13 (U.S.C.C.A.N.D.) Minnesota recognizes common-law marriages.-Great Northern Ry. Co. v. Johnson, 181. I. THE RELATION. (B) Statutory Regulation. 162. Owing to the great increase of matter heretofore classified to this section, we have made a new subdivision, consisting of ~~~ number sections 346-420, at the end of this topic, where the matter in this and future index-digests will be found. III. MASTER'S LIABILITY FOR INJURIES TO SERVANT. (A) Nature and Extent in General. 872. Owing to the great increase of matter heretofore classified to this section, we have made a new subdivision, consisting of number sections 346-420, at the end of this topic, where the matter in this and future indexdigests will be found. com 88(7) (U.S.C.C.A.N.Y.) A railroad pany held not chargeable with negligence for killing of a brakeman employed in its switchyards who, after quitting work at night after dark, instead of leaving the yard at a nearby street, walked down a dead track terminating at a bumper, and when a mile distant was struck by a switch engine on its customary trip to the bumper to change crews; it being shown that the engineer stopped his engine as quickly as possible after decedent was seen, that there was a safe walk beside the track, and it not appearing that the company had knowledge that the track was used as a walk.-Hoyer v. Central R. Co. of New Jersey, 569. (B) Tools, Machinery, Appliances, and Places for Work. 111(1) (U.S.C.C.A.N.Y.) Failure to comply with federal act requiring hand brakes (Comp. St. § 8618) renders railroad company liable for injuries to a switchman resulting from such violation, though the only punishment fixed by the statute is a penalty recoverable at the suit of the United States.-Delaware, L. & W. R. Co. v. Peck, 431. 118(3) (U.S.C.C.A.Ala.) A "slope," within the meaning of a mining statute, is a level or the same purpose as a shaft-citing Words and inclined way, passage, or opening used for Phrases.-Roberts v. Tennessee Coal, Iron & R. Co., 545. Missouri recognizes and enforces common-law marriages (Rev. St. Mo. 1909, § 8279); the rule118(7) (U.S.C.C.A.Ala.) An "escape way," as used in a mining statute, means a passagebeing that marriage is a civil contract, possessing in its creation in præsenti the elements, and way leading from the inside to the outside of the mine. Roberts v. Tennessee Coal, Iron & only the elements, attaching to any contract. R. Co., 545. -Id. 20(1) (U.S.C.C.A.N.D.) In Missouri, mutual assent to the present institution of the status of matrimony is sufficient to establish a valid common-law marriage; so the marriage may be established where a nonresident duly executed an agreement that he and a woman residing in Missouri should henceforth become husband and wife, and she accepted the offer. -Great Northern Ry. Co. v. Johnson, 181. MASTER AND SERVANT. See Appeal and Error, 262; Commerce, 123, the Factory Act of Virginia, that "all vats 121(1) (U.S.C.C.A.Va.) Under section 2 of and manner of the guarding must be such as ** shall be properly guarded," the place will at least reasonably safeguard employés while engaged in their habitual work and in their necessary passing to and from it.-E. I. Du Pont de Nemours & Co. v. Brisco, 324. (C) Methods of Work, Rules, and Orders. 137(3) (U.S.C.C.A.N.Y.) In an action by a railroad brakeman, who was thrown from a on which he was standing to give signals during switch maneuvers, held, that the failure of the engineer to give notice of his in car For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER tention to back the train was immaterial.-Le- the exercise of ordinary prudence and impose high Valley R. Co. v. Normile, 178. liability on the owner.-The Robert R., 365. 25034. Owing to the great increase of matter heretofore classified to this section, we have made a new subdivision, consisting of number sections 346-420, at the end of this topic, where the matter in this and future index digests will be found. 278(16) (U.S.C.C.A.Ark.) In an action by a servant, hurt by a piece of wood thrown by a rapidly revolving drop saw, evidence held sufficient to sustain a verdict in favor of the servant, on the ground that the mechanical dogs holding the wood were defective, and that the master knew it, but failed to repair.-Trumann Cooperage Co. v. Dillard, 191. (C) Actions. 