Without any proof of service of a copy of the v. Hollingsworth, 26 U. S. 1 Pet. 165 [7: 96]; We think the second point for plaintiff in error is well taken. Where there has been an Said cause having been called for trial, appearance and no plea, or where, on account plaintiff appeared, and defendant and his attor of amendments and changes of pleadings, the ney failing to appear, thereupon, upon issue declaration remains without an answer, the joined, comes a jury (naming them), who were plaintiff may move for a judgment for the sworn well and truly to try said issue, and who, want of a plea, as upon nil dicit. But no such after hearing the evidence, returned the follow-motion was made. Certainly a jury should [680] ing verdict: "We, the jury, find the issue for not be called, and a verdict entered where no the plaintiff, and assess his damages at issue is joined, unless for assessment of dam$14,000;" and then follows judgment, on ages, merely. The court erred in rendering March 27, 1880, in usual form, on the verdict, judgment thereon. In addition to the authorfor $14,000, and costs. ities cited by counsel for plaintiff in error, see Hogan v. Ross, 54 U. S. 13 How. 173 [14: 100]. [681] On the 8th of October, 1885, plaintiff in error filed in the court below his bond for the prosecution of a writ in error to reverse said judgment, and the same was duly approved by the Circuit Judge. The mittimus under the sentence above referred to, the certificate of the warden of the penitentiary, and the affidavit of plaintiff in error, were all filed in the case and made part of the record; and they show that plaintiff in error was imprisoned in the Joliet Penitentiary from January 2, 1880, to October 4, 1884; and another affidavit of the plaintiff in error, also filed in the case and made part of the record, shows that on his discharge from the penitentiary, October, 1884, he was at once arrested on a capias ad satisfaciendum, issued upon the judgment above mentioned, and from that time until the issue of the writ he had been imprisoned in the county jail of Cook County, Illinois, upon such capias. His case is thus brought within the provision of section 1008 R. S. which provides that, in case a party entitled to a writ of error is imprisoned he may prosecute such writ within two years after judgment, exclusive of the term of such imprisonment. The assignments of error relied upon are three in number, and are substantially as follows: (1.) The court erred in permitting a new sole plaintiff to be substituted for, and in the place of, the sole original plaintiff. (2.) The court erred in submitting to the jury the cause as it stood after the amendments aforesaid, as upon issue joined between said parties, in entering the verdict of the jury in said cause, and in rendering judgment thereon in favor of the defendant in error, when there was no issue joined between said parties. (3.) The court erred in proceeding to trial and entering a verdict and rendering judgment against plaintiff in error when he had no notice of the order giving leave to amend, or of such amendment, and had had no time or opportunity to plead to the amended declaration, nor any day in court to answer to, or defend against, the suit of the new plaintiff. We do not think the first assignment of error well taken. Amendments are discretionary with the court below, and not reviewable by this court. Mandeville v. Wilson, 9 U. S. 5 Cranch, 15 [3: 23]; Sheehy v. Mandeville, 10 U. S. 6 Cranch, 253 [3: 215]; Walden v. Craig, 22 U. S. 9 Wheat. 576 [6: 164]; Chirac v. Reinicker, 24 U. S. 11 Wheat. 280 [6: 474]; Wright We also think the third point well taken. The plaintiff was not entitled to judgment without conforming to the conditions imposed by the court in the very order giving leave to amend the declaration; and under such circumstances, the court erred in rendering judg ment against defendant. But aside from all this, we are confronted with the question of jurisdiction, which, although not raised by either party in the court below or in this court, is presented by the record, and under repeated decisions of this court must be considered. Sullivan v. Fulton Steamboat Co. 19 U. S. 6 Wheat. 450 [5: 302]; Jackson v. Ashton, 33 U. S. 8 Pet. 148 [8: 898]; Grace v. American Central Ins. Co. 109 U. S. 278 [27: 932]; Continental Ins. Co. v. Rhoads, 119 U. S. 237 [30: 380]; Cameron v. Hodges, 127 U. S. 322 [32: 132], and authorities there cited. The ground upon which the jurisdiction of the federal court is invoked is that of diverse citizenship of the parties. In Robertson v. Cease, 97 U. S. 646, 649 [24: 1057, 1058], it was said that "Where jurisdiction depends upon the citizenship of the parties, such citizensbip, or the facts which in legal intendment constitute it should be distinctly and positively averred in the pleadings, or they should appear affirmatively, and with equal distinctness, in [682] other parts of the record," citing Pittsburgh, C. & St. L. R. Co. v. Ramsey, 89 U. S. 22 Wall. 322 [22: 823]; Briges v. Sperry, 95 U. S. 401 [24: 390]; and Brown v. Keene, 33 U. S. 8 Pet. 115 [8: 885]. See also Menard v. Goggan, 121 U. S. 253 [30: 914]; Halsted v. Buster, 119 U. S. 341 [30: 462]; Everhart v. Huntsville Col lege, 120 U. S. 223 [30: 623]. On looking into the record we find no satisfactory showing as to the citizenship of the plaintiff. The allegation of the amended petition is, that the United States Express Company is a joint stock company organized under à law of the State of New York, and is a citizen of that State. But the express company cannot be a citizen of New York, within the meaning of the statutes regulating jurisdiction, unless it be a corporation. The allega tion that the company was organized under the laws of New York is not an allegation that it is a corporation. In fact the allegation is, that the company is not a corporation, but a joint stock company-that is, a mere partnership. And, although it may be authorized by the laws of the State of New York to bring suit [642] in the name of its president, that fact cannot give the company power, by that name, to sue in a federal court. The company may have been organized under the laws of the State of New York, and may be doing business in that State, and yet all the members of it may not be citizens of that State. The record does not show the citizenship of Barney or of any of the members of the company. They are not shown to be citizens of some State other than Illinois. Grace v. American Central Ins. Co. supra, and author ities there cited. For these reasons we are of the opinion that the record does not show a case of which the circuit court could take jurisdiction. The judgment of that court must therefore be reversed at the costs, in this court, of the defendant in error. Hancock v. Holbrook, 112 U. S. 229 [28: 714]; Halsted v. Buster, supra; Menard v. Goggan, supra. Vicksburg & M. R. Co. v. Putnam, 118 U. S. 545 (30:257); U. S. v. Phila. & Reading R. Co. 123 U. S. 113 (31:138); Rucker v. Wheeler, 127 U. S. 93 (31:105); Lovejoy v. U. 8. 128 U. S. 173 (ante, 390.) The assessment of damages rests with the jury only. Graham, Pr. 290, 323; 3 Wait, Pr. 175; Thornton, Juries and Instructions, 116. The amount to which a plaintiff may be entitled under the law and the facts must be found by the jury. Field, Damages, 25; 2 Whittaker, Pr. 392–3; Sedgwick, Damages, 1, p. 22; 2, pp. 650-653; Sioux City & Pac. R. Co. v. Stout, 84 U. S. 17 Wall. 657 (21:745). The court cannot take from the jury the right of weighing the evidence and determining what effect it shall have. Tracy v. Swartwout, 35 U. S. 10 Pet. 80 (9:354); Greenleaf v. Birth, 34 U. S. 9 Pet. 299 The judgment is reversed and the cause re-(9:135); Jewell v. Jewell, 42 U. S. 1 How. 219 manded with directions to set aside the judgment, and for such further proceedings as may not be inconsistent with this opinion. THE INSURANCE COMPANY OF NORTH AMERICA, Piff. in Err., v. JAMIE S. GUARDIOLA ET AL. (See S. C. Reporter's ed. 642, 643.). (11:108); Hazewell v. Coursen, 81 N. Y. 630. Messrs. George F. Edmunds and William W. Goodrich, for defendants in er ror: The plaintiff in error did not object on the specific ground that the original books should have been produced, nor was any notice given to produce the original books. U. 8. v. McMasters, 71 U. S. 4 Wall. 680 (18: 311); Burton v. Driggs, 87 U. S. 20 Wall. 125 (22:299); Wood v. Weimar, 104 U.¡S. 795 (26:782); Noonan v. Caledonia Gold, Min. Co. 121 U. S. 400 (30:1062). Where it is necessary to prove particular Agents' letters, when not evidence-objections to facts, and an examination cannot be conven depositions, how taken. IN ERROR to the Circuit Court of the United States for the Southern District of New York, to review a judgment for plaintiffs, in an action on a policy of insurance. Reversed. The facts are stated in the opinion. Mr. John L. Cadwalader, for plaintiff in error: The court erred in admitting in evidence the memorandum of weights. Each was a copy; the originals were not produced. Flood v. Mitchell, 68 N. Y. 507; Sackett v. Spencer, 29 Barb. 188; Wightman v. Overhiser, 8 Daly, 282. To cure the error of admitting illegal evidence upon a trial the evidence should be stricken out and the jury distinctly instructed to disregard it. Alexander v. Osborn, 21 N. Y. W. Dig. 299; Hinckley v. N. Y. Cent. & H. R. R. Co. 56 N. Y. 434; First Unitarian Society v. Faulkner, 91 U. S. 415-418 (23:283). It is the exclusive province of the jury to pass upon questions of fact. iently made in court, the results may be proved by a person who made the examination, the books being out of the State and beyond the jurisdiction of the court. Burton v. Driggs, supra; Bailey v. Johnson, 9 Cow. 115; Forrest v. Forrest, 6 Duer, 137. Mr. Justice Gray delivered the opinion of the court: This was an action on a policy of insurance upon a cargo of sugar shipped at Sagua in Cuba for New York. After verdict and judg ment for the plaintiffs, the defendant sued out this writ of error. The