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president of the bank, and ceased to act as such, cannot be held liable for the consequences of breaches of trust alleged to have been subsequently thereafterwards committed: (2) That Charles T. Coit was guilty of no want of ordinary care in acting upon the leave of absence given him ; and, having died while absent on that leave, his estate is not liable for losses alleged to have been incurred during such absence, and with which he had no affirmative connection: (3) That the defendant Francis T. Coit, having accepted the office of director, when in infirm health, there being at the time others of the board of directors capable of attending to the concerns of the bank, and by reason of physical infirmity having failed to give the attention to the bank's affairs he otherwise would, his estate is held not liable for passive negligence on his part under all the circumstances disclosed in evidence: (4) That as no negligence is shown whereby the alleged losses can be said to have been affirmatively caused by the defendants Johnson and Spaulding, or either of them, they are not to be held responsible simply because, during the short period they were directors,

they did not discover such losses and prevent them. Ib. 6. Delano v. Butler, 118 U. S. 631, and Aspinwall v. Butler, 133 C.S. 595,

affirmed and applied to a case where a shareholder in the bank, haring subscribed her proportional share to the doubling of its capital and paid therefor, took out no certificate for the new stock and demanded

back the money so paid. Pacific National Bank v. Eaton, 227. 7. A subscription to stock in a national bank, and payment in full on the

subscription and entry of the subscriber's name on the books as a stockholder, constitutes the subscriber a shareholder without taking

out a certificate. Ib. 8. An action between a plaintiff and a national bank, and an action be

tween the receiver of that bank as plaintiff and the plaintiff in the other action as defendant, are substantially suits between the same

parties. Butler v. Eaton, 240. 9. A receiver of a national bank brought an action in a Circuit Court of

the United States to recover the amount of an unpaid subscription to stock of the bank. The defendant set up a judgment in her favor in the state court on the same issue as an estoppel, and the Circuit Court held it to be an estoppel. That judgment of the state court being brought before this court by writ of error, was reversed here, and this court in the case from the Circuit Court, also brought here in error, Held, that the judgment of the Circuit Court should be reversed, and the cause remanded with directions to enter judgment for the re

ceiver. 1b. 10. When a state bank, acting under a statute of the State, calls in its cir.

culation issued under state laws, and becomes a national bank under the laws of the United States, and a judgment is recovered in a court of the State against the national bank upon such outstanding circulation, the defence of the state statute of limitations having been set 53) the court erred in ordering the amended pleas to be stricken from the files. Griswold v. Hazard, 260.


up, a Federal question arises which may give this court jurisdiction

in error. Metropolitan Bank v. Claggett, 520. 11. The conversion of a state bank in New York into a national bank,

under the act of the legislature of that State of March 9, 1865, (N. Y. Laws of 1865, c. 97,) did not destroy its identity or its corporate existence, nor discharge it as a national bank from its liability to holders of

its outstanding circulation, issued in accordance with state laws. 16. 12. The provisions in the statute of New York of April 11, 1859, (Laws of

1859, c. 236,) as to the redemption of circulating notes issued by a state bank and the release of the bank if the notes should not be presented within six years, do not apply to a state bank converted into a national bank under the act of March 9, 1865, and not "closing the business of banking.” Ib.



In the action at law upon the bond given in the ne exeat proceedings (No.

See EQUITY, 3, 4.


See Local Law, 1.


1. Letters patent No. 86,296, granted to the New York Belting and Pack

ing Company, as assignee of Dennis C. Gately, the inventor, January 26, 1869, for “improvements in vulcanized india-rubber packing,” involved invention, and were valid. Magowan v. New York Belting

and Packing Co., 332. 2. The Gately packing explained in view of prior packings. 10. 3. The fact considered, that that packing went at once into such an exten

sive public use as almost to supersede all packings made under other methods, and that it was put upon the market at a price from 15 to 20 per cent higher than the old packings, although it cost 10 per cent

less to produce it. Ib. 4. If a patentee describes and claims only a part of his invention, he is

presumed to have abandoned the residue to the public. McClain v.

Ortmayer, 419. 5. Where a claim is fairly susceptible of two constructions, that one will

be adopted which will preserve to the patentee his actual invention : but if the language of the specification and claim shows clearly what he desired to secure as a monopoly, nothing can be held to be an infringement which does not fall within the terms which the patentee has himself chosen to express his invention. 16.



6. The first claim in letters patent No. 259,700, issued June 20, 1882, to

Edward L. McClain for a pad for horse-collars, when construed in accordance with these principles, is not infringed by the manufacture and sale of sweat pads for horse-collars under letters patent No. 331,

813, issued December 8, 1885. Ib. 7. Whether a variation from a previous state of an art involves anything

more than ordinary mechanical skill is a question which cannot be

answered by applying the test of any general definition. 1b. 8. The doctrine which prevails to some extent in England, that the utility

of a device is conclusively proven by the extent to which it has gone into general use, cannot be applied here so as to control that language of the statute which limits the benefit of the patent laws to things

which are new as well as useful. 16. 9. In a doubtful case the fact that a patented article has gone into general

use is evidence of its utility; but not conclusive of that, and still less

of its patentable novelty. 16. 10. Letters patent No. 207,011, issued May 13, 1884, to E. L. McClain for

a pad fastening are void for want of novelty in the alleged inven

tion. 16. 11. On an accounting as to profits and damages, on a bill for the infringe

ment of letters patent No. 58,294, granted to George W. Richardson, September 25, 1866, for an improvement in steam safety-valves, the Circuit Court, confirming the report of the master, allowed to the plaintiff the entire profit made by the defendant from making and selling safety-valves containing the patented improvement, and this court affirmed the decree, on the ground that the entire cominercial value of the defendant's valves was to be attributed to the patented improvement of Richardson. Crosby Valve Co. v. Safety Valce

