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of June 14, 1880, c. 213, that act is amended | competency of the two witnesses who by adding, at the end of section 5, these had been previously convicted and senwords: And all prosecutions in either of tenced for felony,-ibe one in North Caro. said districts for offenses against the laws lina, and the other in Texas,-the plainof the United States shall be tried in that tiffs in error relied on article 730 of the division of the district to which process Texas Code of Criminal Procedure of 1879, for the county in which said offenses are which makes incompetent to testify in committed is by said section required to criminal cases “all persons who have been be returned; and all writs and recogni. or maybe convicted of felony in this state, zances in said prosecutions shall be re or in any other jurisdiction, unless such turued to that division in wbich said conviction has been legally set aside, or prosecutions by this act are to be tried." unless the convict has been legally par21 St. p. 198. This provision does not af- doned for the crime of which he was con. fect the authority of the grand jury for victed." the district, sitting at any place at which By an act of the congress of the repubthe court is appointed to be held, to pre- lic of Texas of December 20, 1836, $ 41, “the sent indictments for offenses committed common law of England, as now pracanywhere within the district. It only re ticed and understood, shall, in its appliquires the trial to be had, and writs and cation to juries and to evidence, be folrecognizances to be returned, in the divis- lowed and practiced by the courts of this lon in wbich the offense is committed. The republic, so far as tbe same may not be in. finding of the indictment is no part of the consistent with this act, or any other law trial. And these indictments were tried at passed by this congress. 1 Laws of ReGraham, in conformity with the statute. public of Texas, (Ed. 1838,) 156. That act

4. The plea of former jeopardy was was in force at the tiine of the admission rightly beld bad. It averred that the dis of Texas into the Union, in 1845. The first charge of the jury at the former trial with. act of the state of Texas on the incompeu out the defendants' consent was by the tency of witnesses by reason of conviction

court, of its own motion, and after the of crime appears to have been the statute jury, having been in retirement to*consid- of February 15, 1858, c. 151, by which all er their verdict for 40 hours, had an persons convicted of felony in Texas or nounced in open court that they were elsewhere were made incompetent to tes. unable to agree as to these defendants. tify in criminal actions, notwithstanding The further averment that “there existed a pardon, unless their competency to tag. in law or fact no emergency or hurry for tify had been specifically restored. Ger the discharge of said jury, nor was said Laws 7tb Leg. Tex. 242; Oldham & W. discharge demanded for the ends of Dig. 640. That provision was afterwards public justice," is an allegation, not so put in the shape in which it stands in the much of specific and traversable fact, as Code of 1879, above cited. of inference and opinion, which cannot con The question whether the existing stat. trol the effect of the facts previously ute of the state of Texas upon this subject is alleged. Upon those facts, whether the applicable to criminal trials in the courts discharge of the jury was manifestly nec of the United States held within the state essary in order to prevent a defeat of the depends upon the construction and effect ends of public justice, was a questiou to of section 858 of the Revised Statutes of be finaliy decided by the presiding judge in the United States, which is as follows: the sound exercise of his discretion. U. S. “In the courts of the United States no 5. Perez, 9 Wheat. 579; Simmons v. U. S., witness shall be excluded in any action 142 U. S. 148, 12 Sup. Ct. Rep. 171.

on account of color, or in any civil action 5. As the defendants were indicted and because he is a party to or interested in to be tried for a crime punishable with the issue tried: provided, that in actions death, those jurors who stated on voir by or against executors, adninistrators, dire that they had “conscientious scruples or guardians, in which judgment may be in regard to the infliction of the death rendered for or against them, neither penalty for crime” were rightly permitted | party shall be allowed to testify against to be challenged by the governient for the other as to any transaction with or cause, A juror who has conscientious statement by the testator, intestate, or Acruples on any subject, which prevent | ward, unless called to testify thereto by him from standing indifferent between the the opposite party, or required to testify government and the accused, and from thereto by the court. In all other re trying the case according to the law and spects, the laws of the state in which the the evidence, is not an impartial juror. court is held shall be the rules of decision, This court has accordingly held that a as to the competency of witnesses in the person who has a conscientious belief that courts of the United States in trials at polygamy is rightful may be challenged common law, and in equity and ad. for cause on a trial for polygamy. Rey. | miralty." nolds v. U. S., 98 U. S. 145, 147, 157; In the provision, at the beginning of Miles v. U. S., 103 U. S. 304, 310. And the this section, that "in the courts of the principle has been applied to the very United States no witness shall be excluded question now before us by Mr. Justice in any action on account of color, or in STORY in U. S. v. Cornell, 2 Mason, 91, 105, any civil action because he is a party to and by Mr. Justice BALDWIN in U.S. V. or interested in the issue tried," the dis. Wilson, Baldw. 78, 83, as well as by the tinction between “any civil action” in the courts of every state in which the question second clause and "any action"in the first bas arisen, and by express statute in many clause shows that the first clause was states. Whart. Crim. Pl. (9th Ed.) § 664. intended to include criminal actions, or,

