ted States is so widely different, so much more beneficial, and is pursued under circumstances so much more likely to secure complete justice, than any defense which can be made by an individual infringer, that it is impossible to suppose that Congress, in granting this right to the individual intended to supersede or take away the more enlarged remedy of the government. Some of these specifications of grounds of defense are not such as would ordinarily be sufficient in a court of equity to set aside the patent, as "that it had been in public use or on sale in this country for more than two years," or "that it had been patented or described in some printed publication prior to his supposed invention or discovery thereof." It is unnecessary to decide whether these grounds now would be sufficient cause for setting aside a patent in a suit by the United States, but they are not of that general character which would give a court of equity jurisdiction to do that, except as it may be said they are now parts of the general system of the patent law.

A question almost identical with this was made in the House of Peers in the case of King v. Butler, 3 Levinz, 220, as to whether the judgment obtained by the king in the Court of Chancery repealed the grant to Butler. It was answered by the judges to some of the objectious that "it was not unusual for the king to have his remedy, as well as the subject also, as for batteries, trespasses, etc., the king has a remedy by information and indictment, and the party grieved by his action.

The argument need not be further extended. There is nothing in these provisions expressing an intention of limiting the power of the government of the United States to get rid of a patent obtained from it by fraud and deceit. And although the Legislature may have given to private individuals a more limited form of relief, by way of defense to an action by the patentee, we think the argument that this was intended to supersede the affirmative relief to which the United States is entitled, to obtain a cancellation or vacation of an instrument obtained from it by fraud, an instrument which affects the whole public, whose protection from such a fraud is eminently the duty of the United States, is not sound.

The decree of the Circuit Court dismissing the bill of plaintiff is reversed, and the case remanded to that court, with directions to overrule the demurrer, with leave to defendants to plead or answer, or both, within a time to be fixed by that court.

Mr. Justice Gray was not present at the argument, and took no part in the decision of this case.

MITCHELL, J. This was an action by Thomas A. Pool against William F. Spradling, Daniel G. Neff and James W. Anderson, to recover the amount due on a promissory note, dated August 14, 1884, calling for the payment of $850, with eight per cent interest, due twelve months after date. The note was in the ordinary form of paper not negotiable by the law. merchant, and was payable to the plaintiff at Greens burgh, Ind. Spradling and Neff signed their names as makers on the face of the note, in the customary manner, while the name of Anderson was written across the back, before it was delivered to the payee, who brought the suit. Beyond the fact that the paper was signed in the manner described, there is nothing to indicate the relation of Anderson to the note or to the other defendants. Assuming that it was neces sary to show an excuse for not having used diligence by bringing suit in the first term of court after the ma turity of the note, in order to hold Anderson, the plaintiff adapted the first paragraph of his complaint, so as to rely upon a stipulation such as is usually found in mercantile paper, whereby the drawers and indorsers agree to waive presentation for payment, and protest and notice of non-payment, etc., as an excuse for not having sued.

The court below was of the opinion nevertheless that the complaint did not state facts sufficient to constitute a cause of action against Anderson, and gave judgment accordingly upon a demurrer filed by the latter. The conclusion at which we have arrived ren. ders it unnecessary that we should examine any other question than that which arises upon the ruling on the demurrer to the first paragraph of the complaint. Counsel seek to maintain the judgment appealed from upon the assumption that the unexplained signature of a third person, placed upon the back of non-merchantable paper, or paper negotiable under the statute merely, before it is delivered to the payee, imposes prima facie the liability of an indorser upon the perwhose name is so signed, and that a waiver of notice of non-payment contained in the body of the note is not an available excuse for failing to use the diligence required, in order to hold an indorser of such paper liable. Drake v. Markle, 21 Ind. 433; Dale v. Moffitt, 22 id. 113; Roberts v. Masters, 40 id. 461; Pennington v. Hamilton, 50 id. 397, and other decis ious of this court, are relied on as sustaining the view contended for.

