view of the previous state of the art, had no patentable novelty. Duer
v. Corbin Cabinet Lock Co., 216.

5. The mere fact that a patented article is popular and meets with large
and increasing sales is unimportant when the alleged invention is
without patentable novelty. Ib.

6. In a suit in equity brought on letters patent No. 348,073, granted
August 24, 1886, on an application filed March 22, 1886, to John T.
Underwood and Frederick W. Underwood, for a "reproducing surface
for type-writing and manifolding," the claim being for "A sheet of
material or fabric coated with a composition composed of a precipitate
of dye-matter, obtained as described, in combination with oil, wax or
oleaginous matter, substantially as and for the purposes set forth," it
appeared that letters patent No. 348,072, had been granted to the
plaintiffs August 24, 1886, on an application filed March 22, 1886, the
claim of which was for "The coloring composition herein described
for the manufacture of a substitute for carbon-paper, composed of a
precipitate of dye-matter, in combination with oil, wax or oleaginous
matter, substantially as set forth." The suit was not brought on No.
348,072. The only difference in the two patents was that No. 348,073
was for spreading upon paper the composition described in No.
348,072. Held that, in view of earlier patents and publications, there
was no novelty in taking a coloring substance already known and
applying it to paper; that the omission to claim in No. 348,073, the
composition of matter described in it was a disclaimer of it, as being
public property; and that there was no invention in applying it to
paper, as claimed in No. 348,073. Underwood v. Gerber, 224.

7. The second claim in reissued letters patent No. 5785, granted March 10,
1874, to Edward W. Leggett for an improvement in lining oil barrels
with glue, viz.: "for a barrel, cask, etc., coated or sized by the mate-
rial and by the mode or process whereby it is absorbed into and
strengthened the wood fibre, substantially as herein described" is void
as it is an expansion of the claim in the original patent so as to
embrace a claim not specified therein. Leggett v. Standard Oil Co., 287.
8. The first claim therein, viz: "the within described process of coating
or lining the inside of barrels, casks, etc., with glue, wherein the glu-
tinous material, instead of being produced by reduction from a previ-
ously solid state, is permitted to attain only a certain liquid consistency
and is then applied to the package and permitted to harden thereon
for the first time, substantially as herein set forth and described," is
void (1) because it was a mere commercial suggestion, and not such
a discovery as involved the exercise of the inventive faculties; and,
(2), by reason of such prior use as to prevent the issue of any valid
patent covering it. Ib.

9. The invalidity of a new claim in a reissued patent does not affect the
validity of a claim in the original patent, repeated in the reissue. Ib.
10. The poverty or pecuniary embarrassment of a patentee is not sufficient

excuse for postponing the assertion of his rights, or preventing the
application of the doctrine of laches. Ib.

11. An oral agreement for the sale and assignment of the right to obtain a
patent for an invention is not within the statute of frauds, nor within
section 4898 of the Revised Statutes requiring assignments of patents
to be in writing; and may be specifically enforced in equity, upon
sufficient proof thereof. Dalzell v. Dueber Watch Case Mfg. Co., 315.
12. A manufacturing corporation, which has employed a skilled workman,
for a stated compensation, to take charge of its works, and to devote
his time and services to devising and making improvements in articles
there manufactured, is not entitled to a conveyance of patents obtained
for inventions made by him while so employed, in the absence of
express agreement to that effect. Ib.

13. An assignee for Michigan, of a patent for an improvement in pipes,
made, sold and delivered in Michigan, pipes made according to the
patent, knowing that they were to be laid in the streets of a city in
Connecticut, a territory the right for which the seller did not own
under the patent, and they were laid in that city: Held, under Adams
v. Burke, 17 Wall. 453, that the seller was not liable, in an action for
infringement, to the owner of the patent for Connecticut. Hobbie v.
Jennison, 355.

