St. Clara Academy v. Insurance Co., 93 Wis. 67, 66 N. W. 1143, reaffirm the rule; arguendo, in Kleis v. Niagara Ins. Co., 117 Mich. 475, 76 N. W. 157.

Equity. To entitle a court to reform a contract on ground of mistake it must appear that mistake was mutual, p. 491.

Reaffirmed in Moffett, etc., Co. v. Rochester, 91 Fed. 32, 62 U. S. App. 399, holding equity has no power to reform a contract solely on ground of mistake by one party; Durham v. Insurance Co., 10 Sawy. 529, 22 Fed. 470, where each party labored under a misapprehension as to the purpose or intent of the other, their minds do not meet, and there is no contract to reform; arguendo, in Houser v. Austin, 2 Idaho, 198, 10 Pac. 43; dissenting opinion in Griswold v. Hazard, 141 U. S. 293, 35 L. 692, 11 S. Ct. 1000.

Modified in Benson v. Markoe, 37 Minn. 37, 5 Am. St. Rep. 822, 33 N. W. 42, holding relief may be granted in case of mistake by one party only when parties may be placed in their former position.

Insurance. Every underwriter is presumed to be acquainted with usages of trade he insures, p. 492.

See note, 86 Am. Dec. 501.

Customs and usages.- Usage is admissible to explain an ambiguity, but never to contradict what is plain in a written instrument, p. 492.

Insurance.- A contract of insurance on a vessel "from Liverpool to port in Cuba, and thence to port of anchorage in Europe," does not cover an independent voyage from port of unloading to port of reloading in Cuba, p. 493.

Cited incidentally in McCall v. Insurance Co., 66 N. Y. 514, where a similar policy was construed.

20 Wall. 494 497, 22 L. 398, EQUITABLE INS. CO. ▼. HEARNE. Contracts. In construing ambiguous contract courts may consider correspondence and agreement between parties which took place before contract was entered into, but related thereto, p. 496

Cited in Harvey v. United States, 105 U. S. 688, 26 L. 1212, holding the advertisements relating to, and written bids for, doing government work, may be considered in construing contract relating thereto; Snell v. Insurance Co., 98 U. S. 89, 25 L. 54, a party may show by parol proof that there was mistake or fraud in execution of an instrument. See note, 4 McCrary, 229.

Insurance.- Insurance for voyage "from Liverpool to Cuba, and to Europe," held, under circumstances, to cover loss at a second port, touched at in Cuba, pp. 496-497.

Miscellaneous.- Cited, but not in point, in Franklin Ins. Co. v. Humphrey, 65 Ind. 557, 32 Am. Rep. 84, and dissenting opinion in Moore v. New Orleans. 32 La. Ann. 752.

VOL. VIII-22

20 Wall 498-507, 22 L 410, RUBBER-TIP PENCIL CO. V. HOWARD.

Patents. A device, however useful, if not new, is not patentable; so held of a device for fastening rubber erasers on lead pencils, p. 507.

Cited in Packing Co. Cases, 105 U. & 572, 26 L. 1174, holding the result of skill to be the subject of a patent must be the product of some exercise of the inventive faculties; Phillips v. Detroit, 111 U. 8. 608, 28 L. 534, 4 S. Ct. 583, where a claim for a particular kind of pavement was held non-patentable; arguendo, in Reckendorfer v. Faber, 92 U. S. 353, 357, 23 L. 722, 724, where combination consisting of application of piece of rubber to one end of same piece of wood which makes a lead pencil was held not patentable; Miller v. Eagle Mfg. Co., 151 U. S. 201, 38 L. 129, 14 S. Ct. 316, Alcott ▼. Young, 16 Blatchf. 138, F. C. 149, and Root v. Sontag, 47 Fed. 813, without special application.

20 Wall. 507-516, 22 L. 414, ATCHISON ▼. PETERSON.

Water and water-courses.- At common law every riparian pro prietor has a right to the water which flows in the adjacent stream as it was wont to run without diminution or alteration, p. 511.

Cited for this rule in Carpenter v. Gold, 88 Va. 553, 14 S. E. 329. Water and water-courses. As respects use of water for mining purposes on mineral lands of public domain on Pacific coast, doctrines of common law as to rights of riparian owners are inapplicable, or applicable only to a very limited extent, and first appropriacor is held to have better right than others to use such waters, p. 511.

