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Gited in Claflin v. Continental Works, 85 Ga. 47, 11 S. E. 724, holding one whose goods are without his fault mingled with another's, may regain them.

Miscellaneous.- Sioux City R. R. v. United States. 159 U. S. 364, 40 L. 182, 16 S. Ct. 23, incidentally; French v. Edwards, 4, Sawy. 132, F. C. 5,097, no application.

21 Wall. 65-71, 22 L. 477, CLINKENBEARD v. UNITED STATES. Internal revenue.— Distiller cannot be legally charged with a capacity tax for portion of month during which he was prevented from distilling, through failure of government to appoint a storekeeper, and for portion during which accident prevented distilling, p. 69.

Cited in United States v. Millinger, 19 Blatchf. 203, 7 Fed. 188, holding court powerless to open default judgment for distillery taxes in order to let in new evidence.

Distinguished in United States v. Farrell, 8 Biss. 261, F. C. 15,073, holding destruction of spirits by fire, owing to absence of government storekeeper, does not release distiller from liability for taxes due thereon, as government cannot be made loser by officer's neg. lect of duty.

Internal revenue acts of 1864, and July 13, 1866, forbidding suit for recovery of taxes alleged to have been illegally collected, until after appeal to commissioner of internal revenue, relate to suits brought by taxpayer, not to suits in which he is defendant, in which case he may set up illegality as a defense, p. 70.

Cited and applied in United States v. Meyers, 8 Hughes, 246, F. a. 15,846, holding defendants' evidence of incorrectness of assessment, admissible in suit for distillery taxes, although no appeal to commissioner has been taken; United States v. Nebraska Distilling Co., 80 Fed. 286, 46 U. S. App. 704, holding illegality of assessment, no appeal having been taken, may be shown where government is plaintiff.

Distinguished in United States v. Earnshaw, 12 Fed. 285, holding where collector has jurisdiction of subject-matter of assessment, irregularities in appraisement must be reviewed by protest and appeal before action can be brought.

Taxation.- Decisions of an assessor are quasi judicial and cannot be attached collaterally, when made within scope of his jurisdiction, p. 70.

Cited and applied in Watt v. United States, 15 Blatchf. 33, F. C. 17,292, holding liquidation of collector conclusive in action for recovery of customs duties; In re Day, 27 Fed. 680, holding, where determination of facts is lodged in particular tribunal, its decision is unreviewable, except as authorized by law; United States

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Kenworthy, 59 Fed. 571, holding valuation of customs colector made in conformity to law, binding on importer; State v. South Penn. Oil Co., 42 W. Va. 90, 24 S. E. 691, holding assessor's valuation of property reviewable under West Virginia statutes.

Taxation. An assessment on property not taxable, is illegal and cannot form basis of action at law for collection of tax assessed, p. 70.

Cited in Runkle v. Citizens' Ins. Co., 6 Fed. 146, holding assess ment on property already taxed void, and may be attacked collaterally.

Taxation. When government resorts to courts for collection of taxes, it must abide by legality of such taxes, p. 71.

Cited and applied in United States v. Philadelphia, etc., R. R., 123 U. S. 114, 31 L. 139, 8 S. Ct. 77, holding controlling question in sult to recover taxes, is amount due, not amount assessed; United States v. Halloran, 14 Blatchf. 4, F. C. 15,286, holding assessment not binding on government in collateral proceedings; United States v. Tilden, 9 Ben. 393, F. C. 16,519, holding assessment not conclusive in suit by government for taxes omitted therefrom; United States v. McDowell, 21 Fed. 564, holding appraisement and liquidation by customs collector binding on government.

Taxation. When government follows statute in collection of taxes, its officers have the protection of the statute, and parties must comply with requirements thereof before they can prosecute as plaintiffs, on ground of illegality of taxes, p. 71.

Cited and applied in Kensett v. Stivers, 18 Blatchf. 408, 10 Fed. 527, refusing injunction to restrain collection of alleged illegally assessed taxes; Alkan v. Bean, 8 Biss. 92, F. C. 202, refusing to enjoin collection of alleged illegal assessment; Milan Distilling Co. v. Tillson, 17 Fed. Cas. 282, excluding evidence of illegality of assessment, in action against collector for value of distillery sold for taxes.

