single claim of the original patent, and claim 3 had, as an element, short bands. As the defendants' collars had a continuous band, with a graduated curve, and not short or sectional bands, and did not infringe the claim of the original patent or claims 2 and 8 of the reissue, and claims 1 and 4 thereof were invalid, the bill was dismissed. Ib.

21. The second claim in the reissued patent of September 18, 1877, to Thomas H. Bailey, for an improvement in relief valves for water cylinders, is for a combination of an automatic valve with a pin-hole and pin to effect the desired object; and, as automatic valves had been previously used for that purpose in other combinations, it is not infringed by a combination of such a valve with a screw, sleeve or cap to effect the same objects. Blake v. San Francisco, 679.

22. The adaptation of an automatic valve, a device known and in use before the plaintiff's patent, to a steam fire engine, is not such invention as will sustain a patent. Pennsylvania Railroad Co. v. Locomotive Truck Co., 110 U. S. 490, affirmed and applied. Ib.

23. Where the public has acquired the right to use a machine or device for a particular purpose, it has the right to use it for all like purposes to which it can be applied, unless a new and different result is obtained by a new application of it. Ib.

1. In an action of indebitatus assumpsit, to recover money alleged to have been illegally exacted, a déclaration, which avers the fact of indebtedness, and a promise in consideration thereof, is sufficient on general demurrer, unless it appears that the alleged indebtedness was impossible in law. Liverpool, N. Y. & Phil. Steamship Co. v. Commis sioners of Emigration, 33.

2. To such a declaration, treated as a complaint according to the New York Code, an answer was filed, setting up, as a defence, an act of Congress to legalize the collection of head moneys already paid, approved June 19, 1878. The Circuit Court refused to hear evidence in support of the plaintiff's case, and gave judgment, on the pleadings, in favor of the defendant. Held, That this was error, because it

did not appear from the record that the money sued for was within the description of the act of Congress.

lb.

See JURISDICTION, A. 4.

PRACTICE.

1. The court declines to decide a question arising in a case which no longer exists, in regard to rights which it cannot enforce. Cheong Ah Moy v. United States, 216.

2. Evidence of facts outside of the record, affecting the proceeding of the court in a case on error or appeal, will be received and considered, when deemed necessary by the court, for the purpose of determining its action. Dakota County v. Glidden, 222.

3. In the absence of a bill of exceptions, setting forth evidence, no error can be assigned in respect to facts found by the court when the parties waive a trial by jury. Prentice v. Stearns, 435.

4. Where there is an appeal from the Supreme Court of the District of Columbia to this court, the citation may be signed by any justice of that court. Richards v. Mackall, 539.

5. An appeal from the Supreme Court of the District of Columbia to this court may be allowed by that court sitting in special term. Ib. 6. The time fixed by the decree in the court below for payment by appellant to appellee of a sum named in the decree, in order to secure a reconveyance of the property in litigation having expired pending the appeal, and without payment, and the appellants having given an appeal bond which superseded the decree, in affirming the judgment the court modifies the decree, so as to extend the time of payment. Flagg v. Walker, 659.

7. The docketing by the defendant in error of a cause in advance of the return day of the writ of error, does not prevent the plaintiff in error from doing what is necessary while the writ is in life, to give it full effect. Davies v. Corbin, 687.

1. A torpedo steam launch, attached to a division of a naval squadron, though not proved to have had any books, is a ship, within the meaning of the prize act of June 30, 1864, ch. 174, § 10, rules 4 and 5 ; and her commander is entitled to one tenth of prize money awarded to her, and cannot elect to take instead a share proportioned to his VOL. CXIII-51

rate of pay; but her other officers and men are entitled to share in proportion to their rates of pay. United States v. Steever, 747. 2. The distribution of prize money among the subordinate officers and crew of a ship "in proportion to their respective rates of pay in the scrvice," under the prize act of June 30, 1864, ch. 174, § 10, rule 5, is to be made according to their pay at the time of the capture, and not according to the pay of grades to which they have since been promoted as of that time. Ib.

3. Under the act of August 8, 1882, ch. 480, referring the claims of the captors of the ram Albemarle to the Court of Claims, each captor is entitled to recover such a sum as, together with the sum formerly paid him by the Secretary of the Navy under the prize decrees in the case of the Albemarle, will equal his lawful share of the prize money in that case. Ib.

PROBATE COURT.

1. The report of commissioners to whom a claim has been referred by a probate court under the statutes of Michigan, is not a final hearing within the meaning of clause 3, § 689 Rev. Stat. Hess v. Reynolds, 73. 1. A court of probate has inherent power, without specific statute authority, to grant administration limited to the defence of a particular suit. McArthur v. Scott, 340.

