the municipality was without power to tax to pay them, the principle
of res judicata does not apply upon the question of issuing the writ. lb.
3. When application is made to collect judgments by process not contained
in themselves, and requiring, in order to be sustained, reference to the
alleged cause of action on which they are founded, the aid of the court
should not be granted when upon the face of the record it appears, not
that mere error supervened in the rendition of such judgments, but
that they rest upon no cause of action whatever. Ib.
MARITIME LAW.
See FOREIGN LAW, 1.
1. It is not within the general province of a master in chancery to pass
upon all the issues in a cause in equity; nor is it competent for the
court to refer the entire decision of a case to him without consent of
the parties. Kimberly v. Arms, 512.
2. When the parties consent to the reference of a case to a master or other
officer to hear and decide all the issues therein, both of fact and of law,
and such reference is entered as a rule of court, it is a subinission of
the controversy to a special tribunal, selected by the parties, to be
governed in its conduct by the ordinary rules applicable to the admin-
istration of justice in tribunals established by law; and its determina-
tions are not subject to be set aside and disregarded at the discretion
of the court.
3. In practice it is not usual for the court to reject the report of a master,
with his findings upon the matters referred to him, unless exceptions
are taken to them, and brought to its atter.tion, and unless, upon ex-
amination, the findings are found unsupported or essentially defective.
lb.
1. A deed of lands, absolute in form, with general warranty of title, and
an agreement by the vendee to reconvey the property to the vendor,
or to a third person, upon his payment of a fixed sum within a speci-
fied time, do not of themselves constitute a mortgage; nor will they
be held to operate as a mortgage unless it is clearly shown, either by
parol evidence or by the attendant circumstances, such as the condi-
tion and relation of the parties, or gross inadequacy of price, to have
been intended by the parties as a security for a loan or an existing
debt. Wallace v. Johnstone, 58.
2. The fact of a collateral agreement by the grantee in a deed of real
estate to reconvey to the grantor on the payment of a sum of money
Ib.
at a future day is not inconsistent with the idea of a sale.
3. Whether the transaction in dispute was a sale or a mortgage is a ques-
tion of fact, to be determined from the proof, and here the proof shows
it to have been a sale.
See EQUITY, 1, 2;
JURISDICTION, A. 9.
It is not proper, on a motion to dismiss an appeal from a decree, to decide
whether a prior decree was a final decree, or what orders and decrees
made by the court below in the cause prior to the making of the de-
cree appealed from can be reviewed here on the appeal. Hill v.
Chicago & Evanston Railroad Co., 170.
MOTION TO DISMISS OR AFFIRM.
The objection that third opposition cannot be availed of by a defendant
in execution in regard to property situated as is the property in con-
tention cannot be disposed of on a motion to dismiss or affirm. New
Orleans v. Louisiana Construction Co., 45.
MUNICIPAL BONDS.
See CONSTITUTIONAL LAW, B. 2;
MANDAMUS.
MUNICIPAL CORPORATION.
See CONSTITUTIONAL LAW, B. 2;
MANDAMUS.
1. From the facts of this case, it was held, that the intent of a national
bank, after it was insolvent, to prefer a creditor, by a transfer of assets,
in violation of § 5242 of the Revised Statutes, was a necessary con-
clusion; that, if any other verdict than one for the plaintiff, in a suit
at law by the receiver of the bank to recover the value of the assets
from the creditor, had been rendered by the jury, it would have been
the duty of the court to set it aside; and that it was proper to direct
a verdict for the plaintiff. National Security Bank v. Butler, 223.
2. The meaning of § 5242 is not different from the meaning of § 52 of the
act of June 3, 1864, c. 106, 13 Stat. 115. Ib.
