of the vessel for another and distinct purpose, is not within this provision in the policy. The act is qualified by the intent and purpose with which it is done. If done solely with a view to save the property, the underwriters were at liberty to do such acts or not as they should see fit, and do them in their own time. If done with the intent to repair and restore the vessel, then it was to be done with reasonable diligence and dispatch, on peril of making the vessel their own, by taking her into custody." The learned judge here appears to make a distinction between acts done with the view simply to save the property, and similar acts done with the view, not only of saving the property, but of restoring it to the owners. The language used in this opinion is not entirely clear. There could be no other purpose in getting the vessel off except "to save the property." If done to save the property for themselves, and the property is actually taken by the underwriters, they would undoubtedly be held to have accepted the abandonment. If done to save it for the owner, they are equally liable, unless they proceed with diligence. In this view we find it difficult to perceive how the intent with which the act is done can be decisive of the rights of the parties. We should say that they would depend rather upon what was actually done than upon the intent with which it was done.

The whole law upon the subject may be summed up as follows: When an insured vessel is stranded and abandoned there are three courses open to the underwriters: They may accept the abandonment and pay for a total loss; they may allow the vessel to lie on the beach, and insist that there was no right to abandon; or they may elect to raise and repair her, (if bound to repair,) and if they can do this for less than half her valuation, they may return her to the owners and thus avoid paying for a total loss; but in so doing they must act promptly, that the owners may be repossessed of their property without unnecessary delay. Marmaud v. Melledge, 123 Mass. 176.

The object of the clause in the policy was to prevent the mere act of taking possession and rescuing the property being treated as, ipso facto, an acceptance of the abandonment. The companies wished to reserve the right to raise, repair, and restore the vessel within a reasonable time. But in the Peele Case it was held that they were not at liberty to touch her in any way without being held as accepting the abandonment. The policies now not only give them the right to interpose to recover the vessel, but in case the owner should do this, and then refuse to repair, the underwriters may then, after recovery, cause the same to be repaired for account of the insured; but, having once made their election to raise the vessel, we do not understand that they are at liberty to stop short of full performance, or to tender her back to the owners without complete indemnity for the loss. In this view of the law, as the facts herein stated were undisputed, there was no question for the jury, and they were properly instructed to return a verdict for the plaintiff. Peele v. Merchants' Ins. Co. 3 Mason, 27.

Certain exceptions were taken to the form of the abandonment, which, we think, are untenable. The policy requires the abandonment to be in writing, signed by the insured, and delivered to the company; and that it shall be efficient, if accepted, to convey to and vest in the insurers an unincumbered and perfect title to the subject abandoned. The abandonment in this case is contained in the letter of December 13th, signed by the president of the plaintiff corporation. Under the circumstances, we think this act was within the scope of his authority, and that his signature as president indicates sufficiently that it was the act of the corporation. It is true, the president held a mortgage upon the steamer, in his individual capacity, and that the title of the plaintiff was incumbered to the extent of this mortgage at the time the abandonment was made; but we think that Mr. Beatty, in signing the abandonment as president, would be estopped to set up his individual mortgage against the insurance company. Herm. Chat. Mortg. 355; Hayes v. Livingston, 34 Mich. 387; Dann v. Cudney, 13 Mich. 239; Truesdail v. Ward, 24 Mich. 117; Meister v. Birney, Id. 435.

The motion for a new trial must be denied.

STATE OF KANSAS ex rel. ATTORNEY GENERAL v. SOUTHERN KANSAS RY. Co.1

(Circuit Court, D. Kansas. June 2, 1885.)

RAILROAD COMPANY-FORFEITURE OF LAND GRANT-FAILURE TO BUILD ROAD

MANDAMUS.

Where a portion of a grant of land to a railroad company has lapsed, and been forfeited by reason of the failure of the company to build a certain part of its road within the time named in the grant, mandamus will not lie to compel the railroad company to build that portion of the road to which the forfeiture of the grant attaches.

