What I claim as new, and desire to secure by letters patent, is:

1. A concrete pavement laid in detached blocks or sections, substantially in the manner shown and described.

2. The arrangement of tar paper, or its equivalent, between adjoining blocks of concrete, substantially as and for the purpose set forth."

the character of the material, making a joint,
and doing the same with an upper course, the
upper joint being directly over the lower joint.
Into the open joint, in each case, was loosely
put some of the partially set material from the
top of the laid course, answering the purpose
of tar paper. A blunt and rounded joint mark-
er, which was said to be or of an inch in
depth, was then run over the line of the joints,
On the first of March, 1875, Schillinger filed marking off the block. The pavement was
in the Patent Office a disclaimer, in which he weaker along the line of the joint than in any
disclaimed the matter above enclosed in brack-other place. This was held to be an infringe-
ets; and stated also that he disclaimed "the ment.
forming of blocks from plastic material without
interposing anything between their joints while
in the process of formation."

The only defense set up in the answer is noninfringement. After a hearing, on proofs, the circuit court dismissed the bill, on the ground that the defendant's pavement did not infringe either one of the two claims of the patent.

In California Arti. 8. P. Co. v. Freeborn, 8 Sawy. 443, in the District of California, in January, 1883, it was held, that, where nothing was interposed in the joint between a newly laid block and one laid before, but, after the material in the newly laid block had partially set, a blunt and rounded joint marker, of an inch in depth, was run along the line between [406) the newly laid block and the one laid before, there was no infringement.

ond claim of the reissue was infringed by a con-
crete pavement which had an open cut made by
a trowel entirely through two courses of ma-
terial, the line of cut in the upper course being
directly over the line of cut in the lower course;
and that the interposition of the trowel, though
temporary, was an equivalent for the tar paper,
even though the joint was left open after the
trowel was removed, and was not made tight.
In Kull v. Mueller, 21 Fed. Rep. 510, in the
Southern District of Ohio, in June, 1884, it was
held that the use of any marker was an infringe-
ment, which made a cut ordepression having
the effect to cause the pavement to break by
upheaval, or cracking, from any cause, along
the line of the cut or depression; and that, as
the blocks from the pavements laid by the
defendant showed clear, distinct and complete
lines of division, there was infringement,
whether those lines were produced by a trowel
or by a marker.

This patent has been construed by several
circuit courts since the disclaimer was filed.
In Schillinger v. Gunther, 14 Blatchf. 152, in In Schillinger v. Greenway Brewing Co. 21
the Southern District of New York, in Febru- Blatchf. 383, in the Northern District of New
ary, 1877, the defendant's pavement had a bot-York, in July, 1883, it was held that the sec-
tom layer of coarse cement, on which was laid
a course of fine cement, divided into blocks by
a trowel run through that course while plastic.
It possessed the advantage of Schillinger's in-
vention, because any blocks in the upper course
could be taken up without injury to the adjoin-
ing blocks. Concrete pavement having been
before laid in sections, without being divided
into blocks, the invention of Schillinger was
held to consist in dividing the pavement into
blocks, so that one block could be removed and
repaired without injury to the rest of the pave-
ment, the division being effected by either a
permanent or a temporary interposition of some-
thing between the blocks. It was held that the
effect of the disclaimer was to leave the patent
to be one for a pavement wherein the blocks
are formed by interposing some separating ma-
[405] terial between the joints; that to limit the pa-
tent to the permanent interposition of a material
equivalent to tar paper, would limit the actual
invention; that using the trowel accomplished
the substantial results of the invention in sub-
stantially the same way devised by Schillinger;
that the only difference in result was that the
defendant's method left an open joint; that
having a tight joint was not a material part of
Schillinger's invention; and that the mode of
operation involved in using the trowel was
within the first claim of the reissue as it stood
after the disclaimer.

The evidence in the present case shows that
the defendant, during the process of making
his pavement, marked off its surface into
squares. But the question is whether he, to
any extent, divided it into blocks, so that the
line of cracking was controlled, and induced to
follow the joints of the divisions, rather than
the body of the block, and so that a block
could be taken out, and a new one put in its
place, without disturbing or injuring an adjoin-
In the same suit (17 Blatchf. 66), in August, ing block. The specification makes it essential
1879, it was held that the disclaimer took out that the pavement shall be so laid ir sections
of the first claim of the reissue only so much" that each section can be taken up and relaid
thereof as claimed a concrete pavement made without disturbing the adjoining sections."
of plastic material laid in detached blocks, | Again, it says that the joint between the blocks
without interposing anything between the joints
in the process of formation, leaving the claim
to be one for such a pavement laid in detached
blocks, when free joints are made between the
blocks, by interposing tar paper or its equiva-
lent.

