I

nant with public convenience and justice. I put the case in this way because I am not called on to discuss the point as if it were an original one of first impression, unaffected by judicial intimation or opinion. desire to be understood as utterly disclaiming any intention of expressing what, under such circumstances, my opinion would be. The case is affected by judicial decision, and the choice is fairly given to follow that which is most consonant to the local jurisprudence of New Hampshire."

These are the cases relied on to sustain plaintiff's contention. They include all I have been able to find giving countenance to that view. Some of them are, obviously, mere expressions of opinion. The last cited is avowedly based upon the peculiarity of the local jurisprudence of New Hampshire. The others emanate from courts accustomed to administer both legal and equitable remedies. The tendency, under such circumstances, to assimilate these remedies, which under our system are kept so distinct, and the temptation to administer relief in a proper case, regardless of the formal distinction between such remedies, may fairly be considered to much affect the weight of such authorities. When we turn to other States, we find many wellconsidered cases maintaining a view adverse to the claim of plaintiff.

The leading case is that of Troup v. Smith, 20 Johns. 33. It was an action of assumpsit. A plea of the statute of limitations was met by a replication alleging a fraudulent concealment of the cause of action until within six years. The precise point was therefore directly presented. Chief Justice Spencer, in delivering the opinion of the court, adverse to the replication, puts himself upon the ground that the statute is obligatory on courts of law, and cannot be dispensed with for any cause, even for fraud. He treats the case of Bree v. Holbech as expressing a mere dictum of Lord Mansfield. In commenting on the decisions of Massachusetts and Pennsylvania, he says: "We cannot yield the convictions of our own minds to decisions evidently borrowed from the courts of equity, and which have never been sanctioned in the courts of law in that country from which our jurisprudence is derived."

This decision has been followed in New York, in Leonard v. Pitney, 5 Wend. 30; Allen v. Mille, 17 id. 202, and Humbert v. Trinity Ch., 24 id. 587.

In Miles v. Berry, 1 Hill (S. C.) 296, a similar point was presented. The court say: "Unless the discovery of the fraud can be regarded as the plaintiff's cause of action, it cannot have the effect of preventing the operation of the statute of limitations. For to allow it to have that effect in any other point of view, would be to make and allow, by judicial construction, an exception to the statute which the Legislature did not think proper to make."

Without further extending this opinion, I will sim ply indicate the other cases found, holding the same view: Fee's Adm'r v. Fee, 10 Ohio, 469; Buckner v. Calcote, 28 Miss. 432; Dozier v. Ellis, 28 id. 730; Edwards v. Gibbs, 39 id. 166; Callis v. Waddy, 2 Munf. 511; Clarke v. Reeder, 1 Spears (S. C.) 398; Smith v. Bishop, 9 Vt. 110; Pyle v. Beckwith, 1 J. J. Marsh. 445. The point in question seems never to have been directly presented in New Jersey. In the case of Ely v. Norton, 1 Halst. 187, eminent counsel in citing Bree v. Holbech express the opinion that Lord Mansfield had gone too far in declaring that fraud would relieve, at law, from the bar of the statute of limitations. In Todd v. Rafferty, 3 Stew. Eq. 254, Vice Chancellor Van Fleet, in alluding to one of the Massachusetts cases, declares that the doctrine of those cases is opposed to the general current of judicial opinion. These seem to be the only expressions of opinion on the subject to be found in our reports.

Reviewing the whole case, my conclusions are that there is no necessity to administer the relief plaintiff is entitled to on the admitted facts, in a court of law, but that such relief can be adequately and much more appropriately administered in a court of equity; that no logical basis can be found for such a replication, and no legal ground for such an evasion of the statute of limitations by a court of law; and that while the authorities are doubtless conflicting, the decided weight of authority is opposed to maintaining this replication as good at law.

The demurrer should therefore be sustained, and the Circuit Court should be so advised.

J. L. S. Roberts, for plaintiff.

Benj. F. Thurston, for defendant.

LOWELL, J. The plaintiff brings this action on the case for infringement of his rights under a patent. The defendant pleads that the infringement, if any, occurred more than six years before action brought, which is a bar by the statute of Rhode Island. Pub. St., ch. 205, § 3. The plaintiff demurs.

