of the enactment under consideration was not to supplement the existing provision against fraud and deception by means of imitation of dairy butter, but to take a further and bolder step, by absolutely prohibiting the manufacture or sale of any article which could be used as a substitute for it, however openly and fairly the character of the substitute might be avowed and published, to drive the substituted article from the market and protect those engaged in the manufacture of dairy products against the competition of cheaper substances, capable of being applied to the same uses as articles of food.

The learned counsel for the respondent frankly meets this view, and claims in his points, as he did orally upon the argument, that even were it certain that the sole object of the enactment was to protect the dairy industry in this State against the substitution of a cheaper article, made from cheaper materials, this would not be beyond the power of the Legislature.

This, we think, is the real question presented in the case. Conceding that the only limits upon the Legislative power of the State are those imposed by the State Constitution and that of the United States, we are called upon to determine whether or not those limits are transgressed by an enactment of this description. These limitations upon legislative power are necessarily very general in their terms, but at the same time very comprehensive. The Constitution of the State provides (art. 1, § 1) that no member of this State shall be disfranchised or deprived of any of the rights and privileges secured to any citizens thereof, unless by the law of the land or the judgment of his peers. Section 6 of article 1 provides that no person shall be deprived of life, liberty or property without due process of law, and the fourteenth amendment to the Constitution of the United States provides that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws."

These constitutional safeguards have been so thoroughly discussed in recent cases that it would be superfluous to do more than refer to the conclusions which have been reached bearing upon the question now under consideration. Among these no proposition is more firmly settled than that it is one of the fundamental rights and privileges of every American citizen to adopt and follow such lawful industrial pursuits, not injurious to the community, as he may see fit. Live Stock Association v. Crescent City, etc., 1 Abb. U. S. 398; 16 Wall. 106: Corfield v. Coryell, 4 Wash. C. C. 380; Matter of Jacobs, 98 N. Y. 98. The term "liberty," as protected by the Constitution, is not cramped into a mere freedom from physical restraint of the person of the citizen, as by incarceration, but it is deemed to embrace the right of man to be free in the enjoyment of the faculties with which he has been endowed by his Creator, subject only to such restraints as are necessary for the common welfare.

In the language of Andrews, J., in Bertholf v. O'Reilly, 74 N. Y. 515, the right to liberty embraces the right of man to "exercise his faculties and to follow a lawful vocation for the support of life," and as expressed by Earl, J., in Re Jacobs, " one may be deprived of his liberty, and his constitutional right thereto violated, without the actual restraint of his person. Liberty, in its broad sense, as understood in this country, means the right not only of freedom from servitude, imprisonment or restraint, but the right of one to use his faculties in all lawful ways, to live and work where he will, to earn his livelihood in

any lawful calling, and to pursue any lawful trade or Vocation."

Who will have the temerity to say that these constitutional principles are not violated by an enactment which absolutely prohibits an important breach of industry for the sole reason that it competes with another, and may reduce the price of an article of food for the human race?

Measures of this kind are dangerous, even to their promoters. If the argument of the respondents in support of the absolute power of the Legislature to prohibit one branch of industry for the purpose of protecting another with which it competes can be sustained, why could not the oleomargarine manufacturers, should they obtain sufficient power to influence or control the legislative councils, prohibit the manfacture or sale of dairy products? Would arguments then be found wanting to demonstrate the invalidity under the Constitution of such an act? The principle is the same in both cases. The numbers engaged upon each side of the controversy cannot influence the question here. Equal rights to all are what are intended to be secured by the establishment of constitutional limits to legislative power, and impartial tribunals to enforce them.

Illustrations might be indefinitely multiplied of the evils which would result from legislation which should exclude one class of citizens from industries, lawful in other respects, in order to protect another class against competition. We cannot doubt that such legislation is violative of the letter as well as of the spirit of the constitutional provisions before referred to, nor that such is the character of the enactment under which the appellant was convicted.

The judgment of the General Term and the Court of Sessions should be reversed. All concur.

