LETTERS-PATENT (continued).

and if he alleges and proves that defence, he is entitled to prevail in
the suit. Those requirements constitute conditions to the sufficiency
of the defence; and the court held that the respondents had not
complied with either to any effectual extent. Id.

9. Infringement being denied in the answer, the burden of proof is upon
the complainant; and the court decided that the charge in this case
was fully proved. Id.

10. Besides these defences, the assignment of errors presented two others,
not set up in the answer: 1. That the Circuit Court erred in holding
that the patentee was the original and first inventor of the improve-
ment specified in the second claim. 2. That the Circuit Court
erred in holding that the patentee was the original and first inventor
of the improvement specified in the fourth claim of the patent.
Both of those claims refer to parts of the drilling feature of the im-
provement, which is merely a combination of old elements; and the
court overruled the defences, for two reasons: 1. Because they were
not set up in the answer. 2. Because they were addressed to a part
only of an indivisible improvement, and not to the entire invention,
as required by the act of Congress. Id.

11. Reissued letters-patent No. 5328, granted to William T. Garratt,
March 18, 1873, for a new and useful improvement in lubricators,
infringe letters-patent No. 111,881, granted to Nicholas Seibert, Feb.
14, 1871, for a new and useful improvement in lubricators. They
are, therefore, void. Garratt v. Seibert, 75.

12. Reissued letters-patent must be for the same invention as that which
formed the subject of the original letters; or for a part thereof when
divisional reissues are granted. They must not contain any thing
substantially new or different. Powder Company v. Powder Works,
126.

13. Original letters for a process will not support reissued letters for a
composition, unless it is the result of the process, and the invention
of the one involves the invention of the other. Id.

14. Letters granted for certain processes of exploding nitro-glycerine will
not support reissued letters for a composition of nitro-glycerine and
gunpowder or other substances, even though the original application
claimed the invention of the process and the compound. They are
distinct inventions. Id.

15. The last clause of sect. 53 of the act of July 8, 1870 (16 Stat. 205;
Rev. Stat., sect. 4916), relates merely to the evidence to which the
commissioner of patents may resort, but does not increase his power
as to the invention for which a reissue may be granted. Whether
said clause relates to any other than letters granted for machines is a
question not considered in this case.
Id.
16. Reissued letters-patent No. 4818, for a new and useful improvement
in compounds containing nitro-glycerine, and reissued letters-patent
No. 4819, for a new and useful improvement in nitro-glycerine com-

LETTERS-PATENT (continued).

pounds, granted March 19, 1872, to the United States Blasting Oil
Company, assignee of Alfred Nobel, are for a different invention
from that described or suggested in original letters-patent No. 50,617.
granted to said Nobel Oct. 24, 1865, for a new and useful improved
substitute for gunpowder, upon which they are founded, and which
they are intended, in part, to supersede. They are therefore void. I.
17. Where, before the issue of letters-patent therefor, a party assigns his
invention, and letters are lawfully issued to the assignee in his own
name, the latter is entitled, where the instrument of assignment
does not show a different intention, to obtain a renewal of them at
the expiration of the original term. Hendrie v. Sayles, 516.
LIEN. See Purchase-money, Suit to enforce Lien for Payment thereof, 1.
LIMITATIONS, STATUTE OF. See Criminal Law, 5; French and
Spanish Land-Grants, 5; Mexican Land-Grants, 4.

1. Importations were made by A. and others, whereon they paid under
protest certain duties unlawfully exacted by B., collector of customs.
The latter, when sued for the excess of duties, pleaded the Statute of
Limitations; whereupon A. filed his bill, setting forth that his at-
torney was informed by an officer of the custom-house, that by the
rules and practice of the Treasury Department the presentation of
A.'s claim to the auditor or refund clerk would prevent the Statute
of Limitations from running, and that the statute, if the claims
were so presented, could not and would not be interposed as a de-
fence in case suits should be brought to recover said excess; that B.,
though he disclaimed any control in the matter, declared his confi-
dence in the knowledge and experience of the officer who made such
statement, and expressed his opinion as concurring therein; that A.
did present his claim to the auditor or refund clerk, as suggested;
and that, relying upon the prior action of the Secretary of the
Treasury in recognizing claims of a like nature, and upon said
statements and opinion of the officer of the custoin-house, and the
concurrence of B. therein, he and others had refrained from suing
until the bar of that statute had attached. He therefore prayed that
B. be enjoined from pleading it in any of the actions at law for such
Held, that the matters alleged are not sufficient to estop B.
from pleading the statute. Andreae v. Redfield, 225.

excess.

