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bar, lead, tin, copper, or other valuable deposits” in section 2320, Rev. St. [U. S. Comp. St. 1901, p. 1424), includes nonmetalliferous, as well as metalliferous, deposits. -Webb v. American Asphaltum Min. Co., 157 Fed. 203..

84 C. C. A. 651 Asphaltum in lodes or veins in rock in place may be entered and patented by means of lode mining claims under section 2320, Rev. St. [U. S. Comp. St. 1901, p. 1424), and it may not be secured by means of placer claims under section 2329, nor under Act Feb. 11, 1897, c. 216, 29 Stat. 526 (U. S. Comp. St. 1901, p. 1434), regarding the entry of lands containing petroleum or other mineral oils. —Webb v. American Asphaltum Min. Co., 157 Fed. 203...

84 C. C. A. 651 $ 2. Title, conveyances, and contracts.

A judgment in favor of the lessees of certain mine dumps, which they were to work over for mineral on a royalty basis, against the lessor, for an alleged violation of the lease in excluding plaintiffs from the property, held not supported by the evidence, a preponderance of which showed that the work had been abandoned by the lessees because they found it unprofitable. -Bunker Hill Mining & Concentrating Co. V. Safford, 156 Fed. 446

84 C. C. A. 308


See "False Pretenses"; "Fraud."


As ground for correction of judgment, see "Judgment,” $ 1.


Estoppel to enforce mortgage, see "Estoppel," § 1.
Judgment in state court as bar to suit in United States court to cancel mort.

gage, see "Judgment," $ 3.

§ 1. Requisites and validity.

Two partners in a manufacturing business who owned the real estate used therein as equal tenants in common entered into a contract by which one retired from active participation in the business but remained as a silent partner for a term of five years, leaving the most of his capital invested. He also conveyed to his partner his balf interest in the real estate "as a basis of credit,” but took a bond for its reconveyance absolutely and unconditionally at the end of the term without subjecting it, as between the parties, to the risks of the business. After the expiration of the term, when he had become entitled to a reconveyance but had not received it, he executed a mortgage on his interest in the real estate to secure a valid indebtedness. Held, that such real estate was not property of the partnership but of the individual partners; that the mortgagor was the equitable owner of a half interest therein which was mortgageable as real estate, and that the mortgage given was valid, no rights of partnership creditors having intervened, and was entitled to record under Gen. St. Kan. 1901, § 1221, if not as a technical mortgage, as "an instrument in writing” affecting real estate, which record was constructive notice to all subsequent purchasers of its contents. -Clark v. Lyster, 155 Fed. 513..

.84 C. C. A. 27


For correction of judgment, see "Judgment,” $ 1.
Presentation of objections for review, see "Appeal and Error," 8 2.

See “Counties."
Jurisdiction of United States court to enjoin enforcement of municipal ordi-

nance, see "Courts," $ 2.

§ 1. Use and regulation of public places, property, and works.

Civ. Code Cal. $ 499, provides that “two lines of street railway, operat-
ed under different managements, may be permitted to use the same street,
each paying an equal portion for the construction of the tracks and ap-
purtenances used by said railways jointly; but in no case inust two lines
of street railway, operated under different managements, occupy and
use the same street or tracks for a distance of more than five blocks
consecutively." Held, that such provision does not deprive the municipal
authorities of a city of power to grant to two railways, having tracks
of different width, the right to operate their cars on the same street
for a distance not exceeding five blocks, each occupying the middle of
the street, and each paying an equal portion of the cost of paving be-
tween and beside the tracks as required by section 498.
-San Jose-Los Gatos Interurban Ry, Co. v. San Jose Ry. Co., 156
Fed. 455.....

...84 C. C. A. 265

§ 2. Fiscal management, public debt, securities, and taxation-Bonds

and other securities, and sinking funds.
The absence of a recital in municipal bonds that the conditions to their
issue have been complied with does not deprive them of their character of
negotiable instruments, nor of the benefit of the ordinary presumptions
which attend such instruments.

