structors, make the proposed substitution. And if you also answer that inquiry in the affirmative, you will then proceed to the remaining inquiry of fact involved in the instruction to which the two preceding relate. The remaining inquiry of fact involved in that construction is, whether the substituted means or mode of producing pressure, when thus substituted, as proposed, are capable of performing, and will perform, the same function, under the same mode of operation, as the mode of producing pressure particularly described in the specification of the patent. And if you answer this inquiry in the affirmative, as well as the two others preceding it, then you are warranted in finding that the difference in the means of causing pressure at the nozzle in the two machines, as compared with each other, is a mere formal one, and that the difference in that respect is not such as by itself, without more, will enable the defendant successfully to defend himself against the charge of infringement."

Unable to conceive that any command of language which we possess could make the matter clearer than it is there stated, we do not think it our duty to attempt to add anything to it; and you will please retire with this explanation, and with the kindest spirit towards each other, and an anxious desire to end this controversy, compare your opinions afresh, and see if you cannot agree upon a verdict.

The jury then retired, and remained out about half an hour, when they again entered the court-room, and the usual question was put by the clerk: "Gentlemen of the jury, have you agreed upon a verdict?"

Foreman. We have not.

The Court. Mr. Foreman, is there any prospect of an agreement?

Foreman. There is no hope of a verdict from this jury.

The Court. Is the difference between you law or fact? Foreman. I conceive it to be law. There is a difference of opinion upon that point, even.

The Court. Is the subject of difference the one embraced in the instructions re-read to you this morning?

Foreman. I think so.

The Court. We do not see that we can make that matter more

explicit than we have already done. You have already been instructed that questions of law belong to the court, questions of fact to the jury; but the subject-matter of that instruction, and the questions involved in that instruction, being mixed questions of law and fact, the court without the jury cannot determine them, and the jury without the court cannot determine them. It requires both court and jury to determine them. If, in that view of the subject, Mr. Foreman, you are of opinion that there is no hope of agreement, you will rise and say so.

Foreman. Perhaps, if we could be enlightened upon a single point, we might agree.

The Court. You may state the point as clearly as you can. Foreman. Whether we are to try the Matthiesson apparatus, as we have had it before us, at thirty-five feet, or whether we are to vary from that, in any conceivable manner?

The Court. The question propounded by the foreman is one purely of fact, so that it would not be possible for the court to render you any assistance. The evidence in the case is before you, and if you are of the opinion, Mr. Foreman, that further deliberation would result in no practical utility, and that there is no hope of agreement without the court give further instructions, you may answer.

Foreman. I think not; that was not the precise point we dif fered upon, but I suppose, by working from that, if we could get instructions upon that, we might arrive at a verdict; but I don't think it would be possible without it.

The Court. Consult with your fellows, and see whether they think it is worth while to retire again. You have now been out sixteen hours and a half, and I have no idea of resorting to the old barbarous mode of starving a jury to an agreement.

Foreman (after consultation with his associates). There is no use, sir.

The Court. The court regrets that you are unable to come to an agreement; but at the same time we feel that we ought to return thanks to you for the patient effort you have made, during a long period, without complaint, to reach a satisfactory result. You have had a weary service of three weeks, and, under the circumstances, the court will excuse you from any further attendance until the first Tuesday in February next.

INDEX.

ABANDONMENT.

1. Unavoidable delay, while an application for a patent is pending, is no ground for
imputing abandonment. Jones v. Sewall, 563.

2. Mere forbearance to apply for a patent while the inventor is experimenting upon
his invention, and perfecting it, testing its value, or dealing with any of its necessary
incidents practical knowledge of which is requisite to its usefulness, afford no ground
for presuming abandonment. Ibid.

ACCESSARY.

1. The defendants before the court, after the principal defendant's plea, were held to
be principals and not accessaries. United States v. Hartwell et als., 221.

2. Misdemeanors do not admit of accessaries either before or after the fact, and the
general rule is, that whatsoever will make a party an accessary before the fact, in
felony will make him a principal in misdemeanor if properly charged as such. Ibid.
3. The offence charged in this case was a misdemeanor, but it would make no differ-
ence if it were held to be a felony, as the defendants before the court were confeder-
ates of the principal defendant in the commission of the crime. Ibid.

4. He loaned them the public moneys, and they borrowed them knowing him to be
an officer of the United States charged with the custody of the moneys. Ibid.
5. When the accessary is tried with the principal, the confessions of the principal are
admissible to prove his own guilt, and where the principal confesses by pleading
guilty and retiring from the bar under his recognizance, the record of the conviction
of the principal was properly introduced, and was prima facie evidence of his guilt
at the trial of the other defendants, and his confessions to show that he was right-
fully convicted. Ibid.

BANK.
See BY-LAW.

BANKRUPTCY.

1. Section 38 of the Bankrupt Act provides that the filing of a petition for adjudication in bankruptcy, either by the debtor or by a creditor, upon which an order may be issued by the court or by the register, shall be deemed the commencement of proceedings in bankruptcy. United States v. Crane, 211.