14. Letters patent No. 301,720, issued July 8, 1884, to Albert L. Ide for
new and useful improvements in steam-engine governors are void for
want of novelty in the invention claimed in the specification. Ide v.
Ball Engine Co., 555.

15. Letters patent No. 283,057, issued August 14, 1883, to Frank E.
Aldrich, for an improvement in rubber cloths or fabrics, are void for
want of novelty. Brigham v. Coffin, 557.

PLEADING.

See EQUITY, 6, 7.

POSTMASTER GENERAL.

An order of the Postmaster General, made in the exercise of the discretion
given him by the act of June 17, 1878, 20 Stat. 140, c. 259, § 1, with-
holding commissions from a postmaster, and allowing a stated com-
pensation in place thereof, in consequence of alleged false returns in
the postmaster's accounts, is not final and conclusive in an action
by the United States against the postmaster and the sureties on his
bond, to recover moneys alleged to be illegally withheld; but it is
competent evidence on the part of the government, which may be
explained or contradicted by the defendants. United States V.
Dumas, 278.

PRACTICE.

1. Under the practice in Montana a defendant may move for a non-suit
upon the ground that the plaintiff has failed to prove a sufficient

VOL. CXLIX-52

case for the jury; but, if he proceed to put in testimony, he waives
this right. Bogk v. Gassert, 17.

2. Motions to suppress depositions for irregularities should be made before
the case is called for trial, so that opportunity may be afforded to cor-
rect the defects or to retake the testimony. Bibb v. Allen, 481.

3. A variance between the notice and the commission to take depositions
such as misspelling the commissioner's name in the latter, affords no
valid ground for the suppression of the depositions. Ib.

Where a principal sends an order to a broker doing business in an estab-
lished market or trade, for a deal in that trade, he thereby confers
upon the broker authority to deal according to any well-settled usage
in such trade or market, especially when such usage is known to the
principal, and is fair in itself, and does not change any essential par-
ticular of the contract between the principal and the broker, or involve
any departure from the principal's instructions; provided the trans-
action for which the broker is employed be lawful in character and is
not violative of good morals or public policy. Bibb v. Allen, 481.
See CONTRACT, 7, 8.

PROMISSORY NOTE.

1. A negotiable promissory note, even if not purporting to be "for
value received," imports a consideration; and the endorsement of
such a note is itself prima facie evidence of having been made for value.
Moses v. Lawrence County Bank, 298.

2. A promissory note payable to the maker's own order first takes effect
as a contract upon endorsement and delivery by him. Ib.

See FRAUDS, STATUTES OF, 1;

NEGOTIABLE PAPER.

PUBLIC LAND.

1. Swamp lands in Michigan which were not embraced in the list of such
lands, made by the Surveyor General February 12, 1853, as coming
within the provisions of the grant to the State of September 28, 1850,
9 Stat. 514, c. 84, which list was approved by the Secretary of the In-
terior January 11, 1854, and which lands were patented to the State
March 3, 1856, as so listed and approved, were not included within
the said grant of September 28, 1850. Chandler v. Calumet & Hecla
Mining Co., 79.

2. These several official acts by the proper officers operated as an adjudi-

cation as to what were swamp lands within the grant of September 28,
1850, and to exclude contradictory parol evidence. Ib.

3. The grant by the State, May 25, 1855, of the lands in controversy here,
operated to convey it to the grantee, whether the State's title was ac-
quired under the swamp land act, or under the grant of August 6,
1852, 10 Stat. 35, c. 92, for the purpose of building a ship canal. Ib.
4. Railroad Co. v. Smith, 9 Wall. 95, explained, qualified and distinguished
from this case. Ib.

5. When the defendant in an action of trespass brought by the United States
against him for cutting and carrying away timber from public lands ad-
mits the doing of those acts, the plaintiffs are entitled to at least nominal
damages in the absence of direct evidence as to the value of the stand-
ing trees. United States v. Mock, 273.

6. It is not to be presumed in such case as matter of course that the gov-
ernment permitted the trespass, and any instruction by the court
pointing that way is error. Ib.