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UNITED STATES SUPREME COURT ABSTRACT.*

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JURISDICTION-SUPREME COURT OF DISTRICT OF COLUMBIA-FIFTH AMENDMENT TO CONSTITUTION OF THE UNITED STATES-JUDGMENT-WHEN A NULLITY. -The act of Congress has made the judgment of the Supreme Court of the District of Columbia conclusive as to the question whether, under the circumstances of the case, a prisoner has or has not, for "the same offense, been twice put in jeopardy of life or limb or been deprived of life, liberty, or property, without due process of law." Amend. 5, Const. U. S. In regard to the question as to what matters go to the jurisdiction of a court so as to make its action, when erroneous, a nullity, the general rule is that when the court has jurisdiction by law of the offense charged, and of the party who is so charged, its judgments are not nullities. The case of Ex parte Lange, 18 Wall. 166, is relied on here. In that case the petitioner had been tried, convicted, and sentenced for an offense for which he was liable to the alternative punishment of fine or imprisonment. The court imposed both. He paid the fine, and made application to the same court by writ of habeas corpus for release on the ground that he was then entitled to his discharge. The Circuit Court, on this application, instead of releasing the prisoner, set aside its erroneous judgment, and sentenced him to further imprisonment. This court held that the prisoner, having been tried, convicted, and sentenced for that offense, and having performed the sentence as to the fine, the authority of the Circuit Court over the case was at an end, and the subsequent proceedings were void. In the present case no ver*Appearing in 5 Supreme Court Reporter.

dict nor judgment was rendered, no sentence enforced, and it remained with the trial court to decide whether the acts on which he relied were a defense to any trial at all. We are of opinion that what was done by that court was within its jurisdiction; that the question thus raised by the prisoner was one which it was com⚫petent to decide, which he was bound to decide; and that its decision was the exercise of jurisdiction. Ex parte Watkins, 3 Pet. 202; Ex parte Parks, 93 U. S. 23; Ex parte Yarbrough, 110 id. 653; Ex parte Crouch, 112 id. 178. Matter of Bigelow. Opinion by Miller, J. [Decided Feb. 2, 1885.]

TAXATION

RAILROAD COMPANY EXEMPTION NEW CONSTITUTION-CONSOLIDATION.-The charter of a railroad company being given, exempting such company from taxation under certain circumstances, and thereafter a Constitution being enacted in the State, according to which no corporation should be specifically relieved of taxation, the railroad company, upon being consolidated with another railroad, thereby losing its identity, should be liable for all the pains and penalties imposed by the respective charters of the several companies so consolidated. By the subsequent absorption of the railroad so exempted from taxation with another not so exempted it must be presumed that the original company, in entering into the consolidation, did so in full view of the existing law, and with the intention of forming a new corporation. Railroad Co. v. Maine, 96 U. S. 499; Louisville, etc., R. Co. v. Palmes, 109 id. 244; Memphis, etc., R. Co. v. Berry, 112 id. 609. St. Louis, I. M. & S. Railroad Co. v. Berry. Opinion by Matthews, J. [Decided March 2, 1885.]

CORPORATION-LEASE-COMPLAINT AFTER RECEIV. ING BENEFITS-DIRECTOUS EXCEEDING THEIR POWERS -ACQUIESCENCE.—(1) A court of equity does not listen with satisfaction to the complaints of a company that transactions were illegal which had its approval, and which were essential to its protection, and the benefits of which it had fully received. (2) Complaints of a corporation that its own directors exceeded their authority come with an ill grace when the acts com. plained of preserved its existence. (3) After seven years' acquiescence on the part of a corporation lessor in a lease, something more must be shown than that it was executed in excess of the powers of the directors before the lessee will be made to surrender the profits he has made under it. Illinois, etc., Co. v. Berry. Opin. ion by Field, J.

[Decided Feb 2, 1885.]

PATENT-COMBINATION-ELEMENTS.- When a patent is for a combination only, and none of the separate elements of which it is composed is claimed as the invention of the patentee, none of the elements is included in the monopoly of the patent. As was said by Mr. Justice Bradley in the case of the Corn- Planter Patent, 23 Wall. 224: "When a patentee, after describing a machine, claims as his invention a certain combination of elements, or a certain device, or part of the machine, this is an implied declaration-as conclusive, so far as that patent is concerned, as if it were expressed that the specific combination or thing claimed is the only part which the patentee regards as new. True, he or some other person may have a distinct patent for portions not covered by this, but that will speak for itself. So far as the patent in question is concerned, the remaining parts are old, or common and public." See also Merrill v. Yeomans, 94 U. S. 573; Water-meter Co. v. Desper, 101 id. 332-337; Miller v. Brass Co., 104 id. 350. The patent being for a combination, there can be no infringement unless the combination is infringed. In Prouty v. Ruggles, 16 Pet. 336, it was said: "This combination, composed

of all the parts mentioned in the specification, and arranged with reference to each other and to other parts of the plow in the manner therein described, is stated to be the improvement, and is the thing patented. The use of any two of these parts only, or of two combined with a third which is substantially different in form or in the manner of its arrangement and connection with the others, is therefore not the thing patented. It is not the same combination if it substantially differs from it in any of its parts. The jogging of the standard into the beam, and its extension backward from the bolt, are both treated by the plaintiffs as essential parts of their combination for the purpose of brace and draft. Consequently the use of either alone would not be the same improvement nor infringe the patent of the plaintiffs." To the same effect see also Stimpson v. Baltimore & S. R. Co., 10 How. 329; Eames v. Godfrey, 1 Wall. 78; Seymour v. Osborne, 11 id. 516; Dunbar v. Myres, 94 U. S. 187; Fuller v. Yentzer, id. 288. But this rule is subject to the qualification that a combination may be infringed when some of the elements are employed, and for the others, mechanical equivalents are used, which were known to be such at the time when the patent was granted. Seymour v. Osborne, ubi supra; Gould v. Rees, 15 Wall. 187; Imhaeuser v. Buerk, 101 U. S. 647. Rowell v. Lindsay. Opinion by Woods, J. [See 2 Fisher Pat. Cas. 89.]

[Decided Jan. 5, 1885.]

SHIP AND SHIPPING-COLLISION-SCHOONER-BARK -FAULT-CROSSING COURSES.-A schooner was sailing E. by N., with the wind S., and a bark was closedhauled on the port tack. The schooner sighted the green light of the bark about half a point on the starboard bow, about three miles off, and starboarded a point. At two miles off she starboarded another point. As a result, the light of the bark opened about two points. The bark let her sails shake and then filled them twice. The schooner continued to see the green light of the bark till the vessels were within a length of each other, when the bark opened her red light. At the moment the vessels were approaching collision, the schooner put her helm hard a-starboard, and headed N. E. At that juncture the bark ported, and her stem struck the starboard side of the schooner amidships, at about a right angle. Held, that the bark was in fault, and the schooner free from fault.

(2) If the case was one of crossing courses, under article 12 of the rules prescribed by the act of April 29, 1864, ch. 69 (13 St. 58), the schooner being free and the bark close-hauled on the port tack, the bark did not keep her course, as required by article 18, and no cause for a departure existed under article 19, and she neglected precautions required by the special circumstances of the case, within article 20. Even assuming, on the facts found, that these vessels were crossing, so as to involve risk of collision, when they first sighted each other, the Willis "determined the risk" when she had gone off two points by starboarding, and brought green light to green light. This is the point in judgment in The Earl of Elgin, L. R., 4 Priv. Coun. 1. To be an excusable mistake in extremis, a pardonable maneuver, though contributing to or inducing a collision, when the maneuver would have been faulty if not excusable, it must be one produced by fault or mismanagement in the other vessel. New York & Liverpool U. S. Mail S. Co. v. Rumball, 21 How. 372, 383; The Nichols, 7 Wall. 656, 666; The Carroll, 8 id. 302, 305; The Dexter, 23 id: 69, 76; The Bywell Castle, L. R., 4 Prob. Div. 219. The last case is a well-considered judgment by Lords Justices James, Brett, and Cotton, in the Court of Appeal, and the rule there formulated is that "where one ship has, by wrong maneuvers, placed another ship in a position of extreme

danger, that other ship will not be held to blame if she has done something wrong, and has not been maneuvered with perfect skill and presence of mind." The Elizabeth Jones. Opinion by Blatchford, J. [Decided Dec. 15, 1884.]

