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 walking 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.
See BAILOR AND BAILEE; COMMON CARRIER; MASTER AND SERVANT; RAIL-
ROAD; RIPARIAN RIGHTS; SPECIAL DEPOSIT; WARRANTY.
A was told in January, 1868, that B's partnership was for one year.
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.
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. lb.
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. Whitcomb, 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 specified 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 and vend the invention
3. The plaintiffs deposited bonds with the defendants for safe keeping, for the benefit of
the plaintiffs and without compensation. The bonds were stolen by the defendants'
teller. Held, that the defendants were not liable except for gross negligence; and that
the fact that the teller had been abstracting the funds of the bank for two years, and
to the amount of $26.000, and had kept false accounts, and was supposed to remain in
his employment after it was known that he had dealt in stock, did not constitute such
negligence as to render the defendants liable. Scott v. National Bank of Chester
Valley, 132.
4. Where negligence is concurrent a child will not be held to the same degree of care
as an adult. Crissy v. Hestonville, &c. R. R. Co. 166.
5. Whether the engineer of a railroad runs his engine at a proper rate of speed, and
keeps a proper lookout, the facts being in dispute, is a question for the jury. P. & R.
R. R. Co. v. Long, 169.
6. A mother who takes reasonable care, under the circumstances, of an infant child, is
not guilty of negligence. Ib.
7. The plaintiff was a passenger on the defendants' railway from A to B; while the
train was passing through B station the company's servant called out the name of the
station, and shortly afterwards the train stopped. The carriage in which the plaintiff
travelled stopped a little way beyond the platform, and several carriages and the
engine, which were in front of that carriage, stopped at some distance from the plat-
form. The plaintiff, who was well acquainted with the station, in alighting from the
carriage was thrown down and injured in consequence of the train being backed into the
station for the purpose of bringing the carriages alongside the platform. A very short
interval elapsed between the time that the train stopped and the time it was backed
into the station. Held, that there was no evidence of negligence on the part of the
company to render them liable to an action. Lewis v. London, &c. R. W. Co. 187.
8. A telegraph company undertakes to receive and transmit by telegraph, and to deliver,
without unnecessary delay, according to directions, the messages offered for trans-
mission. Dorgan v. Tel. Co. 406.
9. Where a message was left at the office of defendant in New York at about twenty
minutes after five o'clock P. M. for transmission to Mobile, Alabama, and was not
delivered at the office of the person addressed until half past ten o'clock the next fore-
noon, and it appeared that under ordinary circumstances it would only require four
minutes to transmit the message, and the plaintiff had paid uninsured day rates for its
transmission, the court instructed the jury that the facts made out a primâ facie case of
negligence. Ib.
10. Those who use the telegraph as a means of communication, unless they insure the
delivery of their messages, take the risk of delay and failure of their messages to reach
their destination arising from the accidents and obstructions to which telegraphic lines
are liable. lb.
11. It is the duty of a telegraph company to transmit messages impartially in good faith
and in the order in which they are received. Therefore, if the company proved that
the delay in the transmission of the message was not owing to the carelessness or neg-
ligence of its agents, but to obstructions in the line which the company could not foresee
or prevent, or that the delay arose from the observance of the rule that messages must
be sent in the order in which they are received, then the primâ facie case of negligence
is overthrown. Ib.
12. Whether it is negligence to fail to deliver a day message received after ten o'clock
P. M. will depend upon the circumstances of the case, and the jury was directed to pass
upon the question of negligence according to the facts as they should find them. Ib.
13. If the damage suffered by the plaintiff from the negligence of the company might
have been avoided by the use of ordinary diligence by the plaintiff, in that case the
plaintiff, cannot recover.
14. The plaintiff can only recover such damages for the failure to transmit and deliver
his message as were within the reasonable contemplation of the parties when the con-
tract for transmission was made. Ib.
15. If the sender of a message, at the time he left it for transmission, informed the tele-
graph company that it was important, and the dispatch itself indicated that it was a
business message, and that serious damage might result if it was not promptly sent,
company would be liable for any damage which might be the result of negligent
delay in sending the message.
16. But if the message was so worded as not to show that damage might fellow delay in
sending it, and the company was only told that it was important and requested to send
it immediately, in such case the telegraph company would only be liable for nominal
damages. Ib.
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 walking 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.
See BAILOR AND BAILEE; COMMON CARRIER; MASTER AND SERVANT; RAIL-
ROAD; RIPARIAN RIGHTS; SPECIAL DEPOSIT; WARRANTY.
A was told in January, 1868, that B's partnership was for one year.
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"
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. Whitcomb, 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 specified 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 and vend the invention
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. Ib.
PHOTOGRAPHY.
See EVIDENCE, 6.
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. Bartemeyer 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
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
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 prescribed 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. lb.
See CRIMINAL LAW, 1, 3, 12; EVIDENCE, 2; JUDGMENT, 1; MANDAMUS ; PATENT,
6; PRINCIPAL AND AGENT, 1, 2, 3, 4; REMOVAL OF CAUSES.
L. executed a power of attorney to H., authorizing him to collect his said judgments
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-
Lee v. Rogers, 218.
PRESUMPTIONS.
See JURISDICTION, 5.
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 principal 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 such 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. Ib.
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.
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
|