the writ of error on the prima facie showing made by the defendant.
The plaintiffs subsequently presented evidence to the contrary, but
that court declined to decide the controversy and referred it to this
court. Held, (1) That, under such circumstances it was not proper to
allow affidavits as to value to be filed here; (2) That the jurisdictional
value was not made out by a preponderance of evidence. Ib.
KENTUCKY.
See LOCAL LAW, 4.
See EQUITY, 7, 8, 9;
PRACTICE, 11 (5).
LIS PENDENS.
See LOCAL LAW, 2.
1. In Utah an action under the statute (§ 3460 Compl. Laws Utah, 1888)
to foreclose a chattel mortgage, if commenced while the lien of the
mortgage is good as against creditors and purchasers, keeps it alive,
and continues it until the decree and sale perfect the plaintiff's rights,
and pass title to the purchaser. Broom v. Armstrong, 266.
2. Under § 3206 of the Compiled Laws of Utah, the rule of lis pendens
applies to an action to foreclose a mortgage of personal property. lb.
3. The enforcement of a mortgagee's rights under a chattel mortgage by
a suit for foreclosure is commended as affording a safer and more
adequate remedy than is afforded by actual seizure and sale of the
mortgaged property, or by an action of replevin, detinue or trover. Ib.
4. Statutes of Kentucky, of 1869, 1870, 1872 and 1873, construed, in
reference to the duty of the judge of a county court to levy an annual
tax to pay the interest on bonds of the county issued in aid of the
Cumberland and Ohio Railroad Company, and to appoint a collector
of the tax. Bass v. Taft, 458.
5. Section 7 of the Minnesota statute of April 24, 1889, (Gen. Laws
Minn. c. 20,) which repeals all acts or parts of acts inconsistent with
its provisions, does not repeal the previous statute which prescribes the
punishment of murder in the first degree by death by hanging, and
that the execution should take place only after the issue of a warrant
of execution. Holden v. Minnesota, 483.
6. When the monuments and other landmarks upon a tract of land in
Texas correspond in part with the field notes of the survey, and in part
either do not conform to it or cannot be found, the footsteps of tre
original surveyor may be traced backward as well as forward, and
any ascertained monument in the survey may be adopted as a starting
point for its recovery. Ayers v. Watson, 584.
7. A memorandum made by a public surveyor in Texas at the time of the
survey and deposited in the General Land Office at the time when the
title was deposited there, is admissible in evidence to aid in proving
the actual footsteps of the surveyor when making the survey. Ib.
8. Original field notes of a public surveyor deposited in the General Land
Office of Texas are held by the highest court of that State to be com-
petent evidence to identify the granted premises; and this court, if it
doubted as to their admissibility for that purpose, would be largely
influenced by such decisions. Ib.
9. The statute of Utah of 1852, (Compiled Laws of Utah, 1876, sec. 677,)
which provides that "illegitimate children and their mothers inherit
in like manner from the father, whether acknowledged by him or not,
provided it shall be made to appear to the satisfaction of the court
that he was the father of such illegitimate child or children," was an
act of legislation within the powers conferred upon the Territorial
legislature by Congress by the act of September 9, 1850, 9 Stat. 453, c.
51, § 6; and was not abrogated, annulled or repealed by the act of
July 1, 1862, 12 Stat. 501, c. 126, to prevent the practice of polygamy
and annulling certain acts of that Territory. Cope v. Cope, 682.
See CONSTITUTIONAL LAW, 25, 28, 31;
RAILROAD, 5, 6, 7;
RIPARIAN OWNERS, 4, 5.
1. Where the relator in an application for mandamus seeks to compel the
Fourth Auditor and the Second Comptroller to audit and allow a claim
for mileage upon the ground that the statute provides for such mileage
in terms so plain as not to admit of construction; that this court has
so decided; and that hence the duty to be performed is purely minis-
terial; he does not thereby directly question the validity of the author-
ity of the auditor to audit his account, and of the comptroller to revise
and pass upon it. United States v. Lynch, 280.
2. A mandamus to the county judge to compel him to levy such annual
tax and cause it to be collected, refused, because it appeared that he
had levied the tax and appointed a person to collect it. Bass v. Taft,
3. Cases cited in which it has been decided that a person holding public
office may be compelled by writ of mandamus to perform the duties
imposed upon him by law. Redfield v. Windom, 636.
4. When the duty which the court is asked to enforce by mandamus is
plainly ministerial, and the right of the party applying for the writ is
clear, and he is without other adequate remedy, the writ may issue;
but, where the effect of the writ is to discharge or control the head of
an Executive Department in the discharge of a duty involving the
exercise of judgment or discretion, it should not issue. Ib.
5. Cases cited and referred to in which a writ of mandamus will not be
issued to compel the performance of even a purely ministerial act. Ib.
6. M. furnished material and performed labor for the United States under
a contract, and, when the work was done and the materials furnished,
he presented his account to the proper officer for adjustment and settle-
ment. The balance was found to be correct so far as the labor and
material were concerned, but it was also found that, through penalties
and forfeitures, that balance was liable to be materially reduced. It
also appeared that M. was indebted to mechanics, sub-contractors,
laborers and material men in a large amount for work done and mate-
rials furnished under the contract. The treasury officials agreed with
M. that this account should be adjusted without enforcing the penal-
ties and forfeitures, if he would consent that his said indebtedness
should be paid out of the sum so allowed, and that the control of the
money should not be given up until those claims were satisfied. He
assented, and a draft was prepared accordingly. M. did not comply
with those conditions, but instead thereof applied to the Supreme
Court of the District of Columbia for leave to file an application for a
writ of mandamus, to compel the Secretary of the Treasury to deliver
the draft to him, without first making the agreed payments. That
officer made a return to the petition, setting forth the foregoing facts.
