the railway company in the management or condition of its turntable, the judge charged the jury: That to maintain the action it must appear by the evidence that the turntable, in the condition, situation and place where it then was, was a dangerous machine, one which, if unguarded or unlocked, would be likely to cause injury to children; that if, in its construction and the manner in which it was left, it was not dangerous in its nature, the defendant was not liable for negligence; that they were further to consider whether, situated as it was, as the defendant's property in a small town somewhat remote from habitations, there was negligence in not anticipating that injury might occur if it was left unlocked or unguarded; that if they did not have reason to anticipate that children would be likely to resort to it, or that they would be likely to be injured if they did resort to it, then there was no negligence." There are no doubt cases in which the contrary rule is laid down. But we conceive the rule to be this: that while a railway company is not bound to the same degree of care in regard to mere strangers, who are unlawfully upon its premises, that it owes to passengers conveyed by it, that it is not exempt from responsibility to such strangers for injuries arising from its negligence or from its tortious acts. 2d. Was there negligence on the part of the railway company in the management or condition of its turntable? The charge on this point (see supra) was an impartial and an intelligent one. Unless the defendant was entitled to an order that the plaintiff be non-suited, or, as it is expressed in the practice of the United States courts, to an order directing a verdict in its favor, the submission was right. If, upon any construction which the jury was authorized to put upon the evidence, or by any The jury found a verdict of $7,500 for the plaintiff, from the inferences they were authorized to draw from it, the conclusion of judgment upon which this writ of error was brought. Mr. Isaac Cook, for the plaintiff in error, insisted: Ist. That the party injured was himself in fault, that his own negligence produced the result, and that upon well-settled principles, a party thus situated is not entitled to recover. negligence can be justified, the defendant was not entitled to this order, and the judgment can not be disturbed. To express it affirmatively-if, from the evidence given, it might justly be inferred by the jury that the defendant, in the construction, location, management or condition of its machine, had omitted that care 2d. That there was no negligence proved on the part of the de- and attention to prevent the occurrence of accidents which prufendant in the condition or management of the table. 3d. That the facts being undisputed, the question of evidence was one of law, to be passed upon by the court, and should not have been submitted to the jury. Mr. S. A. Strickland, contra. Mr. Justice HUNT delivered the opinion of the court. 1st. It is well settled that the conduct of an infant of tender years is not to be judged by the same rule which governs that of an adult. While it is the general rule in regard to an adult, that to entitle him to recover damages for an injury resulting from the fault or negligence of another, he must himself have been free from fault, such is not the rule in regard to an infant of tender years. The care and caution required of a child is according to his maturity and capacity only, and this is to be determined in each case by the circumstances of that case. Railroad Co. v. Gladmon, 15 Wallace, 401. dent and careful men ordinarily bestow, the jury was at liberty to find for the plaintiff. That the turntable was a dangerous machine, which would be likely to cause injury to children who resorted to it, might fairly be inferred from the injury which actually occurred to the plaintiff. There was the same liability to injury to him, and no greater, that existed with reference to all children. When the jury learned from the evidence that he had suffered a serious injury by his foot being caught between the fixed rail of the road-bed and the turning rail of the table, they were justified in believing that there was a probability of the occurrence of such accidents. So, in looking at the remoteness of the machine from inhabited dwellings, when it was proved to the jury that several boys from the hamlet were at play there on this occasion, and that they had been at play upon the turntable on other occasions, and within the observation and to the knowledge of the employees of the defendant, the jury were justified in believing that children would probably resort to it, and that the defendant should have antici But it is not necessary to pursue this subject. The record expressly states that the counsel for the defendant disclaim resting their defence on the ground