Several judges of great ability and experience have held that the statutes of limitations of the States do not affect actions upon patent rights, upon the theory that section 34 of the judiciary act (now Rev. St., § 721), making the laws of the States the rules of decision in the courts of the United States, in actions at the common law, does not apply to actions which are within the exclusive jurisdiction of the courts of the United States. There are several able decisions on the other side, but perhaps the weight of authority is with the plaintiff on this point. We give the citations in a note.* This is an action at law, and if the statutes in question do not apply, there is no limitation, unless it be that of Rhode Island in 1789, for a court of common law has no discretion to refuse to entertain stale claims.

This result appears to us to be inadmissible. No reason is given in any decision for excepting one class of cases out of section 721. Some arguments upon the general question have been made which we shall advert to. There is no such exception in the statute itself, and none in its intent and purpose. Exclusive jurisdiction is given for reasons which are apart from this question. For instance, in patent cases the Federal courts have this control in order that the construction of the law and of the patents granted under it may be as nearly uniform as possible, not that the remedies of a patentee shall be of uniform duration. Equity is a uniform system in the Federal courts throughout the United States, but the remedies in equity are barred in those courts by the State statutes of limitations in

certain cases.

*NOTE. That the State statutes govern such cases: Parker v.Hawk,2 Fisher, 58; Parker v.Hall, id. 62,note; Rich v. Ricketts, 7 Blatch. 230; Sayles v. Oregon Cent. Ry. Co., 6 Sawy. 31; Sayles v. R. F. & P. R. Co.,4 Ban. & A. 239. That the State laws do not govern: Parker

V.

v. Hallock, 2 Fisher, 543, note; Collins v. Peebles, id. 541; Read Miller, 2 Biss. 12; Anthony v. Carroll, 2 Ban. & A. 195; Wood v. Cleveland Rollingmill Co., 4 Fisher, 550; Wetherell v. New Jersey Zinc Co., 1 Ban. & A. 485.

Suppose Congress chooses to give assignees in bankruptcy or National banks an exclusive right to sue in the courts of the United States, can any one maintain that their debtors have no protection by the lapse of time, unless a special statute of limitations is passed by the National authority?

This theory of the dependence of section 721 upon concurrent jurisdiction seems to be an echo of the rule that courts of equity, and perhaps even courts of admiralty, are bound by the State statutes of limitations in cases of concurrent jurisdiction; but it is not concurrent jurisdiction of the State courts, but that of courts of common law, State or National, which decides the point. Besides what is this concurrent jurisdiction? There are very few cases in which the jurisdiction is really concurrent. In nearly all the defendant has an absolute and conclusive right to make the jurisdiction of the Federal courts exclusive by a removal of the cause.

The truth is that section 721 is a declaratory act, announcing a general doctrine of international law, and the Supreme Court have so construed it. They apply it only to local matters, such as land laws, statutes of limitations, and the like, and in those cases they apply the same rule in equity, though equitable suits are not mentioned in the act; and on the other hand they refuse to apply it to general questions, such as those of commercial law, though when arising at common law they are within the words of the act.

The United States, when they are plaintiffs, are not bound by such statutes of limitations; but this is because they are not bound by similar acts of Congress, unless specially mentioned, and they are not mentioned in section 721. It is said that the States cannot declare when actions on patent rights shall be barred. Very true; but neither can they bar any actions in the Federal courts. The bar arises from the constitution and situation of those courts, the general international law, and section 721. If not, it would seem to follow that there is no limitation, or that it depends upon the law of Rhode Island in 1789, as in United States v. Read, 12 How. 361, in which the court, finding that section 721 did not apply to criminal cases, were obliged to find some law, and went back to the origin of the government.