3. It is sufficient, under § 5242, to invalidate such a transfer, that it is
made in contemplation of insolvency, and either with a view on the
part of the bank to prevent the application of its assets in the manner
prescribed by chapter 4 of title 62 of the Revised Statutes, or with a
view on its part to the preference of one creditor to another; and it
is not necessary to such invalidity that there should be such view on
the part of the creditor in receiving the transfer, or any knowledge or
suspicion on his part at the time, that the debtor is insolvent or con-
templates insolvency. Ib.
1. The law exacts good faith and fair dealing between partners, to the
exclusion of all arrangements which can possibly affect injuriously the
profits of the concern. Kimberly v. Arms, 512.
2. If one partner is the active agent of the firm, and as such receives a
salary beyond what comes to him from his interest as partner, he is
clothed with a double trust in his relations with the other partner
which imposes upon him the utmost good faith in his dealings; and
if he obtains anything to his own benefit in disregard of that trust, a
court of equity will subject it to the benefit of the partnership. Ib.
1. Claims 1 and 2 of letters patent No. 74,342, granted to Alvaro B. Gra-
ham, February 11, 1868, for an improvement in harvesters, namely,
"1. The combination, as set forth, in a harvester, of the finger-beam
with the gearing-carriage, by means of the vibratable link, the draft-
rod, and the two swivel-joints, M and M', so that the finger-beam may
both rise and fall at either e. 1. and rock forward and backward. 2.
The combination, as set forth, in a harvester, of the finger-beam,
gearing-carriage, vibratable link, draft-rod, swivel-joints, and arm, by
which the rocking of the finger-beam is controlled," are not infringed
by a machine constructed under letters patent No. 193,770, granted
July 31, 1877, to Leander J. McCormick, William R. Baker and Lam-
bert Erpelding, assignors to C. H. & L. J. McCormick. McCormick
v. Graham, 1.
2. It is apparent from the proceedings in the Patent Office on the applica-
tion for Graham's patent, and from the terms of his specification and
of claims 1 and 2 as granted, that the intention was to limit the modi-
fication which Graham made, to the particular location of the swivel-
joint, M', on which the crosswise rocking movement takes place, and
to the rigid arm by which the positive rocking of the finger-beam in
both directions is affected and controlled. Ib.
8. In the defendants' machine there is no such rocking of the finger-beam
as in Graham's patent, but only a swinging movement as in prior
patents, on a pivot in the rear of the finger-beam; and there is no
arm which can depress the finger-beam, but only a loose connection
to it, the same as existed before; and there is no swivel-joint, M',
located and operating as in the Graham patent; and it does not in-
fringe claim 1 or claim 2. Ib.
4. Claim 3 of letters patent No. 223,338, granted to John M. Gorham,
January 6th, 1880, for an improvement in wash-board frames, namely,
"3. In combination with a wash-board, a protector located below the
crown-piece and between the side-pieces of the wash-board frame, and
constructed to fold down into or upon said wash-board even with or
below the general plane of said wash-board frame, substantially as
and for the purpose shown," cannot, in view of the state of the art, and
of the course of proceeding in the Patent Office on the application for
the patent, be so construed as to cover a protector which does not have
the yielding, elastic or resilient function described in the specification.
Sargent v. Burgess, 19.
5. The defendant's protector, constructed in accordance with letters patent
No. 255,555, granted to Charles H. Williams, March 28th, 1882, and
having no yielding or resilient function, and not being pivoted, or
folding down, after the manner of the Gorham protector, does not
infringe claim 3. 1b.
6. The improvement in percolators, for which letters patent were granted
April 1882, to Nathan Rosenwasser, was anticipated by an apparatus
described in Geiger's Handbuch der Pharmacie, published at Stuttgart
in 1830. Rosenwasser v. Spieth, 47.
7. On the proofs the court holds that there nas been no infringement of
the appellant's patent by the appellees. Anderson v. Miller, 70.
