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corded in order to protect them against third per

sons.

But whatever the law may be with regard to a bona fide purchaser from the vendee in a conditional sale, there is a circumstance in the present case which makes it clear of all difficulty. The appellant in the present case was not a bona fide purchaser without notice. The court below find that at the time of and prior to the sale he knew the purchase price of the property had not been paid, and that Russell & Co. claimed title thereto until such payment was made. Under such circumstances, it is almost the unanimous opinion of all the courts that he cannot hold the property as against the true owners; but as the rulings of this court have been, as we think, somewhat misunderstood, we have thought it proper to examine the subject with some care, aud to state what we regard as the general rule of law where it is not affected by local statutes or local decisions to the contrary.

It is only necessary to add that there is nothing either in the statute or adjudged law of Idaho to prevent in this case the operation of the general rule, which we consider to be established by overwhelming authority, namely, that in the absence of fraud, an agreement for a conditional sale is good and valid as well against third persons as against the parties to the transaction; and the further rule that a bailee of personal property cannot convey the title or subject it to execution for his own debts, until the condition on which the agreement to sell was made, has been performed.

The judgment of the Supreme Court of the Territory of Utah is affirmed.

NEW YORK COURT OF APPEALS ABSTRACT.

ABATEMENT-PENALTY UNDER GENERAL MANUFACTURING ACT-CONSPIRACY.-Plaintiff's intestate was a creditor of a mining corporation whose officers in making their annual report were alleged to have stated falsely the amount of capital paid in. For this cause of action, conjoined with one for conspiracy, suit was brought, pending which, and before verdict or judgment, plaintiff died. Held, that the cause of action for the penalty abated but that for conspiracy survived. At common law the action abated upon the death of either party, the one by whom or to whom the wrong was done; and that rule must apply unless it is made inapplicable by the provisions of the Revised Statutes. 2 Rev. Stat., 3 1, p. 448. But we have decided that those provisions affect only injuries to property rights, and where such are not invaded the common-law rule still prevails. Hegerich v. Keddie, 99 N. Y. 258; S. C., 52 Am. Rep. 25. In that case, while concurring in the result, I thought the statute should receive a broader interpretation and contemplated survivability as the rule and abatement as the exceptions, and the construction finally reached was adopted after full deliberation and argument. It must now be deemed settled and requires us to hold that the cause of action for the penalty died with the intestate. We have not been unmindful that in our discussion of this question we have assumed the assignability of a cause of action as a test, treating that and survivability as convertible terms; nor that we have also said that a cause of action for the penalty so far follows the creditor's debt and belongs to it as an incident that an assignment of the debt carries with it a right to the protection of the statute. Stokes v. Stickney, supra; Bolero v. Crosby, 49 N. Y. 183. But it was neither said nor meant that such right was itself assignable. Relatively to the debt it is rather a remedy than a right, and while it becomes in connection with

