principal case: Gage v. Herring, 107 U. S. 648, 27 L. 604, 2 S. Ct. 826, Rowell v. Lindsay, 113 U. S. 102, 28 L. 907, 5 S. Ct. 510, Electric Signal Co. v. Hall Signal Co., 114 U. S. 98, 29 L. 99, 5 S. Ct. 1076, Huber v. Nelson Mfg. Co., 148 U. S. 292, 37 L. 454, 13 8. Ct. 611, affirming S. C., 38′ Fed. 840, Miller v. Eagle Mfg. Co., 151 U. S. 208, 38 L. 131, 14 S. Ct. 319, Saxe v. Hammond, 1 Holmes, 459, F. C. 12,411, Coolidge v. McCoul, 2 Sawy. 576, F. C. 3,186, Nicholson Pavement Co. v. Hatch, 4 Sawy. 696, F. C. 10,251, Millner v. Schofield, 4 Hughes, 260, F. C. 9,609a, American Nicholson Pave ment Co. v. Elizabeth, 1 Fed. Cas. 711, Crompton v. Belknap Mills, 6 Fed. Cas. 846, S. C., 30 Fed. Cas. 1065, Hale v. Stimpson, 11 Fed. Cas. 188, Cross v. Livermore, 9 Fed. 608, Peard v. Johnson, 23 Fed. 509, Westinghouse v. New York Air-brake Co., 59 Fed. 607; Gessner v. Philips, 63 Fed. 957, Carter Machine Co. v. Hanes, 78 Fed. 349, 42 U. S. App. 314, and Norton v. Jensen, 90 Fed. 429, 61 U. S. App. 369. Cited generally in Murphy v. Trenton Rubber Co., 45 Fed. 570, holding second patent for substantially the same combination on vulcanizing rubber, void.

Distinguished in Wallace v. Holmes, 9 Blatchf. 75, F. C. 17,100, holding party who manufactures and uses several parts of patented combination with understanding that others shall be furnished by another is liable for infringement; Waterbury Brass Co. v. Miller, 9 Blatchf. 97, F. C. 17,254, holding where patent is for process. machine which produces substantially the same result is an infringement.

Patent. In action for infringement of patented combination of mechanical powers, jury must say whether all the parts of the patented combination have been substantially used in the alleged infringement, p. 80.

1 Wall. 81-83, 17 L. 612, GAYLORDS v. KELSHAW.

Fraudulent conveyance.- Alleged fraudulent grantor is a necessary party defendant to suit to set aside, p. 82.

Cited and rule applied in the following cases, to facts similar to those involved in principal case: Chester v. Chester, 7 Fed. 4, Judson v. Courier Co., 25 Fed. 708, Hays v. Humphreys, 37 Fed. 285, Bromberg v. Heyer, 69 Ala. 25, Larson v. Ross, 10 Colo. App. 270, 50 Pac. 731, Purdy v. Gault, 19 Mo. App. 204, Richman v. Donnell, 53 N. J. Eq. 34, 30 Atl. 533, and First Nat. Bank v. Shuler, 153 N. Y. 169, 60 Am. St. Rep. 604, 47 N. E. 263. Cited and principle applied also in the following: Swan Land, etc., Co. v. Frank, 148 U. S. 610, 37 L. 580, 13 S. Ct. 694, holding corporation is necessary party to suit by creditor against stockholders to subject assets distributed to them to satisfaction of corporate debt; Consolidated Water Co. v. San Diego, 93 Fed. 852, holding, in suit by mortgagee of water Pompany to restrain enforcement of city ordinance fixing rates, com

pany is necessary party complainant; Huneke v. Dodd, 7 N. Mex. 16, 32 Pac. 48, holding administrator necessary party to suit to set aside conveyance of land which belonged to intestate and which he was alleged to have fraudulently procured to be sold to defendant. See also note upon general subject in 90 Am. Dec. 292. Cited approvingly, but obiter, in Fuller v. Montague, 59 Fed. 214, 16 U. S. App. 391, Shaw v. Millsaps, 50 Miss. 385, and Hill v. Alexander, 77 Mo. 302.

