2. This court cannot, through the instrumentality of a writ of mandamus,
review the judicial action of a court below, had in the exercise of its
legitimate jurisdiction. Ib.
3. If a suit brought in the Circuit Court of the United States against a
foreign corporation and against individuals is erroneously dismissed
as against the corporation for want of jurisdiction thereof, mandamus
lies to compel that court to take jurisdiction of the suit as against the
corporation. And when an appeal, taken by the plaintiff to this
court within six weeks from the order of dismissal, remains upon the
docket, without any motion by the appellee to dismiss it, until the
case is reached for argument, and is then dismissed by the court for
want of jurisdiction, and the plaintiff, within five weeks afterwards,
applies for a writ of mandamus, there is no such laches as should
deprive him of this remedy. In re Hohorst, 653.
In a suit in equity to have T. declared a trustee, for the use of S., of an
interest in a mine, and to compel a conveyance of the same to S., T.
set up two sources of independent title in himself: (1) the purchase
of a portion of the interest at an execution sale under a judgment in
a suit in which process was not served upon S., no appearance entered
for him, no judgment entered against him, and in which he was never
in court; (2) proceedings under Rev. Stat. § 2324 by T. against S. as
an alleged "coowner" of the mine to compel him to contribute to the
payment of the annual labor on the mine for the year 1884, by which
proceeding it was claimed that the interest of S. in the mine became
forfeited to T. At the time when the labor was done for which con-
tribution was demanded, S. had not received the deed for his interest,
and the sheriff's deed to T. of the interest which he claimed was not
delivered until March, 1885. Held, (1) That T. acquired no interest
in the share of S. in the mine by the sheriff's deed; (2) That T. was
not a coowner in the mine with S. during the year 1884, within the
meaning of the statute, which, as it provides for the forfeiture of
the rights of a coowner, should be construed strictly. Turner v.
Sawyer, 578.
Congress having, by joint resolution approved October 25, 1893, declared
the uses to which the property of the Mormon Church should be
devoted, the court remands this case for further proceedings in the
Supreme Court of the Territory in conformity with the provisions of
that resolution. United States v. Mormon Church, 145.
Holders of municipal bonds, issued by a county in excess of its authority,
cannot, by an offer to surrender and cancel so much of such bonds as
may, upon inquiry, be found to exceed the limit authorized by law,
invest a court of equity with jurisdiction to ascertain the amount of
such excess, and to declare the residue of such bonds valid and
enforce the payment thereof against the county. Hedges v. Dixon
County, 182.
MURDER.
See CRIMINAL LAW.
1. The receiver of a national bank is an officer and agent of the United
States within the meaning of those terms as used in Rev. Stat. § 380,
providing that all suits and proceedings arising out of the provisions
of law governing national banking associations, in which the United
States or any of its officers or agents are parties, shall be conducted
by the District Attorneys of the several districts, under the direction
and supervision of the Solicitor of the Treasury. Gibson v. Peters,
342.
2. If a District Attorney of the United States, acting under the provisions
in Rev. Stat. § 380, conducts a suit or proceeding arising out of the
provisions of law governing national banking associations, he is en-
titled to no remuneration other than that coming from his salary, from
the compensation and fees authorized to be taxed and allowed, and
such additional compensation as is expressly allowed by law, specifi-
cally, on account of services named. lb.
1. Though questions of negligence and contributory negligence are, ordi-
narily, questions of fact to be passed upon by a jury, yet, when the
undisputed evidence is so conclusive that the court would be com-
pelled to set aside a verdict returned in opposition to it, it may with-
draw the case from the consideration of the jury, and direct a verdict.
Elliott v. Chicago, Milwaukee & St. Paul Railway, 245.
2. Plaintiff sued defendant in a Circuit Court of the State of Michigan
on the cause of action for which this suit is brought. Verdict and
judgment were in plaintiff's favor in the trial court. This judgment
was reversed by the Supreme Court of the State, and a new trial was
ordered. When the case was remanded plaintiff voluntarily withdrew
his action and submitted to a nonsuit which was not to prevent his
right to bring any suit in any court. He then commenced this action
in the Circuit Court of the United States. The defendant contended
(1) that plaintiff was estopped from bringing this action by the judg-
ment in the state court; (2) that the record showed no negligence on
the part of the defendant, and that a verdict should have been directed
in its favor. The Circuit Court overruled the first contention of the
defendant, but accepted the second, and directed a verdict for defend-
ant. Held, (1) That the plaintiff was not estopped from bringing
this action by the proceedings and judgment in the state court; (2)
That the evidence in regard to negligence was conflicting, and the
question should have been left to the jury under proper instructions.
Gardner v. Michigan Central Railroad Co., 349.
3. The question of negligence in such case is one of law for the court
only when the facts are such that all reasonable men must draw the
same conclusion from them; or, in other words, a case should not be
withdrawn from the jury unless the conclusion follows as matter of
law that no recovery can be had upon any view which can be properly
taken of the facts the evidence tends to establish. Ib.
1. An application for a rehearing cannot be entertained when presented
after the expiration of the term at which the judgment was rendered.
Bushnell v. Crooke Mining Co., 82.
2. Ordinarily a court has no power to grant a new trial at a term subse-
quent to that at which the original judgment was rendered. Belknap
v. United States, 588.
3. The Court of Claims, however, under Rev. Stat. § 1088, has power to
grant a new trial in such case on a motion on behalf of the United
States, and a mandate from this court does not affect that power. Ib.
