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128 U. S. 315-373

Notes on U. S. Reports.

642

Patents. Applicant, who knows that same matter had been previously discovered and operated, commits fraud, p. 355.

Approved in United States v. American Bell Tel. Co., 65 Fed. 88, decreeing cancellation of company's patent for fraud.

Distinguished in American Bell Tel. Co. v. United States, 68 Fed. 548, 566, 33 U. S. App. 236, reversing S. C., 65 Fed. 88, dismissing bill on the merits.

Patents.- Priority of invention is absolutely necessary to right to patent, p. 355.

Patents.- Bill alleging patentee's guilty knowledge, and setting forth prior inventions, charges fraud, p. 356.

Patents. Bill need not set forth all evidence to prove fraud, but only main facts, p. 356.

Approved in Field v. Hastings, etc., Co., 65 Fed. 280, answer to creditor's bill not defective because not denying evidence alleged; Dennison Mfg. Co. v. Thomas Mfg. Co., 94 Fed. 664, sustaining allegations of bill as to fraudulent use of labels.

Patents for inventions, and for land, involve power of same nature, and imply proper exercise of that power, p. 359.

Patents. Bill by United States to cancel patent for fraud, is cognizable by Circuit Court, p. 359.

Approved in United States v. American Bell Tel. Co., 159 U. S. 552, 40 L. 257, 16 S. Ct. 71, holding Supreme Court had jurisdiction over appeal in such action; United States v. Bell Tel. Co., 167 U. S. 238, 42 L. 153, 17 S. Ct. 809, affirming S. C., 68 Fed. 544, 548, 555, 566, 33 U. S. App. 236, which reversed S. C., 65 Fed. 88, but dismissing bill on merits; United States v. American Bell Tel. Co.. 39 Fed. 717, holding question of fraud must be first tried, under ruling in principal case; United States v. Norsch, 42 Fed. 417, holding United States may sue to cancel decree of naturalization, for fraud.

Distinguished in United States v. Joint Traffic Assn., 76 Fed. 898, dismissing bill to enjoin violation of interstate commerce act. Patent once issued is revocable only after judicial proceeding in courts, pp. 362–364.

Approved in McCormick, etc., Mach. Co. v. Aultman-Miller Co., 169 U. S. 608, 609, 42 L. 876, 18 S. Ct. 444, holding patent office could not cancel patent, upon application for reissue.

Patents. Right of government to sue to set aside patent, rests on obligation to protect public, p. 367.

Approved in In re Debs, 158 U. S. 585, 39 L. 1103, 15 S. Ct. 906, holding United States had sufficient interest to restrain interference with mail trains; Bienville Water Co. v. Mobile, 112 Ala. 265, 57 Am. St. Rep. 31, 20 So. 743, 33 L. R. A. 61, enjoining company from shutting off city's water supply.

Patents.-Government's right to sue is not superseded by acts relating to procedure in other cases, pp. 370–372.

Approved in United States v. American Bell Tel. Co., 159 U. S. 555, 40 L. 258, 16 S. Ct. 72, Supreme Court has appellate jurisdiction of suit to cancel patent; United States v. Bell Tel. Co., 167 U. S. 268, 42 L. 164, 17 S. Ct. 821, but dismissing bill to cancel patent, on merits.

Patents.- Judgments against patentee in favor of government and infringer, distinguished as to effect, p. 372.

128 U. S. 374-382, 32 L. 412, JOHNSON v. CHRISTIAN.

Principal and agent.- Evidence that lender acted as guardian's agent, and latter's accounts showing payments, proved agency and ratification, pp. 377-381.

Principal and agent.- Agency is presumed continued, where guardian has ratified act of one presuming to act as agent, p. 381. Approved in Gratz v. Land, etc., Imp. Co., 82 Fed. 385, 53 U. S. App. 508, 40 L. R. A. 399, and n., holding agency created by power of attorney to convey, not terminated until deed was recorded.

Ejectment. Recovery can only be had on legal title, and equitable title is no defense, p. 382.

Approved in Carter v. Ruddy, 166 U. S. 496, 41 L. 1091, 17 S. Ct. 641, affirming 56 Fed. 544, 15 U. S. App. 129, certificate of location creates insufficient title to sustain action of ejectment; Lake Superior, etc., Iron Co. v. Cunningham, 44 Fed. 832, void certificate of approval of land department, held insufficient; Kircher v. Murray, 54 Fed. 626, holding action of trespass to try title, could not be sustained on equitable title; Kircher v. Murray. 60 Fed. 52, 23 U. S. App. 214, holding wife's title to community property in Texas, insufficient to sustain action at law.

Ejectment decree will be enjoined, where defendants relied upon agreement to sell to them, p. 382.