Denied in Hickox v. Elliott, 10 Sawy. 427, 22 Fed. 20, declaring that principal case held merely that grantor was proper party, and not that he was necessary party; and Coffey v. Norwood, 81 Ala. 516, 8 So. 201, cites principal case as holding grantor not necessary party. Criticised and denied in Taylor v. Webb, 54 Miss. 42, and Leach v. Shelby, 58 Miss. 688.

Dismissal.- Where a court lacks jurisdiction of a bill because of failure to aver citizenship of parties, dismissal should be without prejudice, p. 83.

Cited and applied in Durant v. Essex Co., 7 Wall. 110, 19 L. 156, holding appellate court will correct omission of such qualification.

Costs. Where cause is dismissed in lower court for want of jurisdiction of one defendant, appellate court, on remanding with leave to amend, may allow costs of appeal to a co-defendant properly before the court in the first instance, p. 83.

Cited by way of analogy in Fleming v. Commissioners, 32 W. Va. 640, 9 S. E. 868, holding where decision in favor of petitioner for writ of certiorari is reversed, defendant is entitled to costs. Cited, arguendo, in Pentlarge v. Kirby, 22 Blatchf. 261, 20 Fed. 898, as authority for rule that costs will not be awarded against plaintiff where cause dismissed for want of jurisdiction.

1 Wall. 83-97, 17 L. 548, MERCER COUNTY v. HACKET.

Municipal corporations.- In action by bona fide holder of county bonds payable to bearer, county cannot defend on ground that bonds were not issued in strict compliance with conditions and limitations prescribed by the legislature, pp. 93, 94.

The principal case is a leading authority upon this point, and has been widely followed by citing cases. Upon the precise point that non-compliance with legislative directions cannot impair the validity of such bonds in the hands of bona fide holders, Mercer County v. Hackett, has been cited in the following similar cases: Town of Coloma v. Eaves, 92 U. S. 491, 492, 23 L. 581, 582, Town of Venice v. Murdock, 92 U. S. 500, 23 L. 585, Pompton v. Cooper Union, 101 U. S. 204, 25 L. 805, Evansville v. Dennett, 161 U. S. 443, 40 L. 763, 16 S. Ct. 616, Provident Life & Trust Co. v. Mercer Co., 170 U. S. 601, 42 L. 1160, 18 S. Ct. 791, Memphis v. Brown, 1 Flipp. 196, 199,

F. C. 9,415, Milner v. Pensacola, 2 Woods, 637, F. C. 9,619, Phelps v. Lewiston, 15 Blatchf. 153, F. C. 11,076, Dorian v. Shreveport, 28 Fed. 290, Chilton v. Gratton, 82 Fed. 878, Greenburg v. International Trust Co., 94 Fed. 759, Black v. Cohen, 52 Ga. 629, Deming v. Houlton, 64 Me. 262, 18 Am. Rep. 258, Cutler v. Supervisors, 56 Miss. 123, State v. Saline Co. Court, 48 Mo. 394, 8 Am. Rep. 110, Coler v. Board of Commrs. Santa Fe Co., 6 N. Mex. 133, 27 Pac. 629, Belo v. Forsythe, 76 N. C. 495, Kerr v. Corry, 105 Pa. St. 293, Louisville, etc., R. R. v. Tennessee, 8 Heisk. 788, State v. Anderson County, 8 Baxt. 258. The principle has also been applied in the following: Larned v. Burlington, 4 Wall. 277, 18 L. 353, Mayor v. Lord, 9 Wall. 414, 19 L. 707, City of Lexington v. Butler, 14 Wall. 296, 20 L. 812, San Antonio v. Mehaffy, 96 U. S. 314, 24 L. 817, Miller v. Berlin, 13 Blatchf. 247, 248, F. C. 9,562, Lyons v. Chamberlain, 89 N. Y. 587, Ellsworth v. St. L., etc., R. R., 98 N. Y. 557, 558, and Lynchburg v. Slaughter, 75 Va. 60, all holding want of authority to issue bonds cannot be urged as defense to action against city; Grand Chute v. Winegar, 15 Wall. 371, 372, 21 L. 173, 174, city cannot show fraud in execution of bonds; Orleans v. Platt, 99 U. S. 682, 25 L. 406, Lyons v. Munson, 99 U. S. 686, 25 L. 451, and Smith v. Tallapoosa County, 2 Woods, 577, F. C. 13,113, all holding decision in favor of validity of subscription to stock cannot be collaterally attacked in suit by bona fide holder of bonds issued therefor by city; Young v. Montgomery, etc., R. R., 2 Woods, 616, F. C. 18,166, where State as indorser of railroad bonds was secured by mortgage, holder of bonds is entitled to be subrogated to rights of State and to recover, although indorsement not regular; Chicago, etc., R. R. v. Otoe Co., 1 Dill. 342, F. C. 2,667, in action on county bonds plaintiff need allege regularity of election; Durant v. Iowa County, Woolw. 72, F. C. 4,189, decree directing that bonds be delivered up to be cancelled cannot affect rights of bona fide holder; Huron v. Second Ward Bank, 86 Fed. 279, 57 U. S. App. 606, affirming S. C., 80 Fed. 662, and holding diversion of funds cannot affect rights of holder of municipal bonds; Shepard v. Tulare Irr. Dist., 94 Fed. 6, and Smith v. County of Clark, 54 Mo. 72, nor can irregularity of bond election do so; County Commrs. Columbia Co. v. King, 13 Fla. 467, holding county cannot urge that officer signing bonds did so in individual capacity; Mount Vernon v. Hovey, 52 Ind. 567, refusing to enjoin collection of tax to pay bonds issued by county; Heard v. Calhoun School Dist., 45 Mo. App. 668, holding irregularity of issue of school bonds cannot affect right of bona fide holder.