2. Purchasers from an assignee in bankruptcy of property transferable to
or vested in him as such, cannot maintain a suit in equity asserting
their title to such property against persons claiming adverse rights
therein, if, at the time of the purchase, his right of action was,
under the Bankrupt Act (14 Stat. 517; Rev. Stat., sect. 5057), barred
by the lapse of time. Gifford v. Helms, 248.

3. The Statute of Limitations of Iowa begins to run against coupon
interest warrants from the time they respectively mature, although

LIMITATIONS, STATUTE OF (continued).

they remain attached to the bond which represents the principal
debt. Amy v. Dubuque, 470.

4. The United States, whether named in a State Statute of Limitations or
not, is not bound thereby; and when it sues in one of its own courts,
such a statute is not within the provisions of the Judiciary Act of
1789, which declare that the laws of the States, in trials at com-
mon law, shall be regarded as rules of decision in the courts of the
United States in cases where they apply. United States v. Thompson,
486.

LOUISIANA. See French and Spanish Land-Grants; Jurisdiction, 1.
MALICE. See Malicious Prosecution, 1, 2, 5.

MALICIOUS PROSECUTION.

1. To sustain an action for malicious prosecution, the failure of the pro-
ceedings against the plaintiff must be averred and proved; but such
failure is not evidence of the defendant's malice or want of proba-
ble cause in instituting them. Stewart v. Sonneborn, 187.

2. Malice, the existence of which is a question exclusively for the jury,
and want of probable cause must both concur to entitle the plaintiff
to recover; and although the jury may infer malice from the want
of probable cause, proof even of express malice will not justify the
inference that probable cause did not exist. Id.

3. The question as to what amounts to probable cause is one of law in a
very important sense. It is, therefore, generally the duty of the
court, when evidence has been given to prove or disprove the exist-
ence of probable cause, to submit to the jury its credibility, and
what facts it proves, with instructions that the facts found amount
to proof of probable cause, or that they do not. Id.

4. A seeming exception to this rule may grow out of the nature of the
evidence, as when the defendant's belief of the facts which are re-
lied on by the plaintiff to prove want of probable cause is a question
involved. What that belief was is always a question for the jury.
Id. .

5. In an action by A. to recover damages for the alleged wrongful and
malicious institution of proceedings in bankruptcy against him, by
B. & Co., the defendants asked the court to charge, that if the
jury believed from the evidence that they, in prosecuting an action
of debt against him, had acted on the advice of counsel, and upon
such advice had an honest belief in the validity of the debt sued for
and of their right to recover it; and in the institution of the bank-
ruptcy proceedings had acted likewise on such advice, and under an
honest belief that they were taking and using only such remedies as
the law provided for the collection of what they believed to be a bona
fide debt, they having first given a full statement of the facts of the
case to counsel, then there was not such malice in the wrongful

MALICIOUS PROSECUTION (continued).

use of legal proceedings by them as would entitle A. to recover.
The court declined so to charge. Held, 1. That the instruction
should have been given. 2. That the facts therein stated consti-
tuted in law a probable cause, and being such, the existence of mal-
ice, if such there was, would not entitle the plaintiff to recover.
6. The jury, if they find for the plaintiff, cannot, in estimating his
damages, consider the fees of counsel in prosecuting the suit. Id.
MANDAMUS. See Jurisdiction, 3.

Id.

A mandamus cannot be used to perform the office of an appeal or a writ
of error. Ex parte Schwab, 240.

MARRIED WOMAN, CONVEYANCE BY, OF HER SEPARATE
ESTATE.