332(4) (U.S.C.C.A.N.J.) In an action by boy hurt while alighting from one of defendant's wagons, on which he was riding at the invitation of driver, where the case was tried and submitted on theory that defendant's stableman acquiesced in the driver's unauthorized invitation, held, under the evidence, that the question of stableman's authority to bind defendant should have been submitted to the jury.-Central Stamping Co. v. McKeon, 336. VI. WORKMEN'S_COMPENSATION (A) Nature and Grounds of Master's Lia- 351 (U.S.C.C.A.N.Y.) Member of railroad's local switching crew, injured in intrastate commerce in New Jersey, while setting brake on car, held not entitled to recover against railroad under federal Safety Appliance Act (Comp. St. § 8618 et seq.), not in the federal Employers' Liability Act, but only, in the court of common pleas of the county of New Jersey which would have jurisdiction in a civil cause; there having been no provision in contract of employment that Workmen's Compensation Act of New Jersey (P. L. 1911, p. 134), as amended by Act N. J. April 1, 1913 (P. L. p. 302), should not apply, and he having given no such notice to railroad before accident.-Delaware, L. & W. R. Co. v. Peck, 431. (C) Proceedings. 396 (U.S.C.C.A.N.Y.) Member of railroad's local switching crew, injured in intrastate commerce in New Jersey, while setting brake on car, held entitled to recover against railroad under federal Safety Appliance Act (Comp. St. § 8618), not in the federal court under the federal Employers' Liability Act, but only in the court of Common Pleas of the county of New Jersey which would have jurisdiction in a civil cause, there having been no provision in contract of employment that Workmen's Compensation Act of New Jersey (P. L. 1911, p. 134) as amended by Act N. J. April 1, 1913 (P. L. p. 302), should not apply, and he having given no such notice to railroad before accident.-Delaware, L. & W. R. Co. v. Peck, 431. 28630) (U.S.C.C.A.N.Y.) In an action by a railroad brakeman, who was thrown from a car on which he was standing to give signals for switching, evidence held sufficient to carry to the jury the question whether the engineer was negligent in backing the train with unnecessary violence, and to sustain a verdict against the company.-Lehigh Valley R. Co. See Army and Navy. v. Normile, 178. 289(22) (U.S.C.C.A.Va.) Evidence held to justify submitting to the jury the question of the contributory negligence of an injured employé, in failing to remove an obvious danger at his place of work.-E. I. Du Pont de Nemours & Co. v. Brisco, 324. IV. LIABILITIES FOR INJURIES TO MILITARY LAW. MINES AND MINERALS. See Master and Servant, 118, 217; Quieting Title, 35; Statutes, 191; Vendor and Purchaser, 231. II. TITLE, CONVEYANCES, AND (B) Conveyances in General. (B) Work of Independent Contractor. 55(2) (U.S.C.C.A.W.Va.) In view of Code 319 (U.S.C.C.A.N.Y.) Only the clearest re- W. Va. 1913, c. 72, § 3 (sec. 3780), disclaimquirement of a contract to do something which ers of minerals in lands in West Virginia held is dangerous can relieve the contractors fromquitclaim deeds.-Woodall v. Clark, 84. MORTGAGES. ity of the bondholders.-Brown v. Denver Omnibus & Cab Co., 118. (E) Parties and Process. See Acknowledgment, 20; Bankruptcy, 116, 314, 322, 324; Banks and Banking, 116; Chattel Mortgages; Courts, 310,427 (2) (U.S.C.C.A.Colo.) The rule that in 317, 372, 493; Judgment, 668; Railroads, Cum 177. I. REQUISITES AND VALIDITY. (A) Nature and Essentials of Conveyances as Security. 10 (U.S.C.C.A.Colo.) Since the enactment of the Colorado Public Trustee Act, there is no difference as to the interest conveyed by a trust deed to secure the payment of a debt as between real and personal property.-Brown v. Denver Omnibus & Cab Co., 118. IV. RIGHTS AND LIABILITIES OF PARTIES. 199(1) (U.S.C.C.A.N.Y.) The general rule is that the mortgagee is not entitled to rents and profits of the mortgaged premises until he takes actual possession, or until possession is taken in his behalf by a receiver, or until he demands and is refused possession.-In re Brose, 162. IX. FORECLOSURE BY EXERCISE OF POWER OF SALE. 362 (U.S.C.C.A.Cal.) A corporation, which purchased oil property at trustee's sale under a mortgage, pursuant to contract with another corporation which had bought the property and assumed the mortgage, held, under the contract, to have only a lien as between the two corporations, leaving the property equitably that of the original purchaser and subject to foreclosure for its default in payments.Penn Development Co. v. Stoner, 148. X. FORECLOSURE BY ACTION. (B) Right to Foreclose and Defenses. 