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to leave it with the jury, under proper instructions as to the nature of necessaries. The rule as to what constitutes necessaries is deemed to be correctly stated in Peters v. Fleming, though doubtless in this country many would differ from the learned court in its application to the facts of that case. See also I Pars. on Conts. (5th ed.) 296.

Articles coming clearly within the legal class of necessaries, are food, drink, washing, clothing, physic and instruction; and "an infant may bind himself to pay for his necessary meat, drinke, apparell, necessary physicke, and such other necesśaries, and likewise for his good teaching, or instruction, whereby he may profit himself afterwards." Co. Litt. 172 a; Reeve's Dom. Rel. * 227; Bing. on Inf. 87. But these are not the only articles that may be considered necessaries.

R.

were consumed as necessaries in his own family; Turberville v. Whitehouse (supra); nor are suits of satin and velvet with gold lace, Mackerell v. Bachelor, Cro. Eliz. 583; nor racing jackets, Burghart v. Angerstein, 6 C. & P. 690; nor a silver goblet for presentation to a friend, Ryder v. Wombwell, L. 3 Exch. 90; nor cockades for the soldiers of an infant officer, Hands v. Slaney, 8 Term, 578; nor a chronometer for a lieutenant under twenty-one, in the royal navy, Berolles v. Ramsay, Holt, 77; neither, in general, are horses, Smithpeters v. Griffin, 10 B. Mon. 259; Beeler v. Young, 1 Bibb, 515; Harrison v: Fane, 1 Man. & G. 550; even though the infant is a farmer, Rainwater v. Durham, 2 Nott & McCord, 524; Grace v. Hale, 2 Humph. 27. But see Aaron v. Harley, 6 Rich. 26. But, perhaps this may be considered a question for a jury. See Mohney v. Evans, 51 Penn. St. 80. Nor is the board of horses, the principal use of which was in the infant's business of hackman, though occasionally used to carry his family out to ride. Merriam v. Cunningham, 11 Cush. 40. Though where horseback exercise is prescribed by a physician, it is a necessary. Hart v. Prater. 1 Jur. 623. Nor is a farrier's bill for work looking after the infant's horses a necessary. Clowes v. Brooke, 2 Stra. 1100; S. C. Andrew, 277; nor are saddles, bridles, whips, liquors, fiddles, fiddle-strings, powder and pistols, etc., Beeler v. Young, I Bibb, 519; Glover v. Ott, 1 McCord 572; McKanna v. Merry, 61 Ill. 179; nor are cigars and tobacco, under ordi

It is well observed in the learned note to Bing. on Inf. (p. 86, note (1)), that "the term 'necessaries' is relative, and governed by the infant's real and not ostensible rank, situation, and degree. It is not confined to bare support and subsistence, but has received a somewhat liberal construction, according to the infant's fortune, estate and occupation. The articles must be bona fide purchased for use, and not for mere ornament" (or luxury); "they need not be such as a person can not do without, but should be suitable to the infant's condition and circumstances." Story on Sales, §§ 34, 35; Benj. on Sales (1st Am. ed.), § 23, and cases cited; Peters v. Fleming, 6 M. & W. 46; Chapple v. Cooper, 13 M. & W. 257. See also Wharton v. Mackenzie, 5 Q. B. 606; Ry-nary circumstances and in the absence of evidence of special der v. Wombwell, L. R. 3 Exch. 90, where the subject is extensively discussed. In McKanna v. Merry, 61 Ill., 179, the rule is stated to be that "the articles furnished or money advanced must be actually necessary in the particular case, for use, not mere ornament; for substantial good, not mere pleasure; and must belong to the class which the law generally pronounces necessary for infants."

