Page images

17. If negligence occurred in the delivery of the message after it had reached its office of

destination and the message did not indicate its own importance, then the sender would
only be entitled to nominal damages, no matter what might have been said at the other

end of the line touching the importance of the message. Ib.
18. A telegraph company cannot contract for immunity from liability for the non-delivery

of a message after it has reached its office of destination. Such a contract is against
public policy and void. Ib.
19. The owner of a building with a roof so constructed that snow and ice collecting on it

from natural causes will naturally and probably fall into the adjoining highway, is not
liable to a person injured by such a fall upon him, while travelling upon the highway
with due care, if the entire building is at the time let to a tenant, who has covenanted
with the owner “to make all needful and proper repairs both internal and external,”
it not appearing that the tenant might not have cleared the roof of snow by the exercise
of due care, or that he could not by proper precaution have prevented the accident.

Lockwood v. Storer, 414.
20. In an action against a railroad company to recover damages alleged to have been sus-

tained by the plaintiff through the carelessness and negligence of defendant's servants
and agents in running a train of cars upon their track, it appeared that while, in the
night-time, the plaintiff was walkiny on the track in a village, at a place where the
same was so used, without objection, by all classes of persons, he was overtaken and
struck by an engine without any head-light, running at a high rate of speed, there
being no bell rung or whistle sounded to indicate the approach of the train, and the
plaintiff hearing or seeing nothing of it until he was struck. Held, that the negligence
of the plaintiff in walking on the track, if it was negligence, was but slight when com-
pared with the gross and criminal negligence of the defendant in so running a “ dark
train” at a high rate of speed through the village without signalling its approach.

Ind. & St. L. R. R. Co. v. Galbreath, 473.

A was told in January, 1868, that B's partnership was for one year. Held, that A

in January, 1869, had such notice of its dissolution as put him on inquiry, Schlater
v. Winpenny, 198.

1. In determining what constitutes a nuisance it is proper that all the circumstances of

the case be considered. Weir v. Kirk, 37.
2. The erection of a powder magazine near a public highway, in a growing neighborhood,
enjoined, although not in or near a thickly settled neighborhood. Ib.


1. A combination cannot be the subject of a patent unless it produces a new result.

Hailes v. Van Wormer, 75.
2. The mere grouping of devices which produces no new result is not a patentable com-

bination. There must be a joint action of the constitutent parts ; not merely an ag.
gregation of the single effects of each separate part. Substantially as described

construed. Ib.
3. A combination of three distinct parts is not infringed by the making and sale of two

of the parts to be used without the third. Cooledge v. McCone, 214.
4. When the invention claimed and patented is a combination of three distinct parts, it

is no infringement to make and use two of the parts, even though the third is useless. Ib.
5. Notwithstanding that an action at law will lie for the infringement of a patent, pro-

ceedings in equity may usually be maintained where more practical and efficient to the

ends of justice. Hill v. Whicomb, 382.
6. A suit for infringement of a patent cannot be maintained by a party who owns the

exclusive right to use the invention within a specitied territory, but not the exclusive

right to manufacture it therein. Such a party is merely a licensee. Ib.
7. Where it appeared that defendants had entered into a contract with complainants

whereby complainants acquired the exclusive right to use anıl vend the invention
affirmative matters in bar of the application, a motion, made by the petitioner, that the
writ issue, notwithstanding the matters set up in the answer, is, in effect, a general
demurrer to the answer ; and if the matters as pleaded in the answer be sufficient in

within a particular territory, the enjoyment of which exclusive right defendants guar-
anteed, and after the execution of the contract, defendants assigned to a third party
the unrestricted right to use and vend the invention without excepting the territory
assigned to complainants, upon a bill for injunction and account it was held, that the
complainants were only licensees, and could

not, therefore, maintain a suit for infringe-
ment ; and that as there was no question arising under the statutes relating to patents

and both parties were residents of the same state, the court was without jurisdiction. Ib.
8. Where a plaintiff has obtained a decree for an account for infringement of a patent,

and institutes proceedings against parties residing in other districts who have pur-
chased the infringing articles from the defendant, while the court which has decreed
the accounting cannot interfere in any manner to prevent the prosecution of the for-
eign suits, it may stay the accounting it has ordered, on the ground of inequitable con-
duct, unless the plaintiff elect to abandon the other suits. Rumford Chemical Works

v. Hecker, 519.
9. But an application in the premises, to be entertained at all, should certainly be made

before the plaintiff has concluded his proofs for hearing on the merits. 16.