that the plaintiff's parents were negli-pated that such would be the case. gent, or that the plaintiff (considering his tender age) was negligent, but rest their defence on the ground that the company was not negligent, and claim that the injury to the plaintiff was accidental or brought upon himself." As it was in fact, on this occasion, so it was to be expected that the amusement of the boys would have been found in turning this table while they were on it or about it. This could certainly have been prevented by locking the turntable when not in use by the This disclaimer ought to dispose of the question of the plain- company. It was not shown that this would cause any considertiff's negligence, whether made in a direct form or indirectly un-able expense or inconvenience to the defendant. It could probader the allegation that the plaintiff was a trespasser upon the rail-bly have been prevented by the repair of the broken latch. This road premises, and therefore can not recover. was a heavy catch, which, by dropping into a socket, prevented A reference to some of the authorities on the last suggestion the revolution of the table. There had been one on this table may, however, be useful. weighing some eight or ten pounds, but it had broken off and had In the well-known case of Lynch v. Nurdin, 1 Adolphus and not been replaced. It was proved to have been usual with railEllis (New Series, 29), the child was clearly a trespasser in climb-road companies to have upon their turntables a latch or bolt, or ing upon the cart, but was allowed to recover. some similar instrument. The jury may well have believed that if the defendant had incurred the trifling expense of replacing this latch, and had taken the slight trouble of putting it in its place, these very small boys would not have taken the pains to lift it out, and thus the whole difficulty have been avoided. Thus reas oning, the jury would have reached the conclusion that the defendant had omitted the care and attention it ought to have given In Daily v. Norwich and Worcester Railroad Company, 26 Connecticut, 591, it is said the fact that the person was trespassing at the time was no excuse, unless he thereby invited the act, or his-that it was negligent, and that its negligence caused the injury negligent conduct contributed to it. In Bird v. Holbrook, 4 Bingham, 628 (see also Loomis v. Terry, 17 Wendell. 496; Wright v. Ramscot, 1 Saunders, 83; John son v. Patterson, 14 Conn. 1; State v. Moore, 31 id. 479), the plaintiff was injured by the spring guns set in the defendant's grounds, and although the plaintiff was a trespasser, the defendant was held liable. to the plaintiff. The evidence is not strong and the negligence is slight, but we are not able to say that there is not evidence sufficient to justify the verdict. We are not called upon to weigh, to measure, to balance the evidence, or to ascertain how we should have decided if acting as jurors. The charge was in all respects sound and judicious, and there being sufficient evidence to justify the finding, we are not authorized to disturb it. 3. It is tru, in my cases, that wh re the facts are undis puted, the effect of them is for the judgment of the court, and not for the decision of the jury. This is true in that class of cases where the existence of such facts come in question rather than where deductions or inferences are to be made from the facts If a deed be given in evidence, a contract proven, or its breach testified to, the existence of such deed, contract, or breach, there being nothing in derogation of the evidence, is no doubt to be ruled as a question of law. In some cases, too, the necessary inference from the proof is so certain that it may be ruled as a question of law. If a sane man voluntarily throws himself in contact with a passing engine, there being nothing to counteract the effect of this action, it may be ruled as a matter of law that the injury to him resulted from his own fault, and that no action can be sustained by him or his representatives. So if a coach driver intentionally drives within a few inches of a precipice, and an accident happens, negligence may be ruled as a question of law. On the other hand, if he had placed a suitable distance between his coach and the precipice, but by the breaking of a rein or an axle, which could not have been anticipated, an injury occurred, it might be ruled as a question of law that there was no negligence and no liability. But these are extreme cases. The range between them is almost infinite in variety and extent. It is in relation to these intermediate cases that the opposite rule in relation to the conduct of th: child injured, the manner in which it was guarded, and how it escaped from those having it in charge, were undisputed. The judge at the trial ordered a non-suit, holding that these facts established negligence