In California Arti. 8. P. Co. v. Molitor, 7 Sawy. 190, in the District of California, in May, 1881, the defendant's pavement was made by cutting a lower course into sections with a trowel, to a greater or less depth, according to

"allows the several blocks to heave separately,
from the effects of frost, or to be raised or re-
moved separately, whenever occasion may arise,
without injury to the adjacent blocks.' This
is essential; and in all the cases where infringe-
ment has been held to have been established,
there have been blocks substantially separate,
made so by the permanent or temporary inter. [407]
position of a separating medium or a cutting
instrument, so that one block could upheave or
be removed without disturbing the adjoining

[481]

blocks. The patentee, in the disclaimer, ex-in crror, to recover for the loss of the steam-
pressly disclaimed "the forming of blocks
from plastic material without interposing any-
thing between their joints while in the process
of formation."

James H. McKenney, Clerk, Sup. Court, U. 8. "The Greenwich Ins. Co., New York:

"Gents: Herewith please find our check for sixty-six dolls., being one monthly premium, from Oct. 5 to Nov. 5, '80, on insurance GREENWICH INSURANCE COMPANY, on strs. Massachusetts & Rhode Island, as speci

First. That the privilege written on the mar-
gin of the policy was wholly for the benefit of
An agreement written upon the margin of an in- the assured, and gave them the option of con-
surance policy provided that the policy should tinuing the policy in force after the date of ex-
continue in force from the date of its expira-piration named in it without doing any act or
discontinuance, the assured to pay for such privi-
lege pro rata for the time used. The payment by
the assured for an additional month's insurance did
not operate as notice, under this agreement, that
the insurance was to be discontinued at the end of
the month for which payment was made.

IN ERROR to the Circuit Court of the United and the risk continued from day to day under

States for the Southern District of New the terms of the privilege.
York. Affirmed.

Third. That it was competent for plaintiff to make the time, which was left indefinite and uncertain by the terms of the privilege, definite and certain, and to fix the time to be used unMr. Wheeler H. Peckham, for defend-der the privilege by proper notice or act for ant in error.

[482]

[483]

[484]

month, beginning October 5, 1880, and ending | already paid, the assured being only liable to
November 5, 1880, as the time for which pay-pay pro rata for the time used, and not yet paid
ment was made, was in law an election to for.
continue the risk in force for that month, and
that the legal effect of the transaction was to
continue the policy in force until November 5,
at noon, and no longer.

And thereupon defendant's counsel prayed the court to direct a verdict for the defendant. This was refused, and the court directed the jury to find a verdict for the plaintiff.

This is the whole case; and the only question is whether the sending of the check for an additional month's insurance was, in legal effect, a notice of the discontinuance of the policy after that time. The agreement written in the margin of the policy was that the policy should continue in force from the date of its expiration until notice was given to the Insurance Company of its discontinuance, the assured to pay for such privilege pro rata for the time used. It did not specify when, or how often, such pro rata payments should be made. The plaintiff might have waited a year before making a payment, unless the Insurance Company had demanded an earlier payment. The plaintiffs elected to make a monthly payment, and made it. It seems to us very clear that the mere making of such a payment was not, and did not amount to, a notice to discontinue the policy, or an election to have it continued in force for the month for which the payment was made, and no longer. The plan adopted by the plaintiffs, to pay from month to month, was a reasonable one and favorable to the Insurance Company. It would have been a less favorable one to have deferred any payment longer, and a more favorable one to have paid for a longer time, when they did make a payment. But in whatever manner they chose to arrange their payments, it did not affect the terms of the policy. That continued in force by the terms of it, until the plaintiffs gave notice of its discontinuance. To say that a mere payment for a specified time would amount in faw to such a notice, would make it dangerous for them to make any payment at all until they met with a loss. Even if in making a payment they should make an express stipulation or proviso that it was not intended as a notice of discontinuance, such a stipulation would be of no avail, if the defendants are right in the position they take. This, we think, would be an unreasonable construction of the contract and of the acts of the assured done in pursuance of it.

The judgment of the Circuit Court is affirmed.
True copy. Test:

James H. McKenney, Clerk, Sup. Court, U. 8.

ERASTUS A. NICHOLS ET AL.