principal controversy at the trial was whether the cargo shipped consisted of 531 hogsheads or of 368 hogsheads only. Upon this question there was much conflicting evidence, and the plaintiffs introduced a number of depositions, taken under commission at Sagua, including those of the plaintiffs themselves as to what took place at their warehouse, and those of their shipping agents as to what took place at the port some twenty miles below. Annexed to the deposition of one of the plaintiffs were letters written to them by their shipping agents, at the time of the suc cessive shipments, stating the number of hogsheads shipped. Upon these letters being offered in evidence by the plaintiffs, the defendant objected that they were irrelevant and incompetent; and duly excepted to the ruling of the court admitting them. It is too clear for discussion, that these let ters, written to the plaintiffs by their own agents, [643) were no part of the transaction of shipping the [683] Rep. 584; Rapp v. Bard, 1 Fish. Pat. Cas. 196; It is enough if he describes his method with sugar, but were mere reports by the agents to | Rep. 530; Hammerschlag v. Scamoni, 7 Fed. But the letters to the plaintiffs from their own agents were absolutely incompetent, and their admission in evidence clearly tended to prejudice the defendant with the jury. Upon this ground The judgment of the Circuit Court must be reversed and the case remanded with directions to set aside the verdict and to order a new trial. JOHN BÉNÉ ET AL., Appts., v. EMILE JEANTET. (See 8. C. Reporter's ed. 683–688.) Letters patent-specification-pioneer inven- 1. Under section 4888, R. S., the specification must 2. The broad construction claimed in this case for the patent as a pioneer and foundation invention in the art of refining hair cannot extend the rights of the patentee beyond the compositions of matter and processes which, as stated in the patent, embody his real invention. 3. To make out a case of infringement, there must be a preponderance of evidence in favor of complainants. [No. 167] Argued Jan. 18, 1889. Decided March 5, 1889. APPEAL from a decree of the Circuit Court The facts are stated in the opinion. Mr. Sam. Tro. Smith, for appellants; Béné, the pioneer inventor in the art of refining hair, is entitled to a broad claim and liberal construction. Am. Bell Teleph. Co. v. Spencer, 8 Fed. Rep. 509; 126 U. S. 538 (31: 990); Vogler v. Semple, 7 Biss. 382; Worswick Mfg. Co. v. Buffalo, 20 Fed. Rep. 126; Pickhardt v. Packard, 22 Fed. Mowry v. Whitney, 81 U. S. 14 Wall. 620 (20: 858:) Klein v. Russell, 86 U. S. 19 Wall. 433 (22: 116); Goodyear Dental V. Co. v. Gardiner, 3 Cliff. 408; Union Sugar Refinery v. Matthiesson, 3 Cliff. 639; Corning v. Burden, 56 U. S. 15 How. 252 (14: 683). The specification is to be used as an aid in interpreting the claim. Brooks v. Fiske, 56 U. S. 15 How. 212 (14: 665); Hogg v. Emerson, 52 U. S. 11 How. 587 (13: 824); Turrill v. Mich. Southern etc. R. Co. 68 U. S. 1 Wall. 491 (17: 668); Seymour v. Osborne, 78 U. S. 11 Wall. 516 (20: 33). The term equivalent when used in regard to the chemical action of such fluids as can be discovered only by experiment, means equally good. Hyndman v. Roots, 97 U. S. 224 (24: 975); Clough v. Gilbert & B. Mfg. Co. 106 U. S. 166 (27: 134). Mr. William P. S. Melvin, for respond ent: The burden of proof is on the complainants to show an infringment. Brooks v. Jenkins, 3 McLean, 453; Chicago & N. W. R. Co. v. Sayles, 97 U. S. 554 (24: 1053). In deciding between contradictory expert tes- Co. 3 Fish. Pat. Cas. 43; Conover v. Rapp, 4 Mr. Justice Lamar delivered the opinion of Court of the United States for the Southern Counsel for complainant stated in the record The nature and object of the invention are set forth in the specification as follows: 66 This invention relates to the treatment of all kinds of coarse hair, which, in its natural [684] [685] The court further found from the evidence produced in the case that the alleged infringement, the sole issue presented by the pleadings, had not been proven, and therefore dismissed the bill without prejudice to the right of the complainants to bring an action at law if they were so advised. An appeal from this decree brings the case here. state, has little commercial value, and is en- | in an excess of muriatic acid, and the claims "(3). The method of refining and bleaching all kinds and grades of coarse hair, which consists, first, in bathing and manipulating the same in a chemical bath, composed of acid and a chlorine salt, and then in a bleaching bath, composed of acids and bichromate of potash, substantially as and for the purpose set forth. "(4). The method of refining and bleaching all kinds and grades of coarse hair, which consists: first, in bathing and manipulating the same in a bath composed of acid and a chlorine salt, which refines the hair; second, subjecting the refined hair to a bath composed of acids and bichromate of potash; and third, subjecting the hair thus refined and bleached