in those having the custody of the child. The Court of Appeals of the State of New York held that the case should have been submitted. to the jury, and set aside the non-suit. In Detroit and W. R. R. Co. v. Van Steinburg, 17 Michigan, 99, the cases are largely examined, and the rule laid down that when the facts are disputed, or when they are not disputed, but different minds might honestly draw different conclusions from them, the case must be left to the jury for their determination. See among other cases cited, the following: Carsley v. White, 21 Pickering, 256; Rindge v. Inhabitants of Coleraine, 11 Gray, 157; Langhoff v. Milwaukee and P. R. R. Co., 19 Wisconsin, 497; Macon and Western Railroad v. Davis, 13 Georgia, 68; Renwick v. New York Central Railroad, 36 New York, 132. It has been already shown that the facts proved justified the jury in finding that the defendant was guilty of negligence, and we are of the opinion that it was properly left to the jury to determine that point. Upon the whole case, the judgment must be affirmed. Negligence-Liability of Municipal Corporations to Keep prevails. Upon the facts proven in such cases, it is a matter of judgment and discretion, of sound inference, what is the deduction to be drawn from the undisputed facts. Certain facts we may suppose to be clearly established from which one sensible, impartial man would infer that proper care had not been used, and that negligence existed; another man, equally sensible and equally impartial, would infer that proper care had been used, Supreme Court of Missouri, Jefferson City, January Term, 1874 and that there was no negligence. It is this class of cases, and those akin to it, that the law commits to the decision of a jury. Twelve men of the average of the community, comprising men of education and men of little education, men of learning and men whose learning consists only in what they have themselves seen and heard, the merchant, the mechanic, the farmer, the laborer; these sit together, consult, apply their separate experience of the affairs of life to the facts proven, and draw an unanimous conclusion. This average judgment thus given it is the great effort of the law to obtain. It is assumed that twelve men know more of the common affairs of life than does one man, that they can draw wiser and safer conclusions from admitted facts thus occurring than can a single judge. In no class of cases can this practical experience be more wisely applied than in that we are considering. We find, accordingly, although not uniform or harmonious, that the authorities justify us in holding in the case before us, that although the facts are undisputed, it is for the jury and not for the judge to determine whether proper care was given, or whether they establish negligence. In Redfield on the Law of Railways, vol. 2, p. 231, it is said: "And what is proper care will be often a question of law, where there is no controversy about the facts. But ordinarily, we apprehend, where there is any testimony tending to show negli gence, it is a question for the jury." Quimby v. Vermont Cen tral Railroad, 23 Vermont, 387; Pfau v. Reynolds, 53 Illinois, 212; Patterson v. Wallace, 1 McQueen's House of Lords Cases, 748. In Patterson v. Wallace, 1 McQueen's House of Lords Cases, 748, there was no controversy about the facts, but only a question whether certain facts proved established negligence on the one side, or rashness on the other. The judge at the trial withdrew the case from the jury, but it was held in the house of lords to be a pure question of fact for the jury, and the judgment was reversed. ་ HULL v. CITY OF KANSAS. 1. Rule Where the Injury is in Part Caused by Unmanageable Horse nere, in driving a buggy on the street of an incorporated town, the plaintiff's horse became uncontrollable by reason of the lines getting entangled under his tail, so that, in backing, the horse fell into a hole which the city authorities had negligently left open, whereby the horse and buggy were injured, it was held that the plaintiff was entitled to recover damages of the municipal corporation, although the fact that the horse became for the time unmanageable contributed to the producing of the injury. 2. Case Affirmed.