6. In support of the objection to the | as they are more commonly called, “crim.

Inal cases, " while the second clause was in been judicially given to the same words in terms restricted to civil actions only. the earlier statute relating to the same Greeu v. U. S., 9 Wall. 655, 658. And, were subject. The Abbotsford, 98 U. S. 440; U. the whole section to be considered by it S. 8. Mooney, 116 V'. S. 104, 6 Sup. Ct. Rep. self, without reference to previous stat. 304. In re Louisville Underwriters, 134 U. utes and decision,“ trials at common law” S. 488, 10 Sup. Ct. Rep. 587. They have rein the final clause of the section, inight also ceived that construction in several of the be held to include trials in criminal, as circuit courts. U. S. v. Hawthorne, 1 well as in civil, cases.

Dill. 422; U. S. v. Brown, I Sawy. 531, 538; But the history of congressional legis. | United States v. Black, 1 Fox, 570, 571. lation and judiciul exposition on this sub. The question has not come before this ject renders such a construction impossi.court, probably because there never was ble.

a division of opinion upon it in a circuit By the judiciary act of September 24, court, which was the only way, until very 1789, c. 20. § 34, it was enacted “that the recently, in wbich it could have been laws of the several states, except where brought up. the constitution, treaties, or statutes of The provision “that in the courts of the the United States shall otherwise require United States there shall be no exclusion or provide, shall be regarded as rules of of any witness on account of color, nor decision in trials at common law in the in civil actions because he is a party to courts of the United States in cases where or interested in the issue tried" was first they apply. 1 St. p. 92. Although that introduced in 1864 in the sundry civil-ap-: section stood between two sections clearly propriation act for the year ending Jude applicable to criminal cases, it was ad- 30, 1865, as a proviso to a section making judged by this court at December term, an appropriation for bringing counter1851, upon a certificate of division of opin- feiters to trial and punishment. Act July ion in the circuit court, directly present. 2, 1864, c. 210, $ 3; 13 St. p. 351. That proing the question, that the section did not viso, as already suggested, included crim include criminal trials, or leave to the inal cases in the first clause, as distin. states the power to prescribe and change guished from the second. But it had na from time to time the rules of evidence in tendency to bring criminal cases within trials in the courts of the United States the general provision of the act of 1862. for offenses against the United States. 'The proviso as to actions by or against Chief Justice Taney, delivering the unani- executors, administrators, or guardians mous judgment of the court, said: “The was added, by way of amendment to seclanguage of this section cannot upon any tion 3 of the appropriation act above men. fair construction be extended beyond civil tioned, by the act of March 3, 1865, c. 113, cases at common law, as contradistin (13 St. p. 533.) This proviso had evidently guished from suits in equity. So far as no relation to criminal cases. concerns rights of property, it is the only The combination and transposition of rule that could be adopted by the courts the provisions of 1862, 1864, and 1865, in a of the United States, and the unly one single section of the Revised Statutes, put.

that congress had the power to establish. ting the two provisos of the laterstatutes And the section above quoted was merely first, and the general rule of the earlier intended to confer on the courts of the statute last, but hardly changing the United States the jurisdiction necessary words of either, except so far as necessary to enable them to administer the laws of to connect them together, cannot be held the states. But it could not be supposed, to have altered the scope and purpose without very plain words to show it, that of these enactments, or of any of them. congress intended to give to the states the It is not to be inferred that congress, in power of prescribing the rules of evidence revising and consolidating the statutas, in trials for offenses against the United intended to change their effect, unless an States. For this construction would, in intention to do so is clearly expressed. effect, place the criminal jurisprudence of Potter v. Bank, 102 U. S. 163; McDonald one sovereignty under the control of ad V. Hovey, 110 U. S. 619, 4 Sup. Ct. Rep. 142; other. · It is evident that such could not U. S. v. Ryder, 110 U. S. 729, 740, 4 Sup. Ct. be the design of this act of congress. Rep. 196. "The law by which, in the opinion of this It may be added that congress has encourt, the admissibility of testimony acted that any person convicted of percriminal cases must be determined, is the jury, or suborpation of perjury, under the Jaw of the state, as it was when the laws of the United States, shall be inca. courts of the United States were estah. pable of giving testimony in any court of Jished by the judiciary act of 1789." "The the United States until the judgment is courts of the United States have uniformly reversed, (Rev. St. $$ 5392, 5393;) and has acted upon this construction of these acts made specific provisions as to the compeof congress, and it has thus been sanc. tency of witnesses in criminal cases, by tioned by a practice of sixty years. U. | periitting a defendant in any criminal S. v. Reid, 12 How. 361, 363, 366.