1. The purchaser of goods which remain in the possession of the vendor subject to the

vendor's lien for unpaid purchase money cannot maintain an action of trover against a

wrong-doer. Lord v. Price, 193.
2. The supreme court of the United States will not consider an important issue which is

not raised by the pleading ; nor will it give an opinion in a moot case. Especially
will it decline to express an opinion under the above circumstances where the question

has not been passed upon by the court below. Barlemeyer v. The State, 200.
3. On bill in chancery by a citizen and voter of the county, who was also a tax payer,

filed in behalf of himself and all others of the county interested in the question,
against the board of supervisors, to impeach the election returns and purge the poll.
books of illegal votes cast at an election to determine whether the county seat should
be removed, it was objected on appeal that the suit could not be maintained by a pri-
vate citizen, but should have been brought by the attorney general or state's attorney
on behalf of the public. Held, that from the long practice in this State (Illinois) allow-
ing such suits to be brought by individuals, this court could not reverse the rule, espe-
cially as no such objection was made in the court below. Supervisors of Knox Co.v.

Davis, 461.
4. Where, upon petition for the writ of mandamus, an answer is filed setting up certain
L. executed a power of attorney to H., authorizing him to collect his said judgments

law to bar or preclude the petitioner, the writ must be denied. Ward v. Flood, 204.
5. In the United States courts the statute of Gloucester governs the question of costs in

actions at law unless a different rule has been prescribéd by statute. Ethridge v.

Jackson, 271.
6. Section 20 of the act of 1853 (20 Stat. at Large, 161) specifies what items of cost may

be taxed in favor of the prevailing party in cases where by a state law such party is
entitled to recover costs, but, impliedly, denies costs to the losing party in any case ;
and, therefore, a state law which gives costs of course to the defendant when the plain-

tiff is not entitled to them, does not apply to actions in the courts of the United States. Ib.
7. A writ of error does not operate as a supersedeas until the filing of the bond. But

under the act of 1872 the bond may be filed and a supersedeas obtained any time
within sixty days after judgment. Such supersedeas will have the effect of prevent-
ing further proceedings under an execution, but will not affect whatever may have been

done prior to its being issued. Comm’rs of Boise Co. v. Gorman, 349.
8. Since the act of 1861, of Illinois, in a suit to recover rent under a lease executed by a

married woman on her own separate property, it is error to join her husband as plain-

tiff in the action. Hayner v. Smith, 508.
9. Classification of suits in rem and discussion thereof. Galpin v. Page, 534.
10. Concerning service of process upon infants of tender years. Ib.


against C., by sales under execution, &c., to receive the money thereon, " arbitrate or
compound” the same, and for that purpose to employ counsel. After the aforesaid
sales, F. brought an action against L. to annul the said sales and conveyances to L., as
clouds on his, F.'s title. H. consulted counsel, who advised him that the said sales
under W.'s judgment after payment were void, and L.'s title invalid. Held, that as
incident to the powers expressly given to collect said judgment, arbitrate and com-
pound the same, in connection with subsequent instructions from L., by letter, H. had
power to authorize counsel to appear in said action and consent to a judgment annul-
ling said sales upon terms that enabled him to realize the amount due to L. on his judg-
ment. Lee v. Rogers, 218.



1. In order to constitute a valid defence within the rule in George v. Clagett, 7 T. R. 359,

the plea should show that the contract was made by a person whom the plaintiff had
intrusted with the possession of the goods; that that person sold them as his own goods
in his own name as principal, with the authority of the plaintiff ; that the defendant
dealt with him as, and believed him to be, the prineipal in the transaction ; and that
before the defendant was undeceived in that respect the set-off accrued. Borries v.

Imperial Ottoman Bank, 181.
2. It is not necessary in su a plea, to negative “ means of knowledge,” that the seller

was dealing as an agent. Ib.
3. To a count for goods sold and delivered, the defendants pleaded that the goods were

sold and delivered to them by S., then being the agent of the plaintiffs, and intrusted
by them with the possession of the goods as apparent owner thereof ; that S. sold the
goods in his own name and as his own goods, with the consent of the plaintiff ; that,
at the time of the sale, the defendants believed S. to be the owner of the goods, and
did not know that the plaintiffs were the owners of or interested therein, or that S. was
agent; and that, before the defendants knew that the plaintiffs were the owners of the
goods, or that S. was agent in the sale thereof, S. became indebted to the defendants,

&c., claiming a set-off. 16.
4. Replication, that, before the sale by S., the defendants had the means of knowing

that he was merely apparent owner of the goods, and that the same were intrusted to
him as agent, and that S. was agent, and as such sold the goods to the defendants.

