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Other findings leave no doubt that plaintiff had book or books, being a citizen or resident of the United takes all the steps requird by the act of Congress to States, shall have the sole right and liberty of printobtain copyright of this photograph, and section 4952 ing, reprinting, publishing and vending the same for names photographs among other things for which the the period of fourteen years from the recording of the author, inventor or designer may obtain copyright, title thereof in the clerk's office, as afterward which is to secure him the sole privilege of reprinting, directed." 1 U. S. Stat., 124, $ 1. publishing, copying and vending the same. Tnat de- This statute not only makes maps and charts subfendant is liable under that section and section 4965 jects of copyright, but mentions them before books in there can be no question if those sections are valid as the order of designation. The second section of an they relate to photographs.

act to amend this act, approved April 29, 1802 (2 U. 8. Accordingly, the two assignments of error in this Stat. 171), enacts that from the first day of January court by plaintiff in error, are:

thereafter he who shall invent and design, engrave, 1. That the court below decided that Congress had etch or work, or from his own work shall cause to be and has the constitutional right to protect photographs designed and engraved, etched or worked, any historical aud negatives thereof by copyright.

or other print or prints, shall have the same exclusive The second assignment related to the sufficiency of right for the term of fourteen years from recording the the words “Copyright, 1882, by N. Sarony," in the title thereof as prescribed by law. photograph, as a notice of the copyright of Napoleon By the first section of the act of February 3, 1831 (4 Sarouy under the act of Congress on that subject. U. S. Stat. 436), entitled an act to amend the several

With regard to this latter question it is enough to acts respecting copyright, musical compositions and say that the object of the statute is to give notice of cuts, in connection with prints and engravings, are the copyright to the public, by placing upon each copy, added, and the period of protection is extended to in some visible shape, the name of the author, the ex- twenty-eight years. The caption or title of this act istence of the claim of exclusive right, and the date at uses the word copyright for the first time in the legiswhich this rigbt was obtained.

lation of Congress. This notice is sufficiently given by the words “ Copy- The construction placed npon the Constitution by right, 1882, by N. Sarony," found on each copy of the the first act of 1790, and the act of 1802, by the men photograph. It clearly shows that a copyright is as- who were contemporary with its formation, many of serted, the date of which is 1882, and if the name Sar- whom were members of the convention which framed ony alone was used, it would be a sufficient designa- it, is of itself entitled to very great weight, and when tion of the author until it is shown that there is some it is remembered that the rights thas established have other Sarony.

not been disputed during a period of nearly a century, When, in addition to this, the initial letter of the it is almost conclusive. Christian name, Napoleon, is also given, the notice is Unless therefore photographs can be distinguished complete

in the classification on this point from the maps, The constitutional question is not free from diffi- charts, designs, engravings, etchings, cuts, and other culty.

prints, it is difficult to see why Congress cannot make The eighth section of the first article of the Consti- them the subject of copyright as well as the others. tution is the great repository of the powers of Congress, These statutes certainly answer the question that and by the eighth clause of that section Congress is books only, or writing in the limited sense of a book authorized:

and its author, are within the constitutional provis“To promote the progress of science and useful arts ion. Both these words are susceptible of a more enby securing for limited times to authors and inventors larged definition than this. An author in that sense the exclusive right to their respective writings and dis- is " he to whom any thing owes its origin; originator; coveries."

maker; one who completes a work of science or literaThe argument here is that a photograph is not a ture."--Worcester. So also no one would claim that writing nor a production of an author. Under the acts the word writing in this clause of the Constitution, of Congress designed to give effect to this section the though the only word used as to subjects in regard to persons who are to be benefited are divided into two which authors are to be secured, is limited to the actclasses, authors and inventors. The monopoly which ual script of the author, and excludes books and all is granted to the former is called a copyright; that other printed matter. By writings in that clause is given to the latter, letters patent, or, in the familiar meant the literary productions of those authors, and language of the present day, patent right.