1. Lands in Texas belonging to a married woman are termed in that
State her "separate property," and she has in equity all the power
to dispose of them which could be given to her by the amplest deed
of settlement. Slaughter v. Glenn, 242.

2. During the absence of her husband, when she had the exclusive man-
agement of her interests, a married woman owning in her own right
such lands conveyed them to A. by deed, which she acknowledged
before the proper officer, as if she were a feme sole. She invested the
purchase-money in another tract, and A. sold the lands to B. Some
years afterwards, she and her husband brought an action to recover
them. B. filed his bill, praying that the action be enjoined and his
title quieted. Held, that, in view of the decisions of the Supreme
Court of Texas as to the effect of such a conveyance, he was entitled
to the relief prayed for. Id.

MEASURES. See French and Spanish Land-Grants, 14.

MEXICAN LAND-GRANTS. See Jurisdiction, 7; Practice, 1; Texas,

Lands in.

1. Under Donner v. Palmer (31 Cal. 500), which establishes a rule of
property in California, the courts of the United States accept as
competent primary evidence of alcalde grants of the pueblo land of
San Francisco, the record of them, which, in accordance with the
requirements of Mexican laws, was kept by the alcalde before the
date of the incorporation of the city of San Francisco by that State,
and which record, now in the custody of the city and county re-
corder, is known as one of the books of the former alcalde's office,
the same having been, pursuant to law, turned over to the county
recorder's office. Palmer v. Low, 1.

2. A grant appearing in that record is in the following form: -

"No. 39.

"Whereas George Donner has presented a petition soliciting for a grant
of a title to a lot of ground therein described, therefore I, the undersigned
alcalde, do hereby give, grant, and convey unto the said George Donner,

MEXICAN LAND-GRANTS (continued).

his heirs and assigns for ever, lot number thirty-nine (39), one hundred
varas square, in the vicinity of the town of San Francisco, subject to all
the rules and regulations governing in such cases.

"In testimony whereof, I have hereunto set my hand as alcalde, this
nineteenth day of July, A.D. 1847.

"GEORGE HYDE, 1st Alcalde."

Held, that the terms used are sufficient to pass a title in fee to the
land, and that, in the absence of any thing to the contrary, the
instrument must be presumed to be sufficient in form to give full
effect to the evident intention of the parties. Id.

3. That grant was made to an infant, but it has remained uncancelled,
and was affirmed before the ordinance of the city council, known as
the Van Ness ordinance, passed June 20, 1855, was approved by
Congress. Held, that his title is superior to that of a party who,
without right, entered upon the land, and whose claim thereto,
arising out of his possession thereof, is grounded solely upon the
enacting clause of that ordinance. Id.

4. In ejectment, commenced April 30, 1872, it appearing that the
grantors of the plaintiff entered without title, in 1851 or 1852, and
that they and he continued until May 8, 1867, in the exclusive and
adverse possession of the land covered by that grant, when said
Donner, under whom the defendant claimed title, was placed in
possession by the proper officer, under legal process issued in a suit
to which neither the plaintiff nor any of his grantors deriving title
from any party to the suit after the commencement thereof was a
party. Held, that as the title did not pass out of the United States
until the passage by Congress of the act of July 1, 1864 (13 Stat.
332), toexpedite the settlement of the titles to lands in the State
of California," the Statute of Limitations of that State did not run
in favor of the plaintiff, by reason of his own and his grantors' pos-
session, so as to transfer to him a title which could be asserted
against the record title of the defendant. Id.

MILITARY BOUNTY LAND-WARRANT.

MINING CLAIMS.

See Public Lands, 1.

1. The ninth section of the act of Congress of July 26, 1866, "granting
the right of way to ditch and canal owners over the public lands,
and for other purposes," enacted "that whenever, by priority of
possession, rights to the use of water for mining, agricultural,
manufacturing, or other purposes have vested and accrued, and the
same are recognized and acknowledged by the local customs, laws,
and the decisions of courts, the possessors and owners of such
vested rights shall be maintained and protected in the same; and
the right of way for the construction of ditches and canals, for
the purposes aforesaid, is hereby acknowledged and confirmed: Pro-
vided, however, that whenever, after the passage of this act, any per-