Miscellaneous.- United States v. Bristow, 20 Fed. 379, incident

ally.

21 Wall. 71-73, 22 L. 564, MAXWELL v. STEWART.

Appeal and error.- In this case there being no appearance for plaintiff in error, court was about to dismiss the writ, when defendant in error opened record and prayed affirmance of judgment, which was granted, p. 73.

Evidence.— Objections to form and sufficiency of evidence offered to prove record of judgment of sister State in suit thereon, are not well taken, where record was certified by clerk of trial court, D. 73.

Judgments.- Omission of entry of waiver of jury trial in journal, as required by statute, is at most, error, and cannot be taken advantage of, collaterally, in suit on judgment, p. 73.

Cited in Humphries v. District of Columbia, 174 U. S. 195, 19 S. Ct. 639, holding receipt of verdict sent by foreman absent through illness, instead of presented in open court, does not render verdict a nullity.

Miscellaneous.- Union Pacific R. R. v. Wilson, 1 Wyo. 310, no application.

21 Wall. 73-97, 22 L. 528, HAMILTON v. DILLIN.

War. Condition requiring payment of four cents per pound for permit to purchase cotton in and transport it from insurrectionary States during Civil War, was a valid exercise of war power of gov ernment, p. 87.

Cited in Ford v. Surget, 97 U. S. 621, 24 L. 1026, to point that Civil War was conducted by United States as a public war.

War. It seems that in absence of congressional action, the president alone, being constitutionally invested with charge of hostile operations, may exercise power of permitting partial intercourse with enemy, p. 87.

War.- Condition requiring payment of four cents per pound for permit to trade in cotton in insurrectionary States, during Civil War, was not imposed in exercise of taxing power of government, but in exercise of its war power, p. 94.

War.- Governments have power to impose such conditions as seem fit to them on commercial intercourse with enemy during war, p. 97.

Miscellaneous.- Miscited in Soule v. United States, 100 U. 8. 12, 25 L. 538.

21 Wall. 98, 22 L. 534, MCCLELLAND v. UNITED STATES.
Similar to and decided with Hamilton v. Dillin, supra.
Not cited.

21 Wall. 98-104, 22 L. 479, DOUGLASS v. DOUGLASS.

Replevin.- Where goods in replevin are delivered to marshal, under writ de retorno habendo sued out by defendant, marshal's possession is defendant's possession, p. 104.

Replevin.- Where replevin bond is given for return of goods to defendant, under Maryland statute, obligation thereof is satisfied by delivery to officer on writ de retorno habendo, and remedy for damage to goods while in plaintiff's possession cannot be sought in suit on bond, p. 104.

Cited in Sweeney v. Lomme, 22 Wall. 214, 22 L. 729, holding execution to retake property unnecessary, defendants having executed bond for return, if plaintiff got judgment; Steele v. Tutwiler, 63 Ala. 373, holding action for rents during ejectment appeal, cannot be maintained on bond to pay judgment; Gans v. Woolfork, 2 Mont. 465, holding tender of property to plaintiff, refused by latter, satisfied bond for return of same.

21 Wall. 105-111, 22 L. 481, COOPER v. COATES.

Appeal and error.- Admission of incompetent evidence is not ground for reversal, where point sought to be proved thereby is sufficiently proved by competent evidence, p. 111.

Cited in Richelieu, etc., Co. v. Boston Marine Ins. Co., 26 Fed. 601, holding admission of incompetent evidence not ground for reversal, where appellant was not injured thereby; Reed v. Stapp, 52 Fed. 645, 9 U. 8. App. 84, holding admission of immaterial evidence not affecting findings, not ground for reversal; Pacific Postal Tel. Co. v. Fleischner, 66 Fed. 905, 29 U. S. App. 227, holding admission of immaterial evidence not affecting judgment, no ground for reversal. Modified in Brown v. Cranberry Iron Co., 72 Fed. 102, 25 U. S. App. 679, holding it must clearly appear that erroneous admission of testimony did not prejudice appellant's rights.