On February 12, 1858, the legislature of the territory of Kansas incorporated the Leavenworth, Lawrence & Fort Gibson Railroad Company, and authorized it to construct a railroad from Leavenworth via Lawrence to the southern boundary of the territory. On the third of March, 1863, the congress of the United States passed an act granting lands to the state of Kansas to aid in the construction of certain roads. The first part of the section reads as follows:

a railroad and telegraph from the city of Leavenworth, by way of the town of Lawrence, and via the Ohio City crossing of the Osage river, to the southern line of the state, in the direction of Galveston Bay, in Texas, with a branch from Lawrence, by the valley of the Wakarusa river, to the point on the Atchison, Topeka & Santa Fe Railway, where said road intersects the Neosha river; second, of a railroad from the city of Atchison via Topeka, the capital of said state, to the western line of the state, in the direction of Fort Union and Santa Fe, N. M., with a branch where this last-named road crosses the Neosha, down said Neosha valley to the point where the first-named road enters the Neosha valley, every alternate section of land, designated by odd numbers, for ten sections in width on each side of said roads, and each of its branches."

The fourth section of such act prescribed the terms under which the grant is made. It reads as follows:

"Section 4. And be it further enacted, that the lands hereby granted to said state shall be disposed of by said state only in the manner following: That is to say, when the governor of said state shall certify to the secretary of the interior that any twenty consecutive miles, either of said roads or branches, is completed in a good, substantial, and workman-like manner, as a firstclass railroad, and the said secretary shall be satisfied that the said state has complied in good faith with this requirement, the said state may cause to be sold all the lands granted as aforesaid, situated opposite to and within ten miles of the line of said section of road thus completed, extending along said completed section of twenty miles of road, and no further. And when the governor of said state shall certify to the secretary of the interior, and the secretary shall be satisfied that another section of said road or branches, twenty consecutive miles connecting with the preceding section, is completed as aforesaid, the said state may cause to be sold all lands granted and situated opposite to and within the limit of ten miles of the line of said completed section of road, and extending the length of said section; and so from time to time until said roads and branches are completed. And when the governor of said state shall so certify, and the secretary of the interior shall be satisfied that the whole of said roads and branches, and telegraph, are completed in a good, substantial, and workman-like manner, as first-class railroads and telegraph, the said state may cause to be sold all remaining lands granted and selected for the purposes indicated in this act, situated within the said limits of twenty miles from the line thereof, throughout the entire length of said road and branches: provided, that if any part of said road and branches is not completed within ten years from the passage of this act, no further sale shall be made, and the land unsold shall revert to the United States."

On the ninth of February, 1864, the legislature of the state of Kansas passed an act to accept such grant, and making the Leavenworth, Lawrence & Fort Gibson Railroad the beneficiary. On the twentyfifth of May, 1864, a copy of the resolution of acceptance was filed in the office of the secretary of state, and is as follows:

"Resolved, by the president and board of directors of the Leavenworth, Lawrence & Fort Gibson Railroad Company, that said company hereby accepts said grant of lands, according to the stipulations of said act of the legislature of the state of Kansas and of the congress of the United States."

The railroad company constructed its road from Lawrence southward to the south line of the state, but never built that portion of its road from Leavenworth to Lawrence. By foreclosure proceedings the property and franchise of the Leavenworth, Lawrence & Fort Gibson road passed to defendant. And now the state applies for a writ of mandamus to compel the defendant to complete its entire line, by building that portion from Leavenworth to Lawrence.

W. A. Johnston, Atty. Gen., Edward Stillings, and Thomas P. Fenlon, for relator.

James Hagerman, for defendant.