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RETURN

EFFECT OF STAY

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the debt a cause of action, it belongs to the assignee of such debt by force of the statute which gives it to him by virtue of his having become a creditor and not because of any derivative right resting upon and born of the assignor's ended and extinguished right. In other words the new holder has his own right of action, or none. Having become a creditor he thereby obtains the right which the statute gives him, and must depend upon that for his relief and not upon an impossible transfer by the assignor of the debt. The questions which may spring out of this ruling may best be reserved till they arise. So far as the cause of action was for a conspiracy to cheat or defraud the intestate, it was for an injury to a property right and did not die with its owner. The order of revivor was so far proper, but should have been limited to the cause of action which survived. That has been tried and judgment upon it given for the defendant. The plaintiff has recovered upon a cause of action which did not survive, and that recovery cannot be sustained. Nov. 23, 1886. Brackett v. Griswold. Opinion by Finch, J. EXECUTION CODE PROC. N. Y., § 290-JURISDICTION OF UNITED STATES DISTRICT COURTS TO STAY EXECUTION IN STATE COURTS.-A stay, granted by a court of competent jurisdiction, which restrains a sheriff from enforcing an execution, suspends the running of the time in which he is required to return the writ by Code Proc. N. Y., § 290. (1)It was said by Judge Miller, in Wehle v. Conner, 69 N. Y. 546, iu an action against the sheriff for not returning an execution, that "proof that plaintiff had directed the execution not to be returned, or that the sheriff had procured it to be stayed by order of the court, are lawful defenses." In the case of Paige v. Willet, 38 N. Y. 28, it was held that the sheriff was not chargeable with interest accruing upon money collected by him on execution, but retained beyond the return day, in obedience to an order restraining him from paying them over the judgment creditor. The principle of this case seems clearly to recognize the exemption of the sheriff from liability when acting under the order of the court. In People v. Carnley, 3 Abb. Pr. 216, it was decided that an order by a court of competent jurisdiction staying the sheriff's proceedings excused him from returning the writ according to its requirements, and that he could not, while thus restrained, be adjudged guilty of contempt in disobeying the mandate of the writ, or the notice of the judgment creditor to make return. This decision was made at Special Term, but was rendered by the late Judge Davies, and accords with the analogies of the law. The policy of the statute could not be accomplished if the sheriff should be deprived of the advantageous use of the time extended to him by injunction orders or stay of proceedings, covering the whole, or even a material portion of that time allowed to him to serve the writ. Suppose the sheriff is stayed during the first fifty days of the life of the process, and the remaining time does not afford him sufficient opportunity to discover property, and make the money therefrom by a sale, is it reasonable that he should be visited with a penalty for not returning the process according to its requirement? Or suppose, after a levy, and before a sale, his proceedings are stayed until after the return day, can he be adjudged liable for the judgment debt because he did not make return? We cannot think so. Would the sheriff be justified, in the case last supposed, in abandoning his levy, and returning the execution at the end of sixty days from its receipt? And yet, if not, under the plaintiff's contention, he would become liable to pay the judgment. Can a sheriff be made liable for the amount of a judgment which he is debarred from collecting, but which on the sixtieth day

he has secured by a levy upon property sufficient to satisfy it, but which he is uuable to advertise and sell by reason of the necessity of returning his writ? We think not. It is claimed, if he does not return his writ, he becomes liable; and certainly if he does return it he not only abandons the levy, but makes him self liable for the debt as for a false return. He could not, under these circumstances, protect himself from suit by advancing the money to the plaintiff, and retaining the execution to reimburse himself, for this, it has been held, he could not lawfully do (Carpenter v. Stilwell, 11 N. Y. 61; Mills v. Young, 23 Wend. 314; Sherman v. Boyce, 15 Johns. 443), and thus under the plaintiff's contention, the officer would be made liable for the debt in any event, although he is entirely without fault, and has by vis major been disabled, during the whole period of the life of the writ, from executing its command. If the stay is granted for some alleged vice in the process, or the judgment upon which it is founded, as it usually is, is there any reason why the sheriff should bear the loss occasioned by such delay, and the offending party be exempted therefrom? The law does not sanction such manifest injustice, and will give the statute a reasonable construction to avoid such a result. We think the true policy of the statute can be satisfied only when the sheriff has sixty full days in which to perform the duties enjoined upon him. The onerous liabilities which the law imposes upon him for not returning process, for a false return, and for non-performance of his official duties, require that his time for their performance should not be curtailed or limited by periods of disability to act. Although the sheriff cannot levy upon property except during the life of the execution (Devoe v. Elliot, 2 Caines, 244; Hathaway v. Howell, 54 N. Y. 114), he yet can complete the act already initiated by the levy, by selling after the return day (Devoe v. Elliot, supra), and it is often indispensable to the security of the rights of the plaintiff that he should retain his writ for that purpose. I think it has never been doubted that it was the duty of a sheriff to hold his execution and levy after appeal, and until the final determination of the case. The analogy between such a stay and the one under discussion seems perfect, and requires us to hold that any stay which restraius the sheriff from enforcing the execution suspends the running of the time in which he is required to return the writ. (2) It is also claimed by the appellant that the bankrupt court had no authority to make the order in question, restraining the sheriff from selling the property. We think this point is not sustainable. The order in question was made by the District Court of the United States for the Southern District of New York, in a proceeding in bankruptcy instituted by the judgment debtor, and upon an application by him showing, among other things, the seizure by the sheriff of his property under an execution issued upon a judgment recovered in the Supreme Court by the plaintiff therein, and which was alleged to have been obtained fraudulently, and in violation of the provisions of the Bankrupt Act. The order was made on the 27th day of November, 1875, and purported to restrain the plaintiff herein and the defendant "from interfering in any way with the said property (held by the sheriff under levy) of said " bankrupt until the further order of the court. The plaintiff herein assumed the validity of this order, and appeared in the bankrupt court upon an application to vacate it, and for leave to the sheriff to sell under his execution. Upon this application an order was made by the bankrupt court, on the 17th day of December, thereafter vacating the stay, and granting leave to the sheriff to sell, and plaintiff availed itself of such leave. Dorrance v. Henderson, 92 N. Y. 406. Without entering into a general discussion of the jurisdiction of