2. Railroad companies are private commercial corporations within the meaning of § 37 of the Bankrupt Act, and the District Courts of the United States have therefore jurisdiction to adjudge such corporations bankrupt, the same as in the case of other debtors. Sweatt v. Railroad, 339.

3. Characteristics of a public nature attach to every corporation, inasmuch as they are created for the public benefit; but if it is not created for the administration of political or municipal power, the corporation is private, unless the whole interest belongs to the government. Ibid.

4. Transportation of freight and passengers from one State to another, or through more than one State, either by land or water, is commerce within the meaning of the provision of the Constitution which gives to Congress power to regulate commerce between the several States. Ibid.

5. Congress has power to enact that railroads created by the States shall be liable to the provisions of the Bankrupt Act. Ibid.

6. Such corporations are not among those means and instruments of the State governments over which Congress has no power or jurisdiction. Ibid.

7. Inasmuch as the exclusive power to establish a uniform system of bankruptcy is vested in the Federal legislature, it has the power to authorize the District Courts or their registers in bankruptcy, to transfer the franchise of a railroad company in bankruptcy, it being a private corporation. Ibid.

8. Under § 2 of the Bankrupt Act, which provides that "the Circuit Court within and for the district where the proceedings shall be pending, shall have a general superintendence and jurisdiction of all cases and questions arising under this act," a petition for a revision of the decree of the District Court refusing a discharge may be entertained, although such decree was a final one, and no proceedings were actually pending in the District Court when the petition for revision was made. Littlefield v. Delaware & Hudson Canal Co., 371.

9. The word "pending" does not mean that the Circuit Court can take jurisdiction of a petition for revision only while proceedings are actually pending, and before a final decree, in the District Court. Ibid.

10. Discharge by a final decree was refused an alleged bankrupt in the District Court, May 12, and his petition for revision was filed in the Circuit Court, June 30 following. Held, there was no ground, in the absence of a rule limiting the time in which such petitions should be filed, to deprive the petitioner of a rehearing on account of delay. Ibid.

11. An allegation, in a petition to the Circuit Court under § 2 of the Bankrupt Act. for revision, that he has conformed to the provisions of the act and is aggrieved because the prayer of his petition for discharge was refused, is not sufficient. Ibid. 12. The petition for revision must state in what the error consists, whether it be of

law or fact; and the nature of the alleged error should be distinctly stated for the appellate court and as notice to the opposite party. Ibid.

13. The United States Bankrupt Act now in force, confers jurisdiction in Equity upon the District Courts in certain cases, and appeals may be taken from the District to the Circuit Courts in all such cases where the debt or damage claimed amounts to more than five hundred dollars, provided the appellant complies with the conditions specified in § 8 of the act. Scummon v. Cole, 472. 14. A mortgage given to secure the payment of two promissory notes, the consideration of which being pre-existing debts of the bankrupt, for almost all of which the mortgagees were liable either as sureties or indorsers, is void when it appears that it was made within four months next preceding the filing of the petition in bankruptcy, for the express purpose of giving a preference; that the mortgagors were insolvent and the mortgagees had reasonable cause to believe that the mortgagors were insolvent at the time of the execution of the mortgage, and that the conveyance was made in fraud of the provisions of said act. Ibid.

15. A creditor, holding commercial paper signed by a firm in bankruptcy, and indorsed by an individual member of the firm, a bankrupt, though not a sole trader, may prove his debt against both estates and share in the dividends of each. Emery v. Canal National Bank, 507.

16. In this case the property covered by the complainant's claim against the trustee (which claim the complainant purchased from the assignees in bankruptcy), was property not taken possession of by the assignee, to which the title of the bankrupt is good against all the world, except the assignee or any one to whom he might convey. Amory v. Lawrence et als., 523.

17. An assignee in bankruptcy is not bound to take property which may be onerous to the estate, or burden instead of benefit it. If he does not take it, it remains in the bankrupt. Ibid.

18. After the lapse of years, in this case, the court held that the conclusion must be that the assignee elected not to take possession of certain property of which the complainant when a bankrupt, took an assignment as set forth in the bill. Ibid. 19. Under the act of March 2, 1867, an assignee in bankruptcy of a person declared a bankrupt in one district, may maintain an action to recover moneys paid the defendants residents of another district, in violation of the Bankrupt Act, in the District Court of such district, and such District Court in the district where such defendants reside, has jurisdiction of the subject-matter and the parties. Sherman v. Bingham et al., 552.

20. The whole tenor of the present Bankrupt Act shows that Congress intended to provide for the complete administration of the bankrupt system in the Federal Courts and through the instrumentality of Federal officers. Ibid.

See INDICTMENT, 1-6; WILL, 5-10.

BILL OF EXCEPTIONS.

1. The only office of a bill of exceptions is to bring before the appellate court such questions as were duly raised and properly saved in the subordinate court. United States v. Barrels of Spirits, 261.

2. The Judge of the District Court has power, when it appears by complaint or affidavit to his satisfaction that a fraud on the revenue has been committed by any person intrusted with or concerned in the importation or entry of goods, to issue his