---The principleɣlaid down in Hunt v. Pownall, 9 Vt. 411, applicable to such cases, affirmed. Napton, J., delivered the opinion of the court. This action was to recover damages for an injury to a horse and buggy, alleged to have been occasioned by a hole in a street, negligently left uncovered by the city authorities. The facts appeared to be that the driver of the buggy, when attempting to turn from one street into another, got one of the lines entan gled under the horse's tail, which caused the horse to commence backing, and, as the driver was about to jump out, the horse fell into the hole in the embankment on which the street was built. The court, on the trial, declared the law to be "that it was the duty of the defendant to keep its streets in a proper state of repair, so that they should be reasonably safe for travel, and if the defendant permitted one of its streets to be and remain out of repair, and that at the time said street was so out of repair the plaintiff's horse and buggy was being driven along the same, and, without the fault of the driver, the horse and buggy of plaintiff was injured by reason of said street being out of repair, then the plaintiff is entitled to recover, even though such injury was the combined resul of accident and of the defendant's neglect to keep said street in repair, provided the driver of said horse was in no fault." The court refused to declare the law as asked by the defendant, that if the defect in the street was not the sole cause of the injury, no recovery could be had, and therefore if before the accident the driver of the horse had lost all control over him, and the horse continued uncontrollable at the time of the accident, the plaintiff could not recover. Another instruction was asked, that if this occurred on Sunday, and the plaintiff was the owner of the horse and buggy, and had hired them out on that day from his livery stable, no recovery could be had. There was a verdict and judgment for plaintiff. The point presented by the instructions in this case, I under s'and, was decided at the last term at St. Joseph in the case of Bassett v. City of St. Joseph,* in which case this court adopted the view taken by the New Hampshire court in Winship v. Enfield (42 N. H. 202), and declined to follow the decisions in Massachusetts, referred to in the brief of defendant's counsel. The Circuit Court of Jackson County evidently adopted the views of the New Hampshire cases, and determined that although the injury was the result of accident in the temporary loss of control over the horse, yet if that accident would have resulted in no damage had the street been in proper repair, the city must be held responsible. Indeed, it is not very clear that the Massachusetts cases go to the extent of holding that a mere temporary loss of control over the horse driven along the street would relieve the city from responsibility. It is held that where the horse escapes from the driver entirely, or is totally ungovernable, or is a vicious animal, the damage occasioned is not chargeable to the city or town, because it ultimately occurs in a street or at a place where the street is out of repair. In this case the driver had not lost the control of the horse except during the short period of his backing into the hole, and if no such hole had been there, no damage would have occurred. E. L. King, for the motion, relied on the fifth amendment to the constitution. Fas. S. Botsford, district attorney, relied on and cited 1 Bish. Crim. Proc. 3 604, 611; Comm. v. Waterborough, 5 Mass. 257; Adams v. Woods, 2 Cranch, 336; Ex parte Marquand, 2 Gall. 552; Walsh v. United States, 3 Wood. & M. 341; Levy v. Burley, 2 Sumn. 355; Parsons v. Hunter, ib. 419; United States v. Mann, 1 Gall. 3; Territory v. Lockwood, 3 Wall. 236; United States v. Shephard, 1 Abb. U. S. R. 431; United States v. Waller, 1 Sawyer C. C. 701; 1 Stat. at Large, 119, 32; 13 Stat. at Large, 305, 179; 14 Stat. at Large. 145 179. KREKEL, J.-This is an information filed by the district attorney alleging that defendant was a manufacturer of cigars, and as such had failed to execute bond as required by law. To this, defendant files his motion to quash, alleging, in substance, that cases of the kind can not be prosecuted by information, but must be by indict ment. This brings up the question-first, is the case here presented within the act of July 13, 1866, which provides that "all fines, penalties and forfeitures which may be imposed or incurred shall and may be sued for and recovered, when not otherwise provided, in the name of the United States, in any proper form of action or by any appropriate form of proceeding before any circuit or district court." The provision cited is found in the revenue act, and there can be no doubt that the intention of congress was to sanction or provide for a class of cases most frequently occurring under the revenue laws. Looking at the language employed-" a proper form of action"-it is obvious that congress here had reference to existing forms of action, and when using the terms immediately following" or by any appropriate form of proceeding"-it intended to enlarge the former by giving authority to provide new and suitable forms and proceedings to meet cases as they might arise. It is well known that at the time of framing and adopting the constitution, fines and penalties could be and were largely recovered by information; and there can scarcely be any doubt but that congress had reference, when