 746, allowing nominal damages for infringement. Referred to as overruled in Boston v. Allen, 91 Fed. 251, 252, 50 U. S. App. 457, 458, reviewing cases, allowing only nominal damages.

Patents. Where inventor made two applications for patent on same invention, and patent was issued first on second application, and subsequently on first application, the second patent, and not the first, was void, p. 319.

Cited and followed in Miller v. Eagle Mfg. Co., 151 U. S. 197, 38 L. 127, 14 S. Ct. 314, reviewing cases, holding second of two patents for same invention issued to same person, void; Jones v. Sewall, 3 Cilff. 575, F. C. 7,495, holding void subsequent patents for same invention, issued to grantee of first.

Patents.- Recovery for infringement of patent does not vest infringer with right to continue use of patent, p. 320.

Cited and principle applied in Birdsell v. Shaliol, 112 U. S. 487, 28 L. 769, 5 S. Ct. 245, holding decree against and payment of nominal damages by infringer, did not entitle his vendee to use the patented machine; Allington, etc., Mfg. Co. v. Booth, 78 Fed. 880, 45 U. S. App. 627, holding patentee entitled to injunction against infringer by user, vendee of infringing manufacturers.

Distinguished in Perrigo v. Spaulding, 13 Blatchf. 391, F. C. 10,994, holding recovery from and payment by infringing manufacturer, of damages and profits, entitled his vendee to use machine; Stutz v. Armstrong, 25 Fed. 148, holding where full license fee recovered, infringer entitled to use machine.

Patents. Where inventor made two applications for patent on same invention, and patent was first issued on second application. the second patent, and not the first, was void, p. 319.

8 Wall. 320-326, 18 L. 72, CHANG KEE v. UNITED STATES. Appeal and error.- Motion for judgment on pleadings and subsequent motion to vacate such judgment, were within lower court's discretion, not reviewable in Supreme Court, p. 326.

ANN

Cited and followed in Basset v. United States, 9 Wall. 41, 19 L. 549, holding court had power, for proper cause, at same term, to set aside judgment of conviction on confession; principle applied in case of Lange, 13 Blatchf. 565, F. C. 8,065, (App.), holding inferior Federal judge not liable personally for modifying judgment at same term in criminal case; Lee v. The State, 32 Ohio St. 115, collecting eases, where court refused to interfere with amendment of judgment made at same term. Cited also in Edwards v. Elliott, 21 Wall. 552, 22 L. 490, holding the original judgment before Supreme Court for review and not an amended one substituted therefor long after writ of error filed; note to Gay v. Joplin, 4 McCrary, 465, containing raluable discussion of court's power over its own judgments; Carr v. Dawes, 46 Mo. App. 602, dissenting opinion, court holding appellate court could review discretionary action of trial courts in setting aside Judgments.

Trial.- Under California statute, providing that new matter in answer should be taken as controverted, evidence was properly admitted to contradict such new matter so set up, p. 326.

Judgment.— Court has power to amend its judgment for duties on imports, during same term, so as to make it payable in silver coin, as well as in gold, p. 326.

Judgment "payable in gold and silver coin for duties," is valid where it appeared that the judgment was for duties on imports, and gold and silver were the only authorized legal tender therefor, p. 326.

Cited and principle applied in Bronson v. Rodes, 7 Wall. 255, 19 L. 148, and Trebilcock v. Wilson, 12 Wall. 697, 697, 20 L. 462, holding plaintiff entitled to specific judgment, following terms of contract payable in coin; Bowen v. Darby, 14 Fla. 218, holding amount for which judgment entered on note payable in gold coin, should be estimated and made payable therein specifically; Sears v. Dewing, 14 Allen, 423, and Chyrsler v. Renois, 43 N. Y. 215, enforcing specific contract for payment in gold. Cited also in The Vaughan and Telegraph, 14 Wall. 270, 20 L. 809, dissenting opinion, majority affirming decree payable in legal tender notes, according to value at date when liability accrued; arguendo, in Stockwell v. United States, 3 Cliff. 291, F. C. 13,466, holding fact of duties being payable in gold, did not prevent joinder of certain counts; Greentree v. Rosenstock, 61 N. Y. 591, to point that judgment should follow specific contract for coin. See full discussion in note to 87 Am. Dec. 127. Distinguished in Baker v. Ward, 3 Ben. 504, 505, F. C. 785, hold. ing plaintiff not entitled to judgment payable in gold, notwith. standing specific contract.

Miscellaneous.- Erroneously cited in State v. Blaser, 36 La. Ann. 367, on question of police power.

3 Wall. 327-332, 18 L. 177, THOMSON v. LEE COUNTY.

Municipal corporations have no inherent right of legislation, and cannot subscribe for stock in public improvement unless authorized by legislature, p. 330.

Cited and principle applied in Ottawa v. Carey, 108 U. 8. 123, 27 L. 675, 2 S. Ct. 365, collecting cases, holding bonds issued in aid of water company, without authority, vold; Smith v. Tallapoosa County, 2 Woods, 577, F. C. 13,113, holding legislative authority necessary; Lewis v. Shreveport, 3 Woods, 212, F. C. 8,331, holding bonds void where no authority for their issue conferred by legislature; Newport v. Railway, 58 Ark. 275, 24 S. W. 428, holding town could not contract for nor bind itself to pay for, construction of levee; Wiegel v. Pulaski County, 61 Ark. 79, 32 S. W. 117, holding County Court could not bind county by contract for building turnpike; Lafayette, etc., R. R. v. Geiger, 34 Ind. 219, holding county could not borrow money to pay subscription for railroad stock; Sioux, etc., R. R. v. Washington County, 3 Neb. 42, holding board of equalization could meet and reassess taxes only in the manner and times provided by law; State v. Eason, 114 N. C. 792, 41 Am. St. Rep. 813, 19 S. E. 89, 23 L. R. A. 524, and n., construing strictly provisions of municipality's charter, defining limits of jurisdiction; Logan City v. Buck, 3 Utah, 305, 2 Pac. 708, strictly construing act authorizing regulation of liquor traffic by municipality; Kirkham v. Russell, 76 Va. 961, on construction of powers conferred by city charter; Martin v. Whitman County, 1 Wash. 536, 20 Pac. 600, strictly construing powers of county commissioners. Cited also in Thomas v. Richmond, 12 Wall. 353, 20 L. 456, denying validity of bills issued as currency by city in absence of legislative authority therefor; Pratt v. Litchfield, 62 Conn. 118, 25 Atl. 463, holding bylaw, establishing fire-limits within municipality, void; Seeger v. Mueller, 133 Ill. 94, 24 N. E. 514, holding school trustees, when constituted a quasi-municipal corporation, could exercise only express or fairly implied powers; State v. Greene County, 54 Mo. 568, dissenting opinion, majority sustaining validity of bond issue; Bloom v. Xenia, 32 Ohio St. 465, requiring strict observance of law by town council in passing ordinance; Muscoe v. Commonwealth, 86 Va. 446, 10 S. E. 535, holding city could not by ordinance confer greater powers of arrest on police than constables possessed.

Municipal corporations.- State legislature, unless restrained by Constitution, may authorize municipal corporations, either with or without sanction of popular vote, to take stock in work of internal Improvement, and issue bonds to pay therefor, p. 330.

Cited and principle applied in Mitchell v. Burlington, 4 Wall. 274, 18 L. 352, sustaining validity of bond issue in aid of plankroad, made under charter provision authorizing city to borrow money: Thompson v. Perrine, 103 U. 8. 812, 26 L. 615, holding State legis