ing the sole difference, was held, under the, English patent laws, not to be sufficient to destroy that identity between the two competing devices which constituted in that case the infringement alleged, although the patent itself 3] called only for metallic conductors. Were that the only difference between the two plans under examination in the present case, there might still be question, in view of our own patent laws, whether the patentee had not made a wholly metallic circuit a necessary part of his combination, to be determined by considerations which we have not thought it necessary to bring into view as bearing upon that point. For, as we have seen, the difference on which we ground our conclusion that the defendants are shown not to have infringed the complainants' patent, in this particular, is, not merely that they have used the earth for the return of the current that completes the circuit, instead of a metallic conductor, but that they have arranged their conductors, in reference to the battery, the magnets, the rails, and the earth, upon such a system, and with such relations and connections, that, in operating their signals by a single battery the circuits are equalized as to resistance; while in that of the plaintiffs the circuits are of unequal size and resistance, requiring for successful practical use the equalization of the resistances thus created by means of independent and additional devices. One plan proceeds upon the idea of unequal circuits, to be afterwards equalized; the other adopts and embodies the idea of avoiding the necessity of subsequent rectification by an original adjustment of equal resistances. The difference is inherent in the two combinations and is substantial. 24] On the gronnd that, in the two points mentioned, the defendants' system of signaling is shown not to be an infringement of that described in the patent of the appellants, the decree of the Circuit Court dismissing the bill is affirmed. securities which a customer wanted to buy. His its cashier and appearing with reasonable certain- 4. Proof of the insolvency of a debtor is no more of his debtor as agent, trustee or bailee, cannot, 6. A bank, having in its possession shares of its Submitted Mar. 9, 1885. Decided Mar. 30, 1885. Statement of the case by Mr. Justice Woods: The defendants in error were the plaintiffs in the Circuit Court. They alleged in their petition that the plaintiff in error, The First National Bank of Xenia, Ohio, being in possession of thirty shares of its own capital stock belonging to their intestate, Daniel McMillan, on October 24, 1876, sold them for $4,200 in cash, and unlawfully appropriated the proceeds of the sale to its own use. They therefore demanded judgment against the Bank for $4,200, with interest from October 24, 1876. The defendant answered that McMillan, the intestate, in April, 1876, was owing it, upon a debt previously contracted, a sum greater than the value of the stock, and, being so indebted, delivered to it the certificates of stock as collateral security therefor, and that on October 24, 1876, the debt being still unsatisfied, the defendJames H. McKenney, Clerk, Sup. Court U. S. ant sold the stock at its market value and ap True copy. Test: plied the proceeds as a credit on the debt, leav- The plaintiffs replying denied that their intes- Piff. in Err., v. DANIEL M. STEWART AND MARTHA A. (See S. C., Reporter's ed., 224-233.) Bank as collateral security for such debt, and the debt. Upon this issue the jury returned a verdict for the plaintiffs, and assessed their damages at $6,035.50 upon which the court rendered the judgment which the present writ of error brings under review. Mr. John Little. for plaintiff in error: 1. The declarations made by an officer or agent of NOTE.-Powers and duties of cashier of bank. See Cecil Nat. Bank v. Watsontown Bank, 105 U. S., 217, bk. 26, 1039, note. Baptist Church v. B. F. Ins. Co., 28 N. Y., 153; [225] few days prior to his deat to the Bank the amount du Hyde, who had deposited De Bank for collection, and tha McMillan's death, Hyde, afte Clare of the payment of the note the Bank its certificate of depos ount due thereon, and the ncte erticate of stock pledged for its pay as surrendered by Hyde to the Bank obtained possession of the certifi pon the defendants in error offered in e the following questions and answer: ed in the deposition of Hyde: What conversation did you have with Iare subsequent to this (subsequent to leav said note for collection) with reference to certificate (20 shares)? A He told me he had full power to transfer i any time on the books and apply it to the payment of the note. Q. What was said to you by McClure at the time of the payment of the note, in reference to - this certificate of 20 shares? A. I desired to purchase it, but there was an seanderstanding that I should hold the certificate of deposit until an administrator was appointed, ▼. when an arrangement might be made for its B. purchase. * mere