! Cited in Blackmer v. Stone, 51 Ark. 491, 11 S. W. 693, holding equity has power to enforce specific performance of oral agreement to assign interest in future patent in consideration of expense borne in procuring same; Blakeney v. Goode, 30 Ohio St. 360, holding oral assignment of interest in patent enforceable in equity; Harrison v. Morton, 83 Md. 479, 35 Atl. 102, holding assignment of right to obtain patent, unaccompanied by request to commissioner to issue in assignee's name, conveys only equitable title.

Patents. There can be no forfeiture under contract assigning patent and providing for forfeiture for failure to make and sell, until after reasonable notice of default, p. 227.

Cited in Stanley Rule Co. v. Bailey, 14 Blatchf. 512, F. C. 13,287, holding until forfeiture for breach of conditions subsequent be enforced, right theretofore vesting remains in licensee; Flatt v. Fire Extinguisher Co., 59 Fed. 901, 17 U. S. App. 452, holding patent assignment, on condition that assignee shall not reassign, vests in assignee, until condition broken, right to sue infringers.

Patents.- Plaintiff, in action against his assignor for infringement of patent, does not by claiming benefit of last reissues relinquish right to damages for infringements previous to dates thereof, p. 227.

Patents. Where patentee, having assigned patent himself, infringes same, equity regards him as a trustee who has violated trust, charging him for all profits made on original patent and on reissues obtained pendente lite, 228.

Cited in Brush Electric Co. v. California Electric Co., 52 Fed. 960, 7 U. S. App. 409, holding patentee retains legal title in trust for licensee, and may be joined as plaintiff against his will by latter in infringement suit.

Patents. Proper measure of damages for unauthorized use of invention by assignor of patent, is excess of profits derived from use of patented article over amount defendant would have received from use of other article open to public, p. 229.

Cited and followed in Root v. Railway Co., 105 U. S. 199, 26 L 979, holding action for account of profits made by infringer, brought after expiration of patent, should be in law; Dobson v. Hartford Carpet Co., 114 U. S. 445, 29 L. 179, 5 S. Ct. 948, only nominal damages awardable where no profits are found to have been made by defendant; Tilghman v. Proctor, 125 U. S. 144, 31 L. 666, 8 S. Ct. 898, holding advantage gained by defendant from use of plaintiff's invention, and saving in cost of manufacture from use of patented process, measure of profits to be accounted for in infringement suit; McCreary v. Pennsylvania Canal Co., 141 U. S. 463, 35 L. 819, 12 S. Ct. 42, plaintiff limited to profits arising from use of his improvement over amount made from use of device

without said improvement; Sessions v. Romadka, 145 U. 8. 45, 36 L. 616, 12 8. Ct. 803, holding profits on entire article not proper measure where only an attachment thereto infringed; Buerk v. Imhæusser, 14 Blatchf. 23, F. C. 2,107, holding royalty charged by inventor fixes its value as against himself in estimating infringement damages; Magic Ruffle Co. v. Elm City, 14 Blatchf. 115, F. a 8,950, holding fact that defendant made profit upon entire article, Insufficient to enable court to determine that plaintiffs suffered that amount of damage from use of their improvement; Steam Stone-Cutter Co. v. Windsor Mfg. Co., 17 Blatchf. 27, F. O. 13,335, halding profit received for invention by infringer, belongs to owner of patent; Maier v. Brown, 17 Fed. 737, holding plaintiff can only recover portion of profits from sale of article arising from use thereon of his invention; Fischer v. Hayes, 22 Fed. 529, holding advantage from use of infringed part of invention over use of machines open to public, proper measure; Mosher v. Joyce, 51 Fed. 444, 6 U. S. App. 107, denying right to order master to report profits made on entire article sold, and holding profits from use of plaintiffs' improvement, proper measure.

Distinguished in Dobsen v. Dornan, 118 U. S. 16, 30 L. 64, 6 S. Ot 948, sustaining decree directing account of profits from date of infringement; Warren v. Keep, 155 U. S. 269, 39 L. 146, 15 S. Ct. 84, holding patentee entitled to damages arising from manufacture of entire article where patent covers new article of manufacture.

Patents.- Except under peculiar circumstances, interest is not allowable on profits for which infringer of patent is found accountable to owner thereof, p. 230.

