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Rights of Members of, in Claim Al-
lowed by Government, see CLAIMS,
2.

PATENTS.

Judgment on Reversal of Order Enjoin-
ing Infringement of, see APPEAL
AND ERROR, 79.

To Public Land, see PUBLIC LANDS.
1. There is a presumption, from the grant
of separate letters patent for two improve-
ments on a prior art, that there is a sub-
stantial difference between the inventions.
Kokomo Fence Mach. Co. v. Kitselman, 689
2. The Kitselman patent, No. 356,322, for
an improvement in wire-fabric machines
cannot be regarded as embodying a pioneer
invention of a field machine for weaving
wire-fencing fabric, in view of prior patents
for stationary machines for weaving such
fabric and for field machines for making
wire-and-picket fence, and of the rejection
of the claim for a pioneer field machine by
the Patent Office, with the acquiescence of
the patentee, who thereupon withdrew such
claim; and the claims of such patent must
therefore be limited in their scope to the
actual combination of essential parts as
shown, and cannot be construed to cover
other combinations of elements of different
construction and arrangement.
Id.
3. No infringement of either the Kitsel-
man patent, No. 356,322, the Davisson pat-
ent, No. 289,507, or the Connor patent, No.
357,067, for improvements in wire-fabric
machines, or of the Pope patent, No. 505,-
607, for wire-fabric machines, results from
the manufacture, under the Whitney patent,
No. 502,025, of wire-fence machines which
are substantially differentiated from those
manufactured under the earlier patents,
none of which embody pioneer invention.

PAUPERS.

Aliens, deportation of, see ALIENS. PAYMENT.

Id.

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3. The mere cession of the Philippines to the United States did not extend the Constitution to those islands, except such parts as fall within the principles of fundamental limitations in favor of personal rights formulated in the Constitution and its amendments, and which exist rather by inferenceand the general spirit of the Constitution, and except those express provisions of the Constitution which prohibit Congress from passing laws in their contravention under any circumstances. The provisions contained in the Constitution in relation to jury trials do not fall within either of these exceptions, and hence the right to trial by jury was not extended to the Philippines by the mere cession of the territory.

Id.

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In Embezzled Currency, see ASSUMPSIT. PLEADING.

PEDDLERS.

License of, see COMMERCE, 1.

PENALTY.

Federal Question as to Right to File
Supplemental Answer, see APPEAL
AND ERROR, 44.

1. A state court is not concluded as to

For Undervaluation of Imported Mer- the proper construction of the statutes of chandise, see COURTS, 21.

PER DIEM.

Of Marshal, see MARSHAL, 3.

PEREMPTORY CHALLENGES.

Waiver of Objection as to, see APPEAL
AND ERROR, 65.

PHILIPPINE COMMISSION.

Delegation of Power to, see CONSTITU-
TIONAL LAW, 2.

PHILIPPINE ISLANDS.

another state and the decision of its courts construing them, on the theory that defendant, by demurring to the complaint, which contained an allegation in the form of an averment of fact as to the meaning of such laws and decisions set forth therein, admitted that such was the correct conclusion to be drawn from them. Finney v. Guy, 839

2. The lack of essential averments in a declaration in indebitatus assumpsit is cured by the verdict, if the evidence offered was sufficient to support the verdict, and no objection was made to a variance between

1. While the Philippine islands belong to allegations and proof. Nashua Sav. Bank

the parties and the surrounding circumstances, "together with the testimony of witnesses for the prosecution as well as the evidence of the defendant," is not open to the objection that it authorized the consideration of the testimony of the witnesses for the prosecution even if untrue, and withdrew from the jury in passing on that issue all of the evidence for the defendant except his own testimony, when considered with other instructions giving the rule as to the credibility of witnesses, and enjoining the jury to consider the whole evidence and render a verdict in accordance with the facts proved, and to determine from the evidence the respective situations of the several par

ties.

Id.

11. A requested instruction that an affidavit produced by defendant on cross-examination, to impeach the credibility of the witness who made it, may be considered, in connection with the affiant's deposition, as evidence against the plaintiff of the facts therein stated under oath, with like effect as his deposition, should be gin where such affidavit is introduced in evidence by plaintiff on the cross-examination of another witness. Connecticut Mut. L. Ins. Co. v. Hilmon, 446

12. An instruction that a railroad company was not liable for a loss from a fire set by a passing locomotive, if it used "the most approved spark arrester, at the time in good condition," and the engine was then and there operated with ordinary care and prudence; but that it was so liable if it failed "to use the most approved spark arrester and apparatus connected with the engine as in ordinary use by properly conducted railways to prevent the escape of fire," so far as it could consistently be done in its business, is not open to the objection that it left the jury to consider the original construction of the spark arrester irrespective of its condition at the time of the fire, Texas & P. R. Co. v. Watson,

1057

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14. An instruction to find defendant not

able to comprehend and understand the consequences of such act. Queenan v. Oklahoma,

1175

15. An instruction that an attempt to escape, made after many months of confine ment, and comparatively without danger, tended, though only slightly, to prove guilt, was as favorable to the accused as he could demand where the only testimony on that subject related to an escape made in October following an arrest in June, and was objected to solely on the ground that the es cape was too remote from the commission of the offense and the arrest and imprisonment to be entitled to go to the jury. Bird v. United States,

Verdict.