to the proper shade to a fixing bath composed of warm water, solution of muriate of tin, bisulphate of soda, and muriatic acid, which sets the color, substantially as set forth. relative proportions of each, as would enable Upon the trial no direct testimony was offered "(5). The method of refining and treating 6). As a new article of commerce and manufacture, hair of fine texture produced from any grade of coarse hair, either animal or human, by the method of refining, substantially, as herein described." The court below held that were it not for the latter part of this description the specification would fail to comply with the statute, and would be void for uncertainty. It therefore limited the patentee to his second claim, and accordingly ruled that under this specification "The patent is to be construed as one for a process of refining hair by treating it in a bath composed of a solution of chlorine salt dissolved patented process; which correspondence, it was [686] To support this contention the plaintiff introduced an expert, Nathaniel S. Keith, who states that, whilst he had never attended any lectures [687] on the subject of chemistry, he had pursued his studies in the chemical laboratory of his father, a practicing physician and a manufacturing chemist. He had given hair special cousideration during three or four years past, and had made experiments upon the processes of refining and bleaching hair with reference to this suit and another legal controversy. In his [688] KATE W. GOODWIN ET AL., Appts., [601] v. testimony he asserts, substantially, that the de-out a case of infringement. There is not a To repel this contention the defendant called as an expert witness one Charles Marchand, who stated that he had been engaged in chemical studies for twenty-four years, having graduated at a school of arts and manufactures in Paris in 1871, from which time his business had been that of a manufacturing chemist, to which, after he came to this country in 1878, he added the occupation of analytical chemist. He testifies that in his studies and business he has had much to do with bleaching and refining human hair, and other hair; has known for many years oxidizing agencies for bleaching or refining hair; first saw hair reduced in diameter by the use of chemicals twelve years ago in Paris by a chemist; and that he had made a number of experiments in the treatment of hair by subjecting it to a refining process entirely different from that described in the patent; and in corroboration of his testimony he produced several samples of refined hair, which he stated he had refined by the use of different chemicals from those mentioned in the patent. The first was treated by a chlorine gas solution in pure water, and then by a solution of peroxide of hydrogen. The second was a solution of permanganate of potash in water with sulphuric acid and muriatic acid in proper proportions. The third was a solution of sulphurous acid in water, and also a solution of permanganate of potash. The fourth was treated by one of the same methods. Another specimen was treated by a concentration of peroxide of hydrogen. To break the force of this testimony, Keith was recalled, and, upon many points, contradicted Marchand's statements. He testified that he had made experiments according to the methods described by Marchand, and found them failures, and the hair subjected to them worthless and unrefined. ELEANOR FOX ET AL. (See S. C. Reporter's ed. 601-641.) -appeal-interest. 1. The exception that the master refused to suppress depositions will be overruled, where it nowhere appears by the record that any objection was made before the master to the testimony. 2. In section 858 of the Revised Statutes of the United States, in regard to the competency of witnesses, the words in all other respects" mean in all other respects" than those provided for in so much of the section as precedes the word "Provided," and does not qualify the clause which forms the proviso. 3. Under the circumstances of this case, held that 4. Where the parties interested in the allowance Argued Jan. 18, 21, 1889. Decided March 5, 1889. APPEAL from a decree of the Circuit Court The facts are stated in the opinion. Messrs. Chas. H. Wood and John N. Jewett, for appellants: The testimony of defendant, I. Willard Fox, was incompetent as against the complainant in the cause. Stein v. Bowman, 38 U. S. 13 Pet. 219 (10: 134); Bridges v. Armour, 46 U. S. 5 How. 94 (12;65); R. S. U. S. § 858; Eslava v. Mazange, 1 Woods, 625; Merrill v. Atkin, 59 Ill. 20; Stevens v. Hay, 61 Ill. 399; Langley v. Dodsworth, 81 Ill. 86; Crane v. Crane, 81 Ill. 169; Marshall v. Peck, 91 Ill. 187; Bragg v. Geddes, 93 Ill. 51; Potter v. Third Nat. Bank, 102 U. S. 163 (26:111); King v. Worthington, 104 U. S. 44 (26: 652). The settlement embraced in the agreement is We think the complainants did not make Stein v. Bowman, and Bridges v. Armour, supra. In Illinois a party is incompetent as a witness in his own behalf, where the adverse |