Congress very properly has declared these to include We have then copyright and patent right, and it is all forms of writing, printing, engraving, etching, etc., the first of these under which plaintiff asserts a claim by which the ideas of the mind of the author are given for relief.

visible expression. The only reason why photographs It is insisted in argument that a photograph being a were not included in the extended list in the act of production on paper of the exact features of some nat- 1802 is probably that they did not exist, as photograural object or of some person, is not a writing of which phy as an art was then unknown, and the scientific the producer is the author.

principle on which it rests and the chemicals and maSection 4952 of the Revised Statutes places photo- chinery by which it is operated have all been discovgraphs in the same class as things which may be copy-ered long since that statute was enacted. righted with "books, maps, charts, dramatio or musi. Nor is it to be supposed that the framers of the cal compositions,engravings,cuts,prints, paintings,diaw. | Constitution did not understand the nature of copyings, statues, statuary, and models or designs intended right and the objects to which it was commonly apto be perfected as works of the fine arts.” “Accord-plied, for copyright, as the exclusive right of man to ing to the practice of legislation in England and Amer- the production of his own genius or intellect, existed ica," says Judge Bouvier, 2 Law Dictionary, 363, "the in England at that time, and the contest in the English copyright is confined to the exclusive right secured to courts, finally decided by a very close vote in the House the author or proprietor of a writing or drawing which of Lords whether the statute of 8 Anne, chap. 19, which may be multiplied by the arts of printing in any of authorized copyright for a limited time, was a restraint its branches."

to that extent on the common law or not, was then reThe first Congress of the United States, sitting im- cent. It had attracted very much attention, as the judgmediately after the formation of the Constitution, en- ment of the King's Bench, delivered by Lord Mansfield, acted that the "author or authors of any map, chart, holding it was such a restraint, in Millar v. Taylor, 4 Burr. 2303, decided in 1769, was overruled on appeal in be an original work of art, the product of plaintthe House of Lords in 1774. Id. 2408. In this and iff's intellectual invention, of which plaintiff is the auother cases the whole question of the exclusive right thor, and of a class of inventions for which the Conto literary and intellectual productions had been freely stitution intended that Congress should secure to him discussed.

the exclusive right to use, publish and sell, as it has We entertain no doubt that the Constitution is done by section 4952 of the Revised Statutes. broad enough to cover an act authorizing copyright of The question here presented is one of first impresphotographs, so far as they are representatives of orig- sion under our Constitution, but an instructive case of inal intellectual conceptions of the author.

the same class is that of Nottage v. Jackson, 11 Q. B. But it is said that an engraving, a painting, a print, D. 627, decided in that court on appeal, August, 1883. does embody the intellectual conception of its author, The first section of the act of 25, 26 Victoria, chapter in which there is · novelty, invention,'originality, and 68, authorizes the author of a photograph, upon maktherefore comes within the purpose of the Constitu- ing registry of it under the copyright act of 1882, to tion in securing its exclusive use or sale to its author, have a monopoly of its reproduction and multiplicawhile a photograph is the mere mechanical reproduc- tion during the life of the author. tion of the physical features or outlines of some ob- The plaintiffs in that case described themselves as ject, animate or inanimate, and involves no originality the authors of the photograph which was pirated, in of thought or any novelty in the intellectual operation the registration of it. It appeared that they had arconnected with its visible reproduction in shape of a ranged with the captain of the Australian cricketers picture. That while the effect of light on the prepared to take a photograpb of the whole team in a group; plate may have been a discovery iu the production of and they sent one of the artists in their employ from these pictures, and patents could properly be obtained London to some country town to do it. for the combination of the chemicals, for their appli- The question in the case was whether the plaintiffs, cation to the paper or other surface, for all the ma- who owned the establishment in London, where the chinery by which the light reflected from the object photographs were made from the negative and were sold was thrown on the prepared plate, and for all the im- and who had the negative taken by one of their men, provements in this machinery, and in the materials; were the authors, or the man who, for their benefit, the remainder of the process is merely mechanical, took the negative. It was held that the latter was the with no place for novelty, invention, or originality. It author, and the action failed, because plaintiffs had is simply the manual operation, by the use of these in- described themselves as authors. struments and preparations, of transferring to the Brett, M. R., said in regard to who was the author: plate the visible representation of some existing ob- “The nearest I can come to, is that it is the person who ject, the accuracy of this representation being its high- effectively is, as near as he can be, the cause of the picest merit.