PATENTS-INFRINGEMENT OF-DAMAGES-REISSUE.On the 25th of August, 1868, letters-patent were granted to F. T. for "a new and improved machine for rolling saw-logs," which were afterward assigned by the patentee to R., and on the 15th of July, 1873, upon the application of R., reissued letters-patent were granted him for the same. In the reissue the specification is modified so as to make a radical change, not only in the purpose, but in the mechanism of the invention. It embraces a different machine, intended for different purposes, and performing different functions from that described in the original patent. On the 29th of January, 1873, letters-patent were applied for, and on the 12th of August following, granted to J. T. "for certain improvements in log turners," which covered the alleged infringing machine complained of by R. as being embraced in his patent. Held, that in the action brought by R. to recover damages for the infringement of his patent the first claim of the reissued patent was void. This conclusion is sustained by many decisions of this court, some of which may be found in the following cases: Gill v. Wells, 22 Wall. 1; The Wood Paper Patent, 23 id. 568; Powder Co. v. Powder Works, 98 U. S. 126; Ball v. Langles, 102 id. 128; James v. Campbell, 104 id. 356; Heald v. Rice, id. 737; Miller v. Brass Co., id. 350; Johnson v. Railroad Co., 105 id. 544; Bantz v. Frantz, id. 160; Wing v. Anthony, 106 id. 142. Especial attention is called to three decisions of this court which are peculiarly apposite: Clements v. Odorless Excavating Co., 109 U.S. 641; McMurray v. Mallory, 111 id. 97; and Mahn v. Harwood, 5 Sup. Ct. Rep. 174. Torient, etc., Lumber Co. v. Rodgers. Opinion by Woods, J. [Decided Dec. 22, 1884.]

NAVY-OFFICERS OF LONGEVITY PAY-STATUTECONSTRUCTION.—(1) There has been given no authority at any time by Congress for the giving of longevity pay to officers of the navy, except those on duty at sea or on the active list of the navy. (2) Where the meaning of a statute is plain, it is the duty of the courts to enforce it according to its obvious terms. In such a case there is no necessity for construction. Benton v. Wickwire, 54 N. Y. 226; Woodbury v. Berry, 18 Ohio' St. 456; Bosley v. Mattingly, 14 B. Mon. 89; Ezekiel v. Dixon, 3 Kelly, 146; Farrel Foundry v. Dart, 26 Conn. 376; Sussex Peerage case, 11 Clark & F. 85, 143; Bish. Written Law, § 72. Applying this rule, we are of opinion that the case of the appellant finds no support in any act of Congress. United States v. Tyler, 105 U. S. 244, distinguished. Thornley v. United States. Opinion by Woods, J.

[Decided Feb. 2, 1885.]

PRACTICE-JURY TRIAL COURT DECIDING QUESTION OF FACT-WAIVER OF JURY.-Without a waiver of the right of trial by jury in a United States Circuit Court, by consent of parties, the court errs if it substitutes itself for the jury, and passing upon the effect of the evidence, finds the facts involved in the issue and renders judgment thereon; and for such error the judgment will be reversed, and the cause remanded for a new trial. If after the plaintiff's case had been closed, the court had directed a verdict for the defendant on the ground that the evidence, with all infer. ences that the jury could justifiably draw from it, was insufficient to support a verdict for the plaintiff, so that such a verdict, if returned, must be set aside, it would have followed a practice sanctioned by repeated decisions of this court. Randall v. Baltimore

& O. R. Co., 109 U. S. 478, and cases there cited. And in that event the plaintiff, having duly excepted to the ruling in a bill of exceptions, setting out all the evidence, upon a writ of error, would have been entitled to the judgment of this court, whether as a matter of law the ruling against him was erroneous. Or if in the present case, a verdict having been taken for the plaintiff by direction of the court, subject to its opinion whether the evidence was sufficient to sustain it, the court had subsequently granted a motion on behalf of the defendant for a new trial, and set aside the verdict, on the ground of the insufficiency of the evidence, it would have followed a common practice, in respect to which error could not have been alleged, or it might, with propriety, have reserved the question, what judgment should be rendered, and in favor of what party, upon an agreed statement of facts, and afterward rendered judgment upon its conclusions of law. But without a waiver of the right of trial by jury, by consent of parties, the court errs if it substi tutes itself for the jury, and passing upon the effect of the evidence, finds the facts involved in the issue, and renders judgment thereon. This is what was done in the present case. It may be that the conclusions of fact reached and stated by the court are correct, and when properly ascertained, that they require such a judgment as was rendered. That is a question not before The plaintiff in error complains that he was entitled to have the evidence submitted to the jury, and to the benefit of such conclusions of fact as it might justifiably have drawn; a right he demanded and did not waive; and that he has been deprived of it by the act of the court in entering a judgment against him on its own view of the evidence, without the intervention of a jury. In this particular we think error has been well assigned. The right of trial by jury in the courts of the United States is expressly secured by the seventh article of amendment to the Constitution, and Congress has, by statute, provided for the trial of issues of fact in civil cases by the court without the intervention of a jury, only when the parties waive their right to a jury by a stipulation in writing. Rev. St., §§ 648, 649. This constitutional right this court has always guarded with jealousy. Doe v. Grymes, 1 Pet. 469; D'Wolf v. Rabaud, id. 476; Castle v. Bullard, 23 How. 172; Eodges v. Easton, 106 U. S. 408. Baylis v. Travelers' Ins. Co. Opinion by Matthews, J. [Decided Feb. 2, 1885.]

us.

MORTGAGE-CONFISCATED PROPERTY-ACT OF JULY 17, 1862-RIGHTS OF MORTGAGEE-PARTIES TO FORECLOSURE-TITLE OF PURCHASER-AGREEMENT NOT TO

ALIENATE. -A mortgagee of property which was confiscated subsequently to the mortgage, and judgment of condemnation had upon it, under the laws of the United States has, notwithstanding such judgment of condemnation, a valid subsisting mortgage, superior to any estate in the mortgaged property acquired by the judgment of condemnation, or which could be acquired by a sale made by virtue thereof; and a decree of foreclosure, and a sale under such decree, will carry to the purchaser the entire estate in the mortgaged premises, provided the necessary parties were made to the foreclosure proceedings. Day v. Micow, 18 Wall. 156; Claims of Marcuard, 20 id. 114. When a mortgage contains the pact de non alienando, the mortgagee may enforce his mortgage by proceeding against the mortgagor alone, notwithstanding the alienation of the property, and all those claiming under the mortgagor, whether directly or remotely, will be bound, although not made parties. In Nathan v. Lee, 2 Mart. (N. S.) 32, the effect was decided to be that "the mortgagee is not bound to pursue a third possessor, but may have the hypothecated property seized in via executing as if no change had taken place in its possessors, because

any alienation or transfer made in violation of the pact de non alienando is ipso jure void, as it relates to the creditor, and that this effect of the pact is not annulled by the provisions of the Civil Code in relation to mortgages, and the rules laid down for pursuing the action of mortgage." In Stanbrough v. McCall, 4 La. Ann. 324, the court reviewed the cases on this subject, and held that where a mortgage contained the pact de non alienando, one who subsequently purchases the property from the mortgagor cannot claim to be in any better condition than his vendor, nor can he plead any exception which the latter could not, and that any alienation in violation of the pact is null as to the creditor. These cases establish the rule that where a mortgage contains the pact de non alienando the mortgagee may enforce his mortgage by proceeding against the mortgagor alone, notwithstanding the alienation of the property, and that all those claiming under the mortgagor, whether directly or remotely. will be bound, although not made parties. In the present case, and in the later case of Shields v. Shiff, 36 La. Ann. 645, the Supreme Court of Louisiana has held that there was such a privity between a person whose life-estate had been condemned under the act of July 17, 1862, and his heirs, that the latter were bound by a suit and decree to enforce a mortgage executed by their ancestor containing the pact de non alienando, to which the ancestor alone had been made a party defendant. We think this decision is right. It is sustained by the case of Wallach v. Van Riswick, 92 U. S. 202, as will appear by the following passages from the opinion of the court in that case, delivered by Mr. Justice Strong: "If it be contended that the heirs of Charles S. Wallach," the person whose property had been condemned, "cannot take by descent unless their father, at his death, was seized of an estate of inheritance, e. g., reversion or a remainder, it may be answered that even at common law it was not always necessary that the ancestor should be seized to enable the heir to take by descent. Shelley's case is that where the ancestor might have taken and been seized, the heir shall inherit. Fortescue, J., in Thoruby v. Fleetwood, 1 Strange, 318. If it were true that at common law the heirs could not take in any case where their ancestor was not seized at his death, the present case must be determined by the statute. Charles S. Wallach was seized of the entire fee of the land before its confiscation, and the act of Congress interposed to take from him that seisin for a limited time. That it was competent to do, attaching the limitation for the benefit of the heirs. It wrought no corruption of blood. In Lord de la Warre's case, 6 Coke, la, it was resolved by the justices that there was a difference betwixt disability personal and temporary, and a disability absolute and perpetual; as where one is attainted of treason and felony, that is an absolute and perpetual disability, by corruption of blood, for any of his posterity to claim any inheritance in fee-simple,