the bankrupt court, we may say that we entertained no doubt of their power to examine into the validity of alleged claims upon the bankrupt's property, and restrain by temporary injunction the sale and disposition thereof during the pendency of proceedings in bankruptcy in such court. This must result from, and is the necessary incident of the power conferred upon them to collect and marshal the bankrupt's assets, and ascertain and liquidate the liens and other specific claims thereon. Section 4972, Rev. St. U. S. Any other view would render such courts powerless to enforce the provisions referred to. Express power to stay proceedings instituted in any court by the creditors of a bankrupt, for the collection of debts provable in bankruptcy against him, and for stay of execution thereon, is also given by section 5106 of the Revised Statutes of the United States. Nov. 26, 1886. Ansonia Brass_and_Copper Co. v. Conner. Opinion by Ruger, C. J.

STATUTE OF LIMITATIONS -CLAIM BY SERVANT AGAINST MASTER'S ESTATE.-Plaintiff's claim against the estate of the deceased was for wages for housework or as house-keeper for deceased, covering a period of about forty years. Plaintiff proved two payments on account of such services, one in the spring and one in the fall of 1879. There was no proof of any express agreement as to the time or measure of compensation, or of any usage in such a case. Held, that it was to be taken as a general hiring, but that the law would not imply that payment was to be postponed until the end of the service; and that the statute of limitations precluded a recovery for any services rendered more than six years before the payment made in the spring of 1879. In cases of this character there is often great difficulty in getting at the truth so as to adjust fairly the rights of both parties. But here every question has been settled to their satisfaction excepting that relating to the application of the stat

ute of limitations. The effect of that statute is to prevent one who neglects to enforce his right of action upon a contract obligation or liability, whether express or implied, from doing so after the expiration of six years from the time the cause of action accrued. Here there was no express agreement as to the time or measure of compensation, nor any evidence of usage in respect thereto, and I am unable to find any circumstance to distinguish the claimant's case from that decided by this court in Davis v. Gorton, 16 N. Y. 255, where it was in substance held that a similar indefinite engagement was to be taken as a general hiring, but that the law would not imply an agreement that compensation should be postponed until the termination of the employment, and a judgment which had been rendered on the opposite theory was reversed. It did not appear in that case that any payments had been made, but in Gilber v. Comstock, 93 N. Y. 484, that fact was in evidence and an allowance for six years prior thereto was justified. That circumstance was present in the case at bar, and the same effect has been given to it. We think the claimant can require nothing more. In Smith v. Velie, 60 N. Y. 106, on which the appellant relies, there were open mutual accounts between the parties, and while that condition of things continued the statute was no bar, for in such a case, if the last item is within six years, it draws after it items beyond that period. In the absence of an express agreement as to time of payment, the law will no doubt presume that the parties contracted in reference to the usage prevailing in respect thereto in that kind of employment, and when shown, it would be taken into account, but here, as before suggested, none is proven. The witnesses indeed estimate the value of the service at a certain sum per week, and such is the finding of the referee, and from that it might, perhaps, be inferred that weekly pay

ments were usual in such cases, but however that may be, both reason and authority repel the implication that under such a general contract as the present payment was intended to be delayed until the end of service. Nov. 23, 1886. Application of Gardner. Opinion by Danforth, J.