Cited by way of analogy in Merchants' Bank v. State Bank, 10 Wall. 645, 19 L. 1018, holding, in action by bona fide holder of certificates of deposit, bank cannot deny authority of cashier to issue them; Stanton v. Alabama, etc., R. R., 2 Woods, 527, F. C. 13,297, holding railroad liable on bonds issued without authority; Adams v. Memphis, etc., R. R., 2 Cold. 662, holding city estopped from denying

validity of mortgage executed by its officers, and from which it has derived benefit. Cited in discussion, obiter, in Savannah v. Kelly, 108 U. S. 191, 27 L. 698, 2 S. Ct. 472, Bond Debt Cases, 12 S. C. 271, 275, and State ex rel. v. Tomahawk Com. Council, 96 Wis. 84, 71 N. W. 90. See also note in 12 Blatchf. 60, F. C. 3,178, collecting cases on general subject; and valuable notes in 98 Am. Dec. 688. 18 Am. Rep. 263, 266, 51 Am. St. Rep. 385. Compare Meyer v. City of Muscatine, 1 Wall. 393.

Distinguished in Spence v. Mobile, etc., Ry., 79 Ala. 589, holding purchasers of bonds issued by consolidated railroads, and secured by mortgage, are bound to take notice of act of consolidation in which rights of prior creditors are provided for; Marshall County v. Cook, 38 Ill. 56, 87 Am. Dec. 290, Lewis v. Commrs. Bourbon Co., 12 Kan. 209, and Steines v. Franklin Co., 48 Mo. 182, 8 Am. Rep. 93, holding bonds issued without consent of majority of voters are void, and bona fide holder cannot recover.

Municipal corporations.- Municipal bonds and bonds issued by private corporations have all the qualities of commercial paper. p. 95.

Cited and followed in Memphis v. Brown, 1 Flipp. 217, F. C. 9,415, collecting authorities and holding municipal bonds negotiable; Aurora City v. West, 7 Wall. 105, 19 L. 50, holding municipal bonds negotiable in form bear interest from date when payment is unjustly refused; Bonner v. New Orleans, 2 Woods, 136, F. C. 1,631, holding railroad company bound as indorser of municipal bonds; Greenwell v. Haydon, 78 Ky. 334, 39 Am. Rep. 235, purchaser of county bonds after maturity takes subject to equities; Tucker v. New Hampshire, etc., Bank, 58 N. H. 85, 42 Am. Rep. 580, fact that vendor of State bonds was merely trustee and had no right to sell does not affect bona fide purchaser's rights; Boyd v. Kennedy, 38 N. J. L. 148, 20 Am. Rep. 377, denying right of owner to maintain replevin to recover bonds stolen from him and sold to bona fide purchaser; Taft v. Chapman, 50 N. Y. 448, to recover value of such bonds; Weith v. Wilmington, 68 N. C. 29, 30, holding purpose for which bonds issued is immaterial; Gilbough v. Norfolk, etc., R. R., 1 Hughes, 411, F. C. 5,419, holding bona fide purchaser of stolen railroad bonds may recover thereon; Chesapeake, etc., Canal Co. v. Blair, 45 Md. 110, and New Orleans, etc., R. R. v. Mississippi College, 47 Miss. 564, equity will compel a restoration of bonds of private corporation which have been accidentally destroyed; American Nat. Bank v. American W. P. Co., 19 R. I. 153, 61 Am. St. Rep. 748, 32 Atl. 305, 29 L. R. A. 103, asserting right of holder of bonds indorsed to him to sue in his own name; Langston v. South Carolina R. R.. 2 S. C. 251, holding railroad bonds bear legal rate of interest after ma turity; dissenting opinion, Smith v. Sac Co., 11 Wall. 150, 20 L. 105, majority holding where county has shown circumstances of fraud

in issuing bonds, holder seeking to recover thereon is bound to show himself a bona fide purchaser for value before maturity; State ex rei. v. Funding Board, 28 La. Ann. 257, 258, and State v. Clinton, 28 La. Ann. 400, majority holding where bonds issued contrary to constitutional provision limiting power, bona fide holder cannot recover. See also the following valuable notes, where other authorities upon this point are collected: 14 Am. Dec. 425, 64 Am. Dec. 430, 432, 78 Am. Dec. 436, 98 Am. Dec. 683, 23 Am. Rep. 16, 29 Am. Rep. 407. Cited in discussion, obiter, in Hitchcock v. Galveston, 2 Woods, 281, F. C. 6,532, Howenstein v. Barnes, 5 Dill. 484, 485, F. C. 6,786, Coulson v. Portland, Deady, 495, F. C. 3,275, Drury v. Wolfe, 134 III. 297, 25 N. E. 627, Callanan v. Brown, 31 Iowa, 337, and Arents v. Commonwealth, 18 Gratt. 754, 766.

Distinguished in United States Mortgage Co. v. Sperry, 138 U. S. 342, 34 L. 980, 11 S. Ct. 330, under facts; Jackson v. Vicksburg, etc., R. R., 2 Woods, 143, F. C. 7,150, holding bona fide holder of railroad bonds altered by indorser holds them subject to defect; Stanton v. Alabama R. R., 2 Woods, 512, F. C. 13,296, holding receiver's certificates not commercial paper; United States v. Vermilye, 10 Blatchf. 288, F. C. 16,618, holding purchaser of stolen United States notes after maturity cannot recover thereon.

Bond. Character of corporate bonds as negotiable paper is not affected by affixing seal thereto, p. 95.

Cited and followed in Chase Nat. Bank v. Faurot, 149 N. Y. 537, 44 N. E. 166, 35 L. R. A. 610, and note, a similar case; In re Leland, 6 Ben. 177, F. C. 8,229, applying rule in holding individual maker of such bond liable to bona fide purchaser. See also note on subject of corporate seal, in 50 Am. St. Rep. 155.

Miscellaneous.- Cited in Burgess v. Seligman, 107 U. S. 34, 27 L. 365, 2 S. Ct. 22, on point that United States courts adopt rules of property established by State courts. Cited as instance where court recognized validity of act authorizing subscriptions in aid of a railroad, in Talcott v. Pine Grove, 1 Flipp. 133, F. C. 13,735, Leavenworth County v. Miller, 7 Kan. 506, 12 Am. Rep. 439, collecting authorities; Supervisors v. Wisconsin Cent. R. R., 121 Mass. 470.

1 Wall. 97-99, 17 L. 495, BAYNE v. MORRIS.

Arbitration and award.- Where award, made under submission of parties, directs one to pay a certain sum in installments, and that he give a bond to secure payment, if he refuse to perform any part of the award, the other party may maintain action of debt at once to recover the whole sum, p. 98.

Arbitration and award.— Arbitrators exhaust their powers when they make a final determination on the matters submitted to them, p. 99.

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