ture which is produced; that is, the person who has This may be true in regard to the ordinary produc- superintended the arrangement, who has actually tion of a photograph, and that in such case a copyright formed the picture by putting the persons in position is no protection. On the question as thus stated we and arranging the place where the people are to bedecide nothing.

the man who is the effective cause of that." In regard however to the kindred subject of patents Lord Justice Cotton said: “In my opinion author' for invention, they cannot by law be issued to the in- involves originating, making, producing as the inventventor until the novelty, the utility and the actual ive or master mind, the thing which is to be protected, discovery or invention by the claimant have been es- whether it be a drawing, or a painting, or a phototablished by proof before the commissioner of patents; graph;” and Lord Justice Bowen says that photograand when he has secured such a patent, and under-phy is to be treated for the purposes of the act as an takes to obtain redress for a violation of his right in a art, and the author is the man who really represents, court of law, the question of invention, of novelty, of creates or gives effect to the idea, fancy, or imaginaorigiuality, is always open to examination. Our copy. tion. right system has no such provision for previous exami- The appeal of plaintiffs from the original judgment nation by a proper tribunal as to the originality of the against them was accordingly dismissed. book, map, or other matter offered for copyright. A These views of the nature of authorship and origideposit of two copies of the article or work with the nality, intellectual creation and right to protection librarian of Congress, with the name of the author confirm what we have already said. and its title-page, is all that is necessary to secure a The judgment of the Circuit Court is accordingly copyright. It is therefore much more important that affirmed. when the supposed author sues for a violation of his copyright, the existence of those facts of originality, of

UNITED STATES SUPREME COURT ABintellectual production, of thought, and conception on the part of the author should be proved, than in the

STRACT. case of a patent right.

In the case before us we think this has been done. INTERNAL REVENUE-EXEMPTION-WEARING APPA

The third finding of facts says, in regard to the pho- REL--RULES TO GOVERN.-A citizen of the United tograph in question, that it is a "useful, new, harmo- States, arriving home from a visit to Europe, with his nious, characteristic and graceful picture, and that family, in the end of September, by a vessel, brought plaintiff made the same * * * entirely from his with him wearing apparel, bought there, for his and own original mental conception, to which he gave visi- their use, to be worn here during the season then apble form by posing the said Oscar Wilde in front of proaching, “not excessive in quantity for persons of the camera, selecting and arranging the costume, dra- their means, habits and station in life," and their orperies, and other various accessories in said photo- divary outfit for the winter. A part of the articles graph, arranging the subject so as to present graceful had not been worn, and duties were exacted by the outlines, arranging and disposing the light and shade, collector on all those articles. Held, that under section suggesting and evoking the desired expression, and 2505 of the Revised Statut es (now section 2503, by virfrom such disposition, arrangement or representation, tue of section 6 of the act of March 3, 1883, chapter made entirely by plaintiff, he produced the picture iu 121 [22 Stat. 521]), exempting from duty ''wearing appasuit."

rel in actual use and other personal effects (not merThese findings, we think, show this photograph to chandise), * * * of persons arriving in the United States," the proper rule to be applied was to exemptent from those we have now to consider. Atchison v. from duty such of the arcioles as fulfilled the following | Denver. Opinion by Waite, C. J. conditions: (1) Wearing apparel owned by the passen. (Decided March 3, 1884.] ger, and in a condition to be worn at once without

PATENT-NOVELTY-OLD PROCESS TO SIMILAR SUBfurther manufacture; (2) brought with him as a pas