speaking of "a proper form of action," to that practice which at the time of the enactment of the law cited, prevailed in a number of the states. It must, then, be taken that the case under consideration, and the class of cases to which it belongs, comes within the provisions of the statute cited. In the case of Hunt v. Pownall (9 Vt. 411) Redfield, J, said: "In every case of damage occurring on a highway, we could suppose a state of circumstances in which the injury would not have occurred. If the team had not been too young or restive, or too old, or too headstrong, or the harness had not been defective, or the carriage insufficient, no loss would have intervened. It is against these constantly occurring accidents that towns are required to guard in building highways. The traveler is not bound to see to it that his carriage and harness are always perfect, and his team of the most manageable character and in the most perfect training, before he ventures upon the highway. If The second question is, had congress the power to pass the act he could be always sure of all this, he would not require any fur- of 1866, and especially the provision cited, thereby doing away ther guarantee of his safety, unless the road were absolutely with the necessity of a grand jury passing upon cases arising impassable. If the plaintiff is in the exercise of ordinary care under internal revenue laws? The fifth article of the amendand prudence, and the injury is attributable to the insufficiency ments of the constitution of the United States provides that "no of the road conspiring with some accidental cause, the defend-person shall be held to answer for a capital or otherwise infaants are liable. mous crime unless on presentment or indictment of a grand This is in substance the position of the Circuit Court in its in- jury." It will be observed that this provision covers infamous structions in this case. Judgment affirmed. Judges Wagner and Sherwood absent. crimes only. It is not necessary to define what is here meant by infamous, for it is an undisputed point that misdemeanors, such as the one for which the information under consideration is filed, can not, by any construction or interpretation given by courts, be Prosecutions by Information of Offences under the brought within the term "infamous." At the time of the adoption Internal Revenue Laws. THE UNITED STATES v. EBERT. of the amendment cited, attention was no doubt called to existing constitutional provisions; and had the requirement that all classes of crimes should be passed on by grand juries before trial been intended, suitable language for that purpose would have been District Court of the United States, Western District of Missouri, employed. Indeed, by the use of the words "capital or otherwise taken. In the thirty second section of said act, providing the time within which prosecutions shall be commenced, it enacts, "nor shall any person be prosecuted, tried or punished for any offence not capital, nor for any fine or forfeiture under any penal statute, unless the indictment or information for the same shall have been found or instituted," thus affirming that there existed the distinction between crimes and other offences contended for. As sustaining these views, see United States v. Shephard, 1 Abb. U. S. 431, and United States v. Waller, 1 Sawyer C. C. 701. Under these views of the court, the case under consideration may be prosecuted by information, and the motion to quash is overruled. Action by Insurance Company Against Incendiary ÆTNA INS. CO. v. HANNIBAL & ST. JOSEPH R. R. CO. Before DILLON AND TREAT, JJ. 1. Insurance-Subrogation-Assignment-Action -Where insured property has been destroyed by a wrong-doer and the insurer has paid to the owner on the p›licy less than the value of his loss, and taken a partial assignment of his right, he can not sue the wrong-doer in his own name for the injury, either as at common law or under the statute of Missouri. The action must be in the name of the owner of the property destroyed. The plaintiff insured the personal property of one Myron H. Balcom, situate adjoining the defendant's railway, for $1,900. Within the lifetime of the policy, property covered by it to the value of $2,214 was destroyed by the carelessness of the defendant's servants in the use of its locomotive engine. The insurance company paid Balcom in full satisfaction for all claim under his policy $1,050, and received from him a written instrument reciting the foregoing facts, and assigning to it all his right to recover on account of said loss against the railroad company, reserving all rights in excess of the $1,050. The petition, which is in the name of the insurance company, sets forth the foregoing facts and asks a judgment against the railroad company for the $1,050. The defendant demurs because the cause of action is not assignable