To us it seems as inadmissible to say that section 721 does not apply to patent cases, as that the law adopting the general practice of the States does not apply to them. In one particular it perhaps does not, because the statute says that an action on the case shall be the remedy. This is a reproduction of the old law which was passed when all the States had that form of action, and it may or may not now be an exclusive remedy; but no one can deny that in other respects the process and procedure acts apply to actions at law for the infringement of patent rights. A dozen questions may arise in any patent case which can only be decided by the law of the State. There is no doubt, of course, of she right of Congress to make a statute of limitations for patent causes. The power is specially reserved in section 721, and by the act of 1870, section 55 (16 St. 206), they made such a law, which provides that all actions shall be brought within the term for which letters-patent shall be granted or extended, or within six years thereafter. Congress, when they passed this act, may have supposed that there was no limitation; but if so they found out their mistake, for they repealed this part of the patent law, when they passed the Revised Statutes, by omitting it from the chapter on patents. Sayles v. Oregon Central Ry. Co., 6 Sawy,

31; Vaughn v. East Tenn., etc., R. Co., 1 Flip. 621. When they thus repealed the act of Congress, the State law became again applicable to future infringements, but one of the repealing sections (section 5599) reserves all existing causes of action, so far as limitations are concerned, precisely as though no repeal had been made. Sayles v. Oregon Central Ry. Co., supra; Vaughn v. East Tenn., etc., R. Co., supra.

The plaintiff declares upon a patent granted in 1857 and extended in 1861, expiring in 1878, and alleges damage for the whole period of 21 years. The plea which merely sets up the bar of six years before action brought, does not fully answer this declaration in the view we have taken of the law, because granting that when the act of 1870 was passed, an action for a part of the damages was barred, and granting that all causes of action which have accrued since the act was repealed, and more than six years before the service of the writ are barred, there may remain, for any thing that appears by the declaration, certain rights which arose between these times which are saved by the very strong language of the repealing act. The precise effect of these acts and repeals will come up more properly at the trial, under a modified plea, if one should be filed. It is plain that the plea is too broad and must be overruled.

UNITED STATES SUPREME COURT ABSTRACT.

CONTRACT- - BY CORPORATION-PRACTICE-AMENDMENT.-(1) An agreement in writing, between “W., superintendent of the Keets Mining Company, parties of the first part, and P., party of the second part," by which the said parties of the first part agree to deliver at P.'s mill ore from the Keets mine (owned by the company) to be crushed and milled by P.; and signed by "W., Supt. Keets Mining Co.," and by P.; is the contract of the company. Whitney v. Wyman, 101 U. S. 392; Hitchcock v. Buchanan, 105 id. 416; Goodenough v. Thayer, 132 Mass. 152. (2) An order sustaining a defendant's demurrer, and giving the plaintiff leave to amend, does not preclude the plaintiff from renewing, or the court from entertaining, the same question of law upon the subsequent trial on an amended complaint. Calder v. Haynes, 7 Allen, 387. Post v. Pearson. Opinion by Gray, J. [Decided May 7, 1883].

FEDERAL QUESTION STATE COURT DECIDING ADVERSELY TO LAND DEPARTMENT — WHEN LAND DEPARTMENT DECISION AS TO TITLE CONCLUSIVE. Where there was a contest for the right to enter a tract of laud, and one party asserted title under a patent from the United States, and a State court decided that the land department of the United States decided erroneously a question of fact, and denied the title under the patent, held that there was a federal question involved, authorizing an appeal from the State court to this court. Johnson v. Towsley, 13 Wall. 86; Morrison v. Stalnaker, 104 U. S. 213; Marquez v. Frisbie, 101 id. 475, and that the decision of the land department concluded the parties. It has been so repeatedly decided in this court, in cases of this character, that the land department is a tribunal appointed by Congress to decide questions like this, and when finally decided by the officers of that department, the decision is conclusive everywhere else as regards all questions of fact, that it is useless to consider the point further. Where fraud or imposition have been practiced on the party interested, or on the officers of the law, or where these latter have clearly mistaken the law of the case as applicable to the facts,

Audenreid, 5 Ben. 535; Bjorquist v. Steel Rails, 3 Fed. Rep. 717. U. S. Dist. Ct. California, January, 1883. Williams 7. Theobald. Opinion by Hoffman, J.