BREWER, J. I shall notice but a single question, for that is decisive. The relator does not insist that by the charter authorizing the railroad company to build its road from Leavenworth, a duty was imposed to complete the whole line which can be enforced by mandamus, but rests the case upon the land grant and its acceptance, claiming that thereby a contract obligation was assumed by the company which the courts will enforce by mandamus. Conceding, for the purposes of this case, that contract obligations of a similar nature may sometimes be enforced, yet where the parties in their contracts expressly provide a penalty for a breach, such penalty will exclude any other remedy; and in this contract the parties have named a penalty for any breach. The grant provides that upon the completion of each consecutive 20 miles of road it shall become operative as to alternate sections, and that, upon the failure to complete the road within 10 years, the unearned lands revert to the United States. In other words, this reversion or forfeiture is the penalty for failure to complete the road. The grant does not prescribe at what point in the line the work shall be commerced. It was within the option of the company to commence at Leavenworth, the northern terminus, or at the southern boundary of the state, or at any intermediate point..

It might have commenced at the northern and southern termini at the same time, and, upon the completion of 20 miles from each terminus, would have been entitled to the alternate sections adjacent thereto. When it completed any 20 consecutive miles, it earned the alternate sections adjacent, and if it failed to complete any portion of the road within 10 years, it lost all interest in the adjacent lands. Suppose it had never built a mile of road during the 10 years, and so earned none of the lands, could it be seriously claimed that mandamus would lie to compel such construction in the face of this provision, that by its failure the whole grant had failed; and if that be true in case of total failure, is it not equally true in case of partial failure? The parties prescribed the terms of the contract, and what should be the result in the case of a failure of the beneficiary to perform. As was well said by the counsel for the defendant, this application in some respects represents a bill for a specific performance; and where the whole consideration has failed, and the plaintiff is powerless to perform on his part, would a court of equity compel a defendant, receiving nothing, to perform? Clearly, the defendant would be entitled to receive the consideration if obliged to perform his contract, and if the consideration was lost, the contract to perform would not be enforced. The case of the State v. Southern Minn. Ry. Co. 18 Minn.

40, (Gil. 21,), arose upon a very similar state of affairs, and is very closely in point, and the conclusions reached by that court are in accord with the views above expressed.

The motion to quash the writ will be sustained, and judgment accordingly.

DYER and another v. NATIONAL HOD ELEVATING CO.

(Circuit Court, E. D. Pennsylvania. April 28, 1885.)

PATENTS FOR INVENTIONS-SCOPE OF INVENTION.

A patent for a mere improvement in the department of mechanics to which it belongs, must be limited to the arrangement of the device claimed as new, and cannot be so expanded as to embrace different substituted devices that perform some of the functions of the patent, or produce the same general effect.

In Equity.

Joshua Pusey, for complainant.

Charles Howson, contra.

MCKENNAN, J. As the patent in this case is for an improvement merely in the department of mechanics to which it pertains, it must be limited in its scope to the "arrangement" of devices described and claimed in it as new; and it cannot be expanded to apply to substituted devices, different in character and dissimilar in form, merely because they perform some of the intended functions of the patented devices, or because the same general result is effectuated by both.

The second claim of the patent which is the only one necessary to be considered is for the "arrangement of the ropes or cables, m, m, clamp-bolts, i, i, and cross-bars, J, J, substantially as and for the purposes set forth." This "arrangement," as described, provides for the use of two cross-bars, to be attached to the ropes or cables at each end by means of clamp-bolts, which pass through the cross-bars, and encircle the cables, and thus hold the bars in place by pressure upon the cables, by relaxing which pressure the cross-bars may be moved up or down, and any desired adjustment in length of the cables be secured. In the upper cross-bar are V-shaped notches for holding hods filled with bricks or mortar, which are prevented from tilting by the lower cross-bar, against which the handles of the hod rest. In this "arrangement" it is obvious that notches capable of holding clampbolts in place by compression, clamp-bolts, and two cross-bars, are essential constituents.

In the hoisting apparatus made and used by defendant, a cable of different material and form, and without the essential capabilities of the cable described in the patent, is employed; and in no sense, except that of carrying the weight to be lifted, can it be regarded as an equivalent of the latter. It is made of iron, with links of a peculiar