opinion vs fand by the * Q. What statement did McClure make to you at the time of the payment of the note, as to who was making payment? A. He said the payment was made from money which was sent there by McMillan. He told me the money was left there the Wednes The judg-day previous. aed, unless the committed the plaintif in - done. Y relates to the er of the plaintiff in s states that on the trial me dazed testimony tendestate, Daniel McMil the owner of thirty sock of the Bank standing books, represented by ee twenty and the other the day just mentioned se the payment, six months e the order of F. A. McClure, of be attached the certificate for this note as security for its As an arvugh the medium of the payee, was the cashier of the plaintiff ece was discounted by one James end that the remaining ten shares ed with the plaintiff in error, and xa yeà ir safe keeping, and not for any The e; that on Monday morning, OcONE & IS McMillan died, and that on the strove of that day, McClure, the cashier, gend of the death of McMillan, sold sy shares of stock to E. H. Munger for $, and credited that amount to McMillan De dooks of the Bank. Q. Was any statement made to you by McClure, with reference to this certificate of stock after McMillan's death, in reference to Mrs. McMillan; if so, what? A. He told me after McMillan's death that she preferred to keep the stock. * * * * * * * Q. How long after the talk on Wednesday after McMillan's death till the other talk in which McClure told you Mrs. McMillan wished to keep the stock? A. Two months, I presume. Q. Where did the latter take place? A. In the Bank; they all took place there." The ruling of the court in allowing these questions and answers to be read to the jury, notwithstanding the objection of the plaintiff in error, is now assigned for error. Its contention is, that it furnished the money to pay McMillan's note for $2,600, held by Hyde, for which the certificate for twenty shares was pledged, and that it thereby, on the delivery of the certificate to it by Hyde, became entitled to the possession thereof as security for the note. The defendants in error insist that the money to take up the note held by Hyde was paid by their intestate, McMillan. The plaintiff in error complains that upon this issue the statements of McClure its cashier. made several days after the alleged payment of the note by McMillan, were admitted to show such payment, and insists that this was error, on the ground that the declarations of an agent hell of exceptions further stated that the concerning a past transaction cannot be given dants in error introduced evidence tend-in evidence to bind his principal. the court: The male rpon this subject has been thus laid We an agent does or says in reference intress in which he is at the time emwithin the scope of his authority is d by the principal, and may be the evidence applied personally to amarpal American Fur Co. v. U. S. 2 | ard, 87 Me., 519. It was his duty to surrender securities pledged for the loans of the Bank, upon payment of the loans. Fleckner v. Ú. §. Bk., 8 Wheat., 360. And, although he might not be authorized to dispose of the securities of the Bank without the order of the directors, yet it was within the scope of his general authority as cashier to receive offers for their purchase, and to state whether or not the Bank owned securities which a customer wanted to buy. This naturally fell within his duty as the executive officer of the Bank and the custodian of its assets. His statement to a person who was in treaty to purchase, that the Bank was not the owner of a certain security in his manual possession as cashier, was clearly within the line of his duty, and was, therefore, bind, art, 6 Watts,487; Garth v. How-ing on the Bank. We think there was no error **22, 451. in admitting in evidence the declarations of McClure. is was the Loclaration of an agent is a and part of the res gesta that it is adBe and whenever what he did is admitted ane, then it is competent to prove what a ut aut the act while he was doing it. 3 BR of Columbia, 5 Wheat., 336; fabarmene, 3 Wall., 114 [70 U. S., * 1 så. 116). Cooley v. Norton, 4 Cush. 93; T Among these principles, we think the testiated to was properly admitted. The ties of McClure were made, so the recat the time that he paid Hyde the f the note. They were, therefore, part of the transaction. For Hyde, der of the certificate of stock as ty for the note, was entitled to By whom the payment of the note was taram to decide whether to return the cerMe Millan or turn it over to the at if i was left with the Bank, in what The Bank took it, whether for its own agent for McMillan. The deck McClure were made to Hyde in exof the payment of the money to him, were therefore, admissible as part of the | Mr. Mc's letter of 14th to hand, and in reply appears from the record that *nversation was part of a treaty Me and Hyde, commenced on the er McMillan's death, when the te was paid for the purchase of