an assessment to the form of proceedure therein disclosed.

Mason, respt. v. Partridge, implead-
ed, &c., applt.

Decided June 6, 1876.

A wife may maintain an action for loss of support resulting from the death of her husband against a person who sold him liquor &c. Plaintiff's husband became intoxicated from liquor sold by defendant and was killed by a railroad train.

Where one party advances money to another to be used in business under an agreement that they are to share equally in the profits and losses, they are partners as to third persons. Where there are limitations upon the authority of the active partner to bind the other by debts contracted by him, and the limitations have been disregarded with knowledge of such other, they furnish no defense, even as to those who knew of them. This action was brought against defendants as partners for goods sold.

This action is for damages for loss of support.

It appeared that defendants had entered into an agreement under which On the trial, defendants counsel re- defendant P. advanced to defendant W. quested the judge to charge the jury $2000, to be used in business. Each that if they found from the evidence was to pay one-half the expenses of the that the liquor delivered to plaintiff's business, and they were to share equally husband was delivered by defendant's in the profits and losses. P. claimed bar-keeper without the knowledge of that W. could not, under the agreedefendant, and after defendant had ment, create any debts binding upon directed said bar-keeper not to deliver him, and that he could only be made to the deceased any liquor, the plaintiff liable to the amount of the $2000 he cannot recover. The court refused to put into the business, and that plaintiff so charge, and defendant's counsel ex- knew of these limitations. The evicepted. dence showed, and the referee found, these limitations had been disregarded with the knowledge of P.

Order affirmed.

Opinion by Brady, J; Davis, P.J. and Daniels, J. concurring.



Smith, respt., v. Reynolds, applt.
Decided June, 1876.

There was a judgment for plaintiff.
Carey & Jewell, for respt.
D. H. Bolles, for applt.

Held, A wife may maintain an action for loss of support resulting from the death of her husband against a person who sold him the liquor, &c., &c.

That the refusal of the judge to charge as requested, was correct.

Defendant was liable for the act of the bar-tender even under the facts as stated in the exception and request. Judgment affirmed. Opinion by Mullen, P. J.

Wheeler H. Peckham, for applt. Joseph H. Choate, for respt. Held, That P. and W. were partners as to third persons; that even as to those dealing with W. who knew the precise relations between W. and P., and the limitations upon W's authority, these limitations having been disregarded with the knowledge of P. they

furnished no defense.

Judgment of General Term affirming judgment for plaintiff, affirmed. Per curiam opinion.


[No. 25.

VOL. 2.] MONDAY JULY 31, 1876.

Joseph Reckendorfer, applt. v. Eber-
hard Faber, respt.

Held, That the proposition is unsound. It is no where declared in the statute that the decision of the Commissioner as to the extent of the utility or importance of the improvement shall be conclusive upon that point, but it is placed in the same category with the want of novelty and the other requisites of the statute, and it is expressly

Decided May 8, 1876.

The decision of the Commissioner of conceded by the appellant that the judg Patents as to the extent of the utili-ment of the Commissioner on the questy or importance of an improvement tion of novelty is not conclusive, but is not conclusive.

A combination, to be patentable, must that that point is open to examination. produce a different force or effect, or On that subject the practice of the result in the combined forces or pro- courts is uniform in holding it to be cesses, from that given by their sepa-subject to enquiry. rate parts. There must be a new result produced by their union.

of New York.

This was a bill filed to restrain the infringement of a patent, and for an accounting and damages.

The plaintiff's counsel, in his brief, put his argument in this form: "The Appeal from the Clrcuit Court of the commissioner, then, passes on these United States for the Southern District questions. "1. Did the applicant himself make the invention? This ques. tion is settled by his oath." This is true to the extent and for the purpose of issuing a patent, and to this In 1858 one Lipman obtained a extent only. When the patentee seeks patent for a combined pencil and eras-to enforce his patent he is liable to be er, the combination, which he claimed defeated by proof that he did not make as an invention, consisting of the inser- the invention. The judgment of the tion of a piece of india rubber in the commissioner does not protect him body of the pencil for one-fourth of its against the effect of such evidence. length. "2." (The counsel says), "Was the invention new? This question is solved by the examination required by the act." To the same extent only. The defense of want of novelty is set up every day in the courts, and is determined by the court or jury as a question of fact upon the evidence adduced, and not upon the certificate of the commissioner. "3." (The counsel says again) "Is the invention sufficiently useful and important? This the commissioner settles for himself by the use of his own judgment. It is a question of official judg ment." These questions are all ques

This patent was extended for seven years on the 30th day of March, 1872.

In 1862 plaintiff obtained a patent for an improvement upon Lipman's invention, which consisted of a ta pering pencil with one end enlarged or recessed to constitute a receptacle for the


The court below dismissed the bill.

The plaintiff contends that the decision of the Commissioner is conclusive upon the point of invention, and that the question, as distinct from that of want of novelty, is one not open to the judgment of the court.

tions of official judgment, and are all settled by the judgment of the commissioner. His judgment goes to the same extent upon each question. He determines and decides for the purpose of issuing or refusing a patent. When the patent is sought to be enforced, the questions, and each of them, are open to judicial examination. We see many reasons why all the questions of invention, novelty, and prior use should be open to examination in each case, and such we believe to be the course of the authorities and practice of the courts. 11 How. 248; 10 Wall. 117; 20 Id. 353; 20 Id. 498; 21 Id. 115; 18 Id. 670; 11 Id. 516.

cases. Rubber Tip P. Co. v. Howard, and other cases, sup.; Curtis, § 72, b.