SURETY-FOREIGN DISCHARGE OF PRINCIPAL IN BANKRUPTCY--CREDITOR ACCEPTING COMPROMISE.

Defendant, a citizen of this country, having drawn a bill of exchange to his own order at sixty days' sight upon J. & Co., English merchants, residing in Liverpool, sold it to plaintiffs, American bankers, residing in New York. The bill was duly accepted, and at maturity, was protested for nonpayment. In an action against the drawer, it appeared that after the bill had been drawn and accepted the acceptors had been discharged by their creditors under the authority of the English bankrupt laws, in which proceeding the plaintiffs proved this indebtedness, and received their proportionate part of the composition paid by the acceptors. Held, that although the foreign discharge would have been in and of itself no defense, yet having voluntarily submitted themselves and their rights as creditors to the foreign jurisdiction, proved their debt, and accepted the compromise, defendant was released from all liability as surety. Nov. 23, 1886. Phelps v. Boland. Opinion by Finch, J.

WILL-CONSTRUCTION--REMAINDERS-WHEN TRANSMISSIBLE.-Testator devised as follows: "I give, devise, and bequeath unto my daughter M.,the wife of J. W., for and during, and for the full end and term of

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her natural life, my two lots of ground; * * * and from and immediately after the decease of my said daughter M. I give, devise, and bequeath the last aforesaid two lots of ground, houses, buildings, and premises, * so as aforesaid given unto my said daughter M. during her natural life, unto the lawful child or children of my said daughter, his or her or their heirs, forever, if more than one, share and share alike, as tenants in common; and in case any or either of the children of my said daughter M., at the time of her death, be dead, leaving a lawful child or children him or her surviving, such child or children shall take the share or portion which his, her, or their parent would have been entitled to if living, to have and hold to him, her, or them, and their heirs, forever." Held, that children who were living at the death of the testator, but who died during the life-time of their mother, without leaving issue, took, under the provisions of this will, such a vested estate in the lands as was alienable and devisable by them, and descendible from them. An estate in fee, created by a will, cannot be cut down or limited by a subsequent clause, unless it is as clear and decisive as the language of the clause which devises the estate. Thornhill v. Hall, 2 Clark & F. 22; Roseboom v. Roseboom, 81 N. Y. 359; Campbell v. Beaumont, 91 id. 467; Freeman v. Coit,96 id. 68. The effect of the construction contended for by the counsel for the respondents would be, that in case all the children of the testator's daughter had died during her life-time without issue, and there were no survivors, the estate would pass to the collateral heirs. The grandchildren of the testator would thus be divested of any absolute interest in the estate, by remote kindred. They would take only an unsubstantial estate, and in case they did not survive their mother, they would be vested with no interest whatever. The law favors the vesting of estates, and courts will always give such a construction to a will as will tend to best provide for descendants or posterity, and will prevent the disinheritance of remaindermen who may happen to die before the termination of the pre'cedent estate. Moore v. Lyons, 25 Wend. 142; Scott