the arts of stock by Hyde. It was of by the declarations of its cashier ak did not when the declarations *** any general or special propck, but in effect admitted it to ***perty of the estate of McMillan. martans made by an officer or agent in response to timely inquiries, d to him and relating to matarze, in respect to which he is the usual course of business to may be given in evidence pation. Bk. v. Field, 2 Hill, Ariatic Mills,116 Mass.,177; * &C. 6 Gray, 450, Abb. Tr. Ev. 44. Melure had charge of all the *aries and valuable papers of the 41. Bk., 3 Mason, 505; Bk v. Stew-I Yours truly, F. A. McClure." The court allowed the letter to go to the jury in spite of the objection of the plaintiff in error. The defendants in error insisted that the letter was admissible because there was evidence, introduced by the plaintiff in error, tending to prove that in August preceding McMillan's death one Marshall held a note against him, "secured by ten shares of said stock, and that McMillan procured the surrender of the stock, giving mortgage security in lieu thereof, he desiring to use said stock in bank." The plaintiff in error assigns for error the admission of the letter in evidence, on the ground that it was but a fragment of a correspondence; that there was nothing to show that it was written for the Bank; and that it was only a letter from McClure, and not from him cs cashier. But there is nothing in the record to indicate that there were any other letters that had passed between the parties. The face of the letter shows that it had reference to the Marshal note, and very probably to the ten shares of stock which had been pledged by McMillan as security therefor, and of which he had procured the surrender so that he might use it in Bank. The letter was written upon the paper of the Bank and by the person shown to be its cashier, and it appears with reasonable certainty to have referred to the business of the Bank. The court was therefore right in not excluding it from the jury. It further appears by the bill of exceptions that the plaintiff in error offered evidence to prove that, for more than a year previous to his death, McMillan had been "hopelessly insolvent," and had experienced "great difficulty [230] [231] [232] SUPREME COURT OF THE UNITED STATES. OCT. TERM In procuring means to meet his interest obliga- | The objection to the question was well taken, tions.' The defendants in error objected to and the court was right in excluding it. this evidence, it was ruled out, and the plaintiff in error now assigns its exclusion as error. The purpose of the evidence was to prove that McMillan had not furnished the money to pay his note for $2,600 held by Hyde. The evidence offered was inadmissible because too remote and conjectural. The law requires an open and visible connection between the principal and evidentiary facts and the deductions from them, and does not permit a decision to be made on remote inferences. 92 U. S., 281 [bk. 23, L. ed. 707]; Carter v. U. S. v. Ross, Pryke, 1 Peake, 95; Hollingham v. Head, 4 C. B. (N. S.), 388; Jackson v. Smith, 7 Cow., 717; Baird v. Gillett, 47 N. Y., 186; Thompson v. Bowie, 4 Wall., 463 [71 Ú. S. bk. 18, L. ed. 423]. In the case last cited, where the issue was whether certain promissory notes dated on a particular day were given for money lost at play, testimony was offered to prove that the party giving the notes was on the day of their date intoxicated, and that when intoxicated he had a propensity to game. It was held that the evidence was properly excluded. Upon the authorities already cited a negative vague and conjectural to be admitted as evi answer to the question would have been too dence. It did not appear but that many payments of money might have been made to the Bank without the knowledge of the witness. It was not shown what his duties were, whether to receive or pay out money; it was not shown that he was in the Bank on or about the Wednesday when the payment by McMillan was that if the payment had been made by draft alleged to have been made; it was not shown or certificate of deposit sent to the Bank in a letter, it would have passed through his hands. On the simple statement that he was teller, and engaged in the discharge of his duties as such during the year 1876, we think that his answer that he had no information of any payment made by McMillan does not rise to the dignity of evidence, and was properly excluded. The evidence offered in the present case was too weak and vague to contribute to an intelligent decision by the jury of the question in issue, namely: whether McMillan had paid his note. It is common for both solvent and insolvent men to pay some of their debts and to leave some unpaid. Proof of the insolvency of a debtor is no more competent to show nonpayment, than proof of his solvency is competent to show the payment of his debts. These two kinds of proof stand on the same footing. The latter kind has been held to be incompetent. Hilton v. Scarborough, 5 Gray, 422. The insolvency and pecuniary embarrassment of a person may be shown as evidence that he has not paid all his debts; but they do not tend to show that he has not paid a particular debt. We think the evidence of the insolvency of McMillan was properly excluded. It further appeared that the plaintiff in error, having given evidence tending to show that it had not received from McMillan the money to pay his note for $2,600 held by Hyde, but that it had paid the note out of its own funds, called as a witness one William McGirvey, who, having testified that during the whole of the year 1876 he was teller of the defendant Bank, and that its books showed no payment of his note by McMillan, was asked by counsel for the plaintiff in error the following question: "Had you any information, from any source, of any money being received at the Bank, on or about the Wednesday preceding McMillan's death, from McMillan?" Having put the question, counsel for the plaintiff in error stated that they expected the witness to answer it in the negative. The court excluded the question, and its action is assigned for error. The inadmissibility of both the question and the answer, had the answer been given, is obvious. The question called for the information which from any source might be in the possession of the witness, and not for his knowledge. An answer detailing the hearsay statements of others, whether verbal or in writing, made at any time or place, would have been responsive. 101 upon the pleadings and notwithstanding the The plaintiff in error contends, lastly, that verdict it was entitled to judgment. The mitted in the pleadings that McMillan was inground of this contention is, that as it was addebted to the Bank at the time of his death more than the value of his stock, and as the stock was in the possession of the Bank, indorsed by McMillan in blank, the law would make the application of its value to the payment of the indebtedness. 5328 of the Revised Statutes of Ohio, of 1880, verdict, appears to have been made in the Cir- the plaintiff in error did not hold the stock of True copy. Test: James H. McKenney, Clerk, Sup. Court, U. & 28 WILLIAM 8. THOMSON et al., Trading as LCS, LANGDON & Co., Appts., GEORGE H. WOOSTER. See B. C., Reporter's ed., 104–120.) confesso, under the rules and prac. is not a decree as of course acaver of the bill, nor merely such at chooses to make it. It is made by the court, according to what red upon the statements of the be true. Slacum v. Pomery, 6 Cranch, 221; McAllister "Miller v. Brass Co., 104 U. S., 350 (bk. 26, All of these cases were decided after the appeal in this cause. They establish a new rule of law, requiring reasonable diligence, and clearly show the complainant's reissue, granted fourteen years and two months after date of original patent, is void as to these defendants. The bill substantially avers that the original patent was valid and operative. The statutes providing for a grant of a rea decurve is taken pro confesso, the alle-operativeness" as conditions precedent to the issue expressly prescribe "invalidity" or "in cannot be questioned in subin the court below or upon in the allegations themselves that the decree is erroneous is asbut facts not found in the alleare inadmissible to affect the ng the validity of the patent proceedings before a master, after a decree has been taken pro rafnagement and an account. ■t that the resse, in this case, was apasted fourteen years after the date , would, undoubtedly, had the ed and the validity of the reisstroverted, been strongly presumptale delay; but it might possibly e and the court could not say and certainly the master could was susceptable of explanation. tel to the master, or the court of applications to reopen the be considered by this court on fendant has used the complaindane he will be held accountable d thereby, although it appears [No. 112.] Se murt. and facts of the case appear in J. C. Clayton and A. Q. Keas. f lack of invention or non-pa been considered in this court, al- 91 C. S., 37 (bk. 23, L. ed. merely a decree by default, It was not a consent decree. Pace R. R. Co. v. Ketchum, < 25, L. ed. 932), that even a ad be appealed from. grant of a reissue. Both these conditions precedent were lacking, and therefore the reissue is invalid. Walker v. Patents, §§ 221-224; Whitely v. The complainant must affirmatively show Mr. Frederic H. Betts, for appellee: No alleged erroneous rulings of the court be- Kane v. Wittick, 8 Wend., 219; Sands v. Nor will an appeal from a decree founded on Murphy v. Ins. Co., 25 Wend., 249; Hart v. No allegation can here be heard against the The original patent may have been valid or Wilson v. Coon, 18 Blatchf., 536; Hartshorn and profits has had the full approval of this court. Mowry v. Whitney, 14 Wall., 620 (81 U. S., Jezenty damages for infringement. See Mr. Justice Bradley delivered the opinion of the court: The appellee in this case, who was com [104] |