Held, (1) That the return showed disputed questions of law and fact,
which ought not to be tried in a proceeding for a mandamus, and
that this was sufficient cause for the discharge of the rule and the
refusal to issue the writ; (2) That the agreement between M. and the
accounting officers was lawful, and, if carried out, would have been
proper. Ib.
MASTER AND SERVANT.
See RAILROAD, 5, 6, 7.
See CONSTITUTIONAL LAW, 25.
MINERAL LAND.
See EVIDENCE, 1, 2.
MINNESOTA.
See LOCAL LAW, 5.
MORTGAGE.
See RAILROAD, 1, 2, 3, 4.
MOTION FOR NEW TRIAL.
See EXCEPTION, 1;
PRACTICE, 1, 2.
MOTION PAPERS.
See PRACTICE, 4.
MOTION TO DISMISS.
See PRACTICE, 7, 11 (2).
NAVIGABLE STREAM.
See RIPARIAn Owners.
NEGLIGENCE.
See ADMIRALTY, 1;
RAILROAD, 5, 6, 7.
In an action for the continuance of a nuisance, the jury cannot, for the
purpose of reducing the damages, take into consideration judgments
recovered for the earlier maintenance of the same nuisance. Baltimore
and Potomac Railroad v. Fifth Baptist Church, 568.
1. The claims of letters patent No. 274,264, granted to Theodore H. But-
ler, George W. Earhart, and William M. Crawford, March 20, 1883,
for an "improvement in bretzel-cutters," are invalid, because, in view
of the state of the art, it required no invention to make a single die to
cut dough, on a flat surface, into any particular shape desired, whether
the shape of a bretzel or any other shape. Butler v. Steckel, 21.
2. All that it was necessary to do was to take the bretzel as a pattern and
make a die to correspond in shape with it, the bretzel presenting all
the lines and creases, points and configurations, that were required in
the die. Ib.
3. Reasons stated, why the unsuccessful results of prior attempts to make
a machine to cut bretzels do not show the existence of invention in the
claims of the patent. Ib.
4. The act of March 3, 1839, c. 88, § 7, authorized persons in whose build-
ing a machine was put up by the inventor thereof, and with his knowl-
edge and consent, while he was in their employment, and before his
application for a patent, to continue to use the specific machine, with-
out paying compensation to him or his assigns, although asked for
after obtaining the patent; and is not unconstitutional as depriving
him of his property without compensation. Dable Grain Shovel Co. v.
Flint, 41.
5. In view of the previous condition of the art, the claim patented to Abra-
ham Shenfield by letters patent No. 169,855, dated November 9, 1875,
for an improvement in suspender button straps, involved no invention.
Shenfield v. Nashawannuck Manufacturing Co., 56.
6. The claims in letters patent No. 238,100 granted to Simon Florsheim
and Thomas H. Ball, February 22, 1881, for "an improvement in cor-
sets," and claims 1 and 2 in letters patent No. 238,101 granted to the
same grantees on the same day for "an improvement in elastic gores,
gussets, and sections for wearing apparel," are invalid by reason of
their long prior use as inventions secured by patents which cover every
feature described in those claims; and the combination of those fea-
tures in No. 238,100 is not a patentable invention. Florsheim v.
Schilling, 64:
7. The substitution in a manufactured article of one material for another,
not involving change of method or developing novelty of use, is not
necessarily a patentable invention, even though it may result in a
superior article. lb.
8. A new arrangement or grouping of parts or elements of a patented
article, which is the mere result of mechanical judgment, and the
natural outgrowth of mechanical skill, is not invention. Ib.
9. The combination of old devices into a new article, without producing
any new mode of operation, is not invention. Ib.
10. Letters patent No. 244,224, granted to Hamline Q. French, July 12,
1881, for an improvement in "roofs for vaults" are invalid, in view of
the state of the art, for want of patentable invention, it requiring only
mechanical skill to pass to the patented device from what existed
before, the question being one of degree only, as to the size of the
component stones. French v. Carter, 239.
11. A prior foreign publication is competent as evidence in regard to the
state of the art, and as a foundation for the inquiry whether it required
invention to pass from a structure set forth in the publication to the
patented structure. Ib.
12. A reissue of letters patent is an amendment, and cannot be allowed to
enlarge the claims of the original by including matter once intention-
ally omitted. Dobson v. Lees, 259.
13. Such intentional omission may be shown by conduct, and the inventor
cannot be permitted to treat deliberate and long continued acts of his
attorney as other than his own. Ib.
14. In this case there is no room for the contention that there was any
inadvertence, accident or mistake attending the issue of the original
patent, and the reissue was correctly held to be invalid. Ib.
15. When a person in the employ of the United States makes an inven-
tion of value and takes out letters patent for it, the government, if it
makes use of the invention without the consent of the patentee, be-
comes thereby liable to pay the patentee therefor. Solomons v. United
States, 342.
16. If a person in the employ and pay of another, or of the United States,
is directed to devise or perfect an instrument or means for accom-
plishing a prescribed result, and he obeys, and succeeds, and takes out
letters patent for his invention or discovery, he cannot, after success-
fully accomplishing the work for which he was employed, plead title
thereto as against his employer. 1b.
17. When a person in the employ of another in a certain line of work
devises an improved method or instrument for doing that work, and
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