JECT-VOID.-In trucks already in use on railroad cars senger, and not for sale, or purchased or imported for other persons, or to be given away; (3) suitable for the the king-bolt, which held the car to each truck, passed season of the year which was immediately approach and through an elongated opening in the plate below,

through a bolster supporting the weight of the car, ing at the time of arrival; (4) not exceeding in quantity or quality or value what the passenger was in the

so as to allow the swivelling of the truck upon the bolt habit of ordinarily providing for himself and his fam

and lateral motion in the truck; and the bolster was ily at that time, and keeping on hand for his and suspended by divergent pendent links from brackets their reasonable wants, in view of their means and

on the frame, whereby the weight of the car tended to habits in life, even though such articles had not been the track. Held, that a patent for employing such a

counteract any tendeuoy to depart from the line of actually worn. Astor v. Merritt, Opinion by Blatchford, J.

truck as the forward truck of a locomotive engine with

fixed driving wheels was void for want of novelty. It [Decided April 7, 1884.]

is settled by many decisions of this court, which it is CARRIER CONNECTING LINES - DISCRIMINATION

unnecessary to quote or refer to iu detail, that the apCOURT CANNOT CREATE OBLIGATION.-At common law plication of an old process or machine to a similar or a carrier is not bound to carry except on his own live, analogous subject, with no change in the manner of and we think it quite clear that if he contracts to go

application, and no result substantially distinct in its beyond he may, in the absence of statutory regula- nature, will not sustain a patent, eveu if the new form tions to the contrary, determine for himself what

of result has not before been contemplated. Hotchkiss agencies he will employ. His contract is equivalent 164, 167; Jones v. Morehead, 1 Wall

. 155, overruling

v. Greenwood, 11 How. 248; Phillips v. Page, 24 id. to an extension of his line for the purposes of the contract, and if he holds himself out as a carrier beyond

S. C., nom. Livingston v. Jones, 1 Fish. Pat. Cas. 521; the line, so that he may be required to carry in

Hicks v. Kelsey, 18 Wall. 670; Smith v. Nichols, 21 id. that way for all alike, he may nevertheless confine

112; Brown v. Piper, 91 U. 8. 37; Roberts v. Ryer, himself in carrying to the particular route he chooses id. 150; Keystone Bridge Co. v. Phoenix Iron Co., 95 to use. A railroad company is prohibited, both by id. 274, 276; 16 Alb. L. J. 320; Plauiug Machine

Co. v. the common law and by the Constitution of Colorado, Keith, 101 U. S. 479, 491; Pearce v. Mulford, 102 id. from discriminating unreasonably in favor of or

112; Heald v. Rice, 104 id. 737, 754-756; Atlantic Works against another company seeking to do business on its

v. Brady, 107 id. 192. In the well-kuown case of Crane road; but that does not necessarily imply that it must

v. Price, in which the English Court of Common Pleas stop at the junction of one and interchange business upheld a patent for using anthracite, instead of bituthere, because it has established joint depot accommo

mjuous coal, with the hot blast in smelting iron ore, the dations and provided facilities for doing a connecting evidence, as Chief Justice Tindal remarked, proved bebusiness with another company at another place. À yond doubt, that in the result of the combination of station may be established for the special accommoda

the hot-air blast with the anthracite, not only was the tion of a particular customer; but we have never heard yield of the furnace more, and the expense of making it claimed that every other customer could, by a suit

the iron less, but “the nature, properties and quality of in equity, in the absence of a statutory or contract

the iron were better," than under the former process, right, compel the company to establish a like station for by means of the combination of the hot-air blast with his special accommodation at some other place. Such

bituminous coal. 4 Man. & Gr. 580, 604; 5 Scott N. R. matters are, and always have been, proper subjects for 338, 389; 1 Web. Pat. Cas. 393, 410. And the decision legislative consideration, unless prevented by some

rests, as was pointed out by Chief Baron Pollock and charter contract; but as a general rule, remedies for

