can have no influence on the result. Even if it was the purpose of the defendant to bind himself by a delivery of the contract to Matteson, such delivery being to an unauthorized person, who could not bind the plaintiff, and if the plaintiff was not bound neither was the defendant.

The defense therefore resolves itself into this, that the defendant, without the concurrence or knowledge of the plaintiff, signed on Sunday a paper writing, which bore date of a week day, and which, to become a contract between the parties, required the assent and signature of the plaintiff, which was given on a week day. This, according to the authorities, does not avoid the contract.

this court was peuding could not be counted against the plaintiff; Ensminger v. Powers, 108 U. S. 292; (5) as the bill showed hostile control of the corporate affairs of the plaintiff by its directors during the period covered by the K. suit, mere knowledge by or notice to the plaintiff, or its directors, or officers, or stockholders, of the facts alleged in the bill, during that period, was unimportant, a case of acquiescence, assent, or ratification, or of the intervention of the rights of innocent purchasers, not being shown by the bill, and the corporation having acted promptly when freed from the control of such directors; (6) it did not follow that parties who became interested in the plaintiff's corporation, with knowledge of the matters set forth in the bill, were entitled to the same stand

counsel, and find nothing in them contrary to the views we have expressed. Moore v. Kendall, 2 Pin. 99; Hill v. Sherwood, 3 Wis. 309; Melchoir v. McCarthy, 31 id. 252; Knox v. Clifford, 38 id. 651; Troewert v. Decker, 51 id. 320; De Forthe v. Wis. & Min. R. Co., 52 id. 320. The case of Knox v. Clifford, ubi supru, sustains the conclusion we have reached, though on a different ground. In that case it was held that he who makes and puts in circulation a promissory note bearing date on a week day, is estopped as against an innocent holder from showing that it was executed on Sunday.

We base our decision however on the grounds that we have indicated-first, because it does not appear that the plaintiff had any part in executing the contract in violation of the law of Wisconsin forbidding the transaction of business of Sunday; and second, because the contract, though signed by the defendant on Sunday, was not delivered by him, and did not take effect on that day.

We are of opinion that the Circuit Court erred in rendering judgment for the defendant upon the findings of fact. Its judgment is therefore reversed, and the cause remanded, with directions to grant a new trial.

UNITED STATES SUPREME COURT ABSTRACT.

MORTGAGE -FORECLOSURE-RECORD EVIDENCEFORMER SUIT-JURISDICTION.-In 1876, K. brought a suit in a Circuit Court of the United States in Missouri, to foreclose a mortgage on a railroad, making the railroad corporation (a citizen of Missouri) and others defendants. There was a decree of sale, and a sale, and it was confirmed in October, 1876. In February, 1877, the corporation appealed to this court. The case was affirmed here in April, 1880. In June, 1880, the corporation filed a bill in the same court against another Missouri corporation (a citizen of Missouri), and other citizens of Missouri, alleging fraud in fact in the foreclosure suit, in the conduct of the solicitor and directors of the corporation defendant in that suit, and praying that the decree in the K. suit be set aside. On demurrer to the bill, held, (1) the record in the K. suit, not being made a part of the bill or the record in this suit, could not be referred to; (2) the charges of fraud, in the bill, were sufficient to warrant the discovery and relief based on those charges; (3) the case set forth in the bill, being one showing that no real defense was made in the K. suit, because of the unfaithful conduct of the solicitor and directors of the defendant in that suit, was one of which a court of equity would take cognizance; United States v. Trockmorton, 98 U. S. 61; (4) there was no laches in filing the bill, as the time during which the appeal to