Held, that the plea was good, and the replication no answer to it. Ib.
5. By the by-laws of a railroad company, its treasurer was made the custodian of the

ledger and other books relating exclusively to the ownership and transfer of the capital
stock of the company ; he was required to prepare and countersign all certificates of
ownership of stock and scrip that might be issued, and to receive and enter upon the
proper books all transfers thereof. It was made his duty, also, to affix the seal of the
company to all certificates of ownership of stock and scrip properly issued by the com-
pany, and signed by the president. Such treasurer, wishing to obtain money for his
own use, fraudulently issued from the office of the company sundry certificates of stock,
signed by himself, sealed with the corporate seal of the company, and having also the
signature of the president, and purporting to be genuine in every respect. Upon the
stock so issued, the treasurer, through the agency of a broker, borrowed large sums of
money, the lender not knowing for whom the money was wanted, and advancing the
same solely upon the faith of the certificates, which he believed to be genuine. Two
of the certificates were issued directly to the lender, and the third was issued to the
broker and by him assigned to the lender. Some months afterward it was discovered
that there had been a fraudulent issue of stock to a large amount by the treasurer, who
soon after the discovery absconded. The company thereupon gave notice requesting
the stockholders of its genuine stock to present their certificates and receive in ex-
change new certificates. Upon presentation of the above certificates by the holder
thereof, in pursuance of this notice, he was informed that they were spurious, and the
treasurer of the company refused to exchange them for new certificates. On suit
brought against the company, by the holder of these certificates, for its refusal to ex-
change them for new certificates, it was held, that the defendants were liable for the
fraudulent acts of its agents ; and the jury, in assessing the damages to which the
persons would apply for transportation on that morning; and that, on the
arrival of the train at M., and as soon as the same could be done with safety to the
travelling public, they sent back the train to S. to bring the plaintiff, and all other
persons desiring transportation, to M. Held, that the railroad company were not lia-
ble, if they had done all that due care and skill could do to transport the plaintiff punc-
tually; and that the proposed evidence was admissible, as tending to show that the

plaintiff was entitled, might allow him the amount of the money advanced on the stock
with interest, or the amount of the market value of the stock at the date of the loan
with interest (if they deemed it proper to allow interest), the amount allowed, however,
not to exceed the amount of the money loaned with interest, if the value of the stock
should be greater than the loan and interest. Tome v. Parkersburg Branch R. R. Co.


1. Held, that the sureties upon the bond of a cashier of a national bank were not liable

to the directors of the bank for losses caused by the defalcation of the cashier, where
the sureties were misled as to the condition and management of the bank by the pub-
lication of reports required by the national currency act, and the bond was entered into
subsequent to and the defalcation occurred before the publication of the reports.

Graves v. Lebanon National Bank, 59.
2. It seems that the publication of the reports after the sureties had entered upon the

bond did not estop the directors to allege the existence of facts that could be estab-
lished only by proving the falsity of the reports. Ib.




Where a “sale” at auction is announced to be a positive" it is an act of fraud on the

part of the vendor, or his agent, to employ by-bidders to keep up the price for his own
benefit. Walsh v. Barton, 341.

1. The publication of a time-table, in common form, imposes upon a railroad company

the obligation to use due care and skill to have the trains arrive and depart at the pre-
cise moments indicated in the table; but it does not import an absolute and uncondi-
tional engagement for such arrival and departure, and does not make the company
liable for want of punctuality which is not attributable to their negligence. Gordon v.