The

The law-merchant attributes to the act of one who indorses a negotiable instrument in blank an intent thereby to warrant the payment of the note, provided it is presented to the maker at maturity, and due notice of the fact of non-payment is given to the indorser. Ordinarily, and in the regular course, the indorsement of a note or bill by one not a party thereto follows the indorsement of the payee, and in such a case little difficulty is experienced in determining the liability assumed by the indorser to the person into whose hands the note may thereafter come. present case involves the liability of a stranger, who signed his name upon the back of a paper not negotiable by the law-merchant, before it was delivered to the payee, who held the same when the suit was com menced. The inquiry is, what is the liability or obligation of one who thus signs to the payee? The decisions of different courts present an irreconcilable conflict of views upon the general subject under consideration. It will be noted however that the cases in other jurisdictions relate almost exclusively to notes negotiable as inland bills of exchange. Whatever diversity exists in the decided cases, it cannot be doubted that a stranger who writes his name on the back of a promissory note before it is delivered, whether it be negotiable or non-negotiable, according to the law-merchant, does so in order to give the

maker credit or the note currency, or with the inteution to pledge himself in some shape for its payment. Eilbert v. Finkbeiner, 68 Penn. St. 243.

All the authorities concur in holding that the act constitutes a contract, which is to be construed in such a way as to render it available to carry into effect the intention of the parties consistent with settled rules of law. Good v. Martin, 95 U. S. 90; Rey v. Simpson, 22 How. 341. The rule, as established by the decisions of this court, is to the effect that one who writes his name upon the back of a negotiable promissory note, of which he is neither the payee nor indorsee, before it is delivered, in the absence of extrinsic explanatory evidence, thereby assumes the liability of an indorser. Kealing v. Vansickle, 74 Ind. 529, and cases cited; Houck v. Graham, 106 id. 195; Knopf v. Morel, 111 id. 570.

Presumptively his contract with the payee is that of an indorser of mercantile paper. Without regard to the decisions in some of the other States, this rule, as applied to paper governed by the law-merchant, must now be accepted as no longer open to question in this court. As respects paper of that character, the rule above stated has been uniformly applied for nearly a half century; and as stability and certainty in the law are of the first importance in commercial transactions it is far better that a rule once settled should remain than that it should be so clearly right as to be beyond criticism. The earlier decisions made a distinction between negotiable and non-negotiable paper. Thus in the case of Wells v. Jackson, 6 Blackf. 40, Dewey, J., stated the rule in the following language: "The de duction which we draw from the authorities is that the blank indorsement of unnegotiable paper, made at the date of the contract, and unexplained by extrinsic testimony, confers upon the payee the authority to hold the indorser liable on the original contract as a surety, and that a similar unexplained indorsement of negotiable paper renders the indorser liable only as an indorser, with the ordinary rights and privileges incident to that character; but that in either case the liability designed to be assumed, and the authority intended to be given, by the indorsement, may be explained by the attendant circumstances, and the prima facie responsibility be changed into one of another kind."

The terms "unnegotiable" and "negotiable" were employed by the learned judge who wrote the opinion from which the above quotation is taken, advisedly, and in the light of a statute not materially different from that now in force, regulating the assignability of promissory notes, and providing that notes drawn payable in a specified manner at a bank in this State, should be negotiable as inland bills of exchange. The statute now in force, or one substantially like it, concerning promissory notes and bills of exchange, has been in existence in this State ever since the enactment of the law approved January 29, 1818, which was passed by the second legislative assembly convened in this State. See Acts 1818, p. 223. This statute, although less comprehensive in its scope, has occupied and still occupies, substantially the place in our commercial system as does the statute of Anne in the commercial law of England. 1 Dan. Neg. Inst., § 5; Mix v. Bank, 13 Ind. 521.