corporation when the transactions complained of occurred. Upon the question of jurisdiction, there can be no doubt that the Circuit Court, as the court which made the K. decree, and had jurisdiction of the K. suit, as this court, in Pacific R. R. v. Ketchum, 101 U. S. 289, held it had, has jurisdiction to entertain the present suit to set aside that decree on the grounds alleged in the bill, if they shall be established as facts, and if there shall be no valid defense to the suit, although the plaintiff and some of the defendants are citizens of Missouri. The bill falls within recognized cases which have been adjudged by this court, and have been recently reviewed and reaffirmed in Krippendorf v. Hyde, 110 U. S. 276. On the question of jurisdiction the suit may be regarded as ancillary to the K. suit, so that the relief asked may be granted by the court which made the decree in that suit, without regard to the citizenship of the present parties, though partaking so far of the nature of an original suit as to be subject to the rules in regard to the service of process which are laid down by Mr. Justice Miller in Pacific R. R. v. Missouri Pacific R. Co., 1 McCrary, 647. The bill, though an original bill in the chancery sense of the word, is a continuation of the former suit, on the question of the jurisdiction of the Circuit Court. Minnesota Co. v. St. Paul Co., 2 Wall. 609, 633. Pacific R. Co. v. Missouri Pacific, etc., R. Co. Opinion by Blatchford, J.

[Decided May 5, 1884.]

OF VESSEL

SHIP AND SHIPPING-ENROLMENT NECESSITY-OWNER'S RIGHT TO.-Every vessel of the United States, which is afloat, is bound to have with her from the officers of her home port, either a register or an enrolment. The former is used when she is engaged in a foreign voyage or trade, and the latter when she is engaged in domestic commerce, usually called the coasting trade. If found afloat, whether by steam or sail, without one or the other of these and without the right one with reference to the trade she is engaged in, or the place where she is found, she is entitled to no protection under the laws of the United States, and is liable to seizure for such violation of the law, and in a foreign jurisdiction or on the high seas, can claim no rights as an American vessel. To seize and detain these papers therefore is to expose her to numerous evils, and in fact to prevent her use by her owners, and as the mildest evil, to tie her up so long as the detention of her papers lasts. It is to be observed, that when he procured the enrolment and license at Shieldsborough, the owner gave up his register, so that when the license and eurolment were taken from him, his vessel was left without any legal evidence whatever of her right to pursue either domestic or foreign trade. It is also to be mentioned, that it is the right of the owner to exchange a register for an enrolment, and where this is done, the register is necessarily delivered to the officer who is

sues the enrolment. If this enrolment was for any reason improperly issued, there must be methods by which the act may be set aside or cancelled, or a penalty enforced for its improper use. In such case, the owner would undoubtedly be entitled to a proper issue of another enrolment, or to a return of his register. In no event, that we can conceive of, had the defendant a right to keep from him both his register and enrolment, and leave his vessel destitute of these indispensable evidences of her national character and right to pursue her vocation. He is liable in tort, although the secretary of the treasury justifies the proceedings. Badger v. Gutierex. Opinion by Miller, J.

[Decided May 5, 1884.]

PATENT-NOVELTY-WHEN LACKING, NO INVENTION -IMPROVEMENTS.-In passing upon the novelty of the alleged improvement covered by this patent, we are permitted to consider matters of common knowledge or things in common use. Brown v. Piper, 91 U. S. 37; Terhune v. Phillips, 99 id. 592; King v. Galbrin, 109 id. 99; Ah Kow v. Nunan, 5 Saw. 552. The improvement described in the appellant's patent consists therefore in simply taking a material well known and long used in the making of pavements, to wit, wooden blocks set vertically, aud with them constructing a pavement in a method well known and long used. It is plain therefore that the improvement described in the patent was within the mental reach of any one skilled in the art to which the patent relates, and did not require invention to devise it, but only the use of ordinary judgment and mechanical skill. It involves merely the skill of the workman and not the genius of the inventor. The following cases illustrate the subject: In Hotchkiss v. Greenwood, 11 How. 248, the substitution of a well-known procelain door-knob for a clay knob, in combination with a particular shank, was held to be no invention. So where the patentee had taken a fire-pot from one stove, a flue from another, and a coal reservoir from the third, and had put them into a new stove, where each fulfilled the office it had fulfilled in its old situation and nothing more, the patent was held void for want of invention. Hailes v. Von Wormer, 20 Wall. 353. In Smith v. Nichols, 21 Wall. 212, it was held that "a mere carrying forward a new or more extended application of the original thought, a change only in form, proportions, or degree, the substitution of equivalents doing substantially the same thing in the same way by substantially the same means with better results, is not such invention as will sustain a patent." The case of Reckendorfer v. Faber, 92 U. S. 347, is much in point. The patent was for an improvement which was described in the specification as follows: "I make a lead pencil in the usual manner, reserving about oue-fourth the length, in which I make a groove of suitable size, A, and insert in this groove a piece of prepared India rubber, secured to said pencil by being glued at one edge. The pencil is then finished in the usual manner, so that on cutting one end thereof you have the lead B, and on cutting the other end you expose a small piece of India rubber C ready for use." This device was held not to be patentable, and it was declared that "the law requires more than a change of form or juxtaposition of parts, or of the external arrangement of things, or of the order in which they are used to give patentability." In Atlantic Works v. Brady, 107 U S. 193, is found one of the most recent and emphatic declarations of this court upon the subject. It was there said, that the design of the patent laws was to reward those who make some substantial discovery or invention which adds to our knowledge or makes a step in advance in the useful

arts, and that it was never the object of those laws to grant a monopoly for every trifling device, every shadow of a shade of an idea which would naturally and spontaneously occur to any skilled mechanic or operator in the ordinary progress of manufactures. In How v. Abbott, 2 Story, 190, it was held that the application of a process to palm leaf to curl it for mattresses, the same process having been used to curl hair for mattresses was not patentable. In the case of Kay v. Marshall,8 Cl.& Fin. 245, it was said to be no invention to use for spinning flax, which had been so macerated that its fibres were shortened, an arrangement of rollers borrowed from cotton spinning machinery. See also Stimpson v. Hardman, 20 Wall. 117; Rubber Tip Pencil Co. v. Howard, id. 498; Slawson v. Grand Street R. Co., 107 U. S. 649; King v. Gallon, 109 id. 99. The cases cited are conclusive of this. We are of opinion that taking into consideration the state of the art, no invention was required for the construction of the pavement described in the patent, and that it demauded only ordinary mechanical skill and judgment and but a small degree of either. Phillips v. City of Detroit. Opinion by Woods, J. [Decided May 5, 1884.]

UNITED STATES CIRCUIT COURT ABSTRACT.*

PRACTICE-REHEARING-MOTION-LACHES.-An application for a rehearing, based on alleged newly-discovered evidence, must be denied when it appears that the existence of such evidence was known to the applicant or his counsel at the time of the former trial, and that the evidence was not then produced. Ruggles v. Eddy, 11 Blatchf. 524, 529; India Rubber Co. v. Phelps, 8 id. 85; Hitchcock v. Tremaine, 9 id. 550; Paige v. Holmes Burglar Alarm Co., 18 id. 118; 8. C., 2 Fed. Rep. 330. The law of laches, as applied to motions for new trials or rehearings, is founded on a salutary policy. It is for the interest of the public, as well as for litigants, that there should be an end of litigation,and that efforts to reopen controversies by unsuccessful parties, after they have had a full opportunity to be heard, and a careful hearing and consideration, should be discouraged. Cir. Ct., S. D. N. Y. April 4, 1884. Colgate v. Western Union Tel. Co. Opinion by Wallace, J.

PATENT -INFRINGEMENT

DAMAGES ROYALTY. -In an account before a master evidence of payments for past infringement, for the purpose of ascertaining the amount which should be paid by the defendant, is incompetent. To admit it is contrary to the maxim, Inter alios acta, etc. It involves an attempt to resolve one doubt or difficulty by another. Litem lite solvit. There are doubtless reported cases in which it appears that such evidence was received and considered, but generally this has been done without objection, and uniformly (so far as I know) without a judicial declaration or decision that it was proper. In the opinion of the Supreme Court, in Packet Co. v. Sickles, 19 Wall. 611, the rule, as reaffirmed, is laid down in Seymour V. McCormick, 16 How. 480, "that in suits at law for infringement of patents, when the sale of licenses by the patentee had been sufficient to establish a price for such licenses, that price should be taken as the measure of his damages against the infringer." "The rule thus declared," it is added, has remained the established criterion of *Appearing in 19 Federal Reporter.

damages in cases to which it was applicable ever since;" and further on in the opinion it is said, and it affords a clear interpretation of the rule in respect to the point now mooted: "In such a case nothing is more reasonable than that the price fixed by the patentee for the use of his invention, in his dealings with others, and submitted to by them before using it,should govern." This, it is true, is the rule at law, but the complainants, waiving their right in equity to claim an account of profits, have invoked the same rule here and must abide by it as it is. See also Black v. Munson, 14 Blatchf. 268; Greenleaf v. Yale Lock Manuf. Co., 17 id. 253; 3 Suth. Dam. 601-607; 1 Greenl. Ev., § 174; Whart. Ev. 1199; Abb. Tr. Ev. 188, 189; Matthews v. Spangenberg, 14 Fed. Rep. 350. The rule, as already stated, requires "a sale of licenses" "sufficient to establish a price for such licenfes." "A royalty, in order to be binding on a stranger to the licenses which established it, must be a uniform royalty." Walk. Pat. 390. These and the like expressions and definitions found in the cases and text-books, imply that proof of a single licence is not sufficient; and if under some circumstances such proof might be deemed adequate, that in this instance is not of such clear and unequivocal character as to give it such weight. Proctor v. Brill, 4 Fed. Rep. 415; Judson v. Bradford, 3 Ban. & A. 539; Black v. Munson, 2 id. 623. It is true in a sense doubtless that the owner of an invention has a right to fix his price upon it; but to constitute evidence against an infringer he must have done it "in his dealings with others," and not merely in a form of license which he was willing to grant. It is, as it appears to me, entirely inadmissible, at law or in equity, that a patentee may, by inserting in his licenses a stipulation for a certain royalty, with a proviso that half that sum shall be received in full, in case of prompt payment, acquire a right to demand the entire sum of an infringer. If he can arbitrarily make such a discrimination, he may as well make the ratio three to one, or in any other proportion. The question is, what is a reasonable royalty? In respect to two or more claims in a patent, each of value and distinct from the other, one cannot equal both or all in value, any more than in mathematics a part can equal the whole. A licensee may, if he choose bind himself to pay the same price, whether he use the entire invention or a part only; but at the same time he acquires the right to use all, and so his agreement may not be unreasonable; but if, as against an infringer, such a license can have any force, reasonably, it must be in the way ouly of establishing a royalty for the entire invention. In Birdsall v. Coolidge, 93 U. S. 64, it appeared that the alleged infringement was of one only of three claims in the letters patent, and the court says: "Still it is obvious that there cannot be any one rule of damages prescribed which will apply in all cases, even when it is conceded that the finding must be of limited extent, and for a short time * * * the jury should find less than the amount of the license fee." See also Proctor v. Bull, supra; Wooster v. Simonson, 16 Fed. Rep. 680; Ruggles v. Eddy, 2 Ban. & A. 627. Cir. Ct., D. Ind. April, 1884. Wolcott v. Rude. Opinion by Woods, J.

IOWA SUPREME COURT ABSTRACT.

EMINENT DOMAIN-FEE REMAINS IN OWNER-DAMAGES OPINION OF WITNESS.-(1) Under the statute condemning lands for right-of-way purposes, the railroad company acquires but a limited right or interest therein; the fee remains in the owner, and this interest may be valuable in some cases. Ordinarily however in the absence of any showing that there was any

thing on or beneath the surface which the owner could remove or use with advantage, the only right he has is that of reversion in case of non-user, and it is impossible to determine that this right is of any present value. An instruction therefore that the measure of damages is the market value of the land at the time it was taken is not erroneous. (2) The owner of the land, between the time of the appropriation and the trial in the Circuit Court, having sold the buildings thereon to third parties, it cannot now be permitted to say that they remained the property of such owner, and their value cannot be urged in reduction of damages. (3) A question calling for the opinion of the witness as to the value of a lot near the one condemned is incompetent, there being no evidence of any similarity between the two lots. Hollingsworth v. Des Moines, etc., R. Co. Opinion by Reed, J. (As to taking fee see 26 Eng. Rep. 404.) [Decided April 25, 1884.]

ATTACHMENT-CUSTODIA LEGIS-PROPERTY TAKEN FROM PRISONER NOT SUBJECT TO.-On January 31, 1883, the plaintiff commenced an action against the defendant and others upon a promissory note. It was alleged in the petition that defendants had disposed of their property, in part, with intent to defraud their creditors, and a writ of attachment was prayed for and issued, which was placed in the hands of the sheriff for service. The plaintiff is a partnership, and H. P. Kirk and I. R. Kirk are the individual members thereof. On August 28, 1883, said I. R. Kirk made and filed an information before a justice of the peace, charging the defendant with the crime of uttering a forged promissory note. A warrant was issued, and the plaintiff was arrested by a constable and taken to the county jail. Upon his commitment to the jail, the sheriff, who was the keeper thereof, proceeded to search the defendant's person, and took therefrom one gold watch, one silver watch, and $480 in money, and having the attachment and money and property all in his hands, he made return that he had levied the attachment on the watches and money. Section 4212 of the Code provides that " he who makes an arrest may take from the person all offensive weapons which he may have about his person, and must deliver them to the magistrate before whom he is taken, to be disposed of according to law." We do not think that an officer making an arrest is precluded by this statute from taking from the person of the prisoner any other property than offensive weapons." An officer making an arrest, or a jailer upon committing a person to jail, may search him and take from him all property which might be used by the prisoner in effecting an escape. In Reifsnyder v. Lee, 44 Iowa, 101, the defendant stole five head of cattle and sold them to the plaintiff for $162.30. The owner of the cattle claimed and recov ered them from plaintiff, and the plaintiff procured officers to pursue and capture the thief. The officers making the arrest searched his person and took therefrom certain money and a watch which was of little value. It was held that the money and watch were liable to garnishment in the hands of an officer at the suit of plaintiff. In that case the search of the person was fully approved. It is said however in the opinion that "a party to a suit can gain nothing by fraud or violence under the pretense of process, nor will the fraudulent or unlawful use of process be sanctioned by the courts. In such cases parties will be restored to the rights and position they possessed and occupied before they were deprived thereof by the fraud, violence, or the abuse of legal process." To the same effect see Pomroy v. Parmlee, 9 Iowa, 140, and Patterson v. Pratt, 19 id. 358. We think the sheriff was justified in making the search and in taking from the

person all money or property which was in any way connected with the crime charged, or which might serve to identify the prisoner. If however the sheriff knew that the watches and money were in no manner connected with the crime, and that they could not be used in any way as evidence in the prosecution, we think it was his duty to return them to the defendant. If a constable or other officer takes possession of property found on a prisoner, the court will order the same to be restored, if not required as a means of proof at the trial, or which does not finally appear to be the fruits of the crime with which he stands charged. 1 Archib. Crim. Pl. & Pr. 34, 35. In the case of Reifsnyder v. Lee, supra, it is said there was "ample ground to hold that the money taken from Lee was the money which he had procured from plaintiff for the stolen cattle." In the case at bar it is not claimed that the sheriff had any right to retain the money and watches for any purpose connected with the arrest or with the crime charged. It is claimed however that the defendant consented that the sheriff might take possession of the same and keep them for him. This is denied by the defendant, and there was a conflict of evidence upon this point; and it cannot be said that the court was not warranted in finding that the property and money were taken without the consent of defendant. Where a party submits to a search of his person by an officer it cannot be said that the search was with his consent because he makes no physical resistance, and when the search is completed, and the fruits thereof are retained by the officer, it would require a strong showing to hold that this was with the consent of the prisoner. We think that it cannot be said that the search was unlawful, but when it was ascertained that the money and property were in no way connected with the offense charged, and was not held as evidence of the crime charged, the personal possession of the sheriff should be regarded as the personal possession of the prisoner, and the money and property should be no more liable to attachment than if they were in the prisoner's pockets. To hold otherwise would lead to unlawful and forcible searches of the person under cover of criminal process as an aid to civil actions for the collection of debts. It does not appear that such was the purpose of the prosecution in this case, but the court was justified in finding that the money and property here taken from the defendant was by force and without his consent, and as it is not claimed that the money or property was in any way connected with the crime charged, no advantage should be taken of the defendant because the same was taken from his person by force and against his wil. Com. Exch. Bk. v. MeLeod. Opinion by Rothrock, C. J.

[Decided April 25, 1884.]

PENNSYLVANIA SUPREME COURT

ABSTRACT.

WILL-TRUST-separate USE.-The will of James E. Brown, of Kittanning, after certain bequests, provides: "Seventh. All the rest and residue of my estate, real, personal and mixed, I devise and bequeath to my daughter, Mrs. Jane B. Fiuley, and my grandchild, P. R. E. Elvina Finley, share and share alike, for their sole use, and which shall not be controlled, incumbered or charged by or liable, or subject in any way to debts or contracts of the present or future husband of my said daughter, or the future husband of my granddaughter." Did this create a valid trust in his granddaughter? And what estate did the language used

create? Held, that the law is well settled by numerous authorities that a separate use for a married woman cannot be created, unless she is covert or unless in immediate contemplation of marriage. Hus. on Mar. Wom. and Trusts, 314; McBride v. Smyth, 4 P. F. Smith, 245; Wells v. McCall, 14 id. 207; Snyder's Appeal, 11 Nor. 504; Philadelphia Trust, Safe Deposit and Insurance Co.'s Appeal, 12 id. 209. In Hamersley v. Smith, 4 Whart. 126, it is said the immediate contemplation of marriage must be with a particular person. This indicates the strictness with which the rule is held in Pennsylvania. (2.) The act of June 4, 1879, declares, "that every will shall be construed with reference to the real and personal property comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention appear in the will." Held, at the time this will was executed there was no power in the testator to create the trust in question. Said act does not give vitality to a previous attempt to tie up an estate in a manner wholly beyond the power of the testator to do. Neale's Appeal. Opinion by Mercur, C. J.

[Decided Jan. 7, 1884.]

WILL CONTEMPORANEOUS

WRITINGS-CONSTRUED TOGETHER-PRECATORY TRUST.-A. by his will devised all his estate, real, personal, and mixed, to his wife for her own use and benefit, with a discretionary power to sell the whole or any part thereof. The will was duly executed with all requisite formalities. In another writing of the same date, upon the same sheet, the tes tator expressed the fullest confidence in his wife that she would carry out his intentions as to his children and grandchildren so far as they might in her opinion prove worthy of her attention, of which and of their necessities she was to be the sole judge. In a third writing, styled "memorandum," of the same date and upon the same sheet, he named specific property for his son, grandson, and children of a daughter. Neither of the subsequent writings was under seal and witnessed, but they were admitted to probate. Testator's widow subsequently conveyed part of the property devised under the above will for a valuable consideration to B. in fee. In a contest between the children and grandchildren of A. and the devisees of B., held, that the first paper was a full and complete will, under which testator's widow took a fee, which was neither enlarged nor restricted by the power of sale, and that neither of the two subsequent papers were parts of the will, nor codicils thereto. Held further, that assuming all the papers constituted but one will, the mere precatory words used by the testator could not defeat the estate in fee vested in his widow, nor convert the devise to her into a trust. Pennock's Estate, 8 Har. 268; Jauretche v. Proctor, 12 Wright, 466; Second Reformed Presbyterian Church v. Dis. brow, 2 P. F. S. 219. Standing by themselves alone, expressions of a desire or wish of the testator as to a direct disposition of his property may constitute a valid devise or bequest thereof; yet the rule is different when such expressions are used after an absolute disposition has been made. Having made an unquali fied devise of his property, no precatory words to his devisee cau defeat the estate previously devised. Burt v. Herron, 16 P. F. Smith, 400. Bowlby v, Thunder. Opinion by Mercur, C. J. (When words create precatory trusts and when do not; see 25 Eng. Rep. 462, 802. -ED.)

[Decided Feb. 18, 1884.]

MISSOURI SUPREME COURT ABSTRACT.*

SALE-CONDITIONS-WARRANTY-AGENCY-WAIVER.

-Plaintiffs sold defendants machinery, warranting its work, and stipulating that if it failed to operate well defendants should notify plaintiffs and their local agent in writing, so as to give opportunity to correct the defect. Held, that this stipulation constituted a condition precedent that compliance with it was necessary in order to hold plaintiffs on their warranty; that an agreement by a sub-agent of plaintiffs to give the requisite notice did not relieve defendants from its binding force, and that notice given by the sub-agent to the agent (but not to the principal) did not amount to a compliance. Mechanics' Bank v. Schaumburg, 38 Mo. 228: Taylor v. Williams, 45 id. 82, 83; State v. Bank of Missouri, id. 538. Nichols v. Larkin. Opinion by Phillips, Comr.

NEGOTIABLE INSTRUMENT-SECURED BY MORTGAGE.-RECITALS SUBROGATION-MORTGAGE-RES JUDICATA.

-(1) The purchaser of a note secured by mortgage takes it subject to all the equities fastened upon it by stipulation or recitals contained in any recorded deed which forms a link in his chain of title. Major v. Bukley, 51 Mo. 227; Rimmon v. Martin, 14 Tex. 318; Tiernan v. Thurman, 14 B. Mon. 277; Daugherty v. Paine, 6 Minn. 452; Johnston v. Gwathmey, Litt. 321; Linville v. Savage, 58 Mo. 248; Butler v. Holcomb, 33 La. Ann. 170; S. C., 39 Am. Rep. 265. (2) If a party purchasing land subject to a mortgage contracts with the mortgagor to pay the mortgage debt, and afterward the mortgagor is compelled to pay it himself, he will be subrogated to the rights of the mortgagee as against such purchaser, and any one claiming under him with notice. Halsey v. Reed, 9 Paige, 446; Stillman v. Stillman, 21 N. J. Eq. 127; Kamena v. Heulbig, 23 id. 78; Moore's Appeal, 88 Peun. St. 450; Johnson v. Link, 51 N. Y. 333; Sheldon on Subrogation, $$ 24, 26; Brandt Sur. & Guar., § 24; 1 Story Eq. Jur., § 499. (3) The maker of a note secured by mortgage was sued upon the note, suffered judgment and paid the judgment. He then brought this suit against the plaintiff in the judgment, who held another mortgage upon the same land, for the purpose of having himself subrogated to the rights of the original holder of the paid note, and having the mortgage which had secured it enforced as a first lien on the land. Held, that the judgment in the first action was no bar to this. Brake v. King, 54 Ind. 297; Halsey v. Reed, 9 Paige, 446. Orrick v. Durham. Opinion by Philips, Comr.

WITNESS DISQUALIFIED BY CONVICTION-LEGISLA

TURE CANNOT RESTORE COMPETENCY-RETROSPECTIVE LEGISLATION.-Prior to the Revised Statutes of 1879 a person convicted of petit larceny was, under section 66 of chapter 201 of General Statutes of 1865, incompetent to be sworn as a witness in any cause, and the omission of the disqualifying clause in the revision of 1879 was not designed to remove, and did not remove such incompetency occurring anterior to the time the latter statutes took effect. It is a settled rule in the construction of statutes in this State that they are to operate prospectively, and not otherwise, unless the intent that they are to operate retrospectively is manifested on the face of the statute in a manner altogether free from ambiguity. Besides incompetency to testify is one of the incidents of a conviction of crime, and part of the punishment, if not of the judgment, and the Legislature cannot, without trenching on the pardoning power vested exclusively in the executive, attempt to do away with it. Citing 1 Greenl. Ev., § 377; 1 Gilb. *To appear in 79 Missouri Reports.