7. Lands within the exterior limits of a Mexican grant, sub judice at the
date of the definite location of the Central Pacific Railroad, were not
"reserved," within the meaning of that word as used in section three
of the act of July 1, 1862, (12 Stat. 489, c. 120,) but enured to the road
as a portion of its land grant and were properly patented to it as such.
Carr v. Quigley, 652.

8. Newhall v. Sanger, 92 U. S. 761, explained. United States v. McLaughlin,
127 U. S. 428, approved.

Ib.

9. When, in a suit in equity brought by the United States to set aside
and cancel patents of public land issued by the Land Department, no
fraud being charged, it appears that the suit is brought for the benefit
of private persons and that the government has no interest in the
result, the United States are barred from bringing the suit if the per-
sons for whose benefit the suit is brought would be barred. Curtner v.
United States, 662.

10. When a land-grant railroad company conveys a part of its grant with-
out having received a patent from the United States, and it appears
that the United States had issued a patent of the tract to a State, as
part of a land grant to the State, and the State parts with its title to
an individual, the relative rights of the parties can be determined by
proceedings in the courts on behalf of the grantees of the company,
against the grantees of the State. Ib.

RAILROAD.

1. A debt due from a railroad company to a car company for rental of cars
prior to the commencement of a suit to foreclose a mortgage on the
road and the appointment of a receiver, is held not to be a preferred
debt, having priority over the mortgage debt. Thomas v. Western Car
Co., 95.

2. A similar debt accrued during the receivership is examined, and is
settled as to amount and allowed. Ib.

3. The car company in such case is not allowed interest. lb.

4. After property of an insolvent passes into the hands of a receiver or of
an assignee in insolvency, interest is not allowed on the claims against
the fund. lb.

5. On the trial of an action by a coupler and switchman of a railroad com-
pany, whose wages were $1.50 per day, against another company,
to recover for injuries received while in the discharge of his duties
from the explosion of the boiler of a locomotive, he was asked, as a
witness, what were his prospects of advancement in the service of the
company, and answered that he thought by staying he would be pro-
moted; that he had been several times, in the absence of the yard-
master, called upon to discharge his duties; that there was a "system
by which you go in there as coupler or train-hand, or in the yard, and
if a man falls out you stand a chance of taking his place"; and that
the average yard-conductor obtained a salary of from $60 to $75 a
month. Held, that there was error in admitting this testimony. Rich-
mond & Danville Railroad v. Elliott, 266.

6. If a railway company, in purchasing a locomotive from a manufacturer
of recognized standing makes such reasonable examination of it as is
possible without tearing the machinery in pieces, and subjects it fully
to all the ordinary tests which are applied for determining the efficiency
and strength of completed engines, and such examination and tests
disclose no defect, it cannot, in an action by a stranger, be adjudged
guilty of negligence on account of a latent defect which subsequently
caused injury to such party. Ib.

7. It is no proper business of a railway company as common carrier to
foster particular enterprises or to build up new industries; but, deriv-
ing its franchises from the legislature, and depending upon the will of
the people for its very existence, it is bound to deal fairly with the
public, to extend them reasonable facilities for the transportation of
their persons and property, and to put all its patrons upon an absolute
equality. Union Pacific Railway Co. v. Goodridge, 680.

8. It is no defence to an action against a railway company under the stat-
ute of Colorado of 1885 to recover triple damages for an unjust dis-
crimination in freight, to set up a contract for a rebate in case of
furnishing a certain amount for transportation, without also alleging
and showing that such an amount was furnished. Ib.

9. An unexplained, indefinite and unadjusted claim for damages arising
from a tort, which though put forward had never been pressed, is no
defence in such an action. Ib.

See COMMON CARRIER;

CONTRACT, 2;

LOCAL LAW, 1;

MASTER AND SERVANT;

MORTGAGE, 1, 2;

NUISANCE.