Cited and principle applied in Basey v. Gallagher, 20 Wall. 681, 22 L. 454, Lehi Irr. Co. v. Moyle, 4 Utah, 340, 9 Pac. 876, and Drake v. Earhart, 2 Idaho, 722, 23 Pac. 543, holding like rule applies as to water appropriated on the public lands for irrigation purposes; Broder v. Water Co., 101 U. S. 276, 25 L. 791, holding mining company which constructed a canal over public land in California in 1853, acquired a right of way which is not affected by the subsequent grant of such lands to others; for similar holding, see Geddis v. Parrish, 1 Wash. 591, 21 Pac. 315; Boyle v. San Diego Land Co., 46 Fed. 711, holding title to water in non-navigable stream may be acquired by express grant of owners of land over which such stream runs; Krall v. United States, 79 Fed. 243, 48 U. S. App. 361, holding non-riparian proprietors may by appro priation acquire title to waters in non-navigable streams flowing through public lands; Malad Val. Irr. Co. v. Campbell, 2 Idaho, 381, 18 Pac. 53, where it was held the appropriation of the waters of a stream gives right to tributaries and all direct and immediate sources of supply; Barnes v. Sabron, 10 Nev. 230, 232, Reno Smelt

ing Works. v. Stevenson, 20 Nev. 274, 280, 19 Am. St. Rep. 366, 371, 21 Pac. 318, 321, 4 L. R. A. 62, 64, Speake v. Hamilton, 21 Or. 7, 26 Pac. 856, and Isaacs v. Barber, 10 Wash. 130, 45 Am. St. Rep. 776, 38 Pac. 873, 30 L. R. A. 674, 675, and n., reaffirm the rule; Carson v. Gentner, 33 Or. 517, 52 Pac. 507, 43 L. R. A. 132, reaffirms holding.

Cited in United States v. Krall, 174 U. S. 388, 19 S. Ct. 713, but without special application; also in Hewitt v. Story, 64 Fed. 515, 29 U. S. App. 155, 30 L. R. A. 270, and n., and Union Mill, etc., Co. v. Dangberg, 81 Fed. 96, where authorities relating to law of water rights throughout States and territories of Pacific coast, are collected. Cited, arguendo, in dissenting opinion in Spring Valley Water Co. v. Schottler, 110 U. S. 374, 28 L. 183, 4 S. Ct. 62, dissenting opinion in Krall v. United States, 79 Fed. 244, 48 U. S. App. 363, and dissenting opinion in Lux v. Haggin, 69 Cal. 444, 445, 448. See monographic notes, 43 Am. Dec. 279, and 63 Am. Dec. 93, 116.

Distinguished in Sturr v. Beck, 133 U. S. 551, 33 L. 765, 10 S. Ct. 354, and Benton v. Johncox, 17 Wash. 285, 287, 61 Am. St. Rep. 918, 920, 49 Pac. 497. 498, 39 L. R. A. 110, 111, where homestead entry was filed before any claim to divert water was asserted; Druley v. Adam, 102 Ill. 202, holding this rule not applicable in Illinois, where rules of the common law are observed; to same effect is Concord Co. v. Robertson, 66 N. H. 6, 25 Atl. 720, 18 L. R. A. 683, where it was held the common-law rule will be observed in New Hampshire.

-

Water and water-courses.- Common-law riparian rights of United States in non-navigable streams flowing through public lands were surrendered by act of Congress in 1866, p. 513.

Cited incidentally in United States v. Rio Grande Co., 9 N. Mex. 304, 51 Pac. 678. See monographic note, 63 Am. Dec. 98.

Water and water-courses.- Appropriation does not confer such an absolute right to the body of water diverted that owner can allow It to run to waste and prevent others from using it, p. 514.

Cited in Alder Min. Co. v. Hayes, 6 Mont. 38, 9 Pac. 585, holding when water appropriated for use on a mining claim has served its purpose on such claim it must be discharged for use of owners of claims below.

Water and water-courses. What diminution of quantity, or deterioration in quality, will constitute an invasion of rights of first appropriator of water depends on circumstances of each case, as respects uses to which the water is applied, p. 514.

Cited and applied in Hewitt v. Story, 64 Fed. 520, 29 U. S. App. 155, 30 L. R. A. 272, and n., holding the burden is on prior appropriator to show that he has been injured by the appropriation of subsequent appropriators; Senior v. Anderson, 115 Cal. 593, 47

Pac. 456, Nevada Ditch Co. v. Bennett, 30 Or. 91, 60 Am. St. Rep. 787, 45 Pac. 480, and Simmons v. Winters, 21 Or. 42, 28 Am. St. Rep. 731, 27 Pac. 9, all holding quantity of water an appropriator is entitled to is limited by amount actually used; New Mercer Ditch Co. v. Armstrong, 21 Colo. 365, 40 Pac. 991, holding appropriator may abandon right to portion originally appropriated. Cited, arguendo, in Fitzpatrick v. Montgomery, 20 Mont. 186, 63 Am. St. Rep. 624, 50 Pac. 417. See note, 43 Am. Dec. 281, 282.