circumstances rendering them necessary, medicinally or otherwise, Bryant v. Richardson, 12 Jur. N. S. 300; 14 W. R. 401; 14 L. T. N. S. 24 Exch.; L. R. 3 Exch. 93, note; nor a stanhope, Charters. v. Boyntun. 7 C. & P. 52; nor coach hire, Hedgely v. Holt, 4 C. & P. 104; nor, in general, is money lent to the minor a necessary ;* Earle v. Peale, 1 Salk. 387; Beeler v. Young, 1 Bibb,519; Smith v. Gibson, Peake, As to what particular articles are or are not necessaries, Add. Cas. 52; Darby v. Boucher, 2 Salk: 279; Probart v. the cases are too numerous to be here enumerated, and only Knouth, Esp. 472, note; McKanna v. Merry; 61 Ill. 177; a few instances will be given; those wishing to pursue the even though raised by mortgage to pay off a prior mortgage subject farther are referred to the authorities cited at the end on property inherited by the infant, Magee v. Welsh, 18 Cal. of this note, and in the cases herein before and therein re155; see also West v. Gregg, 1 Grant's Cas. 53; Bicknell v: ferred to. Bicknell, 111 Mass 265; nor though paid at the request of Dinners, confectionery or fruit, supplied to an infant un- the infant to relieve him from a draft for military duty. Dordergraduate in the university, are prima facie not necessaries.rell v Hastings, 28 Ind. 478. Though if lent to procure a reBrooker v. Scott, 11 M. & W. 67, Wharton v. Mackenzie, 5 Q. B. 606; and as to the articles furnished for the entertainments given by defendants to his acquaintances, referred to in the case last named, Den man, C. J., said that they could not possibly be necessaries. Articles of mere luxury can not be necessaries suitable to the condition of any infant; but articles of utility, though luxurious and expensive, may be. Ryder v. Wombwell, L. R. 3 Exch. 90; Chapple v. Cooper, 13 M. & W. 258. See also Brooker v. Scott, Wharton v. Mackenzie (supra). Nor are balls and serenades necessaries. Carter, 216. Rent of a building, for carrying on a trade or manual occupation, seems not to be a necessary, Lowe v. Griffith, 1 Scott, 458; s. c. 1 Hodges, 30; nor goods to carry on his trade with, Mason v. Wright, 13 Met. 306; Stone v. Withipool, Latch, 21; Whittingham v. Hill, Cro. Jac. 494; Whyhall v. Champion, 2 Stra. 1083 Turberville v. Whitehouse, I C. & P. 94; but he is liable so much of such goods as

lease from arrest for necessaries, or if the infant is charged in execution, it is held to be recoverable; but to entitle the plaintiff so to recover, he must show that the money was advanced under such circumstances. Clark v Leslie, 5 Esp. 28 So an infant is liable for money paid at his request, to satisfy a debt which he had contracted for necessaries. Randall v. Sweet, 1 Denio, 460. And though money lent to purchase necessaries is, in general, not recoverable, yet if in fact laid out by the lender for the necessaries, the infant is liable. See Earle v. Peal, 1 Salk. 387; Smith v. Oliphant, 2 Sandf. (N. Y. Sup'r Ct.) 306; Swift v. Bennett, 10 Cush. 436; Randall v. Sweet, 1 Denio, 460; Probart v. Knouth, 2 Esp. 472, note; Bradley v. Ptatt, 23 Vt. 386; Darby v. Boucher, 1 Salk279; Ellis v. Ellis, 1 Ld. Raym. 344. But "if one lends money to an infant to pay a debt for necessaries, and, in consequence thereof, the infant does pay the debt, here, although * But in Bent v. Manning, 10 Vt. 230, quære, per Redfield, J., whether money might not under some circumstances be a necessary to a minor.