v. Guernsey, 48 N. Y. 106; Low v. Harmony, 72 id. 408. It may be remarked as to the cases relied upon by the respondents, that in several of them there was an express devise over of the remainder, either to the survivor, or to some other person, in case of the death of the first devisee without issue during the life-time of the life-tenant, or other language which limited the devise of the remainder, so that it could only take effect in case of his surviving the life-tenant. None of these cases sustain the position that where there are no words of limitation or survivorship, or of devise over to some other person, in the event of the death of the remainderman without issue during the life-estate, his share is to be divested entirely, or become vested in the survivor, or any other person than the heirs or assigns. The appellants' counsel cites several cases to sustain the position that the testator intended, that upon his death, his daughter should be entitled to, and should take a life-estate in his land, and that her children who should then be living should at the same time be entitled to, and should take a vested remainder in fee in the lands, if more than one, share and share alike, and as tenants in common, subject however to open and let in afterborn children to an equal share with them. Wimple v. Fonda, 2 Johns. 288; Doe v. Provoost, 4 Johns. 61; Livingston v. Greene, 52 N. Y. 124; Embury v. Sheldon, 68 id. 233. It is true that the authorities referred to tend strongly to uphold this construction of the testator's will. While they bear upon the subject, they do not however precisely cover the point here presented, and cannot be regarded therefore as entirely conclusive. The question is a new one, and has never been determined in this court. Its solution must therefore stand upon the construction to be placed upon the testator's will by invoking the rules Nov. 23, of law which are applicable to such a case. 1886. Byrnes v. Stillwell. Opinion by Miller, J.

-CAPITAL AND INCOME-LIFE-TENANT AND RE

MAINDERMEN.-Where a testator, by his will, devised to his executors, as trustees, a sum of money to invest with directions to pay the annual income to his daughter G. during her life, and upon her death, having no issue to divide the "principal or capital sum "among his other children in equal proportions, and after the death of G., the trustee sold the securities, realizing a large surplus over the amount of the original investment, held, that the remaindermen are entitled to the surplus. The theory of the will did not contemplate any traffic in securities by the trustee, but a permanent investment in interest-bearing obligations, subject to be sold or exchanged only when the exigencies of the trust required it to be done. It is quite clear that the life-tenant could not have compelled the trustee to sell or convert securities lawfully purchased and held by him, upon the ground that their market value had appreciated in his hands, any more than he could have compelled her to make good any depreciation in the value of such securities. The acquisition aud retention of such securities was one of the objects contemplated by the will of the testator, and was essential to execute his design, and a proceeding to compel a sale of the securities would plainly have been contrary to his intent in creating the trust. If the will had required trustees to invest in real estate, the rents, income, and profits of which were made payable to the life-tenant, with remainder over, it cannot be questioned but that any increase of the value of the land from natural causes would have been an accretion to the capital, and inured to the benefit of the remaindermen (Perry Trusts, § 545, p. 486; Cogswell v. Cogswell, 2 Edw. Ch. 240), and we can see no difference in principle between this case and the one supposed. Townsend v. United States Trust Co., 3 Redf. 222;

Whitney v. Phoenix, 4 id. 180. The cases cited by the learned counsel for the appellant may all be classified as cases where the terms of the trust authorized investments in the stock of private corporations or trading enterprises whose profits are largely affected by the vicissitudes of business and trade, and the disposition of whose gains and profits is largely, if not wholly, left to the discretion of the managers of the enterprise. In such cases it was plainly the intention of the settlor of the trust that the life-tenant should have the advantage of any extraordinary profits realized from the investment. Nov. 23, 1886. In re Accounting of Gerry. Opinion by Ruger, C. J.

UNITED STATES SUPREME COURT ABSTRACT.