See EXECUTOR AND ADMINISTRATOR;

JURISDICTION, B. 1;
WILL, 4.

PROMISSORY NOTE.

1. Ordinary negotiable paper payable on demand, is not due without demand until after the lapse of a reasonable time in which to make demand. Morgan v. United States, 476.

2. What is reasonable time in which to demand payment of negotiable paper payable on demand, depends upon the circumstances of the case and the situation of the parties. 1b..

See CORPORATIONS, 1.

PUBLIC LANDS.

1. The mutilation (without the consent and against the protest of the grantee) of a patent for public land, by the Commissioner of the Land Office, after its execution and transmission to the grantee, and the like mutilation of the record thereof, do not affect the validity of the patent. Bicknell v. Comstock, 149.

2. Congress intended by the act of February 14, 1874, 18 Stat. 16, entitled "An Act to confirm certain titles in the State of Missouri," to recognize the claim of Austin arising from the Spanish concession, survey,

and grant recited in its preamble, and to assure those who were in possession, by contract or by operation of law, and therefore, assignees of Austin, that they would not be disturbed by any assertion of claim upon the part of the United States. Bryan v. Kennett, 179. 3. A patent for a placer mining claim, composed of distinct mining locations, some of which were made after 1870, and together embracing over one hundred and sixty acres, is valid. Smelting Co. v.

Kemp, 104

U. S. 636, was carefully considered, and is again affirmed. Tucker v. Masser, 203.

1. The act of March 3, 1875, to determine the jurisdiction of the Circuit Courts and regulate the removal of causes from State courts, does not repeal or supersede all other statutes on those subjects, but only such as are in conflict with this latter statute. The third clause of section 689 of the Revised Statutes is not, therefore, abrogated or repealed. Hess v. Reynolds, 73.

2. An application for removal under that clause is in time, if made before the trial or final hearing of the cause in the State court. 16. 3. The removal in all cases is into the Circuit Court of the District, which embraces territorially the State court in which the suit is pending at the time of the removal, without regard to the place where it originated. Ib.

4. Within the meaning of § 3, act of March 3, 1875, 18 Stat. 471, regu

lating removal of causes from State courts, a suit in equity may be "first tried" at the term of the State court, at which, by the rules of that court the respondent is required to answer, and the complainant may be ordered to file replication. Pullman Palace Car Co. v. Speck, 84.

5. The ruling in Hyde v. Ruble, 104 U. S. 407, that clause 2, § 639 Rev. Stat. as to removal of causes, was suspended and repealed by the act of March 3, 1875, 18 Stat. 470, reaffirmed. Ayres v. Watson, 594. 6. § 2 of the act of March 3, 1875, defining the cases in which causes may be removed from State courts to Circuit Courts of the United States, being fundamental and based on the grant of judicial power, its conditions are indispensable-cannot be waived-and must be shown by the record. Ib.

7. § 3 of that act not being jurisdictional, but a mere rule of limitation, its requirements may be waived. Ib.

8. The party at whose instance a cause is removed from a State court is estopped from objecting that the removal was not made within the time required by § 3 of the act of March 3, 1875, 18 Stat. 470. Ib. 9. It is again decided that the words "term at which said cause could be first tried and before the trial thereof," act of March 3, 1875, ch. 187, § 3, 18 Stat. 471, mean the first term at which the cause is in law triable: . . in which it would stand for trial, if the partics had taken the usual steps as to pleadings and other preparations. Babbitt v. Clark, 108 U. S. 606, and Pullman Palace Car Co. v. Speck, ante, 87, re-affirmed. Gregory v. Hartley, 742.

10. It is again decided that there cannot be a removal of a cause under that act after hearing on demurrer to a complaint on the ground that it does not state facts sufficient to constitute a cause of action. Alley v. Nott, 111 U. S. 472, and Scharf v. Levy, 112 U. S. 711, affirmed. Ib.

See JURISDICTION, B. 1, 3;

PARTIES, 3;
PROBATE COURT, 1.

RETIRED OFFICERS.

1. The provisions of the act of Aug. 3, 1861, ch. 42, § 28, 12 Stat. 291, relating to the retirement of officers of the navy, having been uniformly held, by the officers charged with their execution, to be applicable to warrant officers, are now held to be so applicable. Brown v. United States, 568.

2. The act of July 15, 1870, 16 Stat. 321, did not abolish the furlough pay list; and an order after the passage of that act retiring a naval officer on furlough pay was made in pursuance of law. Ib.

3. The administrator of a retired naval officer cannot, in order to recover from the United States an increase in the compensation of his intestate, take advantage of an alleged defect in the proceedings by.