Cited and principle applied in Illinois Central R. R. v. Turrill, 110 U. S. 303, 28 L. 155, 4 S. Ct. 6, holding interest allowable, from date of master's report, where case had been sent back for correction of amount of damages; Tilghman v. Proctor, 125 U. 8. 160, 81 L. 672, 8 S. Ct. 907, holding interest allowable only from date of submission of master's report; Crosby Valve Co. v. Safety-Valve Co., 141 U. S. 458, 35 L. 816, 12 S. Ct. 55, holding damages allowed for injury by infringement, bear interest only after judicial ascertainment of amount; Steam Stone-Cutter Co. v. Windsor Mfg. Co., 17 Blatchf. 33, F. C. 13,335, allowing interest on profits decreed against infringer from time of entry of decree only; Burdett v. Estey, 19 Blatchf. 7, 8 Fed. 571, allowing interest on profits detained by defendant after filing disclaimer: Brady v. Atlantic Works, 3 Fed. Cas. 1195, holding interest on profits properly refused; Holbrook v. Small, 12 Fed. Cas. 325, refusing interest on profits; Bates v. St. Johnsbury Co., 32 Fed. 629, holding, although damages do not carry interest as such, it may be allowed as part of damages found by trier of fact; National Folding-Box Co. v. Elsas, 81 Fed. 198, holding interest upon unliquidated damages, before decree, not allowable.

21 Wall. 230-235, 22 L. 485, THE MOHLER.

Shipping. Nothing short of clear proof of occurrence of loss through inevitable perils of navigation, leaving no reasonable doubt for controversy, will be permitted to discharge carrier from duties annexed by law to his employment, p. 233.

Cited in The Narragansett, 20 Fed. 398, where defendant failed to rebut evidence of negligence; Mitchell v. Railroad, 124 N. C. 244, 32 S. E. 673, holding burden on carrier to show that loss was not due to its negligence. See note in 41 Am. Dec. 290.

Shipping.- Doctrine that carrier is not liable for goods lost by tempest, does not apply where carrier had, and neglected, sufficient warning that to proceed in present state of weather, was dangerous, p. 233.

Shipping. Duty of vessel approaching obstructions in river which, on account of high winds, she cannot pass without danger, is to lie by until wind abates, p. 234.

Cited and applied in The Steamer Costa Rica, 3 Sawy. 541, F. O. 3,261, holding master negligent in proceeding in dense fog, when he might safely have laid by; The Wm. Kraft, 33 Fed. 848, holding tug liable for loss of tow, where tug attempted to pass bridge piers in high wind; Brady v. Jefferson, 5 Houst. 81, holding tug liable for damage to tows from collision caused by failure to stop on approach of other vessel. See note in 41 Am. Dec. 287, on perils of sea, and 75 Am. Dec. 611, note, on duties of vessels in navigable waters.

Shipping.- Officers of vessels plying on internal waters, must be held to full measure of responsibility in navigating streams partially obstructed by bridge piers, p. 235.

21 Wall. 235-240, 22 L. 617, EX PARTE SAWYER.

Mandamus.-Superior Court, having, by mandamus, compelled inferior court to proceed, cannot control its discretion while so proceeding, p. 239.

Cited in The Sydney, 47 Fed. 262, Circuit Court, on receiving mandate from Supreme Court, in admiralty, will give summary Judgment against obligors on supersedeas bond.

Courts. Until decree is actually entered, court retains power to withhold it, p. 239.

Cited in State v. Dougherty, 70 Iowa, 440, 30 N. W. 685, upholding power of court at same term to revise entered judgment, nothing having been done thereunder.

Mandamus.--If Circuit Court, on receipt of order remanding cause, with instructions that such execution and proceedings be

had as according to law ought to be had, decides that execution should not issue, its decision cannot be reviewed upon application for mandamus, p. 240.

Principal and sureties.- Decree against principals alone, does not necessarily bind sureties, p. 240.

Cited and applied in Estis v. Trabue, 128 U. S. 229, 32 L. 438, 9 S. Ct. 59, dismissing appeal from joint judgment against principal and sureties, where latter did not join in writ of error; The Sydney, 47 Fed. 263, holding sureties not bound until adjudication vacating appeal made by Supreme Court becomes, by mandate, decree of lower court.

Appeal and error.- Provisional order against sureties, being unappealable, power of court over same is not ended on appeal from final decree against principals, p. 240.

Miscellaneous.- Braithwaite v. Jordan, 5 N. Dak. 209, 65 N. W. 704, 31 L. R. A. 244, as to form of supersedeas bonds in admiralty.

21 Wall. 241-249, 22 L. 632, TILDEN v. BLAIR.

Bills and notes.- Where accommodation acceptor returns draft to drawer for purpose of negotiation, latter is constituted ac ceptor's agent, to give effect to acceptance, which does not become effective until negotiation, p. 246.