Water and water-courses. Whether, upon a bill by a prior ap propriator of water, asserting that his rights have been invaded, equity will interfere to restrain acts complained of, depends upon particular circumstances of each case, p. 515.

Cited in Lux v. Haggin, 69 Cal. 275. 10 Pac. 681, where it was held a riparian proprietor is entitled to an injunction to restrain the threatened unlawful diversion of waters, without first establishing his right at law by recovering a judgment in damages; Derry v. Ross, 5 Colo. 298, holding injunction will be granted in such cases whenever the character and extent of wrongful acts committed renders the injury irremediable, or where action at law. by reason of insolvency of defendant, would not afford an adequate remedy; Fabian v. Collins, 3 Mont. 226, where it was held complaint stated a cause of action entitling equitable relief: McCauley v. McKeig, 8 Mont. 394, 21 Pac. 23. where it was held bill did not state facts entitling complainant to equitable relief: Lane v. Smythe, 46 N. J. Eq. 456, 19 Atl. 204, want of pecuniary responsibility on part of defendant is proper to be considered in such cases.

20 Wall. 517-320, 22 L. 421, UNITED STATES v. GILL.

United States. Where hay was received into custody of army in frontier parts of country, and was afterwards used or destroyed by army, government held liable for price at time of appropriation, p. 520.

Not cited.

20 Wall. 520-527, 22 L. 376. POLLARD v. BAILEY.

Statutes. Intent of legislature must govern in construction of every statute, and to ascertain same, whole statute must be examined, p. 525.

Approved in Welles v. Graves, 41 Fed. 465, in construing statute relative to liability of national banks to have franchises forfeited for offenses of officers; Budd v. Budd, 59 Fed. 739, in construing city charter.

Corporations. Where stockholder is bound for corporation debts in proportion to his stock, he is liable to pay a sum which shall bear same proportion to whole indebtedness that his stock bears to whole capital, p. 525.

Reaffirmed in Buenz v. Cook, 15 Colo. 41, 24 Pac. 680, holding judgment against one stockholder for entire indebtedness is er

roneous.

Corporations.- Individual liability of stockholders for corporate debts is a creature of statute; it does not exist at common law, p. 526.

Approved in United States v. Stanford, 161 U. S. 429. 40 L. 758, 16 S. Ct. 583, affirming S. C., 69 Fed. 43, 47, holding the government has no claim against stockholders of Central Pacific Ry. Co. on account of bonds issued the company to aid in construction of road; In re Bachman, 2 Fed Cas. 311, courts must look to State in which corporation was created to ascertain liability of stock. holders; Morley v. Thayer, 3 Fed. 742, and Hobbs v. Bank, 96 Fed. 398, reaffirm the rule. Cited, arguendo. in Faull v. Alaska, etc., Co., 8 Sawy. 424, 14 Fed. 659, and Powell v. Oregonian Ry. Co., 13 Sawy. 537, without special application. Approved, arguendo, in Knower v. Haines, 24 Blatchf. 489, 31 Fed. 514, and Nat. Park Bank v. Peavey, 64 Fed. 915, 916. See note, 43 Am. Dec. 694, also note, 99 Am. Dec. 433.

Actions. Where a liability and a remedy are created by the same statute, the remedy provided is exclusive of all other remedies, p. 527.

Cited and applied in Fourth Nat. Bank v. Francklyn, 120 U. S. 756, 30 L. 829, 7 S. Ct. 762, and May v. Black, 77 Wis. 105, 45 N. W. 950, both holding where a statute making stockholders of a corporation liable for corporate debts, provides a special remedy, the liability of stockholder can be enforced in no other manner; New York Life Ins. Co. v. Beard, 80 Fed. 67, is to same effect; Crippen v. Laighton, N. H., 44 Atl. 543, reaffirms rule. Approved, arguendo, in Whitman v. Nat. Bank, 83 Fed. 291, 51 U. S. App. 541, 542, and in dissenting opinion in Hale v. Hardon, 95 Fed. 777, 778. See monographic note, 43 Am. Dec. 701, 702.

Distinguished in Stewart v. Baltimore, etc., Ry. Co., 168 U. S. 447, 42 L. 538. 18 S. Ct. 105, where a liability created by Maryland statute was enforced under a remedy afforded by statute in District of Columbia; Nat. Bank v. Peavey, 69 Fed. 457, where State statute does not create the right sought to be enforced, but only redeclares it, so that it would exist in the absence of the State statute, when its enforcement is sought in Federal courts, the form of the remedy is determined by the principles which differentiate legal and equitable jurisdiction in those courts.

Actions. A general liability created by statute, without a remedy, may be enforced by any appropriate common-law action, p. 527.

Cited and applied in United States v. Kaufman, 96 U. S. 570, 24 L. 793, holding where no special remedy nas been provided for the