-Quinlan v. Green County, Ky., 157 Fed. 33........84 C. C. A. 537
Where a proposition adopted by a vote of a county to subscribe for
stock of a railroad company, to aid in the construction of its proposed
road and to issue negotiable bonds of the county therefor, contained a
provision that the subscription should be on condition that the company
should locate and construct its road through the county, and should ex-
pend the amount subscribed within the limits of the county, such provision
did not create a condition precedent to the issuance of the bonds, but the
acceptance of the subscription imposed an obligation on the company to
perform the condition subsequently, the failure to fully comply with
which would not invalidate the bonds in the hands of a bona fide holder.

-Quinlan v. Green County, Ky., 157 Fed. 33... .84 C. C. A. 537


See "Trade-Jarks and Trade-Names."


False swearing in naturalization proceedings, see “Perjury," $$ 1, 2.
Jurisdiction of United States court of offense of false swearing in naturaliza-

tion proceedings, see "Criminal Law.” $ 1.
Testimony of accomplices and codefendants in prosecution for giving false

testimony in naturalization proceedings, see "Criminal Law," $ 9.


Causing death, see “Death," $ 1.

By particular classes of persons.
See “Carriers," & 2; "Railroads," 88 1-3.
Bailee, see "Bailment."
Employers, see "Master and Servant," 88 2–5.

Condition or use of particular species of property, works, machinery, or other

See “Railroads," 88 1-3.
Demised premises, see “Landlord and Tenant," $ 2.

Contributory negligence.
As question for jury, see “Negligence," § 2.
Of person killed by operation of railroad, see “Railroads," $$ 1, 2.
Ot servant, see "Master and Servant,” 88 4, 5.

§ 1. Acts or omissions constituting negligence.

The petition, in an action against the lessee of a theater for a personal
injury, alleged that among the appliances of the theater of which de
fendant had control was a fire extinguisher, which was kept on the sill
of an open window at the side of the stairway leading to the gallery of
the theater, that it was unsecured, and was in a place where men and
boys in crowding down the stairway, as was usual at the close of a per-
formance, were likely to knock it out of the window, as they in fact did,
and that it fell and injured plaintiff, who was on the walk below. There
was evidence tending to support such allegations. Held, that the petition
and evidence made a case of negligence which was properly submitted
to the jury.
-Stair v. Kane, 156 Fed. 100...

.84 C. C. A. 126

§ 2. Actions.

The petition in an action against the lessee of a theater for a personal
injury alleged that among the appliances of the theater of which defend-
ant had control was a fire extinguisher which was kept on the sill of an
open window at the side of the stairway leading to the gallery of the
theater; that it was unsecured, and was in a place where men and boys,
in crowding down the stairway, ils was usual at the close of a performance,
were likely to knock it out of the window, as they in fact did, and that
it fell and injured plaintiff, who was on the walk below. lIeld, that
the occurrence of such an accident may be regarded, in the absence of
explanation, as proof of the negligence charged.
-Stair v. Kane, 150 Fed. 100..

.84 C. C. A. 126
Plaintiff was working for a contractor who was installing a sprinkler
system in defendant's mill, and while he was making a pipe connection,
standing with one foot on a ladder and the other against a post, astride
a revolving shaft, his clothing was caught by a set screw which pro-
jected from a safety collar on the shaft, and he was thrown to the floor
and injured. It was shown that, by erecting a platform on which to
stand, plaintiff could have done the work in safety, and also that the
shaft would have been stopped if required. There was also testimony
that the purpose of the safety collar was to protect a person working
near from coming in contact with the set screw, and that, if the latter
was properly adjusted to the collar, there was no danger from it; also
that, while plaintiff saw the collar and knew that it contained a set srew,
he did not know that the latter projected. Held, that upon such evidence
the questions of defendant's negligence, plaintiff's contributory negli-
gence, and his assumption of the risk were all properly submitted to the
-Columbia Box & Lumber Co. v. Drown, 136 Fed. 459..

84 C. C. A. 269
Where reasonable men might draw different conclusions from the un-
disputed evidence, the question of negligence or contributory negligence
is one of fact for the jury.