either by operation of law or by act of the parties, and because the plaintiff is not entitled to maintain an action in its own name. Lucien Eaton, for the plaintiff; James Carr, for the defendant, DILLON, Circuit Judge-The property destroyed exceeded in value the amount insured, and the rule of law has been long settled that the insurance company, on the payment of the loss, can not sue the wrong doer who occasioned it in its own name. The suit, though for the use of the insurer, must be in the name of the person whose property was destroyed. The wrongful act was single and indivisible, and gives rise to but one liability. If one insurer may sue, then if there are a dozen each may sue, and if the aggregate amount of all the policies falls short of the actual loss, the owner could sue for the balance. This is not permitted, and so it was held nearly a hundred years ago in a case whose authority has been recognized ever since, both in Great Britain and in this country. London Assurance Co. v. Sainsbury, 3 Doug 245, 1783, in which the Exchequer Chamber unanimously affirmed the judgment of the K. B. for the defendant; Rockingham, etc., Ins. Co. v. Bosher, 39 Maine, 253. and cases cited; Hart v. West ern Railroad Corporatlon, 13 Metc. 99. where the subject is fully gone into by Chief Justice SHAW: Conn., etc., Ins. Co. v. N. Y., etc., R. R. Co., 25 Conn. 265, 278; Peoria, etc., Insurance Company v. Frost, 57 Ills, 333. Flanders on Ins. pp. 360, 481, 591. But it is insisted that the provision of the Missouri statute, that every action shall be prosecuted in the name of the real party in interest, though it declares that the provision shall not authorize the assignment of a thing in action not arising out of contract (Gen. Stats. 1865, p. 651, sec. 2.), changes the rule. However it might be if the amount paid by the insurer to the assured had equalled or exceeded the value of the property, and the assured had made a full assignment, it is plain that this case falls within all the reasons of the rule itself, as expounded by Buller and Mansfield in the case in Douglas above cited, and which is the foundation of the law on this subject. The demurrer to the petition is sustained. JUDGMENT ACCORDINGLY. Leave was given the plaintiff to amend and make Balcom plaintiff on the record, but as the latter, as well as the defendant, was a citizen of Missouri, no amendment, so as to give the court jurisdiction, was practicable, and the plaintiff submitted to a non-suit Negligence-Servants of Corporation-Evidence. CAROLINE T. PARKER v. BOSTON & HINGHAM STEAMBOAT COMPANY. Supreme Judicial Court of Massachusetts. [Courtesy of Henry N. Sheldon, Esq., of Boston.] The defendant corporation ran a line of passenger and freight boats as common carriers between Boston and Hingham. While one of their boats was loading at the wharf in Boston, the plaintiff, in passing over the gangway plank from the wharf to the boat, for the purpose of going to Hingham as a passenger, was thrown into the water and injured by the end of the plank slipping from the boat. This action was brought to recover for the alleged negligence in not having this plank properly secured and tended. The plaintiff introduced evidence of the injuries which she claims to have suffered, and of their effect upon her nervous system. Susie Parker testified, against defendant's objection, that the plaintiff's health was decidedly worse at the time of the trial than it had been two months after the accident. One Bradshaw testified for plaintiff that he went on board the boat over the same plank just before the plaintiff; that it was not resting as it should be; and that hands were taking in freight close to this plank. He was then allowed to state, against defendant's objection, that he called the attention of these hands to the plank. One Hildreth testified that he went over the same plank before the plain tiff; that it was then from six to eight inches from falling off; that he went back and spoke to a man who was taking in baggage over the same plank ; and he was then allowed, against defendant's objection, to state that he told this man there should be some one to see to this gangway plank, or some one would fall in. There was no other evidence to show who these men or "hands" were, or whether they were in the employ of defendants; but defendants called the captain of the vessel, and there was no express denial at the trial that the men who took on board freight and baggage were employed by defendants. The jury found for the plaintiff, and the defendants alleged exceptions. L. M. Child, for defendants. The opinion of Susie Parker as to plaintiff's comparative health at different times was inadmissible. Ashland v. Marlborough, 99 Mass. 47. Testimony of what was said and done by or to men at work near the gangway should not have been received. It did not