WISCONSIN SUPREME COURT ABSTRACT. APRIL 4, 1883

EMINENT DOMAIN-AWARD OF DAMAGES- WHEN TENANTS IN COMMON, AWARD MUST BE IN GROSS-EVI DENCE-ACTUAL SALES TO SHOW VALUE.- (1) In appropriating land for a railroad the commissioners of appraisal should not make a separate award of damages to each tenant in common of a single tract of land of which a part has been taken for the use of a railroad; and where such commissioners, after fixing the value of the land taken and the damages to the remainder of the tract, have apportioned the whole amount among the several tenants in common, an appeal by the railroad company should be from the gross award. On such appeal the tenants in common and all other parties in interest are plaintiffs, and are not entitled to separate trials. Tenants in common must unite as plaintiffs, even at common law, to recover damages for any injury done to the real estate. De Puy v. Strong, 37 N. Y. 372; Austin v. Hall, 13 Johns. 286; Low v. Mumford, 14 id. 426; Decker v. Livingston, 15 id. 479; Hill v. Gibbs, 5 Hill, 56; May v. Slade, 24 Tex. 205; Hobbs v. Hatch, 48 Me. 55. In some of the States they are allowed to join or sever in the action. Hobbs v. Hatch, supra; Webber v. Merrill, 34 N. H. 202; Hubbard v. Foster, 24 Vt. 542; McGill v. Ash, 7 Penn. St. 397. (2) Evidence of the price for which land was actually sold after the location of a railroad across it may be introduced by the railroad company to prove its real value at that time, and as an admission of such value on the part of the vendors; and such evidence is entitled to great weight as compared with the mere opinions of witness. Evidence of this character, to test the value of the opinion of a witness who testifies as to the future value of land to be thereafter platted and sold in the shape of village lots, is clearly admissible. Recent sales would be the best test, but the limits within which evidence of sales may be shown is very much in the discretion of the trial judge; and this court will not find that such judge has abused his discretion upon a question of this nature unless the abuse is clearly shown. Chandler v. Jamaica, 122 Mass. 305; Shattuck v. Railroad Co., 6 Allen, 115; Green v. Fall River, 113 Mass. 262; Gardner v. Brookline, 127 id. 358; Presbrey v. Railroad Co., 103 id. 1. These cases recognize not only the propriety of this kind of evidence on the cross-examination of a witness who has given his opinion as to the value of the property in question, but as evidence in chief to disprove the correctness of the opinion of a witness who has given an opinion of the value of lands in dispute. See Benham v. Dunbar, 103 Mass. 365. In this case, evidence of the sales made in the vicinity of the lands in controversy from one to eight years before, was held admissible. Paine v. Boston, 4 Allen, 168; Railroad Co. v. Railroad Co., 3 id. 142; Davis v. Railroad Co., 11 Cush. 308. Watson v. Milwaukee and Madison Railroad Co. Opinion by Taylor, J.

MORTGAGE-WHEN DEED CONSTRUED AS SUCH.-As to whether an instrument is a mortgage or a conditional sale courts have generally held the transaction to be a mortgage in all doubtful cases, because the ends of justice were more apt to be attained, and fraud and oppression more likely to be prevented by such a construction. When the language of the deed is equivocal, the intention of the parties, as evinced by the whole transaction and the attending circumstan