-Columbia Box & Lumber Co. v. Drown, 156 Fed. 459..84 C. C. A. 269


Necessity of motion for purpose of review, see "Appeal and Error," § 2.

§ 1. Grounds.

If an officer of the court, whether he has charge of the jury or not,
makes to the jury during their deliberations statements calculated to in-
fluence their verdict, it is ground for a new trial; but if, under all the cir-
cumstances, it does not appear that the conduct of the officer had the ef-
fect of influencing the verdict, a new trial will not be granted on that
-Charlton v. Kelly, 156 Fed. 433....

.84 C. C. A. 295


Affecting bank, see "Banks and Banking," $ 1.


Order correcting judgment, see "Judgment,” $ 1.


To indictment or information, see “Indictment and Information," § 2.


Misconduct of officer of court as ground for new trial, see “New Trial,” s 1.

Particular classes of officers.
See "Receivers."
Bank officers, see "Banks and Banking," $ 1.
County officers, see “Counties," $$ 1, 2.


Of courts, see "Courts,” g 1.


Review of appealable orders, see “Appeal and Error."


In civil actions, see "Evidence," $ 4.
In criminal prosecutions, see "Criminal Law," $ 8.


Character ground of jurisdiction, see “Courts," § 2.
Persons entitled to sue in action for death, see "Death," $ 1.


Property of partnership subject to mortgage, see “Mortgages," $ 1.
$ 1. The firm, its name, powers, and property.

Real estate not purchased with partnership funds does not become part-
nership property, though used for partnership purposes, unless there is
some agreement that it shall be so considered.
-Clark v. Lyster, 155 Fed. 513...

...84 C. C. A. 27


See “Carriers,” s 2.

§ 1. Patentability.

To accomplish a new and useful result within the meaning of the pat-
ent law (Rev. St. § 4886 [U. S. Comp. St. 1901, p. 3382]), it is not neces-
sary that a result before unknown should be brought about, but it is
sufficient if an old result is accomplished in a new and more effective way :
and, if the value and effectiveness of a machine are substantially increas-
ed by a new combination of old elements, such combination is patentable.
-St. Louis Street Flushing Mach. Co. v. American Street Flushing
Mach Co., 156 Fed. 574...

.....84 C. C. A. 340
That a defendant charged with infringement of a patent for a machine
abandoned the machine it was previously making, and adopted that of
the patent, that its engineer claimed to be the inventor thereof, and him-
self applied for a patent, and that the patented machine has largely
superseded others previously in use for the same purposes, are all facts
entitled to weight on the question of invention.
-St. Louis Street Flushing Mach. Co. v. American Street Flushing
Mach. Co., 156 Fed. 574......

..84 C. C. A. 340
§ 2. Applications, and proceedings thereon.

The broad scope of Rev. St. $ 4915 (U. S. Comp. St. 1901, p. 3392), au-
thorizing a suit in equity to establish the right to a patent, was in no way
limited or qualified by Act Feb. 9, 1893, c. 74, 27 Stat. 434 (U. S. Comp.
St. 1901, p. 3391), providing for appeals from the decision of the Com-
missioner of Patents to the Supreme Court of the District of Columbia.
-Prindle v. Brown, 155 Fed. 531.

...84 C. C. A. 45
A bill filed under Rev. St. 8 4915 (U. S. Comp. St. 1901, p. 3392), to
establish the right of complainant to a patent which alleges that "before
the sixth day of June 1900" complainant “was the true, original, and
first inventor" of the device in issue, that on that day be filed his applica-
tion for a patent therefor, and that on May 28, 1900, defendant filed an
application for the same invention on which after interference proceed-
ings he was awarded a patent, is not fatally detective on general demur-
-Prindle v. Brown, 155 Fed. 331......

...84 C. C. A. 45
A bill which states the date of an application for a patent is not to be
held to state that the invention was then first completed or reduced to
practice unless nothing is alleged showing invention prior thereto, and
a further allegation that the invention was made prior to such date

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