So far as the statute places promissory notes upon the footing of inland bills of exchange, it subjects them to the law-merchant and all its incidents; that law having been incorporated into our system as part of the common law. Bullitt v. Scribner, 1 Blackf. 14; Holloway v. Porter, 46 Ind. 62. While it is true the statute makes all promissory notes “ negotiable by indorsement thereon, so as to vest the property thereof in each indorsee successively," only notes payable to order or bearer in a bank in this State are negotiable

as inland bills of exchange. Melton v. Gibson, 97 Ind. 158.

It is clear therefore that the effect of the rule laid down in Wells v. Jackson, supra, was that where one not the payee of a note not negotiable as an inland bill of exchange, wrote his name upon the back of the paper prior to or at the time of its inception, without an extrinsic agreement expressing the real nature of the obligation intended to be assumed, he thereby conferred authority upon the payee to hold him liable on the original contract as a surety or joint promisor; while a similar act, in respect to a note negotiable as inland bill, subjected the person so signing presumably to the liability, and entitled him to the immunity, of indorser. This rule, observing the distinction between negotiable and non-negotiable paper in a commercial sense is logically maintainable, and can be supported upon principle and authority. It was followed and recognized for twenty years and more. Early v. Foster, 7 Blackf. 35; Harris v. Pierce, 6 Ind. 162; Cecil v. Mix, id. 478; Vore v. Hurst, 13 id. 551; Still v. Leslie, 16 id. 236.

In Snyder v. Oatman, 16 Ind. 265, the distinction between notes negotiable undea the statute, so as to vest the property thereof in the indorsers successively, and those negotiable as inland bills, seems to have been abandoned.

In Drake v. Markle, 21 Ind. 433, while recognizing the rule as enunciated in Wells v. Jackson, that the signing of negotiable and unnegotiable paper on the back by a stranger, before delivery, did not subject the person signing to the same prima facie liability, it was nevertheless distinctively ruled that since every instrument having the requisite characteristics of a promissory note was negotiable under the statute, a person who signed a note so negotiable, although not as an inland bill of exchange, was presumably bound as an indorser, This course, as the head-note of the reporter correctly indicates, overrules Wells v. Jackson, and all the other decisions above cited, to the extent that they are, as we have already indicated, inconsistent with it. Some later cases have cited and followed Drake v. Markle and the previous decisions, without finding it necessary, upon the facts involved, to give attention to the apparently inconsistent conclusions arrived at in some of those cases.

The question confronts us in the present case in a manner different from that assumed in any of the decisions referred to, so far as we have observed. On the appellant's behalf it is insisted that if one signing a note in the manner already described incurs the liability of an indorser, then the usual incidents peculiar to that relation must obtain; and that hence the waiver of notice of non-payment, upon which the plaintiff relied in framing the first paragraph of his complaint, was effectual to fix the liability of the defendant, Anderson, and no further diligence was required. That the liability of an indorser, strictly speaking, is fixed by notice of non-payment, and that when his liability is once fixed the indorser has no legal cause of complaint on account of delay in bringing suit, and that notice of non-payment may be waived in such a case by a stipulation in the note, such as that relied on, are propositions too familiar and well settled to justify elaboration. Lowry v. Steele, 27 Ind. 168; Rooker v. Morris, 61 id. 286; Neal v. Wood, 23 id. 523; Fitch v. Bank, 97 id. 211; 2 Dan. Neg. Inst., §§ 1090-1095.

Accordingly it was held in Bronson v. Alexander, 48 Ind. 244, following the settled rule that persons whose liability was there in question, other than the payee, who signed their names upon the back of a promissory note payable in a bank in this State, became presumably liable as indorsers, and that as such they had been discharged for want of notice of the dishonor of