Sales. Proof of shipment of goods, mailing of bill of lading to consignee and non-return of latter to consignor is prima facie evidence of delivery, p. 111.

Sales.- Draft drawn upon vendee for price of goods delivered, is equivalent to demand for payment, p. 111.

Account rendered, no objection being made thereto, is considered liquidated and draws interest from its rendition, p. 111.

Cited in Clark v. Clark, 46 Conn. 590, holding fact that mutual account is unliquidated, decisive objection to allowance of interest thereon; 6 Am. Dec. 194.

21 Wall. 112-119, 22 L. 566, SMITH v. NICHOLS.

Patents.- Disclaimer, authorized by patent act of 1837, sections 7, 9, may be filed before or after commencement of suit for infringement, p. 117.

Cited in Dunbar v. Myers, 94 U. S. 193, 24 L. 37, holding disclaimer filed pending suit, becomes part of original specifications, and must be considered in ascertaining rights of parties.

Patents. Where disclaimer is filed after commencement of suit for infringement, court must see that defendant is not injuriously surprised, and may impose such terms as justice requires, p. 117.

Cited in Sessions v. Romadka, 145 U. S. 41, 36 L. 614, 12 S. Ct. 802, holding plaintiff, filing disclaimer after commencement of

suit, not entitled to costs; Burdett v. Estey, 15 Blatchf. 364, F. C. 2,145, where plaintiff recovered without costs on two claims, having filed disclaimer as to others after suit; Carnegie Steel Co. v. Cambria Iron Co., 89 Fed. 757, denying plaintiff costs, disclaimer having been filed after commencement of suit.

Patents- A patentable invention is a mental result, new, and of practical utility, p. 118.

Cited in Niles Tool Works v. Betts Machine Co., 27 Fed. 304, holding improved result, produced in new way, patentable; Head v. Porter, 70 Fed. 504, holding patent an incorporeal property right in an invention, and infringement of same actionable in tort or contract.

Patents. An improvement is a new idea grafted upon an old invention, distinct from the original conception and an improvement thereof, p. 119.

Cited in Hedden v. Eaton, 11 Fed. Cas. 1019, holding perfection of ferro-type plates, after abandonment of use of same by others, a patentable improvement.

Patents. Prior patentee cannot use improvement without consent of improver, nor can improver use prior invention without patentee's consent, p. 119.

Patents. A mere new or extended application of original conception, a change only in form, proportion or degree, or a substitution of equivalents, or improvement due to skill in manufacturing, is not patentable; hence, new textile fabric, distinguishable from the old only in finish and beauty, is not patentable, p. 119.

Approved and relied upon by the following citing cases: Roberts v. Ryer, 91 U. S. 159, 23 L. 270, where change in construction merely Increased usefulness of prior invention; Rekendorfer v. Faber, 92 U. S. 354, 23 L. 722, holding combination of rubber eraser and lead pencil, not patentable idea; Dunbar v. Myers, 94 U. S. 199, 24 L. 39, where patentee sought to patent sawing machine, with two deflecting plates, machine with one having been in use; Pennsylvania R. R. v. Locomotive Truck Co., 110 U. S. 494, 28 L. 223, 4 S. Ct. 222, holding application of truck formerly used on cars, to locomotives, not patentable; Phillips v. Detroit, 111 U. 8. 607, 28 L. 533, 4 S. Ct. 582, holding combination of several elements formerly employed separately in paving, and requiring no special mechanical skill, unpatentable; Morris v. McMillin, 112 U. S. 249, 28 L. 704, 5 S. Ct. 221, holding application of ordinary steam power to vertical capstan instead of horizontal windlass, unpatentable; Stephenson v. Brooklyn R. R., 114 U. S. 154, 29 L. 60, 5 S. Ct. 779, holding device, merely employing equivalents to perform work of former article, unpatentable; Burt v. Evory, 133 U. S. 358, 33 L 651, 10 S. Ct. 397, holding change in form and arrangements of con.

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