made to overcome such difficulties, and, therefore, that such difficulties had been heard of by the patentee. (Id.)

3. It is further urged that the orig

inal specification describes the invention as applicable to all pump filters, whether used upon points for driven wells or upon well tubes used in open wells or cisterns or streams, while the reissued specification introduces new matter by confining the invention to driven wells only. It is contended that in this there is a violation not only of the provisions of section 53 of the act of 1870 in regard to new matter, but a violation of the provision of that section, that in case of a machine patent neither the model nor the drawings shall be amended, except each by the other:

Held, that as the same idea is found in the original specification and drawing, taken together, there is no new matter in the reissued specification or in the reissued drawing. (Id.)

4. Where the claim of the original patent was this: A pump filter composed of the parts A, B and C, substantially as and for the purposes described, it is urged that such claim included the three distinct parts, A, B and C, in combination, embracing the whole of the structure described; that there is no suggestion in the original specification that the patentee had invented any combination or parts less than the whole, and that each of the claims of the reissue is for a combination of parts less than the whole, and is, therefore, void:

Held, that, under the decision in the Corn Planter Patent (23 Wallace, 181), the reissue in the present case cannot be held to be void. The drawings of the original and the reissue being the same, and the two specifications describing the same mechanical structure, with the same mode of operation, it must be held to be lawful to reissue the patent with claims to

combinations of fewer elements than were contained in the combination claimed in the claim of the original patent. The original claimed a general and larger combination, and the reissue claims sub-combinations which enter into such general and larger combinations. Such a reissue is sustainable on the ground that the reissue was for things contained within the apparatus described in the original patent.

Held, further, that it is of no importance that the wire gauze "C," may not, by itself, have been new; or that the open grating or ground "A," may not, by itself, have been new; or that any other ingredient of the combination claimed in the reissue may not, by itself, have been new so long as the combinations, as claimed, were new. (Id.)

That the two claims of the reissue do not claim combinations, but claim merely aggregations of parts, is not regarded as a tenable objection. The object of the combination claimed in the first claim is to enable the structure to be driven into the earth, and these serve for a pump and a filter without being injured in driving. Nothing less than a combination of all the elements in such combination will accomplish all the objects which such combination will accomplish. So, too, the grating and the wire gauze of the second claim act in combination in controlling the passage of the water from the outside of the grating to the interior of the wire gauze.

Held, also, that although the second claim is invalid for want of novelty, the plaintiff can recover on the first claim under section 60 of the act of July 8, 1870 (16 U. S. Stat. at Large, 207; now section 4922 of the Revised Statutes), although no disclaimer has been made as yet to the second claim, provided that, prior to the entry herein as to such first claim, they

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.)

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. S., 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 consent 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 established." (Id.)

66

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

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.

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, which 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 having 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.)

4. Although inspectors of election are guilty of an irregularity in not complying with the law which makes it the duty of inspectors "to securely paste or attach to each statement of the canvass one ballot of each kind found to have been given for the officers to be chosen at the election," &c., &c., as provided in section 54 of the act of 1872 (chapter 675), such an irregularity cannot be availed of by one who does not show himself to have been injured thereby. (Id.)

5. To entitle a party to a writ of mandamus two things must appear: First, that he has a legal right to have something done by the party to whom he seeks to have the writ directed, and which has not been done; and secondly, that he has no specific legal reme dy to which he can resort to compel the performance of that duty. (Id.)

6. Accordingly, held, that as the relator will have an opportunity of contesting the right of his opponent before the board of aldermen, and by the charter such board is made the judge of the election returns and qualifications of its own members, subject, however, to the review of any court of competent jurisdiction, thus giving the relator, if aggrieved, a remedy at law, a mandamus will not lie.

Held, further, that as this application is made to the court within twenty-four hours of the time fixed by the board of canvassers for their final adjournment, and to issue the writ might work great injustice and cause increased expense, the elementary rule should be followed, that the writ should not be issued where the party has not a perfectly clear legal right to demand that for which he asks. (Id.)

7. Prior to 1873 the charter of the city of New York provided that

election returns and qualifications of its own members" (Laws of 1857, vol. 1, page 875):

Held, that the decision of the board of aldermen in such cases could not be reversed or set aside by the court.

Held, further, that the change in the phraseology of the charter of 1873 does not give to the court the power, in an action in the nature of a quo warranto, to pass upon the question of title to the office of alderman where the board has declared in favor of such right. (The People ex rel. Hatzel agt. Hall, ante, 147.)

8. The charter makes the judgment of the board the subject of review by any court of competent jurisdiction, or, in other words, it permits an appeal to a court of competent jurisdiction from the judgment of the board. But the judgment of the board cannot be reviewed in an action to which the board is not a party, and in which the record of that board is not before the court. (Id.)

9. It is the office of the writ of certiorari to correct errors of a judicial character committed by an inferior tribunal or body, and that writ brings the record before the court for examination and review, and such writ should be returnable before the general term. In cases of this kind a circuit judge, in a circuit court, cannot sit as an appellate tribunal to review the judg ment and decision of an inferior tribunal. (Id.)

EQUITABLE CONVERSION. See WILL.

