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Digest.

made to overcome such difficulties, combinations of fewer elements and therefore, that such difficulties than were contained in the comhad been heard of by the patentee. bination claimed in the claim of (Id.)

the original patent. The original

claimed a general and larger com3. It is further urged that the orig. bination, and the reissue claims

inal specification describes the in sub-combinations which enter into vention as applicable to all pump such general and larger combinafilters, whether used upon points tions. Such a reissue is sustainafor driven wells or upon well tubes ble on the ground that the reissue used in open wells or cisterns or was for things contained within streams, while the reissued speci the apparatus described in the fication introduces new matter by original patent. confining the invention to driven Held, further, that it is of no wells only. It is contended that in importance that the wire gauze this there is a violation not only of O,” may not, by itself, have been the provisions of section 53 of the new; or that the open grating or act of 1870 in regard to new mat ground "A," may not, by itself, ter, but a violation of the provision have been new; or that any other of that section, that in case of a ingredient of the combination machine patent neither the model claimed in the reissue may not, nor the drawings shall be amended, by itself, have been new so long except each by the other:

as the combinations, as claimed, Held, that as the same idea is were new. (Id.) found in the original specification and drawing, taken together, there 5. That the two claims of the reissue is no new matter in the reissued

do not claim combinations, but specification or in the reissued

claim merely aggregations of drawing. (Id.)

parts, is not regarded as a tena

ble objection. The object of the 4. Where the claim of the original combination claimed in the first

patent was this: A pump filter claim is to enable the structure to composed of the parts A, B and C, be driven into the earth, and substantially as and for the pur these serve for a pump and a poses described, it is urged that filter without being injured in such claim included the three dis driving. Nothing less than a comtinct parts, A, B and C, in com bination of all the elements in bination, embracing the whole of such combination will accomplish the structure described; that there all the objects which such combiis no suggestion in the original nation will accomplish. So, too, specification that the patentee had the grating and the wire gauze of invented any combination or parts

the second claim act in combinaless than the whole, and that each tion in controlling the passage of of the claims of the reissue is for the water from the outside of the a combination of parts less than grating to the interior of the wire the whole, and is, therefore, void: gauze.

Held, that, under the decision in Held, also, that although the secthe Corn Planter Patent (23 Wall ond claim is invalid for want of ace, 181), the reissue in the present novelty, the plaintiff can recover case cannot be held to be void. on the first claim under section The drawings of the original and 60 of the act of July 8, 1870 (16 the reissue being the same, and U. S. Stat. at Large, 207; now the two specifications describing section 4922 of the Revised Statutes), the same mechanical structure, although no disclaimer has been with the same mode of operation, made as yet to the second claim, it must be held to be lawful to provided that, prior to the entry reissue the patent with claims to herein as to such first claim, they

Digest.

make a disclaimer under section 4917 of the Revised Statutes, as to the second claim, it not appearing that there has been heretofore any unreasonable neglect or delay to enter such disclaimer; but as such disclaimer was not entered before the commencement of this suit, the plaintiffs will not be entitled to recover any costs of this suit. (Id.)

possession, moved for leave to discontinue on payment of costs:

Held, that in denying the motion the court below did not exceed its discretion. (Carleton agt. Darcy, 75 N. Y., 375.)

ELECTION LAW.

EASEMENT.

See RIGHT OF WAY.

Outerbridge and Scott agt. Phelps,

ante, 77.

EJECTMENT.

1. Where, on a motion for a new

trial in an action of ejectment, the papers show that the motion is made on behalf of a party whose interest in the premises is at least doubtful, on a case where consent has been given to the judgment, such motion being made by an attorney who is not shown to have had any authority, and where it is very uncertain upon the papers what are the actual facts, and whether a case is made out for a new trial within the statute (2 R. 8., 309, as amended by chapter 485, Laws of 1862), the motion should be denied. (Sacia agt. O'Connor,

ante, 420.) 2. If the taking of judgment by con

sent was a default, the defendant should make his motion under section 38, and satisfy the court by affidavit that the ends of justice would be promoted, and the rights of the parties more satisfactorily ascertained and estab

lished.” (Id.) 3. Plaintiff recovered judgment in

an action of ejectment and was put in possession of the premises; defendant paid the costs and took a new trial under the statute, thereupon plaintiff, still retaining

1. The board of county canvassers

are only to send back the returns to the town or ward inspectors, when it shall clearly appear to them that certain omissions have been made, or that any mistakes, whicb are merely clerical, exist. (The People ex rel. Hatzel agt.

Board of Supervisors, ante, 141.) 2. Where the relator, who asks for

a mandamus to compel the county canvassers to send back the returns to the ward inspectors for correction, in his affidavit alleges matters which, assuming them to be true, show that there is no clerical error in the case, but that there has been a false and fraudulent alteration of the returns:

Held, that if the returns have been fraudulently altered the in. spectors or others who have made such alterations are criminally liable for their wrongful acts; but the question whether such fraud has been committed cannot be properly tried in a proceeding to compel the canvassing of the

votes. (Id.) 3. In an action in the nature of a quo

warranto the court can go behind the certificates of inspectors and canvassers, and the voter can be examined as a witness to prove for whom he cast his ballot. But in a proceeding to compel the canvassing of the votes, where the officers to whom the writ is to be directed are merely ministerial officers, deriving their powers solely from the statutes, and hav. ing no power to examine witnesses to enable them to get at the real truth, the granting of the writ would be useless and nugatory. (Id.)

Digest.

4. Although inspectors of election election returns and qualifications

are guilty of an irregularity in not of its own members” (Laws of complying with the law which 1857, col. 1, page 875): makes it the duty of inspectors Held, that the decision of the "to securely paste or attach to each board of aldermen in such cases statement of the canvass one bal could not be reversed or set aside lot of each kind found to have by the court. been given for the officers to be Held, further, that the change chosen at the election," &c., &c., in the phraseology of the charter as provided in section 54 of the act of 1873 does not give to the court of 1872 (chapter 675), such an ir the power, in an action in the regularity cannot be availed of by nature of a quo warranto, to pass one who does not show himself to

upon the question of title to the have been injured thereby. (Id.) office of alderman where the board

has declared in favor of such 5. To entitle a party to a writ of right. (The People ex rel. Hatzel

mandamus two things must ap agt. Hall, ante, 147.) pear: First, that he has a legal right to have something done by 8. The charter makes the judgment the party to whom he seeks to of the board the subject of rehave the writ directed, and which view by any court of competent has not been done; and secondly, jurisdiction, or, in other words, that he has no specific legal reme it permits an appeal to a court of dy to which he can resort to com competent jurisdiction from the pel the performance of that duty. judgment of the board. But the (Id.)

judgment of the board cannot be

reviewed in an action to which 6. Accordingly, held, that as the re the board is not a party, and in lator will have an opportunity of

which the record of that board is contesting the right of his oppo

not before the court. (Id.) nent before the board of aldermen, and by the charter such board is 9. It is the office of the writ of certiomade the judge of the election re

rari to correct errors of a judicial turns and qualifications of its own

character committed by an inferior members, subject, however, to the

tribunal or body, and that writ review of any court of competent

brings the record before the court jurisdiction, thus giving the re

for examination and review, and lator, if aggrieved, a remedy at

such writ should be returnable belaw, a mandamus will not lie.

fore the general term.

In case Held, further, that as this appli

of this kind a circuit judge, in & cation is made to the court within

circuit court, cannot sit as an aptwenty-four hours of the time pellate tribunal to review the judg. fixed by the board of canvassers

ment and decision of an inferior for their final adjournment, and

tribunal. (Id.) to issue the writ might work great injustice and cause increased expense, the elementary rule should

EQUITABLE CONVERSION. be followed, that the writ should not be issued where the party has see WILL. not a perfectly clear legal right to

Giraud agt Giraud, ante, 175. demand that for which he asks.

(Id.) 7. Prior to 1873 the charter of the EQUITABLE LIEN.

city of New York provided that each board of the common coun. See MORTGAGE. cil should“ be the judge of the Kendall agt. Niebuhr, ante, 156.

Digest.

ESTOPPEL.

work the farm upon the same

terms that he had worked it on See WILL.

for her husband, Giraud agt. Giraud, ante, 175. In an action by the plaintiff to

enforce the latter agreement, held, See ASSIGNMENT.

that the testimony of the defendMcConnell agt. Sherwood, ante, ant, as to the terms of the agree453.

ment made with the deceased,

was admissible as against the EVIDENCE.

plaintiff. (Titus agt. O'Connor, 18

Hun, 373.) 1. The rule that when an agreement

between parties is reduced to writ- 5. The plaintiff in error was indicting, it cannot be controverted or

ed and convicted of embezzling varied by parol evidence, applies

the funds of a savings bank, of only to parties to the agreement.

which he was the secretary. UpBut when persons not parties to

on the trial, the books of the the agreement, and in no way

bank, which were kept by the connected therewith, are interest

accused, and in his handwriting, ed like judgment creditors, for ex

and also a book kept by the treaample, to show what the agree

surer of the bank, showing the ment was, they may resort to parol

amounts paid over to the bank by evidence to show what the real

the accused, were received in evitransaction in fact was, notwith

dence: standing the writing. (Brown

Held, that as the treasurer's agt. Thurber et al., ante, 95)

book was kept in the regular course of business of the bank,

and as the accused was an ofhicer 2. In an action for goods sold and delivered, where the defense was

thereof, it was admissible against

the accused to show the amounts payment, the plaintiff being the survivor of the firm, the defend

received. (Humphrey agt. People, ant cannot be allowed to testify

18 Hun, 393.) over plaintiff's objections that he paid the bill in question to the 6. The accused offered to show that deceased partner (Code of Civil

the other officers of the bank were Procedure, sec. 829). (Pettit agt.

in complicity with him, and that Geesler, ante, 195.)

he made the false entries in the

books with their knowledge and 3. To identify a particular corpora

approval, and for the purpose of tion as the one intended, where a

deceiving the bank department at name other than the corporate

Albany:

Held, that the evidence was name is used, parol evidence is allowable to aid in determining the

properly rejected. (Id.) intention of the testator in the use of the words in the bequest. 7. In an action upon a promissory (Leonard et al agt. Davenport, ante, note made by the defendant for 384.)

the accommodation of the payee,

and discounted by the plaintiff, 4. The defendant entered into an the defendant offered to prove

oral agreement with one Titus to that, when the note was made, work a farm belonging to the lat the president of the plaintiff ter upon shares, upon certain agreed that he should not be callterms. Subsequently Titus died, ed on to pay it: leaving the farm and all the im Held, that the evidence was inplements thereon to his wife. admissible (1) because the presiThereafter the defendant agreed dent had no authority to make with the wife, the plaintiff, to such a promise; and (2), because

Digest.

it contradicted the written instru. 13. What evidence as to the value ment. (First_National Bank of of services rendered as arbitrator Whitehal agt. Tisdale, 18 Hun, 191.) is insufficient to justify a recov.

ery. (Harrison agt. Ayers, 18 8. In an action against the surviv Hun, 336.)

ing partner of a firm, upon a contract made with it, the plaintiff is a competent witness to testify to 14. In an action against the surviv. a personal transaction had with ing member of a firm, to recover the deceased partner, if the de money lent to the deceased partfendant was present at the time

ner, where the defense is that the of its occurrence. (Kale agt. El money was not borrowed or used liott, 18 Hun, 198.)'

for firm purposes, declarations of

the deceased partner to third per9. Declarations of a party as to the

sons, made after the money was title claimed by him are admissi

borrowed, to the effect that it was ble as evidence if made while he

borrowed and used for firm purwas in possession of the premises poses, are admissible as against in dispute, and it is not necessary

the surviving partner. (Klock that they should have been made

agt. Beekman, 18 Hun, 503.) while he was actually upon the land. (Swettenham agt. Leary, 18 15. The defendant in error, Genet, Hun, 284.)

was indicted and convicted of ob10. In an action to foreclose a mort

taining money from the city of

New York on false pretenses. It gage, given as collateral to a bond,

appeared that in 1870 Genet, being regular and valid upon its face,

counsel to the commissioners to parol evidence is admissible to erect a district court-house in New show, for the purpose of estab

York, one Davidson applied to lishing the defense of usury, that him for the contract for the iron the mortgagor agreed to and did

work, and was by him referred to pay interest thereon at the rate of one of the commissioners, who ten per cent per annum. (Mud

said he would see Genet about it. gett agt. Goler, 18 Hun, 302.)

In June, 1871, Davidson Saw

Genet, receiving from him a mem11. Where, on an application by a orandum of the work, and made

child for his share of his father's an estimate under his directions. estate, the executors claim to de Davidson having refused to deduct a sum alleged to have been liver the materials, except upon advanced to him by the deceased, payment of the price, made out a and to prove such advancement, bili, under Genet's direction, for put in evidence an entry made by the full amount, showing delivery the testator in one of his books, of all the iron work during the the child is entitled, under section months of January, February, 829 of the Code of Civil Proced March, April, May and June, 1871, ure, to testify in reference to as per agreement with commissionsuch advancement, and explain or ers, when in fact none of it had deny such_entry. (Marsh agt. been delivered. Genet having proBrown, 18 Hun, 319.)

cured the certificate of the commis

sioners to the bill, sent it to the 12. A mere entry by a testator in one comptroller's office, where it was

of his books is not sufficient to audited, and a warrant prepared show that he has made an ad and signed by the comptroller and vancement to one of his children, mayor. The auditing and signunless the fact of such advance ing of the warrant were based ment be established by evidence upon the bill certified by the comaliunde. (Id.)

missioners. Thereafter Genet

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