Co., 441. 12. It was held that the plaintiff's valves of commerce all of them con

tained the improvements covered by the patent of Richardson, and that as the master had reported no damages, in addition to profits, the amount of profits could not be affected by the question whether the

plaintiff did or did not use the patented invention. Ib. 13. It was proper not to make any allowance to the defendant for the value

of improvements covered by subsequent patents owned and used by

the defendant. Ib. 14. It was also proper not to allow to the defendant for valves made by the

defendant and destroyed by it before sale, or after a sale and in exchange for other valves, which did not appear in the account on

either side. lb. 15. It was also proper not to allow a credit for the destroyed valves against


the profits realized by the defendant on other valves. 16. 16. Interest from the date of the master's report was properly allowed on

the amount of profits reported by the master and decreed by the court. 16.



17. In estimating, in a suit for the infringement of letters patent, the

profits which the defendant has made by the use of the plaintiff's device, where such device is a nere improvement upon what was known before and was open to the defendant to use, the plaintiff is limited to such profits as have arisen from the use of the improvement over what the defendant might have made by the use of that or other devices without such improvement. McCreary v. Pennsylvania Canal

Co., 459. 18. An inventor took out letters patent for an invention intended to accom

plish a certain result. Subsequently he took out a second patent, covering the invention protected by the first, and accomplishing the same result by a further improvement. While holding both patents, he sued to recover damages for the infringement of the second, without claiming to recover damages for the infringement of the first. Held, that he could recover only for the injuries resulting from use of the further improvement covered by the second letters, and that if no such

injury were shown the defendant would be entitled to judgment. Io. 19. The alleged invention protected by letters patent No. 50,591, granted

October 24, 1865, to John H. Irwin, was a combination of old devices, each performing its old function and working out its own effect, without producing anything novel as the result of the combination, and

was not patentable. Adams v. Bellaire Stamping Co., 539. 20. When the sole issue in an action for the infringement of a patent is as

to the patentable character of the alleged invention, it is nof error to decline to instruct the jury that the fact that the machine had practi

cally superseded all others was strong evidence of its novelty. 16. 21. Reissued letters patent No. 9616, granted to Rodmond Gibbons March

22, 1881, on the surrender of letters' patent No. 178,287, for an improvement in pantaloons, are void for want of patentable novelty in

the invention claimed in it. Patent Clothing Co. v. Glover, 560. 22. Letters patent No. 208,258, granted September 24, 1878, to Henry M.

Myers for an “improvement in handle sockets for shovels, spades and scoops” are void for want of novelty in the alleged invention covered by them, that invention having been anticipated by the “ Ames California spade.” Myers v. Groom Shovel Co., 674.



1. Where the facts clearly show that a certain sum is due from one person

to another, a release of the entire sum upon payment of part is without consideration, and the creditor may still sue for and recover the residue; but, if there be a bona fide dispute as to the amount due, that dispute may be the subject of a compromise. Fire Insurance Associa

tion v. Wickham, 564. 2. When a claim not yet due is prepaid in part by the debtor, such prepay

ment may operate as a discharge of the whole claim if both parties inwrit of error instead of appeal, the defendant in error consented to the dismissal of the writ, and the court announced that if an appeal is seasonably taken the transcript of the record in this cause may be filed


tended it to be a consideration for such discharge; and whether both parties so intended is a question for the jury. 16.




JURISDICTION, A, 5; C, 1, 2, 3.

See EviDENCE, 3.

PRACTICE. 1. There having been some irregularity in the submission of this case on

the 15th of December, 1890, the court allows a resubmissson, and an additional brief is filed at its request; and it now adheres to its former decision, 137 U. S. 692, dismissing the writ for want of jurisdiction.

Caldwell v. Texas, 209. 2. It is irregular for counsel for an appellant to file, with a motion to dis

miss, the appeal papers stating the grounds on which the motion is

made. United States v. Griffith, 212. 3. It being apparent that the proceedings in this court were for delay, No.

356'is affirmed with ten per cent damages, and No. 357 is dismissed, the court being without jurisdiction. Gregory Consolidated Mining

Co. v. Starr, 222. 4. In an action at law in a Circuit Court, judgment being rendered for the

plaintiff, there was no bill of exception, no writ of error nor an allowance of appeal, but the defendant filed a supersedeas bond in which it was alleged that the defendant had “prosecuted an appeal or writ of error to the Supreme Court of the United States to reverse the judg. ment.” The plaintiff moved for the revocation of the supersedeas created by the bond, which motion was denied. The motion in this court for leave to docket and dismiss the case was granted. Tuska

loosa Northern Railway Co. v. Gude, 244. 5. A decree in chancery in a Circuit Court having been brought up by

as part of return. Williams v. Passumpsic Savings Bank, 249. 6. An application by petition to a court of law, after its judgment has been

reversed and a different judgment directed to be entered, to so change the record of the original judgment as to make a case materially different from that presented to the court of review, – there being no clerical mistake, and nothing having been omitted from the record of the original action which the court intended to make a matter of

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