ces, seems to be the true criterion. Goodman v. Grierson, 2 Ball & Beatty, 278; Williams v. Owen, 5 Mylne & Craig, 306; Clarke v. Henry, 2 Cow. 324; S. C. affirmed, 7 Johns. Ch. 43; Edrington v. Harper, 3 J. J. Marsh, 354; Hughes v. Sheaff, 19 Iowa, 343; Cornell v. Hall, 22 Mich. 377; Rich v. Doane, 35 Vt. 125; Pitts v. Cable, 44 III. 105. Thus in Goodman v. Grierson, supra, Lord Chancellor Manness in answer to the contention that the transaction could not be a mortgage, because there was no bond collateral to the deed nor any covenant to pay, said: "It is quite clear that if the intention were that it should be a mortgage the absence of a covenant and collateral bond would not make it the less so." This was decided in King v. King, 3 P. Wms. 358, where Lord Talbot said, "it did not vary the transaction, for that every mortgage implied a loan, and every loan implied a debt, for which the mortgagor's personal estate was liable; and although an action of covenant would not lie, still it might be a mortgage." So Lord Chancellor Tottenbom, in Williams v. Owen, supra, said: "That this court will treat a transaction as a mortgage, although it was made so as to bear the appearence of an absolute sale, if it appear that the parties intended it to be a mortgage, is no doubt true; but it is equally clear that if the parties intended an absolute sale, a contemporaneous agreement for a re-purchase, not acted upon, will not of itself entitle the vendor to redeem." Where the language of the instrument is equivocal, and the relation of debtor and creditor is not created by the transaction, and never existed, and the vendee takes and retains possession of the property, and its value is not perceptibly in excess of the consideration paid, and there is nothing to indicate an intent to transfer the property as a mere security, the transaction has usually been held to be a conditional sale. Perry v. Meadowcraft, 4 Beav. 197; Conway v. Alexander, 7 Cranch, 237; Holmes v. Grant, 8 Paige, 243; Baker v. Thrasher, 4 Denio, 493; Saxton v. Hitchcock, 47 Barb. 220; Hughes v. Sheaff, supra; Flagg v. Mann, 14 Pick. 467; Woodward v. Pickett, 8 Gray, 617; Rice v. Doane, supra; West v. Hendrix, 28 Ala. 226; Pearson v. Seay, 35 id. 612; Logwood v. Hussey, 60 id. 417; Ford v. Irwin, 18. Cal. 117; Henley v. Hotaling, 41 id. 22; Slowey v. McMurray, 27 Mo. 113; McNamara v. Culver, 22 Kan. 661; Hoopes v. Bailey, 28 Miss. 328; Smith v. Crosby, 47 Wis. 160. But in several of these cases, as in McNamara v. Culver, it is held that "the test is the existence or non-existence of a debt. If after the transaction no debt remains, there is no mortgage, but only a conditional sale." On the other hand, when the relation of debtor and creditor is created by the transaction, or previously existed, and by express language or fair implication continues, and the possession is retained by the vendor, and the value of the property is greatly in excess of the consideration paid, the transaction has usually been held to be a mortgage. Roach v. Casine, 9 Wend. 227; Murray v. Walker, 31 N. Y. 399; Horn v. Kettletas, 46 id. 605; Carr v. Carr, 52 id. 251; Russell v. Southard, 12 How. (U. S.) 139; Villa v. Rodriguez, 12 Wall. 323; Cooper v. Brock, 41 Mich. 488; Rice v. Rice, 4 Pick. 349; Eaton v. Green, 22 id. 526; Murphy v. Cooley, 1 Allen, 107; Gifford v. Ford, 5 Vt. 532; Blodgett v. Blodgett, 48 id. 32; Pearson v. Slay, 38 Ala. 643; Wilson v. Giddings, 28 Ohio St. 554; Plato v. Roe, 14 Wis. 453; Wilcox v. Bates, 26 id. 465; Ragan v. Simpson, 27 id. 355; Musgat v. Pumpelly, 46 id. 660; Starks v. Redfield, 52 id. 349; Rockwell v. Humphrey. Opinion by Cassoday.

SALE-DELIVERY-RESCISSION OF SALE CANNOT BE MADE AFTER PROPERTY HAS BEEN TAKEN FROM CUSTODIAN BY VENDEE.-When property in the custody of another has been sold, and everything done to com