100

16. The findings of the jury upon special issues of fact submitted to them for their determination, where warranted by the evidence, control conflicting findings made under the instructions of the court. Pardee v. Aldridge, 833

TRUSTS.

Assessing Trust Property to Trustee,
see CONSTITUTIONAL LAW, 17.
In Surplus Money from Sale of Public
Lands to Aid in Constructing Ship
Canal, see SHIP CANAL.

1. The adoption by the members of a communistic society of a plan by which all prop erty contributed to the use and benefit of the community was to be "joint and indivisible stock," and all contributions were to be irrevocable, was not the creation by the members of a trust in the property for the benefit of the society, as such, which, on the doctrine of resulting trusts, conferred on the descendants of members who contributed no property to the society any such proprietary right or interest as entitled them on the dissolution of the society to share in its property or assets, or to have an accounting.

Schwartz v. Duss,

53

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lease for five years of a portion of the realty 3. Recognition by all the trustees of a included in the trust estate, executed by one of their number, even assuming that it could cure the invalidity of such lease under the statute of frauds, must have been founded upon full knowledge of all the facts, in order to have that effect.

ULTRA VIRES.

guilty of murder if it should be found that he was not able to know that the act of killing was wrongful, and was not able to comprehend and understand the consequences of such act, is not open to the objection that it made it necessary for the jury to find that both conditions existed in order to acquit, where the condition of a verdict of guilty was made by the same instruction to be a finding beyond a reasonable doubt that the prisoner knew and understood | UNIFORMITY. that it was wrong to take the life, and was

Id.

Contract by Building and Loan Association, see BUILDING AND LOAN ASSOCIATIONS, 2.

In Taxation, see TAXES, 2.

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Liability of, on Restitution of Vessels

Captured, see PRIZE, 10-12.
Public Lands of, see PUBLIC LANDS, 1.
Right to Surplus after Completion of
Ship Canal, see SHIP CANAL.

The liability of the United States, under the 5th Amendment to the Federal Constitution, to make just compensation for an appropriation of land for public use, is not defeated because such land was taken by the government in the exercise of its power to improve navigation. United States Lynah,

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2. Equity will not compel a county board of registrars to enroll a negro on the voting lists as a duly qualified voter, under the registration provisions of Ala. Const. art. 8, where the main object of the bill is to have these registration provisions, upon which the Vright to register is founded, declared void as a fraud upon the Federal Constitution because of discrimination against negroes, since, if that is the character of these provisions, the court will not require officials to proceed to act under them. Giles v. Harris,

539

UNITED STATES COMMISSIONER.

Repeal of Statutes as to, see STATUTES,

9.

Jurisdiction over Extradition Proceedings, see EXTRADITION, 4.

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909

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v. Anglo-American Land, Mortg. & Agency | the tanks a specified distance at a specified Co. 782 cost. Globe Ref. Co. v. Landa Cotton Oil Co.

Amendment.

3. An amendment of plaintiff's petition, after verdict and judgment thereon, with no further proceedings taken, by inserting the words, "and is a citizen of said state and of the United States of America," after the allegation therein that "plaintiff resides in El Paso, in El Paso county, state of Texas,” may be allowed by a circuit court of the United States, under U. S. Rev. Stat. § 964 (U. S. Comp. Stat. 1901, p. 697), giving the trial court the right at any time to permit either of the parties to amend any defect in process or pleadings, upon such conditions as it shall prescribe. Mexican C. R. Co.

v. Duthie,

Judgment on Pleading. See also TRIAL,' 3.

715

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5. An action against principal and surety on a bond to insure the faithful performance of a contract is one "arising ex contractu,' within the meaning of rule 73 of the supreme court of the District of Columbia, authorizing judgment for plaintiff in such actions for want of a sufficient affidavit of defense.

Plaintiff's pleadings.
See also supra, 3.

ld.