Approved in Hawkins v. Wills, 49 Fed. 508, 4 U. S. App. 274, holding suit in equity available to bar judgment in ejectinent, on ground that it rested on conveyance in fraud of creditors. See 54 Am. St. Rep. 224, note.

Ejectment.- Guardian's agent is not necessary party to suit to enjoin ejectment recovered by ward, p. 382.

128 U. S. 383-390, 32 L. 439, STEWART v. WYOMING RANCHE CO.

Fraud.- Concealment, with intent to deceive, of fact which party In good faith should disclose, is false representation, p. 388.

Approved in Tyler v. Savage, 143 U. S. 98, 36 L. 90, 12 S. Ct. 346, where subscription to stock was secured by suppression of ma

128 U. 8. 383-390

Notes on U. S. Reports.

644

terial fact; Henderson v. Henshall, 54 Fed. 328, 7 U. 8. App. 565, false representations as to amount of land fenced, cultivated, etc.; The Normannia, 62 Fed. 472, actual damages allowed for deceit, as to number of steerage passengers carried; Speed v. Hollingsworth, 54 Kan. 439, 38 Pac. 497, false representations as to quantity of bottom land, rentals, etc.; Gottschalk v. Kircher, 109 Mo. 185, 17 S. W. 909, setting aside assignment of judgment, where purchaser concealed facts affecting its value; Parry v. Parry, 80 Wis. 131, 48 N. W. 657, setting aside deed where purchaser, with full knowledge, deceived vendor as to certain facts.

Distinguished in Farrar v. Churchill, 135 U. S. 616, 34 L. 250, 10 S. Ct. 773, where there was no intent to deceive, and no reliance put upon representations; Bullock v. Woodridge, 42 Mo. App. 363, petition defective, in that false representations were made as to future transactions.

Fraud. Where false impression is fraudulently, produced, it is unimportant how it is produced, p. 389.

Approved in Tacoma v. Tacoma, etc., Water Co., 17 Wash. 472, 50 Pac. 60, false statements regarding value of water works sold to city.

Sales.- Vendor's act in preventing inquiry which would disclose false statements, is misrepresentation, p. 389.

Sales. Jury determines truth of vendor's statements, on issue of misrepresentation, p. 390.

Approved in Tacoma v. Tacoma, etc., Water Co., 17 Wash. 478, 50 Pac. 62, holding, whether representation as to output of water from springs was expression of opinion, or affirmance of fact, question for jury.

Appeal. Absence of counsel is no excuse for failure to except to instruction given after jury had retired, p. 390.

Approved in Colorado Cent., etc., Min. Co. v. Turck, 50 Fed. 897, 4 U. S. App. 290, holding further instructions to jury, upon being recalled, and in absence of counsel, would not justify reversal; Chicago, etc., Ry. v. Linney, 59 Fed. 49, 19 U. S. App. 315, and St. Louis, etc., Ry. v. Needham, 69 Fed. 826, 32 U. S. App. 635, generally.

Appeal.- Affidavits supporting motion for new trial are not of themselves part of record, p. 390.

Approved in Evans v. Stettnisch, 149 U. S. 607, 37 L. 867, 13 S. Ct. 931, refusing to consider affidavit not incorporated in bill of exceptions; Linehan Ry., etc., Co. v. Morris, 87 Fed. 128, 59 U. S. App. 720, holding charge not excepted to not reviewable: Austin Mfg. Co. v. Johnson, 89 Fed. 679, 60 U. S. App. 667, holding Journal entry of ruling upon motion to vacate service, not reviewable; dissenting opinion in Bram v. United States, 168 U. S. 571, 42 L. 583, 18 S. Ct. 198, majority reviewing questions as to admissibility of evidence in criminal case.

128 U. S. 391-392, 32 L. 484, COGSWELL v. FORDYCE. Appeal.- Supreme Court has no appellate jurisdiction in suit on $3,000 appeal bond, in ejectment, p. 392.

Courts. Refusal of obligor to comply with provisions, deprives obligor of no constitutional right, so as to confer jurisdiction on Supreme Court, p. 392.

Approved in Hanover Ins. Co. v. Kinneard, 129 U. S. 177, 32 L. 654, 9 S. Ct. 269, holding refusal of separate trial to defendants not deprivation of right, within § 699, R. S.

128 U. S. 393-394, 32 L. 485, UNITED STATES v. DE WALT. Banks.- Embezzlement by national bank president is infamous crime triable only on indictment, p. 393.

Approved in In re Claasen, 140 U. S. 205, 35 L. 411, 11 S. Ct. 737, crime punishable by imprisonment in penitentiary held "infamous" and appealable; United States v. Smith, 40 Fed. 758, 759, holding one prosecuted under § 5506, R. S., not triable by information; United States v. Smith, 40 Fed. 760, holding punishment of imprisonment for twelve months, under § 5506, R. S., infamous; Ex parte Van Vranken, 47 Fed. 889, holding clerk of navy pay. master could not be prosecuted by court-martial; United States v. Cadwallader, 59 Fed. 679, holding indictment for violating national banking laws should have stated separate counts; Stokes v. United States, 60 Fed. 598, 23 U. S. App. 289, punishment of imprisonment for eighteen months made crime" "infamous" and appealable to Supreme Court; Butler v. Wentworth, 84 Me. 32, 24 Atl. 458, 17 L. R. A. 766, and n., crime of illegal transportation of liquors held infamous and not to be prosecuted by information.

Distinguished in United States v. Cobb, 43 Fed. 571, 573, holding one convicted under § 5506, R. S., could not be confined in State prison, and could, therefore, be prosecuted by information.

Crime is infamous if penalty is imprisonment in penitentiary, whether with or without hard labor, p. 393.

Approved in Medley, Petitioner, 134 U. S. 169, 33 L. 839, 10 S. Ct. 387, where law prescribing "solitary" confinement was held ex post facto.

128 U. S. 394-395, 32 L. 488, PACIFIC POSTAL, ETC., CABLE CO. v. O'CONNOR.

Trial.- Remittitur of part of verdict, at plaintiff's request, in defendant's absence, is not error, pp. 394, 395.

Approved in Pacific Express Co. v. Malin, 132 U. S. 537, 33 L. 452, 10 S. Ct. 167, holding proper for Circuit Court to remit part of judgment under $5,000; Northern Pac. R. R. v. Austin, 135 U. S. 318, 34 L. 219, 10 S. Ct. 760, amendment of ad damnum clause of complaint held discretionary with lower court; Baltimore, etc., R. R. v. Griffith, 159 U. S. 605, 40 L. 276, 16 S. Ct. 106, refusing to

128 U. 8.395-416

Notes on U. 8. Reports.

646

inquire into judgment of lower court allowing interest on verdict; Simms v. Simms, 175 U. S. 169, 20 S. Ct. 61, where remittitur authorized by statute was held matter of right; Nussbaum v. Northern Ins. Co., 40 Fed. 337, holding under Georgia statute plaintiff could, before verdict, remit part of claim; Powers v. Chesapeake, etc., Ry., 65 Fed. 135, arguendo.

128 U. S. 395-397, 32 L. 487, CLARK v. COMMONWEALTH OF PENNSYLVANIA.

Courts. Supreme Court will review inferior State court's judgment where highest court has denied appeal, p. 396.

Approved in Winona, etc., R. R. v. Plainview, 143 U. S. 391, 36 L. 199, 12 S. Ct. 537, holding decision of State court final declaring bonds invalid.

Courts. Petition for writ of error forms no part of State court's record, which Supreme Court will consider, p. 397.

Reaffirmed in Manning v. French, 133 U. S. 193, 33 L. 586, 10 S. Ct. 260, Butler v. Gage, 138 U. S. 56, 34 L. 871, 11 S. Ct. 237, Leeper v. Texas, 139 U. S. 467, 35 L. 227, 11 S. Ct. 579, and California Powder Works v. Davis, 151 U. S. 393, 38 L. 207, 14 S. Ct. 352. Courts. On appeal to Supreme Court, State court's record must show Federal question and decision adverse thereto, p. 397.

Approved in O'Neil v. Vermont, 144 U. S. 335, 36 L. 457, 12 S. Ct. 698, where matters excepted to were too general to raise question under commerce clause of Constitution.

Courts.- Writ of error dismissed, where record did not enable court to determine whether Federal right denied, p. 397.

Approved in King v. M'Lean Asylum, 64 Fed. 359, 21 U. S. App. 481, 26 L. R. A. 798, holding appellate court could draw no inferences not suggested by the record.

128 U. S. 398-403, 32 L. 480, UNITED STATES v. REISINGER. Criminal law. Section 13, R. S., providing that repeal shall not affect incurred liability, applied, pp. 401, 402.

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Criminal law. Words " penalty," liability," and "forfeiture " apply to crimes, and § 13, R. S., applies to penal laws, pp. 402, 403. Cited in Brown v. Challis, 23 Colo. 149, 46 Pac. 680, without particular application.

Distinguished in Huntington v. Attrill, 146 U. S. 667, 36 L. 1127, 13 S. Ct. 227, holding law fixing penalty on officer of corporation not penal in primary or international sense; Manhattan Trust Co. v. Davis, 23 Mont. 279, 58 Pac. 720, penalty imposed on corporations for failure to file certain papers.

128 U. S. 403-416, 32 L. 468, BROWN v. GUARANTEE TRUST CO. Equity. Bill is not necessarily multifarious because parties are interested in only part of case, p. 412.