and limiting the power of the Legislature to permit such aid. The courts of the State had also declared that railroad and certain other corporations were of a public character, mere agents of the government, to construct roads for the use of the public, and no decision under the Constitution which had been in force from 1850 had modified these doctrines doctrines constituting the foundation upon which, in the courts of this country, rests the power of the Legislature, when unrestrained by constitutional inhibitions, to authorize municipal aid to railroad enterprises. In 1870, after the corporation mentioned had earned its bonds under the contract stated with the city of Y., and was entitled to them under the statute, the Supreme Court of Michigan declared statutes authorizing municipal aid to railroads unconstitutional. Held, in an action by a holder for value of such bonds against the city of Y., that this court would not follow the decision of the Michigan Supreme Court as to the validity of the statute named, but would hold the statute valid as to such bonds, and the city liable therefor. While the proposition that the established settled construction, given by the highest court of a State, of the laws and Constitution of that State must be deemed in all cases binding upon the courts of the Union, this, because the statute defining and regulating the jurisdiction of the Federal courts declares that the laws of the several States, when they apply, shall constitute rules of decision in cases at common law tried in those courts, is undoubtedly supported by the language of some of the opinions which have emanated from this court. All along through the reports of its decisions are to be found adjudications in which upon the fullest cousideration it has been held to be the duty of the Federal courts in all cases within their jurisdiction, depending upon local law, to administer that law so far as it affects contract obligations and rights, as it was judicially declared to be by the highest court of the State at the time such obligations were incurred or such rights accrued. And this doctrine is no longer open to question in this court. It has been recognized for more than a quarter of a century as an established exception to the general rule that the Federal courts will accept or adopt the construction which the State courts give to their own Constitution and laws. The sound and true rule said Taney, C. J., in Ohio Life Ins. Co. v. Debolt, 15 How. 432, is that if the contract when made is valid by the laws of the State, as then expounded by all the departments of its government, and administered in its courts of justice, its validity and obligation cannot be impaired by any subsequent act of the Legislature of the State or decision of its courts, altering the construction of the law. So in City v. Lamson, 9 Wall. 485, Nelson, J., speaking for the court, said: "It is urged also that the Supreme Court of Wisconsin has held, that the act of the Legislature conferring authority upon the city, to lend its credit and issue the bonds in question, was in violation of the provisions of the Constitution above referred to. But at the time this loan was made and these bonds were issued, the decisions of the courts of the State favored the validity of the law. The last decision cannot therefore be followed." Again, in Olcott v. Supervisors, 16 Wall. 690, the court, speaking through Strong, J., said: "This court has always ruled that if a contract when made was valid under the Constitution and laws of a State, as they had been previously expounded by its judicial tribunals and as they were understood at the time, no subsequent action by the Legislature or the judiciary will be regarded by this ourt as establishing its invalidity." To the like effect are some very recent decisions of this court. In Douglas v. County of Pike, 99 U. S. 687, upon a review of some of the previous cases, the court said that "the

true rule is to give a change of judicial construction in respect of a statute the same operation on contracts and existing contract rights that would be given to a legislative amendment; that is to say, make it prospective but not retroactive. After a statute has been settled by judicial construction, the construction becomes, so far as contract rights acquired under it are concerned, as much a part of the statute as the text itself, and a change of decision is to all intents and purposes the same in its effect on contracts as an amendment of the law by means of a legislative enactment. So far as this case is concerned we have no hesitation in saying that the rights of the parties are to be determined according to the law as it was judicially construed to be when the bonds in question were put on the market as commercial paper." Judgment of U. S. Circ. Ct. E. D. Michigan, reversed. Taylor v. City of Ypsilanti. Opinion by Harlan, J. [Decided March 20, 1882.]

PATENT-INFRINGEMENT -MEASURE OF DAMAGES. -In this case the action was for the infringement of a patent for an improvement in pumps "specially designed for drawing off the gas from oil wells and conducting the same to the furnace of the engine." The improvement consisted of the ordinary parts of a double action pump, changed slightly in form, with a new device which enabled it to answer the purpose demanded. The testimony showed that there was no market for pumps adapted to this particular use, except in the oil-producing regions of Pennsylvania and Canada. The demand was limited as well as local. Less than a thousand pumps actually supplied all who wanted them. But for that particular use no other pump could at the time be sold. Defendant manufactured and sold 298 pumps. Complainant, with his facilities, could manufacture all pumps needed. Held, that the damages were the entire profits realized by defendants from the sale of the pumps and were not limited to such as were realized from the manufacture of the patented improvement. In Mowrey v. Whitney, 14 Wall. 620, 651, the rule for damages in this class of cases is given. The subject-matter of that suit was a patent for an improvement in the process of manufacturing car wheels, and in respect to the profits resulting to an infringer from the use of the patented process, and it was said: "The question to be determined is what advantage did the defendant derive from using the complainant's invention over what he had in using other processes then open to the public, and adequate to enable him to obtain an equally beneficial result? The fruits of that advantage are his profits." It does not necessarily follow from this that where the patent is for one of the constituent parts and not for the whole of a machine, the profits are to be confined to what can be made by the manufacture and sale of the patented part separately. If without the improvement a machine adapted to the same uses can be made which will be valuable in the market and salable, then as was further said in Mowry v. Whitney, the inquiry is "what was the advantage in cost, in skill required, in convenience of operation or marketability," gained by the use of the patented improvement. If the improvement is required to adapt the machine to a particular use, and there is no other way open to the public of supplying the demand for that use, then it is clear the infringer has by his infringement secured the advantage of a market he would not otherwise have had, and that the fruits of this advantage are the entire profits he has made in that market. Such is this case. Decree of U. S. Circ. Ct., N. D. New York, reversed. Gould's Manufacturing Co. v. Cowing. Opinion by Waite, C. J. [Decided March 13, 1882.1

NEW HAMPSHIRE SUPREME COURT AB

STRACT.*

DAMAGES ON BREACH OF WARRANTY.-The measure of damages on a breach of warranty in the sale of personal property, where it remains in the possession of the purchaser, is the difference between the value of the property as it would be if the warranty or representation were true and the actual value at the time of the sale. Fisk v. Hicks, 31 N. H. 535; Carr v. Moore, 41 id. 131; Page v. Parker, 43 id. 363; Stiles v. White, 11 Met. 356; Armstrong v. Percy, 5 Wend. 535; Bigelow Fraud, 508; Field Dam. 256, § 272. To this however there are frequently added such incidental losses to the plaintiff as naturally and actually result from the fraud or breach of warranty, or as stated by Benjamin, such damages as were the natural and ordinary result of such fraudulent representations - Benjamin on Sales (1 Am. ed.), 789, 790; Bowman v. Parker, 40 Vt. 410; or as the rule is sometimes stated, the wrong-doer must answer for those results injurious to another which must be presumed to have been within his contemplation at the time of the fraud. Crater v. Binninger, 33 N. J. L. 513: Faris v. Lewis, 2 B. Mon. 375. The rule is however subject to the qualification that it is the duty of the purchaser to use reasonable care to prevent the consequences of the injury, and he can only recover such damages as could not by such care have been avoided. Mayne Dam. 49; 1 Hill. Torts 17. Noyes v. Blodgett. Opinion by Stauley, J.

EQUITABLE ACTION— WHEN REMEDY FOR BREACH OF CONTRACT TO PUPCHASE LAND.-In a suit at law brought against a purchaser of land for a part of the price, if he has materially changed the condition of the land by cutting and removing timber, and cannot, by a reconveyance, restore the vendor to his former position, it is no defense that there was a mutual mistake as to the boundaries, and the vendor has received a part of the price greater than the value of the timber cut by the purchaser, and refused to accept a reconveyance of the land tendered him by the purchaser. The defendant's remedy, if he has any, is in equity. See Noble v. Gookins, 99 Mass. 231; Sparr v. Benedict, id. 463; Wells v. Day, 124 Mass. 38; Grymes v. Sanders, 93 U. S. 55; Scott v. Littledale, 8 E. & B. 815. Hobart v. Jordan. Opinion by Stanley, J.

LIEN

· CONSTRUCTION OF STATUTE-WHEN TIME BE

GINS TO RUN.- A New Hampshire statute provides thus: Any person who labors at cutting, hauling or drawing wood, bark, logs or lumber shall have a lien thereou for his personal services, which lien shall take precedence of all other claims, except liens on account of public taxes, to continue sixty days after the services are performed and may be secured bp attachment." Held, that the lien of a lumberman, laboring under a continuous employment, attaches as security for all the labor performed from the beginning to the end of his work, and continues for a period of sixty days after the last performance of labor under the contract. Calef v. Brinley, 58 N. H. 90; Freeto v. Houghton, id. 100; Miller v. Batchelder, 117 Mass. 179; Stine v. Austin, 9 Mo. 558; Monroe v. West, 12 Iowa, 122; Fowler v. Bailey, 14 Wis. 125; Holden v. Winslow, 18 Penn. 160; Bartlett v. Kingan, 19 id. 341; Yearsley v. Flanigen, 22 id. 489; Derrickson v. Edwards, 29 N. J. L. 468. Hill v. Callahan. Opinion by Foster, J.