either as heir to him or any ancestor above him; but when one is disabled by Parliament (without any attainder) to claim the dignity for his life, it is a personal disability for his life only, and his heir, after his death, may claim as heir to him or to any ancestor above him.' There is a close analogy between that case and the present. Without pursuing this discussion further, we repeat, that to hold that any estate or interest remained in Charles S. Wallach after the confiscation and sale of the land in controversy, would defeat the avowed purpose of the confiscation act and the only justification for its enactment; and to hold that the joint resolution was not intended for the benefit of his heirs exclusively, to enable them to take the inheritance after his death, would give preference

to the guilty over the innocent." Avegno v. Schmidt. Opinion by Woods, J. [Decided Jan. 26, 1885.]

NEBRASKA SUPREME COURT ABSTRACT.

STATUTE OF LIMITATIONS-PAYMENT BY ASSIGNEE OF INSOLVENT.-The payment of a dividend by the assignee of an insolvent debtor is not such a part payment as will, under the twenty second section of the Nebraska Code, take the residue of the debt out of the statutory limitation as against such debtor. Under a statute like our own, the Supreme Court of Ohio, in the case of Marienthal v. Mosler, 16 Ohio St. 566, held that the payment of a dividend by the assignee of the debtor did not take the residue out of the statute of

limitations. The opinion cites the cases of Stoddard v. Doane, 7 Gray (Mass.), 387; Pickett v. King, 34 Barb. 193; and Roosevelt v. Mark, 6 Johns. Ch. 266. While it cannot be said that the argument is all on the side of the above cases, and there are high authorities holding the other way, yet I think that the weight of reason, as well of authority, is with them. Clark v. Chambers. Opinion by Cobb, C. J. [See 30 Alb. L. J. 355.1

[Decided Jan. 20, 1885.]

STATUTE OF FRAUDS--PART PERFORMANCE-PART PAYMENT, NOT.-A verbal contract for the sale of land where part performed by the party seeking the enforcement of the contract, will, in a proper case, be enforced; but mere payment of a portion of the con

sideration is not sufficient to take the case out of the statute of frauds. The grounds of the remedy are that it would be a virtual fraud on the plaintiff for the defendant, after permitting acts of part performance which change the relation of the parties and prevent a restoration to their former condition, to interpose the statute as a defense, and thus secure to himself the benefits of the plaintiff's part performance, while he would be left without adequate remedy at law and liable for damages as a trespasser. 3 Pom. Eq., § 1409, and cases cited in the notes. But the acts of part performance that take the case out of the statute are actual possession and the construction of valuable improvements are perhaps in some cases, as where the land was wild, cultivation. In Poland v. O'Connor, 1 Neb. 50, it was held that the payment of a small portion of the purchase price is not such a part performance as will take the contract out of the statute of frauds. Temple v. Johnson, 71 Ill. 13; Glass v. Hulbert, 102 Mass. 28; Wood v. Jones, 35 Tex. 64; Brown Stat. Frauds (4th ed.), § 462; Holmes v. Evans, 48 Miss. 248; Minturn v. Baylis, 33 Cal. 129; McGuire v. Stevens, 2 Am. Rep. 649; Fry v. Platt, 30 Alb. L. J. 454. Whether when the entire consideration is paid and

possession delivered, so that the plaintiff has fully performed on his part, or the compensation is the perenforced, is not now before the court. sonal services of the plaintiff, the contract would be But we are not

aware of any recent case holding that part payment alone is sufficient to take the case out of the statute. We therefore hold that so far as the real estate at least is concerned, the oral agreement cannot be enforced, and is not a proper foundation on which to recover dmaages. There is too much uncertainty also as to the nature of the alleged agreement. An oral agreement, to be enforced, must possess the elements of certainty. The court cannot supply by conjecture what should be established by clear and satisfactory proof. Pom. Eq., § 1409; Lester v. Foxcroft, Colles, P. C. 108; cited 2 Vern, 456; 1 Lead. Cas Eq. 1027, 1038, 1042 (4th Am. ed.); Clinan v. Cooke, 1 Schoales & L. 22; Newton v.