appear that the work was done for defendants or at their request. Fisk v. Chester, 8 Gray, These men may have been ex506; Everest v. Wood, 1 Car. & P. 75. pressmen carrying on board their own freight. On the evidence they were mere volunteers. Nor can the plaintif's failure to prove her case be sup plied by the fact that defendants gave in evidence no denial that these men were their servants. A non-denial can be used only to support some diect evidence of an affirmative. Commonwealth v. Hardiman, 9 Gray, 136. Tolman Willey, for plaintiff, argued that the statement of Susie Parker was not of an opinion, but of a fact within her own knowledge, and that notice of the dangerous condition of the plank to the "hands” was admissible. The court held that there had been no error at the trial, and ordered judgment on the verdict for the plaintiff. United States Supreme Court-Recent Decisions. Bill of Review by Creditor.-No. 257. First National Bank of Troy v. Cooper et al. Appeal from the Circuit Court for the Northern District o New York. The bill in this case was filed by the bank, a creditor of an insol vent corporation (the Troy Woolen Company), to review a decree of the district court confirming the report of a referee and allowing a claim of Cooper, Vail & Co. for $67,000. The circuit court decided that it could not review this decree at the instance of a creditor, and dismissed the bill. That decree is affirmed here, the court holding that the bank does not show any equity sufficient to justify the court in granting the relief sought. Mr. Justice STRONG delivered the opinion. Power of Attorney by Husband and Wife.-Holladay v. Daily. Error to the Supreme Court of Colorado Territory. In this case Ben Holladay and wife joined in executing a power of attorney to sell their real estate in a section of the Territory. The attorney sold, making the deed in the name of Holladay alone. Thereupon the latter repudiated the transaction and sought to hold the property. The court below sustained the sale, and that judgment is here affirmed, the court holding that a power of attorney to sell and convey real property given by a husband and his wife authorizes a conveyance by the attorney of the interest of the husband by a deed executed in his name alone. If, it is said, the wife in fact has no interest in the property, such individual deed passes the entire estate. Mr. Justice FIELD delivered the opinion. Memphis Paving Contracts.-In the case of The City of Memphis v. Brown et al., from the Tennessee Circuit Court, an appeal by the city to reverse a decree recovered against it by the appellees, upon contracts for paving its streets, this court affirms the decree except as to the item for damages for not creating a sinking fund for the payment of the bonds issued in pursuance of the contracts, the item for the services of attorney, and that for services in collecting bills for paving. As to these the decree is reversed, and the court below is directed to enter a decree in accordance with these views. Mr. Justice HUNT delivered the opinion. Decisions in Ninth Federal Circuit. In the case of Lee v. Rogers, adm'r, &c., Circuit Judge SAWYER, of the Ninth Federal Circuit (whose opinion is reported in full in the Pacific Law Reporter, March 3, 1874), ruled the following points: 1. Paid Judgment-Sale.-A sale of lands under an execution issued upon a judgment which had been fully paid, is void. Bills of Exceptions-Incorporating Rule of Court-Measure of Damages for Infringement of Patent.-No 265. Washington and Alexandria Steam Packet Company v. Sickels. Error to the Supreme Court of the District of Columbia. This was an action by Sickels to recover for the use of his cut-off for the saving of coal in operating steam engines. The judgment below was for the patentee, and the company, bringing the case here for review, obtained a reversal for errors, which will appear in the following statement of the substance of the opinion: The statute of limitations having been pleaded, the court say that while the right to plead it is no more within the discretion of the court than other pleas, when the refusal of the court to permit the plea to be filed is based on the allegation that it is not filed within the time prescribed by the rules of practice adopted in that court, it is necessary that the party excepting to the refusal shall incorporate the rule in his bill of exceptions, or this court will presume that the court below construed correctly its own rules. Such rules are indispensable to the dispatch of business and the orderly administration of justice, and it must be presumed that the court below is familiar with the construction and course of practice under them. On the merits it is said that the rule of damages in actions at law for infringement of the rights of patentees has long been established in this court to be the customary price at which the patentee has 1censed the use of his invention, where a sufficient number of licenses or sales have been made to establish a market value. The reason for this rule is still stronger where the use of the patented invention has been, with the consent of the patentee, express or implied, without any rate of compensation fixed by the parties. (In this case the compensation was to be the value of three-fourths of the amount of fuel saved.) Mr. Justice MILLER delivered the opinion. Constitutional Law-Duty on Tonnage.