(See S. C. Reporter's ed. 485-491.)
Adverse claims to placer mine-Statute of the
United States as to-Civil Code of Montana
as to actions for determining right to posses-
sion of real estate.

1. An adverse claimant to a placer mine, who has

executed an instrument by which he agrees to con-
vey the premises in dispute, at some future time,
to a tenant in possession may, under the Code of
Montana and sections 2325 and 2326, R. 8., maintain
an action in the courts of Montana to determine
the right to the possession of the premises in dispute.
2. Where the plaintiffs in their petition assert
claim to a certain tract, and the defendants in their
answer admit that they have applied for a patent
for the same tract, the conflict as to the right of
possession sufficiently appears. If defendants did
not wish to contest plaintiffs' claim they should
[No. 67.]

have disclaimed.

Argued and submitted Nov. 30, 1886. Decided

IN

Dec. 20, 1886.

[N ERROR to the Supreme Court of the Ter
ritory of Montana. Reversed.
The case is stated by the court.

Mr. Edward O. Wolcott, for plaintiffs in er

ror.

Messrs. Walter H. Smith, Wm. Herbert
Smith and F. C. Ford, for defendants in er-

ror.

Mr. Justice Miller delivered the opinion of the court:

[485]

This is a writ of error to the Supreme Court of the Territory of Montana. The suit was brought in the District Court of that Territory to settle the controverted right to a patent from the United States for a placer mine, under sections 2325 and 2326 of the Revised Statutes of [486] the United States. It is therein enacted that a person who has located and set up a claim for We cannot say that such a contract is a de-mineral lands, and who desires to get a patent sirable one for insurers to make. Ordinarily, on an insurance for a specified time or adventure, such as a year for example, or a voyage, they get their premium in advance for the risk of the whole period or adventure; and if a loss happen ever so soon after the insurance is effected, no abatement of the premium is made. This gives them the benefit of average losses in determinate times or adventures, which is the solid basis on which all insurance rests. But the Insurance Company saw fit to make the contract in the form they did; and having made it, they are bound by its terms. And according to that contract, we think that they continued to be liable for a loss, although it happened after the time covered by the premiums

for it, shall file in the proper land-office an ap-
plication for such patent, showing a compliance
with the laws on that subject, and a plat and
field notes of the claim, and shall post a copy
of such plat, with a notice of the application
for the patent, in a conspicuous place on the
land, for sixty days. If no adverse claim for
the same is filed with the register within sixty
days from this publication, and if the papers
are otherwise in proper form, the patent shall
issue; but where an adverse claim is filed dur-
ing the period of publication, it shall be upon
oath of the person making the same, showing
the nature, boundaries and extent of his claim,
and "It shall be the duty of the adverse claim-
ant, within thirty days after filing his claim,

(487)

to commence proceedings in a court of compe-
tent jurisdiction, to determine the question of
the right of possession, and prosecute the same
with reasonable diligence to final judgment."
In the case before us the defendants, Nichols
and Fuller, having made their application for
a patent for a placer mine, the plaintiffs in er-
ror, the widow and heirs of Nelson Wolverton,
filed the requisite claim in the register's office,
adverse to that of Nichols and Fuller, in due
time, and afterwards, in compliance with the
Act of Congress, instituted the present suit in
the District Court of Montana to determine the
right of possession. Upon the trial of this case
before a jury, the plaintiffs made what appears
to be satisfactory proof that Nelson Wolverton
had in his lifetime taken the necessary steps to
establish his claim to the mine, or to that part
of it now in contest, and had been dead about
two years when these proceedings were com-
menced. In the course of the production of
the plaintiffs' evidence it was developed by
cross-examination that Mrs. Wolverton, acting
for herself and as guardian of the two children
of her deceased husband, had executed and de-
livered the following instrument:

which lies south of the most southerly point
of the fence first above mentioned: To have
and to hold the same unto the said The Colo-
rado and Montana Smelting Company, their
successors and assigns, for their own benefit
and behoof forever.

"In witness whereof I have hereunto placed
my hand and seal this 12th day of May, eighteen
hundred and eighty-one.

"MARGARET J. WOLVERTON, [Seal.]
"MARGARET J. WOLVERTON, [Seal.]
As guardian for Eva Jane Wolverton and Will-
iam Arthur Wolverton.

"In presence of CALEB E. IRVINE.”

this was an absolute necessity to the successful
prosecution of this action. That section is in
the following words:

"An action may be brought by any person
in possession, by himself or his tenant, of real
property, against any person who claims an es-
tate or interest therein adverse to him, for the
purpose of determining such adverse claim, es-
tate or interest."