case to testify on the trial, at his own In 1862, congresa enacted that “the laws request; and by making the lawful hus. of the state in which the court shall be band or wife of the accused a competent held shall be the rules of decision as to the witness in any prosecution for biganıy, competency of witnesses in the courts of polygamy, or unlawful cohabitation, (Act the United States in trials at common March 16, 1878. c. 37; 20 St. p. 30; Act law, in equity, and in admiralty." 12 St. March 3, 1887, ". 397; 24 St. p. 635.) p. 588. By å familiar rule, the words For the reasons above stated, the pro. å trials at common law” in this statute are vision of section 858 of the Revised Stat. to receive the construction which bad utes, that “the laws of the state in which

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the court is held shall be the rules of de the witnesses. Act April 30, 1790, c. 9, § cision us to the competency of witnesses in 29, (1 St. p. 118.) the courts of the United States in trials at The words of the existing statute are common law and in equity and admiral too plain to be misunderstood. The dety,” has no application to criminal trials; fendant, if indicted for treason, is to have and, therefore, the competency of wit- delivered to him, three days before the nesses in criminal trials in the courts of trial, “a copy of the indictment, and a the United States held within the state list of the jury, and of the witnesses to be of Texas is not governed by a statute of produced on the trial for proving the inthe state which was first enacted in 1838, dictment;” and, if indicted for any other but, except so far as congress has made capital offense, is to have “such copy of specific provisions upon the subject, is the indictinent and list of the jurors and governed by the common law, which, as witnesses“ two days before the trial. The has been seen, was the law of Texas be list of witnesses required to be delivered fore the passage of that statute, and at to the defendant is not a list of the witthe time of the admission of Texas into nesses on whose testimony the indictnient the Union as a state.

has been found, or whose names are in. At common law, and on general princi. dorsed on the indictment; but it is a list ples of jurisprudence, when not controlled of the “witnesses to be produced on the by express statute giving effect within the trial for proving the indictment." The state which enacts it to a conviction and provision is not directory only, but mansentence in anuther state, such conviction datory to the government; and its purand sentence can have no effect, by way of pose is to inform the defendant of the tespenalty, or of personal disability or dis- timony which he will have to meet, and qualification, beyond the limits of the to enable him to prepare his deiense. Be. state in which the judgment is rendered. ing enacted for his benefit, he may doubt. Wisconein v. Insurance Co., 127 U. S. 265, less waive it, if he pleases; but he has a 8 Sup. Ct. Rep. 1370; Com. v. Green, 17 right to insist upon it, and if he seusonaMuss. 515; Sims v. Sims, 75 N. Y. 166; bly does so the trial cannot lawfully proTrust Co.'v. Gleason, 77 N. Y. 400; Story, ceed until the requirement bas heeo com. Confi. Laws, $ 92; 1 Greenl. Ev. § 376. It plied with. U. S. v. Stewart, 2 Dall. 343; follows that the conviction of Martin in

Curtis, 4 Mason, 232; U. S. v. Dow, North Carolina did not make him incom. Taney, 34; Regina v. Frost, 9 Car. & P. petent to testify on the trial of this case. 129, 2 Moody, 140; Lord r. State, 18 N.

The competency of Spear to testify is H*173; People v. Hall, 48 Mich. 482, 487, equally clear. He was convicted and sen 12 N. W. Rep. 665; Keener 8. State, 18 Ga. tenced in Texas; and the full pardun of ] 194, 218. the governor of the state, although grant The provision is evidently derived from ed after he had served out his term of im. the English statute of 7 Anne, c. 21, § 11, by prisonment, thenceforth took away all which it was enacted that,

when any disqualifications as a witness, and restored person is indicted for high treason, or mishis competency to testify to any facts prision of treason, a list of the witnesses within his knowledge, eren if they came that shall be produced on the trial for to his knowledge before his disqualifica- proving the said indictment, and of the tion had been remored by the pardon. jury, mentioning the names, profession, Boyd v. V. S., 142 U. S. 450, 12 Sup. Ct. and place of abode of the said witnesses Rep. 292; U. S. V. Jones, (before Mr. Jus and jurors, be also given, at the same time tice THOMPSON,) 2 Wheeler, