articles have no greater value for the purposes of the contract of transportation between the parties to that contract. The carrier must respond for negligence up to that value. It is just and reasonable that such a contract, fairly entered into, and where there is no deceit practiced on the shipper, should be upheld. There is no violation of public policy. On the contrary, it would be unjust and unreasonable, and would be repugnant to the soundest principles of fair dealing and of the freedom of contracting, and thus in conflict with public policy, if a shipper should be allowed to reap the benefit of the contract if there is no loss, and to repudiate it in case of loss. This principle is not

a new one.

In Gibbon v. Paynton, 4 Burr. 2298, the sum of £100 was hidden in some hay in an old nail-bag and sent by a coach and lost. The plaintiff knew of a notice by the proprietor that he would not be answerable for money unless he knew what it was, but did not apprise the proprietor that there was money in the bag. The defense was upheld, Lord Mansfield saying: "A common carrier, in respect of the premium he is to receive, runs the risk of the goods and must make good the loss, though it happen without any fault in him, the reward making him answerable for their safe delivery. His warranty and insurance is in respect of the reward he is to receive, and the reward ought to be proportionable to the risk. If he makes a greater warranty and insurance he will take greater care, use more caution, and be at the expense of more guards or other methods of security, and therefore he ought, in reason and justice, to have a greater reward." To the same effect is Batson v. Donovan, 4 Barn. & Ald. 21.

The subject-matter of a contract may be valued, or the damages in case of a breach may be liquidated in advance. In the present case, the plaintiff accepted the valuation as "just and reasonable." The bill of lading did not contain a valuation of all animals at a fixed sum for each, but a graduated valuation according to the nature of the animal. It does not appear that an unreasonable price would have been charged for a higher valuation. The decisions in this country are at variance. The rule which we regard as the proper one in the case at bar is supported in Newburger v. Howard, 6 Phila. 174; Squire v. New York Cent. R. Co., 98 Mass. 239; Hopkins v. Westcott, 6 Blatch. 64; Belger v. Dinsmore, 51 N. Y. 166; Oppenheimer v. U. S. Exp. Co., 69 Ill. 62; Magnin v. Dinsmore, 56 N. Y. 168, and 62 id. 35, and 70 id. 410; Earnest v. Express Co., 1 Woods, 573; Elkins v. Empire Trans. Co., 81* Penn. St. 315; South & North Ala. R. Co. v. Henlein, 52 Ala. 606; Same v. Same, 56 id. 368; Muser v. Holland, 17 Blatchf. 412; Harvey. Terre Haute R. Co., 74 Mo. 538; and Graves v. Lake Shore R. Co., 137 Mass. 33. The contrary rule is sustained in Southern Exp Co. v. Moon, 39 Miss. 822; The City of Norwich, 4 Ben. 271; U. S. Exp. Co. v. Backman, 28 Ohio St. 144; Black v. Goodrich Transp. Co., 55 Wis. 319; S. C., 13 N. W. Rep. 244; Chicago, St. L. & N. O. R. Co. v. Abels, 60 Miss. 1017; Kansas City R. Co. v. Simpson, 30 Kans. 645; S. C., 2 Pac. Rep. 821; and Moulton v. St. Paul, etc., R. Co., 31 Minn. 85; S. C., 16 N. W. Rep. 497. We have given consideration to the views taken in these latter cases, but are unable to concur in their conclusions. Applying to the case in hand the proper test to be applied to every limitation of the common-law liability of a carrier-its just and reasonable characterwe have reached the result indicated. In Great Britain, a statute directs this test to be applied by the courts. The same rule is the proper one to be applied in this country, in the absence of any statute.

As relating to the question of the exemption of a carrier from liability beyond a declared value, refer

ence may be made to section 4281 of the Revised Statutes of the United States (a re-enactment of § 69 of the act of February 28, 1871, ch. 100, 16 St. 458), which provides that if any shipper of certain enumerated articles, which are generally articles of large value in small bulk, "shall lade the same, as freight or baggage on any vessel, without at the time of such lading giv ing to the master, clerk, agent, or owner of such vessel receiving the same a written notice of the true character and value thereof, and having the same entered on the bill of lading therefor, the master and owner of such vessel shall not be liable as carriers thereof in any form or manner, nor shall any such master or owner be liable for any such goods beyond the value and according to the character thereof so notified and entered." The principle of this statute is in harmony with the decision at which we have arrived.

The plaintiff did not, in the course of the trial, or by any request to instruct the jury, or by any exception to the charge, raise the point that he did not fully understand the terms of the bill of lading, or that he was induced to sign it by any fraud or under any misapprehension. On the contrary, he offered and read in evidence the bill of lading as evidence of the contract on which he sued. The distinct ground of our decision in the case at bar is, that where a contract of the kind, signed by the shipper, is fairly made, agreeing on a valuation of the property carried, with the rate of freight based on the condition that the carrier assumes liability only to the extent of the agreed valuation, even in case of loss or damage by the negligence of the carrier, the contract will be upheld as a proper and lawful mode of securing a due proportion between the amount for which the carrier may be responsible and the freight he receives, and of protecting himself against extravagant and fanciful valuations. Squire v. New York Cent. R. Co., 98 Mass. 239, 245, and cases there cited.

There was no error in excluding the evidence offered, or in the charge to the jury, and the judgment of the Circuit Court is

Affirmed.

MORTGAGE BY RAILROAD-OPERATING ROAD AFTER DEFAULT.

UNITED STATES CIRCUIT COURT, E. D. MISSOURI, NOVEMBER 3, 1884.

BLAIR V. ST. LOUIS, ETC., R. Co.*

The fact that a railroad continues to operate its road after default in the payment of a mortgage debt does not make the railroad the agent or trustee of the mortgagees, to incur debts which shall be a paramount lien to that of the mortgage.

IN equity. Exceptions to master's report.

Walter C. Larned and Theo. G. Case, for complainant.

John O'Grady, for receiver.

James D. Carr and George D. Reynolds, for inter

venors.

BREWER, J. 1. The first exception runs to a matter of practice. On the 24th of March, 1884, this court, in its order respecting intervening claims, directed the master as follows:

"It is further ordered, that when an intervening claim, so far as the facts on which it rests, appears from the books of the defendant to be correct, the *S. C., 22 Federal Reporter, 471.

master may proceed to pass thereon without further evidence, unless in his opinion further evidence is needed, or some person in interest appears to contest the same."

receivership, or even the corpus of the property,under the order of the court, with a priority of lien; yet the discretion to do so should be exercised with very great care. The payment of such debts stands, prima facie, on a different basis from the payment of claims arising under the receivership, while it may be brought within the principle of the latter by special circumstances. It is easy to see that the payment of unpaid debts for operating expenses, accrued within ninety days, bue by a railroad company suddenly deprived of the control of its property, due to operatives in its employ, whose cessation from work simultaneously is to be de

2. Claims for labor and supplies accruing since the default in payment of interest in 1881, more than two years prior to the appointment of the receiver, have been allowed by the master, and exceptions are taken to such allowance. In the order appointing a receiver no provision for the payment of claims was made, and it is conceded that there is nothing to show that since the default in the payment of interest there has been any diversion of income to permanent improvements. Now the broad proposition is laid down by counsel, that unless a diversion as stated is shown, or unless the court, as a condition of appointing a receiver, requires the payment of certain claims, none can be preferred to the mortgage debt; that when the mortgagees take possession by a receiver, the income, as well as the property of the company, becomes theirs. I think the Supreme Court has decided against this claim.

In Miltenberger v. Railway Co., 106 U. S. 286; S. C., 1 Sup. Ct. Rep. 140, it appears that the receiver was appointed August 26, 1874. On October 3, 1874, an order was made directing the payment of traffic balances accruing before the appointment of the receiver, and the order was sustained. I quote at length from the opinion, because it bears upon a question yet to be considered:

"In respect to the $1,000 due other and connecting lines of the road for materials and repairs, and for ticket and freight balances, a part of which, as stated, was incurred more than ninety days before the 26th of August, 1874, the first petition stated that payment of that class of claims was indispensable to the business of the road, and that unless the receiver was authorized to provide for them at once, the business of the road would suffer great detriment. These reasons were satisfactory to the court. In the examination by the master of the accounts of the receiver evidence was taken as to the payment by him of items due, when he took possession, for operating expenses, and of moneys due other and connecting lines for the matters named. The report of the master shows that he disallowed several items in the receiver's accounts, claimed under the above heads, where the claims were made on the ground that the creditors threatened not to furnish any more supplies on credit unless they were paid the arrears. His action, sanctioned by the court, in allowing items within the scope of the orders of the court, appears to have been careful, discriminating, and judicious, so far as the facts can be arrived at from the record. It cannot be affirmed that no items which accrued before the appointment of a receiver can be allowed in any case. Many circumstances may exist which may make it necessary and indispensable to the business of the road and the preservation of the property for the receiver to pay pre-existing debts of certain classes out of the earnings of the

the public, and the payment of limited amounts due to other and connecting lines of road for materials and repairs, and for unpaid ticket and freight balances, the outcome of indispensable business relations, where a stoppage of the continuance of such business relations would be a probable result in case of non-payment, the general consequence involving largely also the interest and accommodation of travel and traffic, may well place such payments in the category of payments to preserve the mortgaged property in a large sense, by maintaining the good will and integrity of the enterprise, and entitle them to be made a first lien. This view of the public interest in such a highway for public use as a railroad is, as bearing on the maintenance and use of its franchises and property in the hands of a receiver, with a view to public convenience, was the subject of approval by this court, speaking through Mr. Justice Woods, in Barton v. Barbour, 104 U. S. 126."

I think therefore that the mere omission to make the payment of these claims a condition of the appointment of a receiver is no bar to their present allowance; and I may add this further suggestion: It is said that the court, as a condition of the appointment of a receiver, may in his discretion require the payment of certain claims; but that discretion is not an arbitrary one. It may not require the payment of any claims that it desires, but only such claims as it is equitable should be paid-claims that in equity are paramount to those of the mortgagees-and if it is equitable that these claims should be paid prior to the mortgage debt, then what difference can there be in the mere time of making an order therefor? In all cases the payment of such claims rests on the fact that it is equitable that they should be paid, and oftentimes this equity can only be determined upon a full investigation into their nature-an investigation which cannot be had at the time the receiver is appointed.

What claims are entitled to such equitable preference? The master has reported in favor of all claims accruing since the default in payment of the interest on the mortgage debt-a period of over two years. This seems to proceed upon the assumption that the mortgagees, by failing to take action, have made the mortgagor company their agent to incur debts; have impliedly consented that all such debts should take preference of their secured claims. I do not think that this principle is sound. There is no implied agency to that extent, and I do not think that the rulings of the Supreme Court are based upon any such doctrine. The idea which underlies them I take to be this; that the management of a large business, like that of a railroad company, cannot be conducted on a cash basis. Temporary credit, in the nature of things, is indispensable. Its employes cannot be paid every month. It cannot settle with other roads its traffic balances at the close of every day. Time to adjust and settle these various matters is indispensable. Because in the nature of things, this is so, such temporary credits must be taken as assented to by the mortgagees, because both the mortgagees and the public

are interested in keeping up the road, and having it preserved as a going concern, and whatever is necessary to accomplish this result must be taken as assented to by the mortgagees. In this view, such temporary credits accruing prior to the appointment of the receiver must be recognized by the mortgagees and such claims preferred. Now for what time prior to the appointment of a receiver may these credits be sustained? There is no arbitrary time prescribed, and it should be only such reasonable time as in the nature of things and in the ordinary course of business would be sufficient to have such claims settled and paid. Six months is the longest time I have noticed as yet given. Ordinarily I think that is ample. Perhaps in some large concerns, with extensive lines of road and a complicated business, a longer time might be necessary. Certainly so far as the present road is concerned, six months is ample. If any person permits a claim to continue longer than that he certainly has no right to be considered other than as a general creditor, with no preference over a secured debt. 'So I think the exceptions must be sustained as to all claims accruing prior to six months before the appointment of a receiver.

One other matter requires notice. Out of what shall these claims be paid? Primarily, of course, out of the earnings of the road, and ordinarily out of such earnings alone. It is true, as appears from the quotation just made from the Supreme Court, that cases may arise in which such claims will be made a lien upon the corpus of the property, and payable out of the proceeds of receiver's certificates. But this can be done only in exceptional cases, and where there is special equity therefor. Apparently this matter has not been considered by the master; and if any order is desired further than the payment of all these claims out of the earnings of the road, the matter will be referred back to the master for inquiry as to whether there exists any special equity justifying the payment of these claims, or any one of them, out of the proceeds of the receiver's certificates. The general rule, as I have stated, is that such claim should be paid out of the earnings. That is fair, because if no receiver were appointed, and the claimants attempted by legal process to enforce the collection of their claims, they could obtain no priority over the mortgages, but must still be subject to such mortgages. So the appointment of a receiver ought not to give them a priority which they had not before. It is true, a special equity, as stated by the Supreme Court, may exist, making such claims a prior lien upon the corpus of the property; but as I have said, such equity ought to be affirmatively shown. I believe this covers all the points that were argued before me. The order therefore will be that the exceptions will be maintained to all claims accruing more than six months prior to the appointment of a receiver. The exceptions to the other allowances will be overruled, and an order entered that they be paid out of the earnings of the road; and if in any particular claim it is thought by the claimant that there is a special equity which justifies its payment out of the proceeds of the receiver's certificates, such claims will be referred back to the master for examination in that respect.

[See 9 Biss. 549; 99 U. S. 392.]

promisee, on the plea that the promise was invalid under the statute of frauds, and which executory performance could not have been enforced by action. In 1864 M. purchased a lot of defendant and took a deed thereof in reliance upon a representation of the latter, that a strip of defendant's land, thirty-five feet wide, adjoining on the south, was a highway, and upon his promise that he would open the same as such for the use of M., his family and assigns, and the public. In the deed the lot was described by metes and bounds. No reference was made therein to any street or to any map. Plaintiff also in reliance upon said representation and promise built a house upon and near the south bounds of the lot, as was understood between the parties during the negotiations. Defendant also sold lots to other persons south of and abutting on said strip of land. Defendant soon after the conveyance, opened said strip as a street, as agreed, and the same was thereafter used and enjoyed as a street by M. and by plaintiff, his grantee, and by the public until 1875, when defendant obstructed the entrance thereto and threatened to wholly close the same. In an action by a grantee from M. to restrain such obstruction, held, that although the promise, while executory, could not have been enforced, defendant, by opening the street in pursuance thereof, appropriated the space as a way appurtenant to the premises, and he could not subsequently recall the declaration. To permit him to do so would operate as a fraud upon his grantee and subsequent purchasers. The court will enforce their rights by injunction, without requiring them to proceed for specific performance, assuming that a formal grant could not be compelled at the instance of the owners of the lot. Hervey v. Smith, 22 Beav. 299; Talmadge v. East River Bank, 26 N. Y. 105; Dempsey v. Kipp, 61 id. 463. The right of the plaintiff to maintain the action is questioned on the ground that the right of way did not pass to her by the deed from the grantee, her husband. The way or street is not mentioned in the deed, nor is the word "appurtenances used. But the way was an apparent easement at the time the deed was executed, and if it was then legally appurtenant to the lot, or in other words, if it was enjoyed by right by the plaintiff's husband as an appurtenance to the land, it passed by the conveyance of the lot by metes and bounds, although not mentioued, and although the word " appurtenances was not used. Huttemeier v. Albro, 18 N. Y. 48; 2 Wash. 279. Newman v. Nellis. Opinion by Andrews, J.

[Decided Nov. 25, 1884.]

CONTRACT-SERVICES-QUANTUM MERUIT.-Plaintiff contracted to varnish clock vases for defendant at specified prices per case. The work was done in defendant's factory. The plaintiff received pay on regular pay-days for work completed, which had been examined and pronounced satisfactory by defendant's agent. Defendant's factory was destroyed by fire, and a large number of the cases were burned upon which plaintiff had performed work; some were completed, but not inspected; the others were not finished. Held, that defendant was liable for the work done, and plaintiff was entitled to recover the contract price for the completed work, and upon a quantum meruit for that unfinished. It matters not whether the relation of master and servant existed between these parties, or whether the plaintiff was a contractor with the defendant to do the work upon the clocks. Upon the authority of the case of Niblo v. Binsse, 3 Abb. Ct. App. Dec. 375, the defendant was liable for the work done, as the clocks belonged to it, were in the possession and under its control, and it was under an implied obligation to furnish and keep them in hand, that the plaintiff could complete his work upon them, and thus

SPECIFC PERFORMANCE-BENEFIT OF THIRD PERSON -POSSIBLE BENEFIT NOT SUFFICIENT.-A creditor of a firm cannot maintain an action upon an agreement made with a firm by one not a member to pay a portion; for instance, one-quarter of its indebtedness, as no one creditor can show from the contract that it was intended for his benefit or covers any part of his debt. It would be a very great extension of the doctrine of Lawrence v. Fox to give a right of action to a creditor for whose benefit the promise might or might not have been made. In Barlow v. Myers, 64 N. Y. 41, where the promise was to pay generally "the debts of Randall & Williams, without specifications of the particular debts, or naming the creditors of the firm," attention was called to the fact that in this respect the case differed from all the cases in which the right of action had been sustained in behalf of the third party. But while there it was possible to say that the creditors were sufficiently identified as belonging to a class all of whom were to be paid, here, on the other hand, no class is named or described, and who was to be paid by the promisor, or to what extent, is left absolutely uncertain and undetermined. We prefer to restrict the doctrine of Lawrence v. Fox within the precise limits of its original application. But there is another reason for saying that the defendant creditors had no legal interest in the promise of plaintiffs which could entitle them to contest the action for a reformation of the contract. We held in Dunning v. Leavitt, 85 N. Y. 30, and again in Crowe v. Lewin, 95 id. 423, that the right of the third party benefited by the promise, at least before he had accepted and adopted it, was of such derivative and imperfect character, if indeed it attached at all, and was so subject to the relations and equities of the original promisor and promisee, that the destruction of the consideration of the promise in the one case, and the rescission or annulment of the contract in the other, in actions to which the alleged beneficiary was not a party, and in which he had not been heard, barred and prevented him from any right of action upon the promise. If we have construed the pleadings and read the evidence correctly, that is the case here. There had been no acceptance or adoption by word or act. Something of that kind was essential. Turk v. Ridge, 41 N. Y. 201; Garnsey v. Rogers, 47 id. 242; Vrooman v. Turner, 69 id. 285; Knickerbocker Life Ins. Co. v. Nelson, 78 id. 151; Brewer v. Dyer, 7 Cush. 337. What it should be, whether a bare assent communicated to the promisor, or some decisive act of the third party by which his original position and rights have been changed in reliance upon the promise, before the equities between the contractors become burdened with a right to interfere and be heard belonging to the third party, we do not now decide, because it is wholly unnecessary. It is enough that these creditors, neither by word nor act, in any manner assented to or adopted the promise before the action for its reformation. They were therefore not necessary parties to that action, had no legal interest in it, and were properly denied the right of appeal. Van Buren v. Rice. Opinion by Finch, J. [Decided Nov. 25, 1884.]

NEGOTIABLE INSTRUMENT-ASSIGNMENT OF PAID NOTE-RIGHT TO CONTRIBUTION PASSES.-Where one of several accommodation makers of a joint and several promissory note paid the same, and subsequently transferred and delivered it for a valuable consideration to a third person, held, that although the note, as an obligation, was extinguished by the payment, yet it remained in the hands of the maker, who paid it, the evidence of his right to contribution from his co

sureties. Hodgson v. Shaw, 3 Myl. & K. 183. The delivery raised a legal presumption of an intent to pass, and did pass this right to the transferee. While no one of the parties has testified that this transfer was made under a mistake of law, and in the absence of such proof we ought to presume that they knew the law, and acted in the light of that knowledge, it may still be possible to infer from the facts that both parties thought the note a valid and subsisting obligation against all the signers, and had no conscious and definite intent to transfer any thing else. But grant that they did not; does it follow that the right of contribution did not pass? It is argued that it did not pass unless the minds of the parties met over that specific transfer, that there must have been a mutual intent to assign that identical right, and no such meeting of minds or mutual assent existed. But it was said in Schuyler v. Smith, 51 N. Y. 314, that the general rule undoubtedly is that it takes two parties to make an agreement, and that their minds must meet. But this rule is not of universal application. The law sometimes steps in and makes agreements for parties which they did not mutually intend. In the opinion in that case pertinent illustrations are given, but some more nearly allied to the case in hand may be gathered from the reports. In Oneida Bank v. Ontario Bank, 21 N. Y. 490, a loan was made to a bank for which post notes were delivered which were illegal, but were afterward assigned by the lender to another bank, and it was held that the assignee could recover on the original loan, although the action was on the post notes, and no transfer of the original loan had been made. There, as here, there was no specific transfer of the right which existed, and there, as here, a transfer only of something utterly dead and worthless. What the parties had in their minds was the post notes, and yet the law made the worthless paper carry to the assignee the valuable right when such a thought probably never entered the mind of either party. Cases have arisen in which a mortgage, void for usury, has been assigned to third parties, and which was held to carry to the assignees the right to an old security not usurious, for which the void mortgage was given. Gerwig v. Sitterly, 56 N. Y. 217. The reasoning in that case justifies much that we have said in this, but it especially shows how the law deems within the intent of the parties something which was never present to their thoughts, and in spite of some ineffectual thing which was so present. In that case it was said that "it never was the intention of the assignor to retain any thing for himself in respect to the original debt," and with equal propriety we may say here that Snell never intended to retain for himself, and to be enforced by him, a right of action against the sureties. Still another class of cases are those in which a mortgage has been foreclosed by proceedings entirely ineffectual to pass a title, and where the purchaser's deed has been held to operate as an assignment of the mortgage. Jackson v. Bowen, 7 Cow. 14; Robinson v. Ryan, 25 N. Y. 324. In these instances there never was in the mind of either party a conscious intention or purpose of assigning the mortgage. On the contrary, the actual intention was to extinguish the mortgage and transfer the land. In the former of these cases it is said "the intention was to pass a greater interest. If that failed, it is no objection to the operation of the instrument as an assignment. Valeat quantum valere potest." In that maxim thus quoted lies the germinant seed of the whole doctrine. As the greater right includes the lesser, even though they are of different character, the intent to convey the greater includes the intent to convey the lesser, and if the former fails the latter may prevail. So much shall pass as can pass. The facts that the transferee paid the full face of the note, and not merely the amount due for contribution, that

the transferee paid the full interest for several years, and that upon his failure the transferee proved the note for its full amount against him in bankruptcy, and received and credited a dividend thereon, were none of them inconsistent with an intent deducible from the bare transfer to assign and pass the right of contribution. Dillenbeck v. Dygert. Opinion by Finch, J.

[Decided Nov. 25, 1884.]

UNITED STATES SUPREME COURT ABSTRACT.*

CUSTOMS DUTIES "HOUSEHOLD EFFECTS -CARRIAGE USED ABROAD-REV. STAT., § 2505.-A carriage in use abroad for a year by its owner, who brings it to this country for his own use here, and not for another person, nor for sale, is "household effects" under section 2505 of the Revised Statutes of 1874, p. 484 (2d ed.) and free from duty. Persons who dwell together as a family constitute a "household." In New York a statute exempted from execution a cow "owned by any person being a householder." In Woodward v. Murray, 18 Johns. 400, a judgment debtor, who owned a cow, had left his wife and children, they continuing to reside in the house he had occupied. While they were on the road, removing to the house of the wife's father, with the cow and their household furniture, the COW was seized on execution. The court held that the exemption continued 80 long as the wife and children remained together "as a family," and that they continued to be the debtor's "household," and he the "householder." The question for decision in this case is whether the carriage of the plaintiff fell under either of these heads: (1) Household effects in use of a person or a family from a foreign country, used abroad by the person or the family not less than one year, and not intended for any other person or persons, nor for sale; (2) personal effects (not merchandise), nor for sale, of a person arriving in the United States. The carriage had been in use as a family carriage, abroad, by the plaintiff as owner for more than a year. She came from abroad after a temporary residence there of three years, and imported the carriage two weeks later for use here, and not for any other person, nor for sale. Was it "household effects" or "personal effects" of the plaintiff? We think that it fell within clause 1, and was "household effects." In the provision respecting the "household effects" of persons or families, there is an evident intention to include articles which pertain to a person as a householder, or to a family as a household, which have been used abroad not less than a year, and are not intended for others, nor for sale. A carriage is peculiarly a family or household article. It contributes in a large degree to the health, convenience, comfort and welfare of the householder or of the family. The statute is not limited to articles of household furniture, or to things whose place is necessarily within the four walls of a house. Clause 2 above uses the words "personal and household effects." This serves to show that by the use of the words "household effects" alone in clause 1, in the same section of the statute, something is intended different from "personal effects," and that those words embrace articles which the words " personal effects" do not cover. So too if the words "other personal effects" in clause 3 should be extended to embrace articles properly covered by the words "household effects" in clause 1, such household effects would come in free, although not used abroad for a year, and the door would be opened wide * Appearing in 5 Supreme Court Reports.