It was proved that the Colorado and Monta-
na Smelting Company, who had held this prop-
erty for two years under a lease, or as tenants
of the Wolvertons, were now in the actual
control and possession of the property men-
tioned in this instrument. An attempt was also
made to show that they had performed the con-
dition mentioned in it, and were entitled to the
conveyance which that instrument provided
should be made when this was done. There-
upon, at the suggestion of defendant's counsel,
the court ordered a nonsuit. This judgment
"Know all men by these presents, that I, was affirmed in the Supreme Court of the Ter
Margaret J.Wolverton, widow of Nelson Wol-ritory, and is the subject of consideration here.
verton, deceased, for myself, and as guardian The ground upon which this nonsuit was or-
for Eva Jane Wolverton and William Arthur dered is that the plaintiffs were not in the act-
Wolverton, infants under the age of twenty- ual possession of the property at the time of
one years, for and in consideration of the sum the trial, and that under the Statute of Monta-
of one dollar to me in hand paid by the Colo-na, section 354 of the Code of Civil Procedure,
rado and Montana Smelting Company, and the
further consideration of said company prose-
cuting to a successful conclusion the cause of
J. R. Clark, administrator of the estate of Nel-
son Wolverton, deceased, et al. v. Silas F.
King, now pending in the District Court in and
for Silver Bow County, have covenanted and
agreed, and by these presents do covenant and
agree, to convey, by a good and sufficient deed
of conveyance, duly acknowledged, all that cer-
tain land bounded and described as follows:
Beginning at a point on the easterly extremity
of certain placer mining claims belonging to the
estate of the said Nelson Wolverton, and lo-
cated in Independence Mining District, Sil-
ver Bow County, Territory of Montana, in
Township No. 8 North, Range No. 8 West of
the principal meridian, which said point is due
east from the most southerly point of a certain
fence running westerly therefrom along the
general course of said Silver Bow Creek;
thence in a due west line from said point, touch-
ing the most southerly point of said fence, a dis-
tance of about thirteen hundred feet, to a point
on the westerly extremity of placer mining
claim number two hundred and thirty; thence
from said point due south along the westerly
boundary of said last-named placer claim to the
most southerly boundary thereof; thence along
the most southerly boundary of said placer
mining claim, and placer mining claims num-
bers 231, 232, 233, 234, 235, 236, 237, 238, 239,
240, 241 and 242, in an easterly direction, to
the southeast corner of said placer mining claim
number two hundred and forty-two; thence in
a northerly direction from said corner to the
point or place of beginning; it being intended
to convey all that part of said placer mining
claims numbered from two hundred and thirty
to two hundred and forty-two, both inclusive,

But whatever may be the effect of that statute in an ordinary action which has no direct relation to the proceedings under the Act of Congress which we have referred to, we are of opinion that, as applicable to such a case, the construction given by the court is entirely too restricted. The proceedings in this case commenced by the assertion of the defendants' claim to have a patent issue to them for the land in controversy. The next step was the filing of an adverse claim by the plaintiffs in the land-office, and the present suit is but a continuation of those proceedings, prescribed by the laws of the United States, to have a determination of the question as to which of the contesting parties is entitled to the patent. The Act of Congress requires that the certified copy of the judgment of the court shall be filed in the land-office and shall be there conclusive. And we must keep this main purpose of the action in view in any decision made with regard to the rights of the parties.

It appears from the evidence that at the time these proceedings took place in the land-office the smelting company was in possession as the tenant of the Wolvertons, and that the contract by which Mrs. Wolverton undertook upon certain conditions, to convey all the right of the Wolverton heirs to the smelting company was made after the commencement of those proceedings. It might very well be maintained

[488]

[489

True copy. Test:

James H. McKenney, Clerk, Sup. Court, U.S.