His decision in the allowance and suance of a patent creates a prima facie right only, and upon all the questions involved therein, the validity of the patent is subject to an examination by the courts.

Also held, That neither the patent of Lipman nor the improvement of Reck ndorfer can be sustained.

The combination to be patentable must produce a different force or effect, or result in the combined forces or processes, from that given by their separate parts. There must be a new result produced by their union. If not so, it is only an aggregation of separate ele


In the case we are considering the parts claimed to make a combination are distinct and disconnected. There is no new result not only, but there is no joint operation. When the lead is used it performs the same operation is-and in the same manner as it would do if there were no rubber at the other end of the pencil. When the rubber is used it is in the same manner and performs the same duty as if the lead were not in same pencil. A pencil is laid down and a rubber is taken up, the one to write, the other to erase; a pencil is turned over to erase with, or an eraser is turned over to write with. The principle is the same in both instances. It may be more convenient to have the two instruments on one rod than on two. There There may be a security against two. the absence of the tools of an artist or mechanic from the fact that the greater loss. It may be more convenient to the number the greater the danger of

turn over the different ends of the same stick than to lay down. one stick an take up another. This, however, is not invention within the patent law,

the authorities cited fully show. There is no relation between the instruments in the performance of their several functions, and no reciprocal action, no parts used in common.

The law requires more than a change of form, or juxtaposition of parts, or of the external arrangement of things, or of the order in which they are used, to give patentability. Curtis on Pat., § 50; Hailes v. Van Wormer, 20 Wall. 353.

A double use is not patentable, nor does its cheapness make it so. (Curtis, S$ 56, 73).

An instrument or manufacture which is the result of mechanical skill merely, is not patentable. Mechanical skill is one thing. Invention is a different thing. Perfection of workmanship, as Perfection of workmanship, however much it may increase the convenience, extend the use, or diminish expense, is not patentable. The distinction between mechanical skill, with its conveniences and advantages and inventive genius, is recognized in all the

Judgment of Circuit Court, dismis sing bill of complaint, affirmed.

Opinion by Hunt, J.; Strong, J., dissents from so much as holds that the instrument or manufacture described in the patents exhibits no invention to warrant the grant of a patent for it.


Burke, respt. v. Webb, applt.
Decided June, 1876.

That it is not to be tolerated that a

PRACTICE. INSTRUCTION BY jury can be allowed to render a verdict COURT. JURY. in favor of one of the parties, provided the court shall answer a question relating to the action but not affecting the merits in a specified way. That to tolerate such practice would tend to base verdicts of juries more on chance and guess than on deliberate and careful examination of the facts.

After a jury has retired, the court, in absence of the counsel for either party, cannot instruct the jury on any point material to the issue.

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either party the court, after a jury has retired, gives the many instruction or information in any way affecting the merits of the case, the judgment will be set aside.

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Held, That when in the absence of ties on the bail.

Hildreth now makes application to

and to be exonerated from further liability as bail. It appearing that he had been indemnified by Rodewald's wife, his application was denied.

This action was brought to recover be allowed to surrender his principal, damages for injuries alleged to have been received by plaintiff by being removed from one of defendants' cars. It appeared that plaintiff had paid his fare, and that it being demanded a second time, he refused to pay it, and that defendants' conductor thereupon violently ejected him from the car, plaintiff meanwhile resisting. Defendants' counsel requested the court to charge that, even if the conductor had no right to remove plaintiff from the car, if he resisted to such an extent that extraordinary force became neces

In this case the rule should be applied, because the wife of the principal has indemnified the bail, and the plain- sary to remove, and he was injured tiff therefore has the superior equities. thereby, he could not recover for such It is true that it does not appear af- injury. The court charged in response firmatively that the wife is responsible, to this, that if plaintiff was lawfully but it was the duty of the bail to have there he had a right to resist the conshown, with reasonable certainty, her ductor in removing him, and his resistinability to meet the indemnity assum-ance could not be urged against his ed when the obligation was given. right to recover dainages.

Order affirmed.

Thos. Bracken, for respt.
Gep. C. Genet, for applts.
On appeal.

Held, That where bail are indemnified and leave to surrender, if granted at all, can only be as a favor, the application should be denied.

Opinion by Brady, J.; Davis, P. J., and Daniels, J., concurring.

J. G. Runkle, for applts.
O. W. Chapman, for respt.

Held, No error; that when a conductor is in the wrong, the passenger ductor is in the has a right to protect himself against any attempt to remove him, and resistance can lawfully be made to such an extent as may be essential to maintain such a right.


English, respt., v. The President, &c., of the D. & H. C. Co., applts. Decided June 20, 1876. Where a conductor attempts to eject a passenger from the train for refusing to pay his fare a second time, the passenger has a right to protect himself against any such attempt, and may resist to such extent as may be necessary to maintain such right. and to avail himself of his legal remThe train being in motion, the passen- edy for a breach of the contract on the ger is justified in repelling any part of the defendants, and was thereattempt to eject him which would by injured, he could not recover. endanger his life or subject him to great hazard and peril, and his resistance cannot be urged against his right to recover damages for injuries sustained through such ejectment.

Defendants' counsel also requested the court to charge the jury, that if they found that plaintiff resisted when being put off the train more than was necessary to protect his legal rights,


request was refused. The evidence showed that he did not resist enough to retain his position on the cars, and it did not distinctly appear that he resist.

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