Cited in Stubbs v. Cold, 24 Blatchf. 318, 30 Fed. 419, holding ae commodation indorsement ineffective until paper is negotiated.

Bills and notes.- Liability of acceptor does not arise from merely writing his name on bill, but commences with subsequent delivery to bona fide holder, or with notice to such holder of aeceptance, p. 246.

Followed in Millsaps v. Bank, 71 Miss. 378, 13 So. 908, holding accommodation paper not in fact executed until delivery to pur

chaser.

Bills and notes.- Where draft, drawn in Illinois, is accepted for accommodation, and made payable in New York, and returned to drawer for negotiation, it is an Illinois contract, and rights and liabilities of parties are governed by Illinois laws, p. 247.

Cited and principle followed in United States Mtge. Co. v. Sperry, 138 U. S. 336, 34 L. 978, 11 S. Ct. 328, holding rate of interest allowed by State where loan contract is made, will be respected by courts of other States, although exceeding rate allowed therein; Coghlan v. South Carolina R. R. Co., 142 U. S. 112, 35 L. 955, 12 S. Ct. 153, holding interest rate of place of performance governs; Allgeyer v. Louisiana, 165 U. S. 592, 41 L. 836, 17 S. Ct. 432, holding residence within State does not prevent making contract out of said State: Howenstein v. Barnes, 5 Dill. 484. F. C. 6,786. holding

law of place of performance governs construction, that of place of making, validity, of contract; Providence County Bank v. Frost, 8 Ben. 296, F. C. 11,453, a similar case; Re Dodge, 9 Ben. 483, F. C. 3,948, affirmed, Providence Sav. Bank v. Frost, 14 Blatchf. 233, F. C. 11,454, holding loan to be made in New York, terms arranged in Connecticut, vold, because usurious by New York law; Hiatt v. Griswold, 18 Blatchf. 558, 5 Fed. 576, holding note indorsed for accommodation in New York, and discounted in Massachusetts, governed by Massachusetts usury laws; In re Shelbourne, 21 Fed. Cas. 1234, holding rights of parties governed by law of place of negotiation; Farmers' Bank v. Sutton Mfg. Co., 52 Fed. 193, 6 U. S. App. 312, 17 L. R. A. 597, holding bill, drawn in Indiana, and accepted in Michigan, to be discounted in Indiana and paid in Michigan, an Indiana contract; Exchange Bank v. Hubbard, 62 Fed. 114, 26 U. S. App. 133, holding validity of promise to accept draft, payable in another State, governed by law of State where draft was made; Howard Ins. Co. v. Silverberg, 89 Fed. 172, affirmed in Howard Ins. Co. v. Silverberg, 94 Fed. 923, holding undertaking on appeal, signed in California, but filed in New York, a writing executed out of State, within meaning of California stat ute of limitations; Sondheim v. Gilbert, 117 Ind. 78, 10 Am. St. Rep. 29, 18 N. E. 690, 5 L. R. A. 435, holding validity of note executed and payable in New York, and held by innocent purchaser in Indiana, governed by New York law; Wayne County Bank v. Low, 81 N. Y. 570, 571, 37 Am. Rep. 534, 535, holding note, executed in New York, for use in Pennsylvania, to be governed by latter's interest laws; Sheldon v. Haxtun, 91 N. Y. 129, holding note, executed in Illinois, with interest valid there but illegal in New York, valid in latter State, although payable there; Scott v. Perlee, 39 Ohio St. 69, 48 Am. Rep. 424, holding citizen of another State may contract in Ohio for loan to be used in other State, at interest lawful there, but illegal in Ohio; Hefflebower v. Detrich, 27 W. Va. 25, holding contract expressly or tacitly agreed to be performed in another State, governable by latter's laws; Rodecker v. Littauer, 59 Fed. 859, 19 U. S. App. 455, arguendo. See also the following notes: 99 Am. Dec. 668, 99 Am. Dec. 675, 55 Am. Rep. 613, 614, and 46 Am. St. Rep. 202.

Cited, but held not decisive of point involved, in Ex parte Heidel back, 2 Low. 536, F. C. 6,322, holding interest and damages pay. able by drawee, ex mora, governed by law of place where bill is drawn. Distinguished in Miller Brewing Co. v. Stevens, 102 Iowa, 68, 71 N. W. 188, holding brewery agent's bond, executed in Wisconsin, but payable in Iowa, void under Iowa liquor law; Dickinson v. Edwards, 77 N. Y. 579, 581, 585, 33 Am. Rep. 676, 677, 680, holding note, made and payable in New York, without intention that it be discounted elsewhere, but first negotiated in another State, at rate of interest illegal in New York, invalid.

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