such an institution. Originally, the business of banking consisted only in receiving deposits, such as bullion, plate and the like, for safe-keeping, until the depositors should see fit to draw it out for use; but the business, in the progress of events, was extended, and bankers assumed to discount bills and notes, and to loan money upon mortgage, pawn or other security; and at a still later period, to issue notes of their own, intended as a circulating currency and a medium of exchange instead of gold and silver. Modern bankers frequently exercise any two or even all three of these functions, but it is still true that an institution prohibited from exercising any more than one of these functions is a bank in the strictest commercial sense." Another interesting case upou the same subject is Bank v. Collector, 3 Wall. 495. The act under which the bank was incorporated was in many respects similar to the act under which appellant is incorporated. The bank had no capital stock; it had no shareholders; no corporators were interested in the profits. The corporators were trustees, who constituted a board of managers. The question arose whether the incorporation was engaged in the business of banking, within the meaning of the United States revenue law; and the court held that savings banks, which receive deposits and lend the same for the benefit of depositors, although they may have no capital stock, and neither make discounts nor issue any money for circulation, are engaged in the business of banking, within the meaning of the revenue law, which provides for a tax upon any person, bank, association or company engaged in the business of banking. In People v. President, etc., 9 Wend. 383, the court, in speaking of the powers of banks, says: Banking powers have been defined by this court to consist in the right of issuing negotiable notes, discounting notes, and receiving deposits. People v. Insurance Co., 15 Johns. 390, per Spencer, J.; Insurance Co. v. Ely, 2 Cow. 710, per Savage, C. J." We will now examine briefly some of the provisions of the act under which appellant corporation is organized, in order to determine whether banking powers of discount or deposit have been conferred. Under section 10 of the act the appellant is authorized to receive any sums of money for accommodation and safe-keeping that may be offered; and to invest, hold and repay the same, and to declare credit and pay dividends thereon. Section 11 authorizes the corporation to invest funds received in stocks, bonds, interest-bearing notes, municipal obligations, mortgage bonds of railroad companies, and in bonds or notes and mortgages on unincumbered real estate. Section 14 provides that in making loans on real estate, the expenses of examination of titles shall be paid by the borrower. Section 16 provides a mode under which a depositor may withdraw funds deposited under regulations to be established by the trustees of the corporation. Section 17 authorizes the trustees to classify the depositors. Section 19 requires the corporation to make annual reports which, among other things, shall show the amount loaned on bond and mortgage. Such report shall also state all the liabilities on the morning of the 1st day of Jnly; the amount due to depositors; the amount deposited during the fiscal year, and amount withdrawn during the same period; amount of dividends credited deposit

ors.

Under the sections of the act we have referred to the corporation is invested with full powers to receive money on deposit, and to discount notes. These are banking powers, as has been abundantly shown. In many of the sections of the act there seems to have been a labored effort to conceal the real powers conferred upon the corporation, and the relation existing between the corporation and its patrons; but in section 19 the mask seems to have been removed, and it is there plainly disclosed that those who place their

funds in the hands of the corporation are depositors, and the corporation is dealing with the depositors and using their funds as a bank. Ill. Sup. Ct., Sept. 27, 1888. Reed v. People ex rel. Attorney-General. Opinion by Craig, C. J.