Giraud agt Giraud, ante, 175.

EQUITABLE LIEN.

Kendall agt. Niebuhr, ante, 156.

See WILL.

ESTOPPEL.

Giraud agt. Giraud, ante, 175.

See ASSIGNMENT.

McConnell agt. Sherwood, ante, 453.

EVIDENCE.

1. The rule that when an agreement between parties is reduced to writing, it cannot be controverted or varied by parol evidence, applies only to parties to the agreement. But when persons not parties to the agreement, and in no way connected therewith, are interested like judgment creditors, for example, to show what the agreement was, they may resort to parol evidence to show what the real transaction in fact was, notwithstanding the writing. (Brown agt. Thurber et al., ante, 95)

2. In an action for goods sold and delivered, where the defense was payment, the plaintiff being the survivor of the firm, the defendant cannot be allowed to testify over plaintiff's objections that he paid the bill in question to the deceased partner (Code of Civil Procedure, sec. 829). (Pettit agt. Geesler, ante, 195.)

3. To identify a particular corporation as the one intended, where a name other than the corporate name is used, parol evidence is allowable to aid in determining the intention of the testator in the use of the words in the bequest. (Leonard et al agt. Davenport, ante, 384.)

4. The defendant entered into an oral agreement with one Titus to work a farm belonging to the latter upon shares, upon certain terms. Subsequently Titus died, leaving the farm and all the implements thereon to his wife. Thereafter the defendant agreed with the wife, the plaintiff, to

5.

6.

work the farm upon the same terms that he had worked it on for her husband,

In an action by the plaintiff to enforce the latter agreement, held, that the testimony of the defendant, as to the terms of the agreement made with the deceased, was admissible as against the plaintiff. (Titus agt. O'Connor, 18 Hun, 373.)

The plaintiff in error was indicted and convicted of embezzling the funds of a savings bank, of which he was the secretary. Upon the trial, the books of the bank, which were kept by the accused, and in his handwriting, and also a book kept by the treasurer of the bank, showing the amounts paid over to the bank by the accused, were received in evidence:

Held, that as the treasurer's book was kept in the regular course of business of the bank, and as the accused was an officer thereof, it was admissible against the accused to show the amounts received. (Humphrey agt. People, 18 Hun, 393.)

The accused offered to show that

the other officers of the bank were in complicity with him, and that he made the false entries in the books with their knowledge and approval, and for the purpose of deceiving the bank department at Albany:

Held, that the evidence was properly rejected. (Id.)

7. In an action upon a promissory note made by the defendant for the accommodation of the payee, and discounted by the plaintiff, the defendant offered to prove that, when the note was made, the president of the plaintiff agreed that he should not be called on to pay it:

Held, that the evidence was inadmissible (1) because the president had no authority to make such a promise; and (2), because

it contradicted the written instrument. (First National Bank of Whitehall agt. Tisdale, 18 Hun, 191.)

8. In an action against the surviving partner of a firm, upon a contract made with it, the plaintiff is a competent witness to testify to a personal transaction had with the deceased partner, if the defendant was present at the time of its occurrence. (Kale agt. Elliott, 18 Hun, 198.)

9. Declarations of a party as to the title claimed by him are admissible as evidence if made while he was in possession of the premises in dispute, and it is not necessary that they should have been made while he was actually upon the land. (Swettenham agt. Leary, 18 Hun, 284.)

10. In an action to foreclose a mortgage, given as collateral to a bond, regular and valid upon its face, parol evidence is admissible to show, for the purpose of establishing the defense of usury, that the mortgagor agreed to and did pay interest thereon at the rate of ten per cent per annum. (Mudgett agt. Goler, 18 Hun, 302.)

11. Where, on an application by a child for his share of his father's estate, the executors claim to deduct a sum alleged to have been advanced to him by the deceased, and to prove such advancement, put in evidence an entry made by the testator in one of his books, the child is entitled, under section 829 of the Code of Civil Procedure, to testify in reference to such advancement, and explain or deny such entry. (Marsh agt. Brown, 18 Hun, 319.)

12. A mere entry by a testator in one of his books is not sufficient to show that he has made an advancement to one of his children, unless the fact of such advancement be established by evidence aliunde. (Id.)

15. The defendant in error, Genet, was indicted and convicted of obtaining money from the city of New York on false pretenses. It appeared that in 1870 Genet, being counsel to the commissioners to erect a district court-house in New York, one Davidson applied to him for the contract for the iron work, and was by him referred to one of the commissioners, who said he would see Genet about it. In June, 1871, Davidson saw Genet, receiving from him a memorandum of the work, and made an estimate under his directions. Davidson having refused to deliver the materials, except upon payment of the price, made out a bill, under Genet's direction, for the full amount, showing delivery of all the iron work during the months of January, February, March, April, May and June, 1871, as per agreement with commissioners, when in fact none of it had been delivered. Genet having procured the certificate of the commissioners to the bill, sent it to the comptroller's office, where it was audited, and a warrant prepared and signed by the comptroller and mayor. The auditing and signing of the warrant were based upon the bill certified by the commissioners. Thereafter Genet