for the introduction without duty of large numbers of articles as "household effects" which it is intended should pay duty. We do not find it necessary in this case to consider any further the construction of the words "other personal effects" in clause 3, because we place our decision on the ground that this carriage was "household effects" of the plaintiff. The protest claimed that the carriage was "personal effects" in actual use, under section 2505, and as such free, and not subject to the duty imposed on it, but did not claim it to be "hcusehold effects." The solicitor-general concedes that the objection to the protest is a "bare technicality." and that its language could hardly mislead the officers. A proper protest, as well as an appeal, are prerequisites to the right to sue. S 3011, Rev. Stat., as amended by the act of February 27, 1877, ch. 69 (19 St. 247.) The protest must set forth "distinctly and specifically" the grounds of objection to the decision of the collector as to the rate and amount of duties. Section 2931, Rev. Stat. This provision was taken from the act of June 30, 1864, ch. 171, § 14 (13 St. 214), and is substantially the same as that in the act of February 26, 1845, ch. 22 (5 St. 727). A protest is not required to be made with technical precision, but is sufficient if it shows fairly that the objection afterward made at the trial was in the mind of the party, and was brought to the knowledge of the collector, so as to secure to the government the practical advantage which the statute was designed to seConverse v. Burgess, 18 How. 413; Swanston v. Morton, 1 Curt. C. C. 294; Kriesler v. Morton, id 413; Burgess v. Converse, 2 id. 216; Steegman v. Maxwell, 3 Blatchf. 365; Frazee v. Moffitt, 20 id. 267; S. C., 18 Fed. Rep. 584. This protest apprised the collector that the carriage was claimed to be free, under section 2505, as a carriage actually used abroad over a year. The "household effects" clause was in the mind of the party, and the collector could not fail to so understand. The protest was sufficient. Arthur v. Morgan. Opinion by Blatchford, J. [Decided Dec. 22, 1884.]

cure.

PATENT-" INFRINGEMENT"-ACTION BY PATENTEE AND LICENSEE AFTER SUIT BY PATENTEE.—(1) A licensee of a patent cannot bring a suit in his own name, at law or in equity, for its infringement by a stranger; an action at law for the benefit of the licensee must be brought in the name of the patentee alone; a suit in equity may be brought by the patentee and the licensee together. Gayler v. Wilder, 10 How. 477, 495; Littlefield v. Perry, 21 Wall. 205, 223; Paper Bag cases, 105 U. S. 766, 771. In a suit in equity brought by the patentee alone, if the defendant seasonably objected to the non-joinder of the licensee, the Court might, as Judge Lowell did in Hammond v. Hunt, 4 Ban. & A. 111, order him to be joined. But when a suit in equity has been brought and prosecuted in the name of the patentee alone, with the licensee's consent and concurrence, to final judgment, from which, if for too small a sum, an appeal might have been taken in the name of the patentee, we should hesitate to say that the licensee, merely because he was not a formal plaintiff in that suit, could bring a new suit to recover damages against the same defendant for the same infringement. (2) It is a more serious question whether a decree in favor of the patentee upon a bill in equity against one person for making and selling a patented machine is a bar to a subsequent suit by the patentee against another person for afterward using the same machine within the term of the patent. A license from the patentee to make, use and sell machines gives the licensee the right to do so, within the scope of the license, throughout the term of the patent; and has the same effect upon machines sold by the licensee under authority of his license, that a sale by the patentee