6. Complainants' description of themselves, in a bill in a suit against a citizen of Nebraska, as "all of Cognac in France, and citizens of the Republic of France," is sufficient, without any averment of alienage, to bring the suit within the provisions of 25 Stat. at L. 433, chap. 866, conferring original jurisdiction upon circuit courts of the United States of all suits in which there is "a controversy between citizens of a state and foreign states, citizens, or subjects." Hennessy v. Richardson Drug Co. 697 7. The amount of the damages involved in an action for the breach of a written contract to deliver oil at a specified price f. o. b. buyer's tanks at seller's mill is not increased, for jurisdictional purposes, over and above the difference between the contract and market value by allegations in the petition that the seller had notice that the buyer would be compelled to send its tanks from distant points to the seller's mill; that in so doing transportation charges were incurred and the use of the tanks lost for thirty days; that seller was well aware that buyer had contracts over, and "had contracted to that end" with buyer; and that seller, contemplating the breach of its contract, maliciously caused the buyer to send

1171 8. A bill to quiet title against a single adverse claimant must aver that complainant's title has been successfully tried at law at least once. Boston & M. Consol. Copper & S. Min. Co. v. Montana Ore Purchasing 626 Co.

9. An averment of possession in the complainant is essential to the maintenance of a bill to quiet title in a Federal court, although under the state practice a person not in possession may maintain an action to quiet title.

Id.

10. A bill to set aside a tax sale, which

does not charge that the statutory procedure was not strictly pursued, but relies on the failure of the sheriff's return of sale to set forth a compliance with such procedure, cannot be maintained on the theory that, as the statute validated tax deeds notwithstanding any irregularities in the sale not appearing on the record, plaintiff was deprived of his property without due process of law, as this is an attempt to test the constitutionality of the law without showing that plaintiff was injured by its application. Turpin v. Lemon,

70

11. An averment that an assessment upon the capital stock and franchises of a corporation constitutes a cloud upon title is not sufficient to sustain a bill in equity which seeks to enjoin the collection of such tax as illegal, where it contains no allegation that the corporation owns any real property. Indiana Mfg. Co. v. Koehne,

651

12. The absence of an adequate remedy at law is not shown by an averment in a bill which seeks to enjoin the collection of a tax on property alleged to be exempt from taxation, that a portion of the tax is to be paid to the state of Indiana, which cannot be sued, where, under the general tax laws of that state, complainant might have had its objections to the assessment reviewed by a state board, and, if unsuccessful, might have paid the tax, and then, under Burns's (Ind.) Rev. Stat. 1894, §§ 7915, 7916, have filed a petition with the board of county commissioners to recover it back as “wrongfully" assessed, and, if still unsuccessful, might have appealed from the decision of such board to the courts.

Id.

13. A sufficient showing of equitable jurisdiction is made by a bill filed by the Cherokee Nation to restrain any further action by the Secretary of the Interior upon applications for leases of its tribal lands for mining purposes, which contains general allegations of the absence of an adequate remedy at law, the necessity of relief to avoid a multiplicity of suits and to prevent the casting of a cloud upon the title, and a claim that irreparable injury will be caused, and wrong and oppression result, and that there will be a deprivation of prop erty rights. Cherokee Nation v. Hitchcock,

183

at the husband's death in case he alone sur- | WRIT AND PROCESS.
vived, that such charity will take to the ex-
clusion of the next of kin of either the testa-
trix or her son, where both survive the
husband, but perish in a common disaster
with nothing to show the order of death.
Young Women's Christian Home v. French,

Setting aside Judgment for Insufficiency
of Affidavit for Service by Publica
tion, see MORTGAGE, 2.

233

1. Service of summons within the state on

resident directors of a foreign corporation is insufficient to give the court jurisdiction of such corporation, where, at the time of Reasonableness of License Fee on, see within the state, and had designated no such service, it had ceased to do business TRIAL, 5.

WIRES.

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agent upon whom service could be made. Conley v. Mathieson Alkali Works, 1113

2. Service of summons within the state on resident directors of a foreign corpora tion is insufficient to give the court jurisdiction of such corporation, where at the time of such service it had ceased to do business within the state, and had designated no agent on whom service could be made. Geer v. Mathieson Alkali Works,

1122

missioner of Kentucky, of the license to do 3. The cancelation, by the insurance combusiness in that state, granted to an insurance company which had consented, pursu ant to Ky. Stat. 1899, § 631, that service of process upon such commissioner in any action brought in the state should be a valid service upon the company, does not render such service insufficient to bring that company into a court of the state as a party defendant to a suit brought by a citizen of such state upon a cause of action which arose out of transactions between the parties while the insurance company was carrying on business in Kentucky under the license. Mutual Reserve Fund Life Asso. v. Phelps,

79

987

1263

MAR 3- 1916

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