8. A United States patent was granted November 20, 1877, for seventeen
years, on an application filed December 1, 1876. A patent for the
same invention had been granted in Canada, January 9, 1877, to the
same patentee, for five years from that day, on an application made
December 19, 1876. On a petition filed in Canada by the patentee,
December 5, 1881, the Canada patent was, on December 12, 1881, ex-
tended for five years from January 9, 1882, and on December 13, 1881,
for five years from January 9, 1887, under § 17 of the Canada act
assented to June 14, 1872 (35 Victoria, c. 26): Held, under § 4887 of
the Rev. Stat., that, as the Canada act was in force when the United
States patent was applied for and issued, and the Canada extension
was a matter of right, at the option of the patentee, on his payment
of a required fee, and the fifteen years' term of the Canada patent had
been continuous and without interruption, the United States patent
did not expire before the end of the fifteen years' duration of the
Canada patent. Bate Refrigerating Company v. Hammond, 151.
9. It was not necessary to the validity of the United States patent that it
should have been limited in duration, on its face, to the duration of
the Canada patent, but it is to be so limited by the courts, on evidence
in pais, as to expire at the same time with the Canada patent, not
running more than the seventeen years. Ib.
10. Under Rev. Stat. § 4899, a specific patentable machine, constructed
with the knowledge and consent of the inyentor, before his application
for a patent, is set free from the monopoly of the patent in the hands
of every one; and therefore, if constructed with the inventor's knowl-
edge and consent, before his application for a patent, by a partnership
of which he is a member, may be used by his copartners after the dis-
solution of the partnership, although the agreement of dissolution pro-
vides that nothing therein contained shall operate as an assent to such
use, or shall lessen or impair any rights which they may have to such
use. Wade v. Metcalf, 202.
11. Claims 1, 2, 8 and 13 of letters patent No. 236,350, granted January
4, 1881, to James H. Morley, E. S. Fay and Henry E. Wilkins, on the
invention of said Morley, for an improvement in machines for sewing
buttons on fabrics, namely, “1. The combination, in a machine for
sewing shank-buttons to fabrics, of button-feeding mechanism, appli-
ances for passing a thread through the eye of the buttons and locking
the loop to the fabric, and feeding mechanism, substantially as set
forth. 2. The combination, in a machine for sewing shank-buttons
to fabrics, of a needle and operating mechanism, appliances for bring-
ing the buttons successively to positions to permit the needle to pass
through the eye of each button, and means for locking the loop of
thread carried by the needle to secure the button to the fabric, sub-
stantially as set forth." "8. The combination, in a machine for
sewing buttons to fabrics, of button-feeding and sewing appliances,
substantially as set forth, and feeding appliances and operating mech-
anism whereby the feeding devices are moved alternately different
distances to alternate short button stitches with long stitches between
the buttons, as specified." "13. The combination, with button-sewing
appliances, of a trough, appliances for carrying the buttons succes-
sively from the trough to the sewing devices, and mechanism for
operating said appliances and sewing devices, as set forth," are valid.
Morley Sewing Machine Co. v. Lancaster, 263.
12. The Morley machine contains and is made up of three main groups of
instrumentalities: (1) Mechanism for holding the buttons in mass,
and delivering them separately, in proper position, over the fabric, so
that they may be attached to it by the sewing and stitching mech-
anism; (2) the stitching mechanism; (3) the mechanism for feeding
the fabric along, so as to space the stitches and consequently the
buttons when sewed on. I b.
13. A description given of the devices used by Morley, which make up
the three mechanisms; and of those used in the alleged infringing
machine (the Lancaster machine), and making up the same three
mechanisms. Ib.
14. The Morley machine was the first one which accomplished the result
of automatically separating buttons which have a shank from a mass
of the same, conveying them in order to a position where they can be
selected by the machine, one after another, and, by sewing mechanism,
coupled with suitable mechanism for feeding the fabric, be sewed
thereto at prescribed suitable distances apart from each other. Ib.
15. No machine existing prior to Morley's is shown to have accomplished
the operation of turning a shank button, the head of which is heavier
than its shank and eye combined, into such a position that a plane
passing through its eye shall be perpendicular to a plane passing
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