-No. 248. Peete v. Mor gan. Appeal from the Circuit Court for the Eastern District of Texas. this case Morgan, a citizen of New York, running two lines of steamers between ports in Louisiana and ports in Texas, obtained a perpetual injunction to restrain the appellant, health officer of Galveston, from exacting of him certain tonnage duties laid upon his shipping to defray the expenses of quarantine regulations. The decree below is affirmed here, the court holding in 3. Power of Attorney- Incidental Powers.-L. executed a power substance that while the legislature may lay a tax in some proper form to main- of attorney to H., authorizing him to collect his said judgments against C., by tain the quarantine system of the state, the present tax is outside the jurisdic-sales under execution, etc., to receive the money thereon," arbitrate or comtion of the state to enforce, being a duty on tonnage, Mr. Justice DAVIS | pound " the same, and for that purpose to employ counsel. After the afore.. delivered the opinion. In Discharge in Bankruptcy-Debts Due the United States.-No. 252. United States v. Herron. Error to the Circuit Court for the District of Louisiana. In this case the government sued on the official bond of one Collins, Herron being a surety. The defence was a discharge under the bankrupt act. The court below sustained the plea, and the judgment was accordingly. The judgment is here reversed, the court holding that a discharge under the bankrupt act does not bar a debt due the United States. This con clusion is sustained by the uniform construction of similar legislation in this country and in England. Mr. Justice CLIFFORD delivered the opinion. Land Law-Spanish Grant.-No. 247. United States v. Heirs of Junerarity. Appeal from the Circuit Court for Louisiana. This was a reversal of a decree adjudging parties represented by the appellees entitled to certain land in Louisiana, under a Spanish patent issued to one Ramos, the court holding that the claim attempted to be set up by the petitions in the case can not be sustained. Mr. Justice HUNT delivered the opinion. 2. Assignee of Paid Judgment.-W. had a judgment against C., which was the first lien on his property. T., also, had a judgment, which was the second lien on the property. C. paid W.'s judgment in full, but took an assignment of it in the name of his hired man, who paid nothing for it. Afterwards, to avoid an attachment, C. confessed a judgment in favor of L., for a debt previously due him, which became a lien upon the property, and, in order to give L. a preference over T., C. procured an assignment to him of W.'s judgment, for which no additional consideration was paid, but L. was not aware that it had been paid. C. afterwards confessed a judgment in favor of F., which also became a lien on the property. L. afterwards sold the lands on W.'s judgment and became the purchaser. Afterwards F. became the purchaser of the same lands under his own judgment. Held: 1. That as to F., L. was not a bona fide assignee of W.'s judgment for a valuable consideration, and that his sale was void. 2. That by his purchase F. acquired the title to the land. said sales F. brought an action against L. to annul the said sales and conveyances to L., as clouds on his, F.'s title. H. consulted counsel, who advised him that the said sales under W.'s judgment after payment, were void, and L.'s title invalid. Held, that as incident to the powers expressly given to collect said judgment, arbitrate and compound the same, in connection with subsequent instructions from L. by letter, H. had power to authorize counsel to appear in said action and consent to a judgment annulling said sales, upon terms that enabled him to realize the amount due to L. on his judgment. 4. Actions against Belligerents.-The existence of war does not prevent the citizens of one belligerent power from taking proceedings for the protection of their own property in their own courts, against the citizens of the other, whenever the latter can be reached by process. In Nicklin, complainant, v. Wythe et al., defendants, before SAWYER and DEADY, JJ (Pacific Law Reporter, March 10, 1874), it appeared that G. conveyed lots I and 2, in the town of Salem, to W., and in consideration of such conveyance said W. and wife afterwards conveyed to said G. lands belonging |