401(2)(U.S.C.C.A.Colo.) A provision giv ing the majority in interest of the holders of bonds secured by a mortgage the option to declare the principal of the bonds due in event of default in interest does not prevent foreclosure for default in interest.-Brown v. Denver Omnibus & Cab Co., 118. 414 (U.S.C.C.A.Colo.) A provision, in a mortgage given to secure bonds, for foreclosure in event of default, upon request of a majority in interest of the bondholders, if precluding suit by a bondholder where a majority of the bondholders had conspired with the mortgagor to defraud, would be void as ousting the courts of jurisdiction.-Brown v. Denver Omnibus & Cab Co., 118. general courts can deal with bondholders only through their trustees is a rule of convenience, to facilitate the conduct of the suit, and is inapplicable where the trustee occupies a position prejudicial to the interest of the bondholders.-Brown v. Denver Omnibus & Cab Co., Co., 118. Where the trustee named under a mortgage securing bonds refused to act, the trustee is not an indispensable party defendant to a suit by a holder of bonds to foreclose the mortgage.-Id. (F) Pleading and Evidence. 463 (U.S.C.C.A.Porto Rico) Evidence held to closure suit that a stipulation in a deed by substantiate allegations in the answer in a forewhich defendant assumed and agreed to pay a mortgage on the property, not then of record, edge.-Wilcox v. El Banco Popular de Econowas inserted by fraud and without his knowlmias y Prestamos De San Juan, P. R., 518. (K) Deficiency and Personal Liability. 559(3) (U.S.C.C.A.Porto Rico) In a suit to foreclose a mortgage, and also to enforce the personal liability of a grantee of the property under a provision of the deed by which he assumed and agreed to pay the mortgage, the validity of the deed is a material issue.-Wilcox v. El Banco Popular de Economias y Prestamos De San Juan, P. R., 518. MUNICIPAL CORPORATIONS. See Bankruptcy, 288; Chattel Mortgages, IX. PUBLIC IMPROVEMENTS. 374(4) (U.S.C.C.A.N.Y.) In an action by a contractor for public work, for breach of the contract which rendered the work more expensive, defendant may show that by reason of subcontracting the work plaintiff sustained no actual damages, but that the loss, if any, fell upon the subcontractors.-City of New York v. Selden, 487. (D) Damages. 768 (3) (U.S.C.C.A.Miss.) A city held not chargeable with negligence, which rendered it liable for injury to a person who fell when starting to cross a street in the evening in the middle of a block, because the sidewalk was some 4 or 5 feet higher than the grade of the street.-Rahm v. City of Vicksburg, 609. NAMES. 417 (U.S.C.C.A.Colo.) A complaint by a bondholder, seeking to foreclose a mortgage given to secure bonds, which alleged that the trustee had refused to act, that the mortgagor was in default, and that the holders of a majority in interest of the bonds had conspired to defraud other bondholders, and apply funds, properly applicable to payment of the bonds, to payment of unsecured indebtedness, held to state a cause of action for equitable relief, notwithstanding the mortgage provided for foreclosure only upon request of a major- See Banks and Banking. See Jury, Names, 82; Trade-Marks and Trade58, 73. NATIONAL BANKS. For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER NOTES. See Bills and Notes. NOTICE. See Banks and Banking, 116; Corporations, OFFICERS. See Arrest, 63, 68; Banks and Banking, OLEOMARGARINE. See Conspiracy, 43; Criminal Law, PARENT AND CHILD. See Wills, 519. (C) Actions Between Partners. VII. DISSOLUTION, SETTLEMENT, not (C) Distribution and Settlement Between held to 311(5) (U.S.C.C.A.Ill.) Evidence Representations whereby defendant induced A young inexperienced woman held not care- have the controlling share, and transfer to it [ humidifying air and apparatus to conduct the of the partnership assets.-Id. On avoidance for fraud of contract for dissolution of partnership, the partnership agreement, providing that all patents and inventions of either partner shall belong to the partnership, governs rights of the parties, and patent taken out by one of them is properly adjudged to belong to the partnership.-Id. PATENTS. See Judgment, 632; Partnership, 311; I. SUBJECTS OF PATENTS. method, that fact would not have vitiated the patent, and, conversely, no more does the fact that it refused so to do, in the same patent at all events.-Buffalo Forge Co. v. City of Buffalo, 411. IX. CONSTRUCTION AND OPERATION 157(2) (U.S.C.C.A.N.Y.) Where an inventor was the first to co-ordinate and disclose a series of operations constituting a method to heat and humidify air, and air moistened by such method was a successful novelty, his patent is entitled to benevolent construction.Buffalo Forge Co. v. City of Buffalo, 411. XII. INFRINGEMENT. (A) What Constitutes Infringement. 7 (U.S.C.C.A.N.Y.) That the means, and the only means, of applying the process, are strictly mechanical, is of no moment, so far as patentability of the process is concerned; but if the process, when distinguished from the means of performing it, is new, useful, and in-243 tellectually rises to the dignity of invention, it is patentable, if it falls within the meaning of the word "art" as used in the statute.-Buffalo Forge Co. v. City of Buffalo, 411. (U.S.C.C.A.Minn.) Where the principle and mode of operation of a patented combination are appropriated, mere changes of the form or position of the mechanical elements thereof, or the substitution of plain mechanical equivalents for some of the elements of the combination, will not deprive the device of infringement in cases in which the forms and positions changed and the specific elements 21 (U.S.C.C.A.Mo.) Substitution of a hard rather than the equivalents substituted for for a soft metal in one of the parts of a combi- them were not claimed by the patentee to be, nation patent does not as a rule constitute pat- and were not, essential and distinguishing charentable invention.-W. S. Tyler Co. v. Ludlow-acteristics of the invention.-Disc Grader & Plow Co. v. Austin-Western Road Machinery Saylor Wire Co., 68. Co., 62. II. PATENTABILITY. (C) Suits in Equity. 26(2) (U.S.C.C.A.Minn.) A new combination of old elements by which a new and useful result is produced, or an old result is obtained in a more facile, economical, and useful way, may be patented, as well as a new machine or composition of matter.-Disc Grader & Plow Co. v. Austin-Western Road Machin-infringement; but, if it can be read, infringeery Co., 62. 27 (U.S.C.C.A.Va.) The application of an old process to a new subject for an old purpose without any change in result is not "invention."-Armstrong Seatag Corporation v. Smith's Island Oyster Co., 267. 282 (U.S.C.C.A.N.Y.) If a claim cannot be read on defendant's device, there can be no ment is suggested, not proved, and the prior art, as well as the disclosure, must still be studied. Tostevin-Cottie Mfg. Co. v. M. Ettinger Co., 66. 297(2) (U.S.C.C.A.N.H.) It is within the discretion of the court to deny a preliminary injunction in an infringement suit, although the validity of the patent has been previously adjudicated.-Vulcan Soot Cleaner Co. v. Amoskeag Mfg. Co., 416. 310(4) (U.S.C.C.A.N.Y.) A bill for patent infringement held sufficient to state a cause of action; averments as to previous litigation over the patent being immaterial.-Bayley & Sons v. Blumberg, 194. 114 (U.S.C.C.A.N.Y.) Where the Patent Office denied a patent to an applicant, and its decision was affirmed by the Court of Appeals of the District of Columbia, held that, in a suit under Rev. St. § 4915 (Comp. St. § 9460), begun in federal District Court, the Circuit Court of 312(1) (U. S. C. C. A. Mo.) In infringement Appeals will not render judgment requiring the suit, the complainant, who seeks to recover profCommissioner of Patents where to issue pat- its made by the infringer, who carried on other ent, there was diversity of opinion between business, has the burden of showing apportionits members as to whether patent should issue, ment, though this duty is often one of making and there was no testimony materially chang a prima facie case of profit, casting on the deing the record before the Court of Appeals of fendant the real duty of apportionment.-Cofthe District of Columbia.-Gold v. Newton, 270. field Motor Washer Co. v. Wayne Mfg. Co., 626. 313 (U.S.C.C.A.N.Y.) In view of the claim dence at trial, held, that it was improper to of the patentee that it would produce new evidismiss a bill setting up the infringement of a patent, notwithstanding it appeared that on previous suit against other parties the patent V. REQUISITES AND VALIDITY OF LETTERS PATENT. 119 (U.S.C.C.A.N.Y.) If Patent Office had granted claims both for a method of heating and |