REVIVAL-RE

CONSTITUTIONAL LAW-STATUTE PEAL-LOTTERY COMPANY.—(1) No. 25 of Acts of Louisiana 1868, established the Louisiana State Lottery Company as a corporation, declaring that it should pay the State $40,000 per annum, and be exempt from all other taxes and licenses from the State, parish, or municipal authorities, and that it should have the sole and exclusive privilege of establishing and authorizing a lottery, selling tickets, and disposing of property by lottery. This was repealed by No. 44, Acts Louisiana, 1879, which took effect March 31, 1879. Article 167, Constitution Louisiana, 1879, which went into operation in December, 1879, assuming that the charter of 1868 was still in force, gave the General Assembly authority to grant lottery charters and privileges, and declared that "the charter of said company is recognized as a contract binding on the State, * * * except its monopoly clause, which is hereby abrogated." Held, that the Constitution repealed the act of 1879, so far as that act repealed the act of 1868, and revived the act of 1868, except the monopoly abrogated. (2) The monopoly abrogated was the exclusive lottery franchise only, and not the exemption from taxation, even if that exemption from taxation might be practically operative as a monopoly, since the monopoly, by reason of the exemption, is not one derived from any clause of the charter as granted in the year 1868, but is one created by the Constitution itself, and that too merely by way of inference. (3) The grant to the company being contained in the Constitution, the Legislature acting under it cannot contravene it, and so far as the act authorizes the taxing of the company, it is void. (4) Section 48, Louisiana act No. 77, 1880, purporting to tax, not the capital stock, but the shares of shareholders, of a corporation by assessing the tax against them, really taxes the corporation for its capital stock, since it requires the corporation to pay the tax, and authorizes a deduction from the amount of taxes assessed to each share of its proportion of the direct property tax paid by the corporation, as such, under other sections of the act. Dec. 6, 1886. City of New Orleans v. Houston. Opinion by Matthews, J. CONTRACT-CONSTRUCTION-WATER-WORKS-EXTRA WORK-RATE OF PAYMENT-CHANGE OF PLAN-DELAY.

-(1) Where a contract with a city for the construction of a system of water-works provides that extra work involved by any change of plan shall be paid for at contract rate for work of its class, at so much per lineal foot, and the city makes a change of plan involving extra work of a much more difficult character than that involved in the original plan, the actual increase of cost must be paid for. (2) A clause in a contract for the construction of water-works in a city, providing that no claim for extra work should be made or eutertained unless done in obedience to a written order, cannot be pleaded as a defense to a claim by plaintiffs

for extra work done in pursuance of a change of plan made by the defendant and marked by its engineer in the plans; nor can a clause in said contract providing that all loss or damage arising from any unforeseen obstructions or any difficulties that might be encountered in the prosecution of the work should be incurred by plaintiff without extra charge, be held to apply to the obstructions and difficulties at a changed place of crossing a river, resulting from the increased depth of water and quicksand. (3) A clause in such a contract, providing that the contractors shall have no claim upon the city for any delay in the delivery of pipes or other materials from the manufacturers, will not apply to the delay and expenses resulting to plaintiffs from the necessity of altering defective pipe castings, furnished by defendant, the defects of which could not be detected till they were being put in place. Dec. 6, 1886.) Wood v. City of Fort Wayne. Opinion by Blatchford, J.

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FERRED STOCK — DIVIDENDS.-A trust company having commenced an action against a railway corporation for the foreclosure of certain mortgages, certain parties entered into a plan and agreement for the readjustment of their rights. The thirteenth article of the agreement, on which the claim of the plaintiffs is mainly based, is as follows: "Preferred stock to an amount equal to the preferred stock of the company, to-wit, 85,369 shares, of the nominal amount of $100 each, entitling the holders to non-cumulative dividends at the rate of six per cent per annum, in preference to the payment of any dividend on the common stock, but dependent on the profits of each particular year, as declared by the board of directors." This article was set out, with the others, in the articles of association between the parties. For the fiscal year ending September 30, 1880, there was a large fund, after paying operating expenses and fixed charges, applicable to the payment of a six per cent dividend on preferred stock, which was expended by the managers upon the road, and in other improvements for the company. Held, in a suit brought by the plaintiffs to recover their shares of the dividends for that year, that they are not entitled of right to dividends payable out of the net profits accruing in any particular year, unless the directors of the company formally declare, or ought to declare, a dividend payable out of such profits; and whether a dividend should be declared in any year is a matter belonging, in the first instance, to the directors to determine with reference to the condition of the company's property and affairs as a whole. St. John v. Erie Ry. Co., 22 Wall. 136, 147; Warren v. King, 108 U. S. 389; see also Union Pac. R. Co. v. U. S.., 99 id. 402; Barnard v. Vermont & M. R. Co., 7 Allen, 521; Williston v. Michigan Southern & N. I. R. Co., 13 id. 400; Chaffee v. Rutland R. Co., 55 Vt. 110; Taft v. Hartford P. & F. R. Co., 8 R. I. 310; Elkins v. Camden R. Co., 36 N. J. Eq. 233; Lockhart v. Van Alstyne, 31 Mich. 76; Culver v. Reno Co., 91 Penn. St. 367; Deut v. London Tramway Co., 16 Ch. Div. 344; Richardson v. Vermont & M. R. Co., 44 Vt. 613; Boardman v. Lake Shore & M. S. Ry. Co., 84 N. Y. 157, distinguished. Nov. 29, 1886. New York, L. E. & W. R. Co. v. Nickals. Opinion by Harlan, J.