CRIMINAL LAW.

SEDUCTION —OF CHASTE WOMAN UNDER PROMISE OF MARRIAGE-CHASTITY NOT PRESUMED - - CORROBORATION. The New Jersey statute relating to seduction provides thus: "If any single man over the age of cighteen years, under promise of marriage, shall have sexual intorcourse with any single female of good repute for chastity, under the age of twenty-one years, and she shall thereby become pregnant, any person so offending shall be deemed guilty of a misdemeanor, etc.; but in such cases the evidence of the female must be corroborated to the extent required in cases of indictment for perjury." Held, that the State in a trial under this statute must prove the good repute of the female affirmatively, it will not be presumed. In Crozier v. People, 1 Park. Cr. 453, where the words of the statute are 66 chaste character," the court said that in the absence of evidence chastity is to be presumed. The New York cases hold the words "previous chaste character" in the statute of that State, to mean actual personal virtue and not reputation, which is the estimate of character formed by the public. There is a distinction between actual personal virtue and "good repute for chastity." The former may be preserved, while the latter is impaired by indiscreet conduct. Andre v. State, 5 Iowa 396, and State v. Higdon, 32 Iowa, 262, relying upon the New York case, applied the same rule. People v. Roderigas, 49 Cal. 9, was an indictment under a statute making it indictable to entice an unmarried female of previous chaste character from her home for the purpose of prostitution. The indictment omitted to charge that the female was of previous chaste character. On demurrer to the indictment the court held that character in this respect was a fact which must not only be alleged but also established by the prosecution, in order to convict; that it was not a presumption of law to be indulged against the counter presumption of innocence. West v. State, 1 Wis. 186, is a well-considered case to the same effect. The latest declaration on the subject is that of the Massachusetts Supreme Court in Commonwealth v. Whittaker, 24 Alb. L. J. 283, that in an indictment under a statute for enticing to a house of ill-fame, for purposes of prostitution, two women of chaste life and conversation, the chastity of the women must be proved by the State in the same way as any other material allegation in the indictment. If the women were unchaste no offense was committed within the meaning of the statute, and their chastity must therefore be established as laid in the indictment by affirmative proof." Held, also, that the corroborating circumstance relied upon for conviction must be something inconsistent with the truth of the defendant's denial. Courtship, unless of such a character that the jury might infer from it a promise of marriage, is not corroborative in a legal sense. Formerly it required the testimony of two witnesses to convict of perjury, but the rule has been so far relaxed as to permit a conviction upon the oath of one witness supported by the proof of strong corroborating circumstances of such a character as clearly to turn the scale and overcome the oath of the defendant and the legal presumption of his innocence. A larger measure of corroboration is requisite than that which is essential to support the testimony of an accomplice against his confederates in crime; something more than the mere weight of evidence in favor of the State. Such evidence will satisfy the New York statute which simply requires the evidence of the female to be supported. Kenyon

v. People, 26 N. Y. 204; Boyce v. People, 55 id. 644. The New Jersey statute is manifestly intended to be more exacting. The corroborating circumstances must relate to the substance of the evidence on which perjury is assigned, and be inconsistent with the truth

of the prisoner's statement; until that point is reached there is a failure to corroborate in a legal sense. The authorities will be found to support this view of the law. Roscoe's Cr. Ev. 823; 2 Whart. Cr. L., § 2276; 1 Greenl. Ev., § 257; United States v. Wood, 14 Peters, 430; Commonwealth v. Parker, 2 Cush. 223. New Jersey Court of Errors and Appeals, Nov. Term, 1881. Zabriskie v. State of New Jersey. Opinion by Van Syckel, J. (14 Vroom, 43 N. J. Law, 640).

INSURANCE LAW.

FIRE POLICY-LIMITATION AS TO TIME OF COMMENCING ACTION ON POLICY VALID.-A condition in a fire policy that no action shall be sustainable thereon unless commenced within twelve months after the loss occurs, held valid. It is in form and effect a condition precedent, and unless it is complied with there can be no recovery at common law. Patrick v. Ins. Co., 43 N. H. 621, 624; Gooden v. Ins. Co., 20 N. H. 73; Judkins v. Ins. Co., 39 N. H. 172; Fullam v. Ins. Co., 7 Gray, 61; Roach v. Ins. Co., 30 N. Y. 546; Williams v. Ins. Co., 20 Vt. 222; Wilson v. Ins. Co., 27 Vt. 99; May on Ins., s. 478. Statutes that are made for the benefit of particular persons may be waived by them. Hanover v. Weare, 2 N. H. 131; Page v. Pendergast, id. 233, 235; Lyman v. Littleton, 50 N. H. 42. New Hampshire Sup. Ct. Tasker v. Kenton Insurance Co. Opinion by Bingham, J. (58 N. H. 469.)

LIFE POLICY -REPRESENTATIONS AS TO TEMPERATE HABITS.-The answers in the application for a life policy, when made the basis of the agreement, are a material part of the contract, and if untrue, the policy is void. But the burden of proof is on the company. In this case the answers alleged that the applicant was sober and temperate, and had always been so. Held, that the words "sober and temperate are to be understood in their ordinary sense. They do not imply total abstinence. A moderate and temperate use of alcoholic stimulants is consistent with sobriety, but if used to such an extent as to produce frequent intoxication the applicant is not sober and temperate. Testimony of positive witnesses that they have seen the party intoxicated is not to be rejected on account of the negative testimony of others who have not. U. S. Circ. Ct., W. D. Pennsylvania, May, 1881. Brockway v. Mutual Benefit Life Insurance Co. Opinion by Acheson, D. J. (9 Fed. Rep. 249.)

MARINE POLICY ASSIGNMENT OF PART OF AMOUNT DUE FOR LOSs.- An assignment of a part only of a particular fund is valid in equity. After a loss occurred, the holder of a policy of marine insurance gave an order on the company for a specific sum, which was less than the total amount of the policy and less also than the amount due from the company to the assured on this loss. The party named in the order brought an action against the company in a State court in the name of the assured, and the assured subsequently brought a similar suit in this court. While both actions were pending the insurance company filed a bill of interpleader against the parties to these suits, to have their rights as to the amount due on the policy ascertained. Held, that the court can determine the rights of the parties; and further, that the order constituted an equitable assignment of the amount named in it. Story Eq. Jur. 1044; Christmas v. Russell, 14 Wall. 84; Savings Bank v. Adel, 8 Feb. Rep. 108. U. S. Cirt. Ct., Maine, Sept., 1881. Union Insurance Co. v. Glover. Opinion by Fox, D. J. (9 Fed. Rep. 529.)

CORRESPONDENCE.

LEGAL ELOQUENCE.

Editor of the Albany Law Journal:

The decadence of the Bar is a theme as old as the record of courts. The lament of Bolingbroke, I think, is recalled by the remarks of Mr. Speaker Patterson so feelingly pointed in the Journal.

"There was a time when lawyers were philosophers, orators and statesmen, but until pelf be separated from the robes we shall no longer see them in the vantage ground of general science"-or words to that effect.

Three hundred years ago the cupidity and meanness of Coke gave point to the above moral, and although there was not the necessity for great wealth that exists at present, he found it to be not incompatible with great honors. His contemporary the great Chancellor was less fortunate.

The truth is the magnitude of the interests involved in present litigations warrants extraordinary charges. The roast beef and house rent of the lawyers are no less inexorable than like quantities with other folk. Until the magician of the future has solved the great bread and butter problem, there is no alternative but for lawyers to work for money.

Oratory has ceased to have commercial value. The market is so glutted with ancient and modern manufactures that there is no call for working up the raw material. I well remember the Circuit Courts of twenty-five years ago when the lawyers wore dress coats and other cloth distinctions, and were eloquent. How they used to fire off their unused material at a temperance meeting in the village church of an evening. It was grand and imposing the way they were idolized by the members of the juries-grand and petit-constables, witnesses, etc.

Lawyers were expected to orate and they never disappointed. They came to the Circuit charged with eloquence, useful with unimportant changes in parts of speeches for plaintiff or defendant. They used to tell a story of Elisha Williams that he forgot himself once and spent some time talking on the wrong side of his case. When brought to a realizing sense of his wandering he escaped the force of the argument by saying: "Gentlemen of the jury, this is the sort of stuff the other side will probably give you."

Mitchell Sanford was a great gun in the third district and it was worth a long days' ride to hear him. I remember a noted criminal case which had stirred the country round; he was engaged as counsel to assist the district attorney, a great effort was expected and he was prepared, but the court accepted a plea of guilty which left Sanford in a terrible plight. He was loaded up to the muzzle and nothing to shoot at. He delivered a lecture in the court-room that evening which relieved him from the pressure. But I shall long remember the spectacle of a popular lawyer surcharged with superfluous eloquence.

EDWARD GEBHARD.

THE Western Jurist, for June, contains a leading article on Pooling Contracts, and one on Contracts by Correspondence, by Charles B. Elliott.-The Indiana Supreme Court has recently passed upon the right of a college faculty to refuse admission to, or expel persons who are members of Greek letter societies. Inasmuch as the letters forming the title of such societies are the only ones that the graduates are able to read, we think it would be unwise to discourage the societies.