HERMAN GILBERT AND JACOB
SCHARTZEL, JR., Plffs. in Err.,

that, having thus commenced such proceedings, | the right of possession to any part of these forat a time when the possession was in the Wol- ty acres submitted to a jury on the ground that vertons, they could be conducted to a termina- they did not claim it, they should have made a tion in their name. But however that may be, disclaimer. Apart from this, so far as relates it is quite clear, upon the testimony before us, to the evidence on the subject, we are of opinthat Mrs. Wolverton had not completely parted ion that there was sufficient to go to the jury to with her interest and that of her children in the show that the plaintiffs' claim did include a part land in controversy, at the time of the trial. of that claimed by the defendants in this action. The language of the instrument, by which this For these reasons the judgment of the Supreme is supposed to have been done, is that she will Court is reversed, and the case remanded for furthereafter convey the lands described. This ther proceedings. conveyance has never been made. The whole thing rests in promise or covenant to do it in the future. This covenant also is that it shall be done by a good and sufficient deed of conveyance. These words have always been held to mean a conveyance of a good title, and though in point of fact the legal title was in the United States, as it is yet, still the parties understood very well that they were dealing with regard to a class of claims which the United States by statute and otherwise had always recognized, and the meaning of the covenant was that she should convey such an interest in the property as would enable the other parties, if they chose, to obtain the patent from the government. She, therefore, was interested to defeat the claim of the defendants, who were seeking to get that patent; it was her duty and her interest to contest their claim and have the right [490] to the patent decided in favor of the claims which she set up as being derived from her late husband. This was necessary to enable her to make that "good and sufficient conveyance" which this covenant required, and which had never been made, and if she had stood by and permitted the defendants to obtain the patent from the United States she would have been

unable to comply with her contract to convey
a good and sufficient title to the smelting com-
pany. In fact, so far as regards the right of
possession, which alone is in controversy in
this suit, the interest, the claim and the rights
of the plaintiffs, the Wolvertons, and of the
smelting company, are in privity with each
other and are identical. And, inasmuch as this
is a contest provided for by the Statutes of the
United States in order that the officers of the
land department may be informed which of
the two contestants before it is entitled to the
patent, we see no reason why the plaintiffs here
should not have been permitted to have the
verdict of a jury on that question in this suit.
And, since such possession as the smelting
company had was a part of and in subordina-
tion to the title of the Wolvertons, the judg-
ment in this case between the parties to this
suit would have settled the question which the
Act of Congress required to be settled. We are
of opinion, therefore, that, so far as regards
this, the main ground on which the court be-
low directed a nonsuit, that court erred.

Something is said in the brief about the fact
that the plaintiffs have failed to show that the
possession of these parties conflicted. On that
point it is sufficient to say that the plaintiffs, in
their petition, asserted a claim to the southeast
quarter of the southeast quarter of section 23,
in Township 3 North, Range 8 West of the
principal meridian of Montana, and that the de-
fendants, in their answer, admit that they have
applied for a patent for the same land exactly.
If they did not desire to have the question of

0.

MOLINE PLOW COMPANY.

(See 8. C. Reporter's ed. 491-494.)

Action on guaranty—letter of credit-evidence.

In an action on a written guaranty in which the
guarantors stated that they would "satisfy all
orders Mr. Gillman gives this spring, such as plows
principal prior to the guaranty, and which was not
and cultivators," the original order, given by the
referred to in the guaranty, was inadmissible for
the released by the giving of credit by the plaint-
the purpose of showing that the guarantors had
iff different from that contemplated. The guar-
anty was complete in itself, and no additional
agreement as to the character of the credit to be
given could be imported into it by parol.
[No.72.]

Argued and submitted Dec. 3, 1886. Decided

Dec. 20, 1886.

r ERROR to the Supreme Court of the Ter-
ritory of Dakota. Affirmed.

The case is stated by the court.

Mr. H. K. Whiton, for plaintiffs in error.
Mr. R. D. Mussey, for defendant in error.

Mr. Justice Miller delivered the opinion of
the court:

This is a writ of error to the Supreme Court
of the Territory of Dakota. The action was
brought by the Moline Plow Company, as
plaintiff, against Herman Gilbert and Jacob
Schartzel, defendants. It was tried before a
jury, and verdict rendered for the plaintiff.
This judgment, on appeal to the Supreme Court
of the Territory, was affirmed. The suit was
founded on the following instrument in writing,
signed by the defendants:

Moline Plow Co., Moline Ill.
"SIOUX FALLS, D. T., March 9, 1878.

with Peter Gillman, of this place (formerly
Sirs: We, the undersigned, are acquainted
of Fond Du Lac, Wis.), and have no hesita-
tion in indorsing him as an honest, capable
business man and deserving of confidence and
to Mr. Gillman's business ability and capacity,
credit. We think your informant, in regard
was in error, if not selfish and malicious.

We

will satisfy all orders Mr. Gillman gives this
spring, such as plows and cultivators.

"WM. B. DICK.
"H. GILBERT.
"JACOB SCHARTZEL."

It seems that on January 21, 1878, Peter Gillman had sent an order to the Moline Plow

[491

[491]

[492]