DESCRIPTION OF PROPERTY

CHATTEL MORTGAGES -AFTER-ACQUIRED PROPERTY — ATTACHMENT. -- The principal question involved, and the only one we deem it necessary to discuss in the further consideration of the case, is, was the clause contained in the chattel mortgage, wherein it described the property mortgaged, and in which it says, "and also all such other lumber, stock or material of every kind which they may hereafter add to said business, and all other property which they may hereafter purchase and use in connection with said business," of force and effect as to defendant? Such property was to be included in the mortgage. There is no question as to what business was referred to. It was the lumber business in the city of Flint, which included the running of a sawmill in the manufacture of lumber, and in purchasing and selling lumber at their lumber-yard. It was immaterial what financial relations this husband and wife, carrying on this business, sustained to each other. If her signature was merely formal to the mortgage, it then was of no consequence. If she had any interest in the business or property mortgaged, it was immaterial, as the mortgage was made by both; and so long as the mortgage was unpaid, and they carried on the business, it made no difference to the plaintiff in what name it was conducted. The clause was valid and effectual between the parties; and where the agreement is written into the mortgage plain and specific, and there is no question but that the property sought to be held is within the description given, I can see no reason why the clause should not be held valid as to third persons (Gay v. Bidwell, 7 Mich. 525; People v. Bristol, 35 id. 29; Cadwell v. Pray, 41 id. 307; Cigar Co. v. Foster, 36 id. 368; Curtis v. Wilcox, 49 id. 425; Phillips v. Both, 12 N. W. Rep. 481; Leland v. Collver, 34 Mich. 418; Jones Chat. Mortg. 347); and the circuit judge erred in holding otherwise. There is no hardship to a creditor in adopting this rule of law. The record informs him at all times of the situation of the debtor's property; and that which the mortgage covers is always tangible, and open to the observation of all persons with whom the debtor may have dealings; and when any person sells to such a debtor or mortgagor he is fully advised of the fact that the property he parts with may at once become subject to the lien of another, whose claim is to be satisfied from such property before his claim can reach it. And so long as he is advised of this fact from the beginning he cannot say he has been misled to his injury, or be allowed to urge that such lien is a fraud upon his rights. Mich. Sup. Ct., Oct. 12, 1888. Eddy v. McCall. Opinion by Sherwood, C. J.

CORONER-INQUEST-POST MORTEM-FEES OF PHYSICIAN-COUNTIES-LIABILITIES.-A physician summoned by a coroner to attend an inquest for the purpose of making a post mortem examination of dead bodies cannot recover of the county a fee for such examination, there being no statute imposing such expense upon the county. During the progress of a murder trial it was said by Chief Justice Gibson that " an action lies against a county at common law by a physician for trouble and labor expended in such examination" (Com. v. Harman, 4 Penn. St. 269); and in the subsequent case of County of Allegheny v. Shaw, 34 Penn. St. 301, the Supreme Court followed this direction, and affirmed a judgment against a county in favor of the physician for such services. In Indiana it is held that the county is responsible, but this seems

to be by virtue of a statute. Stevens v. Commissioners, 46 Ind. 541. We find the case of Sherman v. Supervisors, 30 How. Pr. 173, cited in favor of the doctrine of the liability of the county, but the volume is not accessible to us at this brauch of the court. However this matter seems to be regulated by statute in New York, since it is held in Van Hoeveubergh v. Hasbrouck, 45 Barb. 197, that under the statute of that State the coroner has the right to employ a physician in such cases, and charge for the physician's services in his account against the county, but that the latter must look to the coroner for his compensation, and cannot recover of the county. See Crock. Sher., § 929. We have not been able to find in the English authorities any thing showing the liability of the counties in such cases, but it is to be noted that at common law the coroner himself was not entitled to charge fees for his services. An allowance was subsequently provided by statute. 2 Bac. Abr. "Coroner," G. If we are to resort to general principles, we are at a loss to determine upon what ground the county is to be held liable for such services. A coroner's inquest is a proceeding by and on behalf of the State, and is the first step in a proper case for the detection and punishment of the offender when an unlawful homicide has been committed. The justice of the peace, who in our State conducts the proceeding, is ex-officio coroner, though sometimes called a precinct or county officer, and is to all intents and purposes an officer of the State, and in exercising his function acts for the State, and not for the county. That it is competent for the Legislature to make all or a part of the expenses of administering the criminal laws a charge upon the respective counties in which the proceedings are had, is not doubted. This has been and is done as to a part of the costs in the Code of Criminal Procedure, but the charges for which the counties are made liable are very distinctly defined in chapter 4 of title 20. Tex. Sup. Ct., Oct. 9, 1888. Fears v. Nacogdoches County. Opinion by Gaines, J.