plete the sale except an actual delivery, and an order is given upon the custodian for such delivery, and the purchaser obtains the property on such order, he can. not change or rescind the bargain upon mere notice to the custodian, and the delivery is complete. Defendant agreed with plaintiff to purchase a horse of the latter, then in possession of another, and plaintiff gave defendant an order on the one having custody of the horse to deliver it to defendant. When defendant took the horse he said to the custodian that he took it only on trial and he returned it to the custodian the same day. Held, that there was a sale and delivery of the horse and defendant was liable for the purchase price. The intention of the parties at the time as to the delivery must prevail, even if there be something yet to be done to complete it. Sewell v. Eaton, 6 Wis. 490; Gamson v. Madigan. 9 id. 146; Pitts v. Owen, id. 152; Cotterill v. Stevens, 10 id. 422; Sanborn v. Hunt, id. 437; Webber v. Roddis' 22 id. 61; Jauvrine v. Maxwell, 23 id. 51; McConnell v. Hughes, 29 id. 537; Morrow v. Campbell, 30 id. 90; Chamberlain v. Dickey, 31 id. 68; Pike v. Vaughn, 39 id. 499; Fletcher v. Ingram, 46 id. 191; Kirby v. Johnson, 22 id. 554; Henline v. Hall, 4 Ind. 189; Gough v Edelen, 5 Gill (Md.), 101; Foster v. Ropes, 111 Mass. 10. There are many cases which hold the delivery complete between the parties, everything else being done, upon receipt of the order for the delivery of the property when in the keeping of another person and in another place. Ranney v. Higby, 4 Wis. 152. See also authorities collated in the brief of the counsel in Magee v. Billingsley, 3 Ala. 679. It was a fraud upon the plaintiff if the defendant obtained the possession of the horse by suppressing the real bargain, and pretending that he had the right to take it on trial. In such a case, if the possession is obtained by fraud, it may be treated by the vendor as a delivery, to com. plete the sale at his option. Weed v. Page, 7 Wis. 503. The defendant having obtained the possession of the horse upon the order of the plaintiff as a full completion of the sale according to the understanding of both parties at the time the order was given and accepted, he could not change the effect of such a delivery without notice to the plaintiff, and would be estopped from claiming that he took it only on trial. Any other principle would allow him to take advantage of his own fraud to avoid the bargain. When there is a verbal contract of sale of specific property and the terms fixed, with an order of delivery at a designated place, and it is delivered at such place, it is sufficient, and the acceptance was complete when the bargain was made. Cassock v. Robinson, 1 Best & S. 229. When the purchaser takes upon himself to exercise a dominion over the property, and deals with it in a manner inconsistent with the rights of property or the title being in the vendor, that is evidence of its acceptance. Morton v. Tibbett, 15 Q. B. 428. When the seller has parted with the absolute title to the property, and retains no lien upon or control over it, and the purchaser has taken possession of it, but under an engagement restricting his use or disposition of it, such restriction will not be deemed inconsistent with his having received it so as to conclude the contract. Dodsley v. Varley, 12 Adol. & E. 634. See also, Mech. & T. Bank v. Farm. & M. Bank, 60 N. Y. 40; Beaumont v. Brengeri, 5 C. B. 308. Somers v. McLaughlin. Opinion by Orton J.

in the practice of injunction, that where a defendant asserts positively that it is not his intention to do a certain act, or to violate any particular right asserted by the plaintiff, and there be no evidence to show to the contrary, the court will not interfere by injunc tion. It will neither grant nor continue an injunction in the face of such disclaimer. Woodman v. Robinson, 2 Sim. (N. S.) 204, 210: Fooks v. Wilts, Somerset & Weymouth R. Co., 5 Hare. 199, 202; Hanson v. Gardner, 7 Ves. 305. The complainant alleged in his bill that the defendant was about to erect upon the pavement a permanent iron awning post to be inserted in the soil for the purpose of support to a permanent awning frame, and "which said erection will operate as a continuing trespass to the great and irreparabie injury of the property of the complainant." But he failed to show, either by allegation or proof, how or in what manner such irreparable injury was to follow such erection. Held, that having failed to present a case in which he was unable to recover full and ample redress in an action at law, the complainant was not entitled to the extraordinary aid of a court of equity by way of injunction. Amelung v. Seekamp, 9 G. & J. 468; Hamilton v. Ely, 4 Gill, 34; White v. Flanigain, 1 Md. 525; Lanahan v. Gahan, 37 id. 105; George's Creek Co. v. Detmold, 1 Md. Ch. Dec. 371; Jerome v. Ross, 7 Johns. Ch. 315. Whalen v. Dalashmutt. Opinion by Alvey, J.

[Decided Jan. 25, 1883.]

TAXATION-TAXES PAID BY MISTAKE RECOVERABLE BACK-MANDAMUS. Where taxes have been paid under a mistake of fact, the party receiving them is bound to refund, and they may be recovered back in an action for money had and received. The remedy by ordinary action at law for the recovery of taxes erroneously paid, being sufficient, the extraordinary process of maudamus is not proper to be invoked before judgment recovered in such ordinary action. But after judgment recovered, mandamus would be the proper remedy to compel county commissioners to levy taxes for its payment. Wicks v. Westcott. Opinion by Irving, J. [Decided Feb. 1, 1883.]

CRIMINAL LAW.

BURGLARY -EVIDENCE

GOOD CHARACTER.

-

INJUNCTION-WHEN DEFENDANT DENIES INTENTION TO ACT, WILL NOT ISSUE.-It is a well settled principle

*Appearing in 59 Maryland Reports.

LARCENY CONVERSION OF HORSE HIRED NOT.-If a a person hire a horse with a bona fide intention of re