Ev. 260; 1 Chitty Crim. Law, 602, 776; 7 Bac. Abr. 417; 3 id. 487; Rex v. Ford, 2 Salk. 690; Rex v. Griepe, 1 Ld. Ray. 256; 2 Hargrave's Jurid. Arg. 221; Com. v. Halloway, 42 Penn. St. 446; Perkins v. Stevens, 24 Pick. 277; People v. Bowen, 43 Cal. 439; S. C., 13 Am. Rep. 148; Blanc v. Rodgers, 49 Cal. 15; State v. Foley, 15 Nev. 64; S. C., 37 Am. Rep. 458; Haley v. Clark, 26 Ala. 439; State v. Sloss, 25 Mo. 291; Cummings v. State, 4 Wall. 277, 333; Rich v. Flanders, 39 N. H. 323; Hart v. State, 40 Ala. 32; State v. Band, 4 Jones (Law), 9. State v. Grant. Opinion by Sherwood, J. ACKNOWLEDGMENT-VOID CERTIFICATE-MARRIED WOMAN'S DEED.-Where the certificate of acknowledgment of a married woman's deed is fatally defective, and the deed is for that reason of no validity either as a conveyance or a contract, it confers upon the grantee no equity upon which to base a decree giving him a legal title. Citing Shroyer v. Nickell, 55 Mo. 264; Henry v. McKerlie, 78 id. 416; Bagby v. Emberson. Opinion by Martin, Comr.

RHODE ISLAND SUPREME COURT

ABSTRACT.*

MASTER AND SERVANT-INJURED BY HAND CARASSUMED RISK.-A railroad workman, after finishing his work, was told by his foreman that there were twenty minutes before the next train, which was understood to mean the next regular train. Whereupon the workman with others mounted a hand car to go to the next station, was overtaken by a special train and was killed. No carelessness was attributable to the special train after the hand car was discovered on the track; no flags were sent out by the hand car men, and a rule of the railroad company,known to the hand car men, stated that "they may expect a train in either direction without signals being shown for it." In an action brought to recover damages for the death, held, that the action could not be maintained as the workman assumed the risk of riding on the hand car by voluntarily and without objection mounting it when no flags had been sent out, and also the risk of any omission on the company's part to signal the special train, by mounting the car with full knowledge of the above rule. McGrath v. New York & New England R. Co. Opinion per Curiam.

TRUST EXECUTOR WHEN TRUSTEE-REFUSAL TO QUALIFY AS EXECUTOR.-A testator nominated an executor and conferred on him powers and duties which do not belong to an executor, but which are appropriate to a trustee. Held, in the circumstances that it was not the testator's intent to annex the powers and duties to the office of executor. A refusal of the nominated executor to qualify as executor was not a refusal to accept the trusts which were consequently to be executed by him. In Sheet's Estate, 52 Penn. St. 257, 258, it is said one may be made a trustee without calling him such. We are to look, not at the title given, but at the powers conferred and duties imposed. In Anck's Estate, 11 Phila. 118, it was held that property may be devised to an executor so that he will be held to be also a trustee, although he may not be named trustee in the will. And see also Parker' Appeal, 61 Penn. St. 478, 484; Belcher v. Branch, 11 R. I. 226, 228. Besides the ordinary powers and duties incident to the office of executor, the will before us confers on the person named as executor certain powers, express or implied, and imposes certain duties which do not belong to an executor as such, but are appropriate to the office of a trustee. The powers and du

*To appear in 14 Rhode Island Reports.