BREAKING

INTO

CRIMINAL LAW BURGLARY TOBACCO BARN.-A tobacco barn is not an "outhouse, belonging to or used with any dwelling-house," within the General Statutes of Kentucky, chapter 29, article 5, section 4; and it is error to instruct the jury that if they believe defendant broke and entered such barn, and stole tobacco therefrom, to assess the penalty prescribed by said section. The expression, “* any outhouse belonging to or used with any dwellinghouse," embraces such structures as are ordinarily attached to and used in connection with dwellinghouses. It cannot reasonably be construed to include a tobacco barn, built and used expressly for the storage of tobacco. Such a structure is a storehouse or warehouse within the meaning of the statute. The family are in and about the dwelling and outhouses belonging to and used with it. It is the home; and it was intended to give greater protection thereto by providing a greater penalty for their unlawful invasion than in case of a warehouse or storehouse. A tobacco barn or tobacco storehouse has no proper connection with the owner's dwelling. It belongs to that class of buildings named in section 4 of article 6, all of which have no connection by use with a man's home. It would not be ordinarily understood as an outhouse of the dwelling-house, and in construing the term the usual and ordinary acceptation and meaning must be given to it. In the case of Ray v. Com., 12 Bush, 397, it was held that a granary, built and used for keeping and preserving farming implements and products, was within the meaning of the terms "warehouse" and "storehouse; "thereby deciding that such a structure was embraced by the statute relating to them, and not by that under which the instruction was given

GIFT

DONATIO CAUSA MORTIS-SAVINGS BANK FUND. The delivery of a savings bank book to a third person by the depositor during her last illness, saying that if she died the money was for her sister in Ire land, is not a complete donatio causa mortis. All gifts are necessarily inter vivos, for a living donor and donee are indispensable to a valid donation; but when the gift is prompted by the belief of the donor that his death is impending, and is made as a provision for the donee if death ensues, it is distinguished from the or dinary gift inter vivos, and called donatio causa mortis. But by whatever name called, the elements necessary to a complete gift are not changed. There must be a purpose to give. This purpose must be expressed in words or signs, and it must be executed by the actual delivery of the thing given to the donee or some one for his use. In every valid gift a present title must vest in the donee, irrevocable in the ordinary case of a gift inter vivos; revocable only upon the recovery of the donor, in gifts mortis causa. Wells v. Tucker, 3 Bin. 366; Nicholas v. Adams, 2 Whart. 17;6 Bac. Abr. 162. The thing given must be susceptible of delivery. In the case of money on deposit, or loaned out, the certificate of deposit or the bill, note, or bond may be delivered properly indorsed, and it will confer on the donee an absolute title to the fund represented by it. But if there remains something for the donor to do before the title of his donee is com plete, the donor may decline the further performance and resume his own. This is true of both classes of gifts, and there can be no good reason for distinguishing between them in this particular. Scott v. Lauman, 104 Penn. St. 593. As to gifts inter vivos it was distinctly held in Bond v. Bunting, 78 Penn. St. 210, that an assignment or some equivalent instrument was necessary in order to pass title to a chose in action. The reason is that a gift is incomplete which does not clothe the donee with the rights and powers of ownership, and these rights and powers do not vest without a complete delivery. Michener v. Dale, 23 Penn. St. 59; Fross' Appeal, 105 id. 258. In the case of Basket v. Hassell, 107 U. S. 602, a certificate of deposit was indorsed, "Pay Martin Basket, no one else, then not till my death," and so indorsed it was delivered to the donee; but it was held that no valid donatio causa mortis was shown, because a delivery of the certificate. with the indorsement, did not clothe the donee with the right and powers of an owner. The certificate was put into the hands of the donee, but he was unable to make use of it because of the limitation in the assignment. So in Mitchell v. Smith, 4 De Gex, J. & S. 422, the indorsement upon the certificate was, "Pay the within contents to Simon Smith or his order at my death," and delivery of the indorsed certificate was made; but the gift was held to be incomplete, because no present control over the fund passed to the donee. Our question is whether this passed the title to the fund in the hands of the bank as a donatio causa mortis. This depends to some extent upon the character of a depositor's bank-book. When a deposit is made in bank, the depositor is credited upon the books of the bank with the amount deposited, and a duplicate entry of credit is made upon the bank-book in his hands. He thus has at all times a statement of his