Manchester & Laurence R. R. 8.
2. G. purchased of the M. & L. R. R. a season ticket from S., an intermediate station to

M. The railroad company published a time-table, in common form, upon which a
train was advertised as leaving L. at 8.27 A. M., leaving S. at 8.45, and arriving at M.
at 9.35 A. M. G. was at s. depot in season to take this train, but the train ran by S.
without stopping. In an action of assumpsit, brought by G. against the railroad
company to recover damages for their failure to transport him seasonably to M., the
railroad company offered to prove that the road was suitably equipped for transporting
the usual travel, and for accommodating the excess ordinarily to be anticipated from
extraordinary occasions; that, on the morning in question, an extraordinary, unusual,
and unexpected number of persons appeared at L. to take passage, and there, and at
other stations before reaching S., so completely filled and overloaded the cars that it
would have been dangerous to have admitted more passengers on the train; that at S.
there were, besides the plaintiff, a large number of persons waiting for transportation,
whom it would have been impossible to have taken into the already overloaded cars;
that the railroad company could not have discriminated as to whom they would take or
decline to take, even if they had had the means to transport any of them; that the train
consisted of eighteen passenger cars and one baggage car, and that, if the train had
stopped at that station, being on an up grade, it would have been impossible to have
started it ; that the railroad company had no reason to expect that such an unusual
number of

failure to transport the plaintiff was not attributable to negligence on the part of the

railroad company. Ib,
3. Discussion of the mode of assessing railroads, and especially of the manner prescribed

by the statutes of California. Huntington v. Cent. Pac. R. R. Co. 94.
4. The power to purchase land, conferred upon a railroad company by section 14 of the

Ohio statute of February 11, 1848 (S. & C. 273, note), is not limited to the acquisition
of such lands as may be necessary for operating or maintaining its road. Walsh v.

Barton, 341.
5. If, in making a purchase of real estate, the company abuse the power conferred upon

it by said section, still, after resale and conveyance, the title becomes indefeasible in

the hands of its vendee. 16.
6. A mortgage executed by a railroad company on “the road ” of the company,

“whether made or to be made, acquired or to be acquired, and all property, real or
personal,” of the company, “ whether now owned or hereafter to be acquired, used, or
appropriated for the operating or maintaining the said road,” is not a lien upon

estate of the company, then owned or afterward acquired, which has not been used or
appropriated for operating or maintaining the road. "Ib.
VANT; NEGLIGENCE, 1, 2, 4, 5, 6, 7, 20; PRINCIPAL AND AGENT, 5.

The fact that a debtor was a resident of a state in rebellion, and prevented by act of

Congress and the war from paying a debt due to a creditor in a loyal state, is no
ground for setting aside a sale made by virtue of a power in a trust deed given to
secure the payment of such debt. Washington University v. Finch, 152.

See WAR.


What constitutes record” of a court of general jurisdiction. Galpin v. Page, 534.

1. Original cognizance of all suits of a civil nature, at common law or in equity, is vested

in the circuit courts by the eleventh section of the judiciary act, concurrent with the
courts of the several states, subject to certain limitations, conditions, and restrictions.

Grover 8. Baker Sewing-machine Co. v. Florence Sewing-machine Co. 389.
2. Those conditions, applicable to the present case, are, that the matter in dispute shall

exceed, exclusive of costs, the sum or value of five hundred dollars, and that an alien
is a party, or that the suit is between a citizen of the state where the suit is brought

and a citizen of another state. 1b.
3. Where the matter in dispute does not exceed, exclusive of costs, the sum or value of

five hundred dollars, the circuit courts have no jurisdiction, except in revenue and
patent cases; and the restrictions applicable to all cases is, that no civil suit shall be
brought before any circuit court against any inhabitant of the United States by any
original process in any other district than that whereof he is an inhabitant, or in which

he shall be found at the time of serving the writ. Ib.
4. Suits, whether at law or in equity, when commenced in a state court against an alien,

or by a citizen of the state in which the suit is brought against a citizen of another
state, may, under the twelfth section of the same act, be removed by the defendant for
trial into the next circuit for the same district, provided the defendant file a petition
requesting such removal at the time of entering his appearance in the state court, and

comply with all the other conditions specified in the section. 16.
5. By the true construction of that section it is required, in order that the right to effect

the removal may arise, that each distinct interest should be represented by persons, all
of whom are entitled to sue, or such as may be sued in the federal courts ; the estab-
lished rule being, that where the interest is joint each of the persons concerned in that
interest must be competent to sue or be liable to be sued in the court to which the suit

is removed. Ib.
6. Circuit courts do not derive their judicial powers immediately from the Constitution;

consequently the jurisdiction of such courts in every case must depend upon some act
of Congress, as the Constitution provides that the judicial powers of the United States
shall be vested in one supreme court and in such inferior courts as the Congress may
from time to time ordain and establish. Ib.

« PreviousContinue »