Baron Parke in Dobbs v. Penn, 3 Exch. 427, 432, 433, injustice of that kind can only be obtained from the

and by Mr. Justice Bradley in Hicks v. Kelsey above Legislature. A court of chancery is not, any more than cited, upon the ground that a new metal or composiis a court of law, clothed with legislative power. It

tion of matter was produced. As observed by Mr. may enforce, in its appropriate way the specific perform. Justice Bradley, “in compositions of matter a different mance of an existing legal obligation arising out of con

ingredient changes the nature of the compound, tract, law or usage, but it cannot create the obligation.

whereas an iron bar in place of a wooden one, and subIn regard to the English cases we know of no power in serving the same purpose, does not change the iden

18 Wall. 674. See also Goodthe judiciary to do what the Parliament of Great Brit- tity of a machine." ain has done, and what the proper legislative authority year Dental Vulcanite Co. v. Davis, 102 U. S. 222; ought perhaps to do, for the relief of the parties in this

Smith v. Goodyear, 93 id. 486, 494; 15 Alb. L. J. 266; controversy. All the American cases to which our at

Brook v. Aston, 27 L.J. (N. S.) Q. B. 145; S. C., 4 Jurtention has been called by counsel relate either to

ist (N. S.) 279; S. C., with the opinion less fully rewhat amounts to undne discrimination between the ported, 8 E. & B. 478. But perhaps the most importcustomers of a railroad company or to the power of a

ant English case is that of Harwood v. Great Northern court of chancery to interfere, if there is such a dis. Ry. Co., 2 B. & S. 194, 222, and 11 H. L. Cas. 654. And crimination. None of them hold, that in the absence

all who gave opinions in the House of Lords concurred of statutory direction, or a specific contract, a com

with the Court of Exchequer Chamber in the proposipany having the power to locate its own stopping tion of law that the mere application of an old contriplaces can be required by a court of equity to stop at vance in an old way to an analogous subject, without any another railroad junction and interchange business, or

novelty in the mode of applying such old contrivance that it must under all circumstances give one connect

to the new purpose, is not a valid subject matter of a ing road the same facilities and the same rates

patent. 2 B. & S. 228; 11 H. L. Cas. 666, 672, 682, 684, that it does to another with which it has entered into

685. Pennsylvania Railroad Co. v. Locomotive. Opinspecial con:ract relations for a continuous through line

on by Gray, J. (Decided March 3, 1884. ] and arranged facilities accordingly. The cases are all MUNICIPAL CORPORATION-BONDS-ESTOPPEL instructive in their analogies, but their facts are differ- RECITALS-BONA FIDE PURCHASER.—The question of

BY

legislative authority in a municipal corporation to is- merely cumulative? United States v. Case of Hair sue bonds in aid of a railroad company cannot be con- Pencils, 1 Paine, 400. Sifred v. Commonwealth. Opincluded by mere recitals; but the power existing, the ion by Mercur, C. J. (See 90 Ind. 507.-ED.) municipality may be estopped by recitals to prove ir- [Decided Jan. 7, 1884.] regularities in the exercise of that power; or when the

WILL-GIFT OF INCOME-WHEN GOES TO RESIDUUM law prescribes conditions upon the exercise of the power granted, and commits to the officers of such muni

AFTER DEATH OF LEGATEE.-By a direction in a will cipality thedetermination of the question whether those

the interest of $10,000 was to be paid to a legatee durconditions have been performed, the corporation will ing her natural life, and after her death the said priaalso be estopped by recitals which import such perform.cipal sum of $10,000 was to be divided equally among ance. Commissioners of Knox v. Aspinwall, 21 How.

her then surviving children. Held, that the increase 542; Bissell v. Jeffersonville, 24 id. 299; McClure v. Ox. went to the residuary estate, and was not a direction ford, 92 U. S. 420. We may repeat here what was said

to invest the interest for the benefit of such children. in Anthony v. Jasper Co., 101 U. S. 697, that purchas

The court said: “It has been ruled that a gift of iners of municipal bonds “are charged with notice of

come, during the time for which it is given, is equivathe laws of the State granting power to make the

lent to a gift of the principal. France's Appeal, 3 P.

F. Smith, 220. It is however the intention of the tes. bonds they find on the market. This we have always held. If the power exists in the municipality the

tator expressed in his will, which furnishes the best bona fide holder is protected against mere irregulari

guide in its construction. Regard must be had to the

whole scheme of the will, and its general intent, if it ties in the manner of its execution; but if there is a want of power no legal liability can be created.” So

be lawful, must be adopted. Middleswarth v. Blackhere Porter Township is estopped by the recitals in

more, 24 id. 414; Schott's Appeal, 28 id. 40; Reck's Apthe bonds from saying that no township election was peal, id. 432. Technical rules of construction must not held, or that it was not called and conducted in the

be so applied as to defeat the plain intent of the testaparticular mode required by law. But it is not es

tor. Still v. Spear, 9 Wr. 168.” Middleton's Appeal. topped to show that it was without legislative author

Opinion per Curiam. ity to order the election of August 30, 1851, and to is

[Decided Oct., 1883.] sue the bonds in suit. Coloma v. Eaves, 94 U. S. 49;

BOND-PRINCIPAL NOT DUE-ACTION WILL LIE FOR Buchanan v. Litchfield, 102 id. 290, distinguished. Na

INTEREST.-An action will lie for interest on a bond, tional Bank v. Porter. Opinion by Harlan, J.

although the principal is not yet due, and notwith[Decided March 3, 1884.)

standing the fact that the mortgage securing the bond provides a special remedy for the collection of principal and interest by writ of scire facias. In addition

to the specific sum agreed to be paid at the expiration PENNSYLVANIA SUPREME COURT of five years from the date of the obligation, there was ABSTRACT.

the additional agreement to pay the interest thereon

semi-annually on the first days of July and January in NEGLIGENCE-LOSS OF LIFE-WHAT PLAINTIFF MUST

each year. It is true the mortgage does stipulate under SHOW-MISTAKE OF JUDGMENT.-In order to recover

what facts a scire facias may issue thereon to collect damages for loss of life occasioned by accident the the principal or interest, yet it does not make such pro. plaintiff must show that the decedent lost his life ceeding the only remedy. Although the principal be through the negligence of the defeudant or of their de- not now due aud payable, yet an action lies for the infendants, and if it appear that the deceased, by his terest which is due. Greenleaf v. Kellogg, 2 Mass. 568; own carelessness, contributed in any degree to the ac

Cooley v. Rose, 3 id. 220; 2 Parsons on Contracts, 635. cident which caused the loss of his life, the defendants

When suit is brought for all that is due, it is not arbiought not to have been held to answer for the conse

trarily splitting up the claim, and the holder is entitled quences resulting from that accident. A mistake in to recover his judgment. Montgomery v. Francis. judgment is not an act of negligence. No one can be

Opinion per Curiam. charged with carelessness when he does that which [Decided May 14, 1883.] his judgment approves,or where he omits to do that of which he has no time to judge. Such act or omis

MUNICIPAL CORPORATION-STREET CROSSING-JURY sion, if faulty, may be called a mistake, but not care.

NOT TO DECIDE WHETHER NECESSARY-WHAT MAY DElessness. Brown v. French. Opinion by Gordon, J.

CIDE.-(1) Where a foot passenger in the streets of a [Decided Jan. 7, 1884.]

municipality is injured by an alleged defect in a street

crossing, and brings suit against the municipality to STATUTE-REPEAL BY IMPLICATION.-The plaintiffs recover damages, it is error to leave to the jury the in error claim that in so far as the act of 1855 pre-question whether or not it was necessary to construct scribed the punishment for selling liquors on Sunday, the crossing. The question of its necessity was for the it was repealed by the act of 12th June, 1875, P. L., 40. municipality of the borough of Easton. Her corporate Error is assigned to the sentence. Held, that it is well officers had the undoubted right, under the law, to orsettled that express provision of a subsequent law is dain and establish such sewers, pavements, gutters, not absolutely necessary to repeal a statute. It may etc., as they should deem necessary. They had the be repealed by necessary implication. The leaning right to regulate these pavements, gutters, etc., and however of the courts is strongly against repealing the to fix their heights, grades, widths, slcpes, and the positive provisions of a former statute by construction. forms thereof. They had all needful jurisdiction over Dwarr. on Stat. 154. There must be such a positive re- this subject matter. It was not a question therefore pugnancy between the provisions of the new statute properly referable to the jury, whether the crossing or and the old that they cannot stand together or be con- the gutter therein were necessary, either to the owners sistently reconciled. Wallace v. Bassett, 41 Barb. 92; of the lots of groundfronting thereon, for the enjoyment MoCool v. Smith, 1 Black. (U. S.) 459; Bank v. Com- thereof, or to the borough in general, for the purpose monwealth, 10 Barr, 442; Brown v. County Comrs., 9 of drainage or otherwise; the question of their pecesHarris, 37. If it be possible that both can stand by sity having been adjudicated in their construction by construction, then the proper inquiry is, what was the the corporation. If a person by mere accident, and intention of the Legislature? Did it mean to repeal without fault of any one, were killed in a public street, the former law, or was the new law intended to be it would be a most unwise and unjust rule of

ever

law which could hold the municipality responsible for Justice Marshall, in the case of Taylor v. Sandiford, 7 the injury, because in the judgment of the jury trying Wheat. 13, “In general a sum of money in gross, to be the case, the street was not necessary for public travel paid for the non-performance of an agreement, is oonand should never have been opened for public use. sidered as a penalty. It will not of course be consid(2) In such case the only questions for the jury are sidered as liquidated damages. Much stronger is the whether or not the crossing was constructed in a de- inference in favor of its being a penalty, where it is fective or negligent manner, so as to cause the injury expressly reserved as one. The parties themselves dein question, and also whether or not plaintiff was nominated it a penalty, and it would require very guilty of contributory negligence. Erie v. Schwingle, strong evidence to authorize the court to say that their 10 Har. 384; Lower, etc., v. Merkhoffer, 21 P.F.Smith, own words do not express their own intention." In 276; Pittston v. Hot, 8 Nor. 389. Borough of Easton v. the case of Robeson v. Whitesides, 16 S. & R. 320, it Neff. Opinion per Curiam. (See 90 Ind. 466.-ED.) was held that “stipulated damages can only be where [Decided Oct. 1, 1883.]

there is a clear unequivocal agreement which stipulates

for the payment of a certain sum as a liquidated satisCONTRACT-WHEN HELD TO BE, AND NOT WILL.-(1)

faction fixed and agreed upon between the parties for A. executed a paper described on its face as an agree- the doing or not doing certain acts particularly exment with his son to sell him a parcel of land, but pressed in the agreement. The contract should be exwhich provided that A. should retain possession while pressed, or it should be a necessary implication from he lived, and that after his death the son should have the nature of the transaction itself. Where howpossession, the consideration being the sum of $5 and

the non-performance can be compensated certain covenants, some to be performed before and with money, of which a jury may judge, it is most consome after A.'s death. Held, that the instrument was sonant to reason, and best comports with the undera contract, creating a vested interest to be enjoyed in standing of the parties that the damages should be possession in futuro, and not a will revocable during commensurate with the loss actually sustained.” Burr life. As was said by Mr. Justice Sharswood, in Bond

v. Todd, 5 Wright, 212; Streeper v. Williams, 12 id. 450; v. Bunting, 28 P. F. Smith, 20: “It is certainly the

Shreve v. Breveton, 1 P. F. Smith, 175; Sedg. on Dam. tendency of all the modern authorities to maintain

