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creditor, the assignee, and the partners, the property was delivered by the sheriff to the assignee, to be by him sold in place of the sheriff, and the proceeds to stand in place of the property, and be applied to the attaching creditor's judgment when obtained, if the court should hold the attachment good; in an action by the attaching creditor against the assignee and the partners, to have the proceeds of the property so applied: Held, that the defendants were estopped from setting up as a defence that the lien of the attachment was lost by delivery of the property to the assignee under
said agreement. Ib. 4. In such action it was not necessary to make the partnership creditors parties defend
ant. Ib. 5. The outgoing members of a firm that is dissolved, are sureties on a partnership debt
for those who remain, but they are discharged if the latter, without their knowledge or consent, substitute a new debt that increases their liability. Smith v. Sheldon, 93.
PATENT. 1. The formal expression, “ as shown and described," is not to be taken to limit a claim
to the exact construction shown and described. Hence where the claim of the patent was for “ a plug of tobacco having a hard label pressed into one of its faces as specified,” the description setting forth that the label was to be applied underneath the wrapper, and it appeared that defendant applied his label outside of the wrapper, it was held that the claim was infringed and a preliminary injunction was granted.
Lorillard & Co. v. McDowell, 163. 2. Mere change of material does not constitute invention. But where the result of the
substitution of one material for another is a superior product, - one having new capabilities and functions, the substitution amounts to invention. Hotchkiss v. Green
wood, and analogous cases expounded. Smith v. Goodyear Dental Vulcanite Co. 74. 3. To show want of novelty in an invention the proofs must establish a prior use of that
which is in substance the same as the thing patented. Ib. 4. Mere amplification of an original specification will not invalidate a reissue. Ib. 5. A delay of nine years in pressing an application held not to be abandonment. Ib.
See JUDGMENT, 6.
PLEADING AND PRACTICE. 1. In a suit against a refiner and vendor of petroleum, for the death of plaintiff's hus
band, alleged to have been caused by the explosion of the oil, the allegation and evidence of plaintiff were that the oil exploded in a lamp in his hand whilst he was walking quietly; the defendant's allegation and evidence were that the death was caused by his tripping and falling with the lamp in his hand. In charging, the court said, "Was the death occasioned by the explosion at the time and in the manner claimed by the plaintiff? In regard to this there can be no doubt whatever." Held to be error; whether the death was caused by the explosion as alleged by the plaintiff was
for the jury. Elkins, Bly & Co. v. McKean, 30. 2. The declaration averred that the defendants wilfully sold the oil for lighting purposes, “knowing that it was highly inflammable, explosive, and unsafe," &c. There was evidence that the oil had been sold by defendants, but none that the sale was with wilful knowledge of its dangerous character. Held to be error to submit the case to the
jury. 16. 3. It is error for the presiding justice to permit counsel, in addressing the jury, against
seasonable interposition, to proceed with his argument upon asserted facts not in evidence and having no legitimate pertinency to the issue. Rolfe v. Inhabitants of Rum
ford, 461. 4. In a proceeding to confiscate property of a person charged to be in rebellion, the
directions of the attorney general are, that the method of seizure of the property shall be conformed as nearly as may be to the state law, if there be such. When therefore the proceeding is to confiscate debts due from a municipal corporation, the notice to the debtor must be upon the mayor or other officer named in the Virginia statute; and notice given to the auditor of the corporation is of no effect, and the judgment based
upon such notice is null and void. Fairfax v. City of Alexandria, 512. 5. On such a proceeding against F., the counsel of F. does not enter an appearance for
him because in three cases against the same party, before the same judge, he was informed by the judge from the bench, that it was the rule of his court not to allow an appearance and defence by rebels and traitors; and in these cases the appearance and
defence were stricken from the cases; and this a short time before the last case was acted on. The counsel was not in default for failing to enter an appearance for F. ; and the decree of confiscation is void and of no effect. Ib.
PRINCIPAL AND SURETY. 1. The right of contribution among co-sureties is not founded in contract, and does not
depend on the form of the instrument nor the position of the names of the obligors therein, but is the result of the application of general principles of equity, and depends on the actual relation they sustain to the instrument and to each other. In an action for contribution, and in the absence of any contract in writing fixing such relation and liability between accommodation parties to a note, parol evidence is admissi
ble to show the real nature of the transaction. Oldham v. Broom, 263. 2. As between accommodation makers of a promissory note, the presumption is that
they are co-sureties, and as such liable to each other to contribute; but this presumption may be rebutted by parol proof showing that the one last signing did so as the
surety for the prior makers, and not as a co-surety with the prior surety. Ib. 3. Where a joint note is signed by the principal and by one as his surety, and is in
trusted by the surety to the principal without limit on his authority, such surety thereby impliedly authorizes the principal to obtain such additional sureties or guarantors as may be required to make the paper available for the purposes intended by the original makers, and the sureties or guarantors so obtained may stipulate the
terms of their liability, as between themselves and prior parties. Ib. 4. One who thus signs such note, at the request of the principal debtor, to enable him to
use it as intended, without the knowledge of the prior surety, and without any agreement or understanding with him to the contrary, may stipulate with the principal debtor and make it a condition of his signing that he signs as surety of the prior
parties, and not as co-surety with the prior surety. Ib. 5. Such stipulation need not be in writing, and parol evidence is admissible to show an
express contract to that effect, or facts and circumstances that will raise an implied
contract. 16. 6. Declarations of such party, made to the principal debtor at the time he executes and
delivers the instrument, as to the terms and conditions on which he becomes Liable, are, in connection with other testimony, admissible as part of the res gestae, tending to show an agreement, es press or implied, as to the extent of such liability. Ib.
PUBLIC USE. 1. The franchises and property of one railroad may be taken for the construction of another in all cases where the property of an individual might be, upon making compensation therefor; but not without. Grand Rapids, Newaygo & Lake Shore R. R.
Co. v. Grand Rapids & Indiana R. R. Co. 158. 2. Property taken for a particular public use does not thereby become public for all pur
poses; it may revert when the specific public easement is vacated. Ib. 3. The term “public use," as employed in proceedings for the taking of property in invitum, criticised as misleading, and limited accordingly. 1b.
RAILROAD. 1. A railroad company is not liable for an injury to a person resulting from its failure to
exercise ordinary skill and care in the erection or maintenance of its station-house, where, at the time of receiving the injury, such person was at such station-house by mere permission and sufferance, and not for the purpose of transacting any business with the company or its agents, or on any business connected with the operation of
the road. Pittsburg, Ft. Wayne & Chicago Railway Co. v. Bingham, 468. 2. The statute requiring railroad corporations to inclose the land taken for their road
with fences is a police regulation, designed to secure the safety of the public travel and transportation, and is obligatory, as such, upon all railroad corporations, whether
chartered before or after its passage. Wilder v. Maine Central Railroad Co. 45. 3. A parol agreement between a railroad company and an adjoining owner, for the removal and discontinuance of a fence on the line of the railroad, does not run with the
land, and cannot therefore bind his grantee. Ib. 4. Where a horse escaped from his owner's land on to an adjoining railroad and was
killed by the railroad company's locomotive: Held, that the mere fact of his turning his horse upon his land where there was no fence between it and the railroad, was not proof of contributive negligence. Ib.
5. By St. 1874, c. 55, the Old Colony Railroad Company was authorized to purchase the
rights, franchise, and property of the Middleborough and Taunton Railroad Corporation, and the latter was authorized to convey to the former its franchises and property, rights, easements, privileges, and powers, and thereupon the former corporation was to be subject to all the duties, liabilities, obligations, and restrictions to which said last named corporation may be subject." Held, that the Old Colony Railroad Company, upon the completion of the purchase and conveyance, became directly liable in an action of tort for damage occasioned by the prior neglect of the Middleborough and Taunton Railroad Corporation. New Bedford Railroad Co. v. Old Colony Rail
road Co. 129. 6. Damages assessed by the proper board for land taken by a railroad corporation are in
full, and it is not open to the land-owner to prove that certain other causes of dam
are were not considered. Perley v. B., C. & M. R. R. Co. 464. 7. The land-owner is not to be prevented from the reasonable and prudent use of his
land by reason of the improper construction of the railroad; and if, using his land in a reasonable and prudent manner, he suffers damage from such improper construction, he may recover his damages, notwithstanding such use of his land was subsequent to the construction of the railroad. Ib.
RECEIVER. A court of equity has power in a proper case to allow the issuing by a receiver of nego
tiable certificates of indebtedness creating a first lien upon the property in his hands. Meyer v. Johnston, 140.
REMOVAL OF CAUSES. 1. The Act of March 3, 1875, concerning the removal of causes, warrants a removal in
all cases where there are real parties in interest who are citizens of different states upon different sides. It is not necessary that all the parties on one side and all the
parties on the other be citizens of different states. Girardey v. Moore, 387. 2. The third subdivision of section 639 of the Revised Statutes of the United States is
not repealed by the Act of March 3, 1875. Cooke v. Ford, 280. 3. The words “ final hearing or trial," in the Act of Congress of 1867, prescribing the
conditions touching the removal of causes, require the application for removal to be made before “trial" in actions at law and before “ final hearing" in suits in equity. Such application will not be allowed after the applicant has elected to stand a trial in the state court, if such trial is not final. Continental Ins. Co. v. Kasey, 310.
RESPONDEAT SUPERIOR. 1. One who employs a firm of collecting agents, in response to an ailvertising card, in
which they announce that they will treat his debtors " with delicacy, so as not to offend them, or with such severity as to show that no trifling is intended,” giving no special instructions, authorizes them to use such means as they see fit to adopt, in the prosecution of his business for his benefit, and is responsible therefor. Caswell v.
Cross, 289. 2. Plaintiff was in the employ of a contractor engaged by defendants to make excava
tions in a tunnel. Trains were constantly passing the spot, which was on a curve and dark. No one was stationed to give an alarm, although precautions had been previously taken to protect other workmen similarly employed. Plaintiff was struck by a train and injured. Held, that defendants were not liable. Woodley v. Metropolitan Railway Co: 452.
SLANDER. The words, “ A. B. stole windows from C. D.'s house," are not of themselves, in their
ordinary and popular sense, actionable, as imputing either a charge of larceny or an act of malicious mischief upon real estate. Wing v. Wing, 240.
STATUTE OF FRAUDS.
writing, verbal, or implied, it cannot be enforced. Meader v. White, 238.
TAXATION. It is not competent to provide by law that sewer taxes shall be assessed upon lots and lands benefited according to their superficial area. If such an assessment was lawful there would be ground for a bill in equity to remove a cloud upon title. Thomas v. Gain, 1.
See MUNICIPAL Bonds, 1, 2, 3, 4, 5.
TRADE-MARK. 1. The numerical symbol 1, printed in large, bold, red characters, in a certain form and
style, had been used since 1873 by the complainant as one of his trade-marks on the packages and boxes of certain classes of cigarettes manufactured by him, and was registered in the United States Patent Office in June, 1875. This symbol was originally employed to indicate the idea that the cigarettes were composed of two kinds of tobacco in the proportion of half and half ; but except so far as it inrlicates this idea, which it does not really express, it is a merely arbitrary device. On a bill brought to enjoin against another's use of this symbol : Held, that the complainant had not a right to the exclusive use of the numerical character }, written in any ordinary manner; but that he had a right to the exclusive use of it in the particular form, size,
color, and style in which he had used and registered it. Kinney v. Allen & Co. 258. 2. Plaintiff, a manufacturing company, had long applied its corporate name, 6. The
Amoskeag Manufacturing Company,” to numerous kinds of cotton goods, which were widely known as “ Amoskeag” goods, but had never made " prints." Defendant used the word “ Amoskeag" on prints : Held, that plaintiff was entitled to an injunction restraining defendant from such use of its corporate name. Amoskeag Munufacturing Co. v. Garner, 176.
TROVER. The plaintiff' employed one M. to buy a horse for him. M. bought the horse, paying
for it with the plaintiff's money and took a bill of sale in his own name. Afterwards he informed the plaintiff of what he had done, and showed him the bill of sale ; but the plaintiff permitted him to go away with the horse and bill of sale still in his possession. M. thereupon went to the defendant, who had no knowledge of the agency, showed him the bill of sale, sold him the horse for cash, and absconded. Held, that the plaintiff could not recover in an action of trover for the horse. Nixon v. Brown, 187.
USURY. 1. Where a commission merchant in Baltimore advanced to a pork packer in Peoria
$100,000, for which he was to receive interest at the rate of ten per cent. per annum, and a fixed commission for the sale of the product, to be paid whether it was sold by the commission merchant or not, it was properly left to the jury to decide, on all the facts, whether or not the commissions were a cover for usury, or were an honest contract for commission business in connection with use of money. The express agreement of ten per cent. is not usurious, because lawful in Illinois, though not so in
Maryland. Cockle v. Flack, 184. 2. The lex loci contractus determines the nature, validity, and construction of contracts;
the lez fori determines the remedies for their enforcement. In order to render a contract void for usury, it must be tainted with that offence in its inception. The contracts and mortgage in this case, not being usurious in their origin, did not become ** illegal and void ”under the usury law of New Brunswick, where they were executed, by the receipt of usurious interest thereon. Lindsay v. Hill, 319.
WILL. 1. The burden of proof is on a party, seeking to establish a lost will by parol evidence
of its contents, to prove the contents by evidence strong, positive, and free from
doubt. Newell v. Homer, 88. 2. If a will, once known to exist, is not found at the death of the testator, it is presumed
to have been revoked. Ib. 3. On an appeal from a decree of the judge of probate refusing to approve and allow an
instrument alleged to be a copy of a will, the original being alleged to be lost, suppressed, or destroyed since the death of the testator, issues were framed for the jury, covering these questions. Held, that an issue proposed by the appellant, and which the judge who tried the case refused to submit to the jury, as to specific parts of the alleged will, was immaterial. 1b. . If this court has power, on a probate appeal, to revise the discretion of the judge presiding at the trial of issues of fact before a jury, in refusing to grant a delay in the trial on account of the absence of a witness, no affidavit of the testimony expected nor any statement of the grounds of such expectation having been made, it will only do so where the circumstances connected with the absence of the witness, and his alleged relation to the case, are so peculiar as to require that the ordinary rule
should be dispensed with. 1b. 5. To establish by copy a will alleged to have been destroyed or suppressed by parties
having an adverse interest thereto, evidence of a conspiracy by such parties to suppress the will is immaterial, unless accompanied with evidence sufficient to justify a jury in finding the execution and contents of the will, and its loss since the testator's death. Ib.