4. When such a motion is made on behalf of the government on the
ground that its officers understood that there was an agreement that a
case which had been appealed to this court by the United States, and
had been remanded to that court by this court, on the ground that the
appellants had not entered it here, was to abide the result in another
case appealed from the Court of Claims by the United States and
decided here in their favor, the granting of the motion by the Court
of Claims must be taken by this court as conclusive on the question
whether there was sufficient evidence to establish the facts stated as
the ground of the motion, when that evidence is not preserved. Ib.
See APPEAL, 2;
JURISDICTION, A, 4, 22.
OKLAHOMA.
See PUBLIC LAND, 4, 5.
1. The plaintiff set up in his bill a verbal contract of partnership between
the defendant and himself in the buying and selling of real estate,
and called for an answer under oath. The defendant answered under
oath, denying positively and in direct terms the existence of the alleged
contract of partnership. Held, that, under well settled rules of equity
pleading and practice, this answer could be overcome only by the tes-
timony of at least two witnesses, or of one witness with corroborating
circumstances, and that the proofs in this case fail to break down the
defendant's denial. Latta v. Kilbourn, 524.
2. The violation by one partner of his undertaking to give to the firm or
his associate an opportunity or option to engage in any particular
transaction, not within the scope of the firm's business, does not
entitle his copartners to convert him into a constructive trustee in
respect to the profits realized therefrom. 1b.
3. An agreement by partners that no one of them should engage in the
buying and selling of real estate on his own account does not entitle
the other partners to share in profits made by one of them in real
estate speculations, entered into by him without first securing the
assent of his copartners. Ib.
4. If a member of a partnership uses information obtained by him in the
course of the transaction of the partnership business, or by reason of
his connection with the firm, for purposes wholly without the scope of
the partnership business, and not competing with it, the firm is not
entitled to an account of any benefit derived therefrom.
1. The first claim under the reissued letters patent No. 10,361, issued to
Henry L. Spiegel, July 31, 1883, for improvements in cabinet locks, is
void because it broadens and expands the claims in the original patent,
and it does not appear that there was any accident, inadvertence,
or mistake in the specification and claim of the original, or that it
was void or inoperative for any reason which would entitle the paten-
tee to have a reissue. Corbin Cabinet Lock Co. v. Eagle Lock Co., 38.
2. When an applicant for letters patent makes a broad claim which is
rejected, and he acquiesces in the decision and substitutes a narrower
claim therefor, he cannot insist upon a construction of the narrowed
claim which would cover what was so rejected. Ib.
3. To warrant new and broader claims in a reissue, they must not only
be suggested or indicated in the original specification, drawings, or
models, but it must appear that they constitute part of the invention
intended to be covered by the original patent. Ib.
4. In applications for reissue the patentee cannot incorporate claims cov-
ering what had been rejected on the original application. 1b.
5. Letters patent No. 316,411, granted April 21, 1885, to Henry L. Spiegel
for improvements in cabinet locks, are void for want of patentable
invention. Ib.
6. The first claim in letters patent No. 77,878, granted May 11, 1868, to
James F. Gordon, was a claim "for a binding arm capable of adjust-
ment in the direction of the length of the grain, in combination with
an automatic twisting device, substantially as and for the purposes
described;" and it was not infringed by the devices used by the
defendants for attaining the common purpose of securing the stalks
of grain into bundles by passing around them a band at the middle
of the stalks. Gordon v. Warder, 47.
7. The fourth and seventh claims in letters patent No. 325,688, issued to
Albert G. Mead, September 8, 1885, for a "button" are not infringed
by glove fasteners manufactured under letters patent Nos. 359,614
and 359,615, issued to Edwin J. Kraetzer, March 22, 1887; and
though it would be possible to make out a literal infringement of the
sixth claim, by construing the claim broadly, the court holds that the
patentee is not entitled to such construction. Ball & Socket Fastener
Co. v. Kraetzer, 111.
8. There is no equity in charging infringement upon a defendant in a
patent suit, in consequence of an apparently accidental adoption of
an immaterial feature of the plaintiff's patent. lb.
9. The alleged invention patented in letters patent No. 123,142, issued
January 30, 1872, to Philo D. Beckwith for "an improvement in
stoves," was anticipated by prior patents and is void for want of
invention in not describing how wide the flange should be in order
to accomplish the desired result. Howard v. Detroit Stove Works, 164.
10. Letters patent No. 135,621, issued February 11, 1873, to Philo D.
Beckwith for "novel improvements in a stove," are void because the
bolting or riveting together of sections of a stove was well known at
the time of the alleged invention, and the use of lugs with holes per-
forated through them was anticipated in other stoves and furnaces
manufactured many years prior to the date of the patent. Ib.
11. Letters patent No. 206,074, issued to Philo D. Beckwith, July 16,
1878, for a "new and useful improvement in stove grates," is void
because the claims in it were clearly anticipated, and because it
involved no invention to cast in one piece an article which had
formerly been cast in two pieces and put together, nor to make the
shape of the grate correspond with that of the fire-pot. Ib.
12. In 1871 L. & B., being partners, commenced the manufacture of
hydraulic elevators in Cincinnati. S. was employed by them as engi-
neer and draughtsman at a fixed salary of $1200 per annum. While
in their employ, and while using their tools and patterns, he invented
a stop-valve in 1872, which was patented in February, 1876. In 1876
the partnership was dissolved, and a corporation was formed, called
the L. & B. Company, in which the same business was instantly
vested in the same interests, and remained there. Meanwhile S.
ceased in 1874 to serve L. & B. as engineer and draughtsman, and
went into their employ as consulting engineer, at a salary of $2000
per annum. The duties of the latter office did not require him to
reside in Cincinnati. He served the partnership in this capacity up
to its dissolution, and from that time served the corporation in the
same capacity up to 1884. The partnership with his knowledge used
his valve in the elevators constructed by them until its dissolution,
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