JURISDICTION-CITIZENSHIP-RECORD.-Where the jurisdiction of the United States Circuit Court depends alone on the citizenship of the parties, the record must show it, positively, and not inferentially. Nov. 29, 1886. Continental Life Ins. Co. of Hartford, Conn., v. Rhoads. Opinion by Waite, C. J.

PATENTS-SUIT FOR INFRINGEMENT-EXPIRATION OF PATENT PENDING SUIT - REISSUE — PRESUMPTION

DAMAGES. (1) Where an injunction is applied for to restrain the infringement of a patent, and the case is

one for equitable relief when the suit is instituted, the expiration of the patent soon after the commencement of the suit will not take away the jurisdiction, and preclude the court from proceeding to grant the incidental relief which belongs to such cases. (2) Where, upon an appeal from a judgment enjoining the infringement of a patent, neither the bill nor the proofs show any thing from which the court can infer that a reissue of the patent was illegally granted, and the allegations of the answer are unsupported by evidence, the court will presume that the reissue was legal. (3) In patent causes established license fees are the best measure of damages. Dec. 6, 1886. Clark v. Wooster. Opinion by Bradley, J.

PATENT FOR INVENTIONS PLOYER- TRUSTS- LICENSE

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EMPLOYEE

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· ASSIGNMENT- INJUNC

TION.-(1) Au employee under a contract to devise and make improvements in and get up and perfect plows fer his employer, a manufacturer of plows, engaged in that work, and at his employer's expense, and with his material, and the aid of his workmen, devised a plow which his employer thereupon manufactured. Subsequently the employment ceased, and the employee took out a patent for his invention. Held, that the employee was not a trustee of the title of the patent for his employer, who had, at most, a mere license to manufacture. The Circuit Court cases referred to do not support the plaintiffs' suit. In Continental Wind-mill Co. v. Empire Wind-mill Co., 8 Blatchf. 295, there was an agreement that the employee should receive $500 for any patentable improvement he might make. In Whiting v. Graves, 3 Ban. & A., 222, it was held that an employment to invent machinery for use in a particular factory would operate as a license to the employer to use the machinery invented, but would not confer on the employer any legal title to the invention, or to a patent for it. In Wilkens v. Spafford, 3 Ban. & A. 274, the contract was that the employer should have the exclusive benefit of the inventive faculties of the employee, and of such invention as he should make during the term of service. (2) Whatever license resulted to the Missouri corporation from the facts of the case, to use the invention, was one confined to that corporation, and not assignable by it. Troy Iron & Nail Factory v. Corning, 14 How. 193, 216; Oliver v. Rumford Chemical Works, 109 U. S. 75, 82. The Missouri corporation was dissolved. Its stockholders organized a new corporation under the laws of Illinois, which may naturally have succeeded to the business of the prior corporation; but the express averment of the bill is that it took, by assignment, the rights it claims in this suit. Those rights, so far as any title to the invention or patent is concerned, never existed in the assignor. As to any implied license to the assignor, it could not pass to the assignees. (3) As to so much of the prayer of the bill as asks that Hewitt be enjoined from maintaining any action at law or in equity for any alleged infringement of the patent by the prior corporation, or for its use of any of the devices or improvements covered by the patent, which is all there is left of the prayer of the bill, any suit to be brought would not be a suit against the corporation, for it is dissolved; and could not be a suit in equity against its trustees, for they are not alleged to be using the invention. It could only be a suit at law against the trustees or the stockholders of the old corporation for infringement by it while it existed. The theory of the bill is that there is a perfect defense to such a suit. In such a case a court of equity, certainly a Circuit Court of the United States, will not interfere to enjoin even a pending suit at law, much less the bringing of one in the future. Grand Chute v. Winegar, 15 Wall. 373; 1 High Inj., §§ 89, 94, and cases there cited. Nov. 29, 1886. Hapgood v. Hewett. Opinion by Blatchford, J.

WATER AND WATER-COURSES OBSTRUCTIONS BRIDGES-TEMPORARY OBSTRUCTION.-A railroad, empowered by its charter to bridge the navigable streams on its lines, in the course of repairing a draw-bridge, which had become unsafe, constructed, in order to prevent the stoppage of its trains, a temporary bridge adjoining the old one, making unusual efforts to expedite the work. Plaintiff's steamer could have carried freight above the bridge unusually early in the season but for the temporary bridge, and the supports used in the erection of the new bridge; and for the loss occasioned by the obstruction he sues. Held, that the temporary obstruction was not a ground for recovery, since wherever the exercise of a right conferred by law for the benefit of the public is attended with temporary inconvenience to private parties, in common with the public in general, they are not entitled to damages therefor. What the form and character of the bridges should be-that is to say, of what height they should be erected, and of what materials constructed, and whether with or without drawswere matters for the regulation of the State, subject only to the paramount authority of Congress to prevent any unnecessary obstruction to the free navigation of the streams. Until Congress intervenes in such cases, and exercises its authority, the power of the State is plenary. When the State provides for the form and character of the structure, its directions will control, except as against the action of Congress, whether the bridge be with or without draws, and irrespective of its effect upon navigation. As has often been said by this court, bridges are merely connecting links of turnpikes, streets, and railroads; and the commerce over them may be much greater than on the streams which they cross. A break in the line of railroad communication from the want of a bridge may produce much greater inconvenience to the public than the obstruction to navigation caused by a bridge with proper draws. In such cases, the local authority can best determine which of the two modes of transportation should be favored, and how far either should be made subservient to the other. Gilman v. Philadelphia, 3 Wall. 713, 729. In the case at bar no specific directions as to the form and character of the bridges over the streams on the line of the railroad were prescribed by the Legislature of the State. The authority of the company to construct them was only an implied one, from the fact that such structures were essential to the continuous connection of the line. Two conditions however must be deemed to be embraced within this implied power, one that the bridges should be so constructed as to insure safety to the crossing of the trains, and be so kept at all times; and the other, that they should not interfere unnecessarily with the navigation of the streams. The plaintiff contends that Congress had previously acted with respect to the navigation of this river and of all other navigable waters in Louisiana, and had thereby interdicted the placing of any obstruction in them, even of a temporary character, to the passage of vessels. He cites in support of this position the act of February 20, 1811, enabling the people of the territory of Orleans to form a Constitution and State government, the third section of which enacted that the convention called to frame the Constitution should, by an ordinance, irreVocable without the consent of the United States, provide, among other things, "that the river Mississippi, and the navigable rivers and waters leading into the same or into the Gulf of Mexico, shall be common highways, and forever free, as well to the inhabitants of the said State as to other citizens of the United States, without any tax duty, impost, or toll therefor imposed by the said State" (2 St. U. S. 642), and also the proviso to the act of April 8, 1812, for the admission of Louisiana, which declares that it is upon a sim

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