he may not be liable at law, he must nevertheless be so in equity, because in this case the lender of the money stands in the place of the person paid, viz., the creditor for necessaries, and shall recover in equity, as the other shold have done at law." Marlow v. Pitfield, 1 P. Wms. 558; Harris v. Lee, id. 482; Watson v. Cross, 2 Duvall (Ky.) 149; Beeler v. Young, 1 Bibb, 521; Hickman v. Hall, 5 Litt. 342; Walker v. Simpson, 7 W. & S. 88; and the claim of such lender is within the trust of land devised for the payment of debts, Marlow v. Pitfield, and Harris v. Lee (supra). And if the infant give his note for necessaries, and a security signs with him and subsequently pays the note for the infant, he may recover the money so paid from the infant. Haine v. Tarrant, 2 Hill (S. C.) 400; Conn v. Coburn, 7 N. H. 368. Nor is labor on articles for the customers of the infant, who carries on a trade, a necessary, Dilk v. Keighley, 2 Esp. 480; nor timber furnished the infant to enable him to build a dwelling on his land, Freeman v. Bridges, 4 Jones's Law, 1; nor the expense of repairs on his dwelling-house, though necessary to prevent immediate and serious injury to the house, Tupper v. Cadwell 12 Met. 559. See also West v. Gregg, 1 Grant's Cas. 53; Hassard v. Rowe, 11 Barb. 22; nor, in general, counsel fees and expenditures in a lawsuit, Phelps v. Worcester, 11 N. H. 51. See also Thrall v. Wright, 38 Vt. 494, where it is said that though a lawsuit might be a necessary, yet prima facie it is not; the circumstances of each case must govern. But in Munson v. Washband, 31 Conn. 303, where a female infant was seduced and got with child, under promise of marriage, the seducer afterwards refusing to marry her, and she was left in a state of destitution and suffering, and, in these circumstances, a suit was brought for her which was afterwards settled by the marriage of the parties, and, after the marriage, the attorney sued the husband and wife for his fees, and the court charged the jury that though as a general rule such services were not necessaries, yet if the services were absolutely requisite for her personal relief, protection, and support, she could contract therefor, and defendants were liable; it as held, that the charge was correct. The case of an infant abandoned by its parents was put by the court on the same footing, as to necessaries, as a married woman abandoned by her husband, the standing and situation of the parties themselves being substantially the same. As between the infant and his guardian, acting in good faith upon competent advice, counsel fees, etc., may be allowed in the settlement of his account. Smith v. Bean, 8 N. H. 15. Neither is the contract for the insurance of the infant's property against loss or damage by fire a necessary. N. H. M. F. Ins. Co. v. Noyes, 32 N. H. 350, where the true test is said to be, that necessaries concern the person and not the estate. But a settlement which affords a provision to an infant, who, on her marriage, has no other certain provision, is a necessary, and she, sued jointly with her husband, is liable for the solicitor fees, as for a debt contracted by her for necessaries before marriage. Helps v. Clayton, 17 C. B. N. s. 553; 10 Jur. N. S. 1184; 34 L. J. C. P. 1; 13 W. R. 161; 11 L. T. N. S. 476.

Beeler v. Young, 1 Bibb, 520; Bing. on Inf. *87; Chapple v. Cooper, 13 M. & W. 252:* board, lodging, clothing, food, medicine, and education. See Hyman v. Cain, 3 Jones's L. 111; Bradley v. Pratt, 23 Vt. 378; Glover v. Ott, 1 McCord, 572; Peters v. Fleming, 6 M. & W. 48; Stone v. Dennison, 13 Pick. 6; Squier v. Hydliff, 9 Mich. 274; Wilhelm v. Hardman, 13 Md. 144. And it is held that entertainment furnished by an innkeeper to an infant as a guest, not knowing that the latter is acting contrary to the wishes of his guardian, is necessary, and the price recoverable on that ground. Watson v. Cross, 2 Duvall (Ky.), 147. A good common-school education is a necessary. Middlebury College v. Chandler, 16 Vt. 683; though a regular collegiate education for one in ordinary circumstances is not, Middlebury College v. Chandler (supra); see also Peters v. Fleming (supra); neither is instruction in singing and dancing, 1 Sid. 446; nor religious instruction, St. John's Parish v. Bronson, 4 Conn. 75 (where a husband was held not liable for the rent of a church pew, hired and occupied by his wife without his assent.) So suitable clothing is a necessary, Mackerell v. Bachelor, Cro. Eliz. 583; so regimentals for a volunteer, and livery for an infant captain's servant, Hands, v. Slaney, 8 Term, 578; Coates v. Wilson, 5 Esp. 152: so a bridal outfit and a chamber set, furnished to a female infant just before her marriage, Jordan v. Coffield, 70 N. C. 110. See also Sams v. Stockton, 14 B. Mon. 232. As there is no inflexible, absolute rule as to what constitutes necessaries (what is necessary for one, though prima facie coming within the class necessaries, being unnecessary for another, or for the same one under different circumstances, and what is prima facie unnecessary being, under some different circumstances, necessary), the above cases must serve only as examples to be consulted and applied to elucidate the varying cases as they arise, but not to be considered as precedents binding under all circumstances; the question whether necessary or not, being mainly, within the limits herein before laid down, one of fact for the jury, and the burden of proof with the plaintiff, to prove the articles in question necessary. See 1 Chitty on Conts. (11th Am. ed.) p. 195, and cases cited; also (ante). See further on the subject of necessaries, Benj. on Sales (1st Am. ed.), §§ 22, 23, 24, and notes; Story on Sales, § 34 et seq.; Bing on Inf. (Bennett's ed.) *86, note (1); Story on Conts. (4th ed.) § 77 et seq.; 1 Pars. on Conts. (5th ed.) p. 296 et seq.; 1 Chitty on Conts. (11th Am. ed.) 195 et seq.; Tyler on Inf. ch. vii., and the cases therein cited.

Liability of Municipal Corporation for Accidents

Occurring on Unimproved Streets.

CITY OF HENDERSON v. B. M. SANDEFOR AND CO.* Kentucky Court of Appeals, Winter Term, November 13, 1875. Hon. B. J. PETERS, Chief Justice.

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proved or used as a street, it was error in the court to instruct the jury that if the point

1. Negligence-Duty of City to Repair Unfrequented Street.- Where a The following have been held to be necessaries: Necessa-street was in an unsettled and unfrequented part of the city, and had never been imries for the infant's wife and children are necessaries for him. See Turner v. Trisby, 1 Stra. 168; Tuberville v. Whitehouse, 1 C. & P. 94; S. C. 12 Price, 692; Abel v. Warren, 4 Vt. 152;

where the accident complained of, occurred, was in a place designated and set apart as one of the public streets of the city, it was the duty of the city to keep the street in a con

dition for travel.

*Reported for this journal by Malcolm Yeaman, Esq., of Henderson, Ky.

2. Argument 1. Municipal Corporations-Liability for Non-Exercise of Power. Where the public interest requires the exercise of a power conferred by law, it

is the duty of the body possessing the power to exercise it; and when the failure to ex-
ercise this power results from neglect, or illegal refusal to do that which the public in-

terest requires, the corporation will be liable. But when the omission to do the act in
question, results from the belief that it is unnecessary or inexpedient, the corporation
will not be liable, and their decision is conclusive.
Argument 2. Necessity of Improving Street What Tribunal
must decide..-As to such streets as are necessary to the public convenience and

travel, the courts, and not the city authorities, have the ultimate right to decide as to the necessity for their improvement and repair. But where the street is in a sparsely settled and untraveled portion of the city, the corporate authorities will be permitted to decide whether the public interest requires their improvement, and their decision in such case will be final.

2. Estoppel Against Municipal Corporation.-Where the corporate authorities take control of a street, and by improving it invite the public to its use, the city will not be heard to say that it was not necessary as a street.

Appeal from Henderson Court Common Pleas.

cases, a public body clothed with power to do an act, in the doing of which the public has an apparent interest, can neither be compelled to do the act, nor made liable for not doing it; and in another class of cases, equally large, it has been held that, under other circumstances, such a body may either be compelled to do the act authorized, or be made liable for injuries resulting from is failure. The power is conferred for the benefit of the public, and whenever the interests of the public require its exercise, it becomes the duty of the body possessing the power to act. This is clear. But how shall it be determined in a disputed case whether the public interests require the act to be done? The authorities show that this question of fact is sometimes to be decided by the courts, and sometimes by those to whom power to do the act has been given. By what principle, then, are we to decide whether the case in hand

Malcolm Yeaman, for appellant; Vance & Merrett, for ap- falls within the one class or the other-whether this is a case in pellees.

COFER, J., delivered the opinion of the court.

The appellees sued the city of Henderson to recover damages for injuries to their horses and carriage, alleged to have resulted from the negligence of the city in failing to repair Eleventh crossstreet in said city. The city denied that it had been guilty of any

which the power to improve and repair the streets is to be exercised or not at the discretion of the city council, or is one in which cil to exercise the power, and upon their failure, to render the city the public has such an interest as to make it the duty of the counliable in an action of tort for any injury resulting to persons or

property from the failure?

The rule which distinguishes the one class of cases from the

negligence, and averred that the place where the accident hap-other seems to us to be this: When the omission to exercise the pened had never been used for travel, and had never been necessary for the use or convenience of the public, but was in an unfrequented part of the city, and that it was generally known that said street was unsafe and unfit for travel. The evidence showed that Eleventh street had never been improved or treated as a public way; that it was outside of the inhabited portion of the city, and had never been used by the general public as a street, or recognized as such by the city government, and tended to prove that neither the wants nor convenience of the public, or of any of the inhabitants of the city required that it should be kept in repair as a street, and it also tended to prove that it would cost a large sum to put that street in safe condition for use.

Upon this evidence the court instructed the jury in substance, that if the point where the accident occurred was in a place designated and set apart as one of the public streets of the city for the purpose of travel, then it was the duty of the city to keep said street in a reasonably safe condition for travel, and that the city was liable for injuries occurring to persons or property in consequence of its failure to do so, and refused an instruction asked by the city to the effect that if the street where the accident occurred was not needed for the use or convenience of the public, the city was not bound to keep it in repair.

The only question in the case which we deem it necessary to notice arises out of the action of the court in regard to these

instructions.

The charter confers on the city council power to improve and repair the public ways in the city, and counsel for the appellees insist that the duty to keep all the streets within the limits of the city in a safe condition results from, the possession of the power. It has been held that, when a public body is clothed with power to do an act which concerns the public interests, the execution of the power may be insisted upon as a duty, though the statute creating the be only permissive in its terms, as where the statute declares that the act "may" be done, or that "it shall be lawful," "is authorized" to be done, etc. Mayor, etc., v. Furze, 3 Hill, 612, and authorities cited; Huston v. The Mayor, etc., 5 Seldon, 9 New

York, 163.

power

It has also been repeatedly held that power to improve streets is legislative, and may be exercized from time to time as the wants of the corporation may require, and that the governing body of the municipality, and not the courts, is to judge of the necessity or expediency of its exercise. McCormick v. Patchin, 53 Mo. 33; Macy v. Indianapolis, 17 Ind. 267.

These two propositions are in apparent conflict with each other, and it seems to us that both are subject to qualification.

Under certain circumstances, as shown by many adjudged

power given clearly appears to have resulted from neglect or from
a wilful refusal to do that which the public interests plainly re-
quire, such omission will thus be shown not to be in consequence
of the judgment of the body in the exercise of its discretion, that
the thing omitted was not necessary or expedient to be done. But
from the not unreasonable belief that it was unnecessary or inext
when the omission to do the act in question may have resulted
pedient, then the decision of the body possessing the power is
conclusive. This distinction is necessary in order to avoid the al-
ternative of leaving such bodies wholly irresponsible, or of de-
priving them of all discretion in the discharge of their duties.
The application of this principle, and the necessity for such
discrimination, may be well illustrated by this case. It may be
assumed that many of the streets in Henderson are so important
to the convenience and comfort of the population of the city, and
of the general public, that to allow them to be greatly out of re-
pair would be an intolerable grievance, and it certainly will not do
to say, because the power to repair these streets is legislative,
that the city council has
None will maintain that such is the law. If they should fail to re-
repair them or not, as may suit its whims or caprices.
pair they might be prosecuted and punished for failing to do so,
and, if persons or property were injured in consequence of their
failure, the city would be liable. As to such streets the courts, and
not the city council, have the ultimate right to decide whether re-
pairs were necessary or not. But whether the public interests re-
quiring that streets in uninhabited or in very sparsely inhabited
parts of the city should be improved, the city council must be per-
mitted to exercise its discretion, and its decision will be final in all
sion resulted from negligence or a willful refusal to perform a duty,
such cases, because the courts will be unable to say that the omis-
and not from the judgment of the council that such improvements
were un necessary or inexpedient. If the City Council had taken
control of the street, and by improving or repairing it had invited
the public to use it, the city would not be heard to say that it was
not necessary, or at least, as expedient to have a street there for
the use of the public. But there was no evidence that Eleventh
street had ever been improved or repaired by the city, and the fail-
ure to do either should be treated as a decision by the council that
the convenience and comfort of the public did not require it, and
as there are no grounds for saying that the omission to improve or
repair was the result of negligence, or of a willful refusal to per-
form a known duty, the court had no right by the instruction
given to deprive the city council of the discretion given to it by the
charter.

an uncontrollable discretion to

*

*

*

*

These views are sustained by the decision of the Supreme Court of Missouri in the case of Bassett v. the City of St. Joseph, 53 Mo. 290, where it was said that a city is not "required or bound to keep all of its streets in good repair under all circumstances. She is only bound to keep such streets, and such parts of streets, as are necessary for the convenience and use of the traveling public. There are streets or parts of streets in many cities which are not at present necessary for the convenience of the traveling public, which will be brought into use by the growth of the city; or there may be streets that have more width than is necessary for present use, or the requirements of travel. All that is required in such cases is that the city see that, as the streets are required for use, they shall be placed in a reasonably safe condition for the convenience of travel."

As long as the city keeps such streets as are needed by the public in safe condition, it has neglected no duty in that regard which it owed to the public, and as it can only be made responsible in this case by being convicted of a neglect of duty, we think the court erred in giving the instructions complained of to the jury and in refusing that asked by the city.

Wherefore the judgment is reversed, and the cause is remanded for a new trial upon principles not inconsistent with this opinion

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TREAT, J. This is a suit in equity under 4918 of the Revised Statutes of the United States, concerning alleged interfering pat. ents. The defendant's patent was prior in date to plaintiff's; also the application therefor. The plaintiff claims that the invention was by him; that he had, previous to any knowledge thereof by the defendants, not only invented the patented composition, but actually reduced it to a practical and successful test; that he had shown to the defendants the manufactured article, and when, as their foreman in the brick business, he was consulted thereafter about manufacturing fire-brick by means of which they could obtain a large and profitable order, he called their attention to the fact that he had exhibited to them before entering upon their service, a specimen brick of the needed quality, that thereupon he as their foreman directed various experiments to be made at defendants' brick yard; that when the defendants suggested subsequently that they proposed to obtain a patent for that mode of making an improved fire-brick, he remonstrated against their doing so, claim ing that he was the original inventor, and alone entitled to a pat. ent if one was obtainable.

On the other hand the defendants claim that it was only after a series of experiments under their direction and supervision in their own establishment the success of the mode patented was ascer.

tained.

Without analyzing the testimony with the view of determining whether the plaintiff in his isolated experiment, prior to entering into the service of defendants, had invented the patented mode of securing the desired result, or had merely experimented so far as to ascertain that the use of sand-rock would furnish the needed glazing in his pottery business, and without enquiring further whether he had not abandoned all purpose of pushing his experiments to ultimate success for fire-bricks, and also without determining to what extent he and the defendants respectively suggested the experiments made in defendants' establishment which first resulted

in an ascertained and definite value from the compound, whereby the rights of the respective parties as employer and employee would arise, we will first consider the true construction of the act of Congress. The language of the section is peculiar, and the object designed by it is not free from doubt. The section is as follows:

"Wherever there are interfering patents, any person interested in any one of them, etc., may have relief against the interfering patentee and all parties interested under him, by suit in equity against the owners of the interfering patent; and the court, on notice, may adjudge and declare either of the patents void in whole or part, or inoperative or invalid in any particular part of the United States, according to the interest of the parties, etc. But no such judgment or adjudication shall affect the right of any person except the parties to the suit," etc.

So far as known this section has not received any express adjudication. In Mowry v. Whitney, 14 Wall. 434, an allusion is made to a somewhat similar provision in the act of 1836. The latter act in the section referred to, covered two distinct classes of cases, viz: Ist, where there were interfering patents; and 2nd, where the examiners refused to issue a patent applied for, on the ground of interference with a prior patent. In each of those cases a bill of equity would lie at the instance of either of the parties, and the court could determine in the latter class of cases whether the applicant should have a patent issued to him; and in the former, might adjudge either of the patents void in whole or in part, etc.

In ordinary cases, where a patentee brings suit for infringement, the defendant can assail the validity of the patent in the manner prescribed; and the decree of the court is binding on the parties. It is contended that, inasmuch as this suit is not for an infringement, the defendant must be confined to the respective merits or claims of the patentee inter sese, irrespective of the validity of either. The defendant in this case, among other defences, has set up that the patented compound or process had been anticipated and in use before either of the interfering patents had been claimed or issued. The evidence fully establishes the fact. In a suit for an infringment, a defence for want of novelty would, under the evidence in this case, be successful, whether the one or the other of the interfering patents was the basis of the action. The case of Mowry v. Whitney goes no further than to hold that if a patent is to be annulled ab initio, the proceeding must be at the direct instance of the government, but it does not decide that the question between conflicting patents may not be fully and finally determined as to the parties to suit for interfering patents.

The plaintiff in this case contends that he has the prior and better right, although his application and patent are of subsequent date, and that the court is bound to adjudicate solely as between his and the interfering patent, leaving one of the patents to stand for subsequent adjudication when assailed in a proper suit.

The act of Congress provides for a suit in equity against the owners of the interfering patent for such relief as equity would furnish. If the action stopped there, would a court of equity grant relief to a complainant who had no equity?" If it would not, could not the court enquire through proper pleadings and evidence, into the equities of the complainant? But the section proceeds to authorize the court to adjudge either of the interfering patents void in whole or part. If it adjudged the plaintiff's patent void,should not a decree to that effect be entered, instead of a simple decree dismissing his bill? If it ascertains that the defendant's patent is void, and the plaintiff's also, must the decree be restricted to a judgment against the defendant's patent, leaving the plaintiff's patent as if in full force and of established validity; so that if a new suit were brought by the same plaintiff against the same defendant for an infringement of plaintiff's patent, the defendant would then for the first time be able to dispute the validity of plaintiff's patent for want of novelty, etc.? Why two suits between the same parties to adjust the controversies between

Contracts thus payable, not designed in their origin to aid the insurrectionary government, are not invalid between the parties. It was so held in the first case in which the question of the validity of such contracts was presented, that of Thorington v. Smith,* and the doctrine of that case has been since affirmed in repeated instances. The treasury notes of the Confederate government, at an early period in the war, in a great measure superseded coin within the insurgent states, and, though not made a legal tender, constituted the principal currency in which the operations of business were there conducted. Great injustice would, therefore, have followed any other decision, invalidating transactions otherwise free from objection, because of the reference of the parties to those notes as measures of value.†

But as those notes were issued in large quantities to meet the in

them, when one suit would accomplish the end according to the well-known purposes of equity proceedings? Unless the terms of the statute restrict the court, sitting in equity, so that it can not do full and complete justice between the parties and end the litigation between them, it would seem to be its duty to pass upon the whole controversy when fairly and fully presented. The statute says that the court may adjudge either void in whole or part. How can it do so, consistently with law and equity, unless each of the patents is under consideration in all respects? It may conclude that in some respects there is an interference, and in others none, so that the decree would be only for an annulment in part; or it may decree that there is an interference in toto, and consequently annul one of the interfering patents, leaving the other to stand as valid. But what would be the position of one who had previously used the patent declared void, when suit was subse-creasing demands of the Confederacy, and as the probability of quently brought against him by the other patentee for an infringement? Could he assail the validity of the patent which had already, as between the same parties, been adjudged at least impliedly to be valid? It seems that the suits in equity authorized in cases of interfering patents should not be restricted to the narrow limits urged. The controversy is between two patentees or those claiming under them. If neither has a valid patent, the court should adjudge both void, and thus end strife. It is on this theory that the defendant was permitted to set up in his answer the lack of novelty, not of plaintiff's patent alone, but of his own. True, he might voluntarily have surrendered his patent, and contested the plaintiff's right in a suit for infringement; but why should he not, when sued, insist upon a full defence, whereby a second suit could be avoided. The power vested in the court to adjudge either of the interfering patents void, in whole or part, is held to confer full authority, where the evidence justifies, on issues fairly made, to decree, not one of the patents alone, but both to be void.

The court so adjudges in this case, and the decree will be accordingly at the costs of the plaintiff.

Contracts Dischargeable in Confederate Money.
THE WILMINGTON AND WELDON RAILROAD COM-
PANY v. HENRY KING, EXECUTOR OF HARDY KING,
DECEASED.

Supreme Court of the United States, No. 9-October Term,
1875.

1. Contracts Dischargeable in Confederate Money-When Valid.-Contracts made during the war in one of the confederate states, payable in confederate currency, but not designed in their origin to aid the insurrectionary government, are not, because thus payale, invalid between the parties.

2. Evidence-Value of Currency. In actions upon such contracts evidence as to the value of that currency at the time and in the locality where the contracts were made is admissible.

3.. Constitutional Law-Obligation of Contracts-North Carolina Statute-Case in Judgment.-A statute of North Carolina of March, 1866, enacting that in all civil actions "for debts contracted during the late war, in which the nature of the obligation is not set forth, nor the value of the property for which such debts were created is stated, it shall be admissible for either party to show on trial, by affidavit or otherwise, what was the consideration of the contract, and that the jury in

making up their verdict shall take the same into consideration, and determine the value of said contract in present currency, in the particular locality in which it is to be performed, and render their verdict accordingly," in so far as the same authorizes the jury in such actions, upon the evidence thus before them, to place their own estimate upon the value of the contracts, instead of taking the value stipulated by the parties, impairs the obligation of such contracts and is, therefore, within the inhibition upon the state of the federal constitution. Accordingly, in an action upon a contract for wood sold in that state during the war, at a price payable in confederate currency, an instruction of the court to the jury that the plaintiff was entitled to recover the value of the wood without

reference to value of the currency stipulated, was erroneous.

In error to the Supreme Court of the State of North Carolina.
Mr. Justice FIELD delivered the opinion of the court.

The contract between the defendant and the plaintiff's testratrix, upon which the present action was brought, was made in North Carolina during the war. By its terms the wood purchased by the railroad company was to be paid for in Confederate currency.

their ultimate redemption became constantly less as the war progressed, they necessarily depreciated in value from month to month, until in some portions of the Confederacy, during the year 1864, the purchasing power of from twenty-one to upwards of forty dollars of the notes only equaled that of one dollar in lawful money of the United States. When the war ended the notes, of course, became worthless and ceased to be current, but contracts made upon their purchasable quality existed in large numbers throughout the insurgent states. It was, therefore, manifest that if these contracts were to be enforced with anything like justice to the parties, evidence must be received as to the value of the notes at the time and in the locality where the contracts were made; and, in the principal case cited, such evidence was held admissible. Indeed, in no other mode could the contracts as made by the parties be enforced. To have allowed any different rule in estimating the value of the contracts and ascertaining damages for their breach, would have been to sanction a plain departure from the stipulations of the parties, and to make for them new and different

contracts.

In the case at bar the state court of North Carolina declined to follow the rule announced by this court, and refused to instruct the jury that the plaintiff was entitled to recover only the value of the currency stipulated for the wood sold, and instructed them that he was entitled to recover the value of the wood without reference to the value of that currency. This was nothing less than instructing them that they might put a different value upon the property purchased from that placed by the parties at the time. In this ruling the court obeyed a statute of the state, passed in March, 1866, which enacted "that in all civil actions which may arise in courts of justice for debts contracted during the late war, in which the nature of the obligation is not set forth, nor the value of the property for which such debts were created is stated, it shall be admissible for either party to show on the trial, by affidavit or otherwise, what was the consideration of the contract, and the jury in making up their verdict shall take the same into consideration, and determine the value of said contract in present currency, in the particular locality in which it is to be performed, and render their verdict accordingly."

This statute, as construed by the court, allowed the jury to place their own judgment upon the value of the contract in suit, and not require them to take the value stipulated by the parties. A provision of law of that character, by constituting the jury a revisory body over the indiscretions and bad judgments of the contracting parties, might in instances relieve them from hard bargains, though honestly made upon an erroneous estimate of the value of the articles purchased, but would create an insecurity in business transactions which would be intolerable. It is sufficient, however, to say that the constitution of the United States interposes an impassible barrier to such new innovation in the administration of justice, and with its conservative energy still requires 8 Wallace, I.

See Hanauer v. Woodruff, 15 Wallace, 448; Confederate Note Case, 19 Ibid. 556.

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