493; Gillis v. Hall, 2 Brews. 342; 7 Phila. 422. (2) The the general doctrine, which may be stated as a for- concurrent declarations of the parties are inadmissimula, that whenever the party has the power to do a ble, except to show mistake or fraud, and neither is thing (statute provisions being out of the way), and here alleged. Evidence extra the contract may in some means to do it, the instrument he employs shall be so

cases therefore be required to explain the subject matconstrued as to give effect to his intention.” Tested ter and exhibit the surroundings, and in the investigaby this principle, the question is of easy solution. In

tion of the transaction, in its various phases, the tesform the instrument upon which the contention hinges timony of witnesses may be admitted for other purhas all the features of a contract. It is impossible to

poses affecting the inquiries already stated; the truth read it without coming to the conclusion that both of the facts thus shown is for the jury, but their effect parties regarded it as an agreement for sale of the land is for the court. Nothing more than this was intended on terms therein specified. (2) It is claimed by plaint-by this court in the case of Bigony v. Tyson, 25 P. F. iffs in error that this case is within the principle recog- Smith, 157. March v. Allabough. Opinion by Clark, nized in Turner v. Scott, 1 P. F. Smith, 126; but a cur- J. sory examination will show that the cases are widely (Decided Oct. 1, 1883.] different. In that case the instrument was in the form of a deed of conveyance, in which however it was expressly provided that the “conveyance is in no way

KENTUCKY COURT OF APPEALS to take effect until after the decease of John Scott, the grantor,” and the habendum was to have and hold the

ABSTRACT. premises “after the decease of said Joby Scott." By the very terms of the instrument the idea of a pres- SURETY-OF COLLECTING AGENT-WHEN NOT LIABLE ently vested interest in the grantee was excluded. The FOR DEFAULT-DISCOVERY — DISCHARGE - CHANGING words employed are an emphatio declaration that no AGREEMENT.—Where an employer discovers a shortinterest shall be considered as presently conveyed so age in the accounts of his agent, it is his duty to notify as to interfere in any way with the life estate; and the the sureties of the agent of such shortage, and if he habendum is equally explicit in declaring that the es- fails to do so, and continues to entrust business to the tate intended to be conveyed shall not commence until agent, the sureties are not liable for any money colthe death of the grantor. It was manifestly a disposi- lected by the agent after the discovery. The sureties tion of the property to take effect after death, and not are discharged however only from the time such disbefore; while the instrument under consideration covery is made by the employer, and not from the took effect immediately and created a vested interest time he might with due diligence have discovered the which could not be divested by the subsequent will of shortage. The employer is not bound to use diligence A. Bork v. Bork. Opinion by Sterrett, J.

to make the discovery, but must report as soon as [Decided Oct., 1883.]

made. Magee v. Manhattan, 2 Otto, 96; Story's Eq.

Jur. SS 215, 512; Ætva Life v. Mabbett, 18 Wis. 667; DAMAGES-LIQUIDATED OR PENALTY-DECLARA- Phillips v. Foxhall, L. R., 7 Q. B. 666; 3 Eng. R. 259; TIONS INADMISSIBLE.- It is competent for persons Sanderson v. Aston, L. R., 8 Exch. 73; 4 Eng. R. 452; entering into an agreement to avoid all future Franklin v. Cooper, 39 Maine, 542; Graves v. National questions as to the amount of damages which may Bank, 10 Bush, 23; 19 Am. Rep. 50. (2). Sureties of result from its violation, and to agree upon a definite A. as agent of an insurance company, where the sum, as that which shall be paid to the party who al- company knew of and acquiesced in the admission of leges and establishes the violation, but such an agree- A.'s son as a partner in the agency and suffered its ment should either be plainly expressed in the writ- business to be done by A. & Co.,are not liable for money ing, or exist by necessary implication, from the true collected by or acts done by A. & Co. The introduction nature of the transaction. Forfeitures are not favored of the son as a real or ostensible partner was a clear vioin the law, and thọ intention of the parties should lation of the contract, for as is said in London Assurtherefore somehow plainly appear in the contract, its ance Corporation v. Bold, 6 Q. B., 514, “engaging for subject matter or its surrounding. As stated by Chief the good conduct of one man and engaging for the

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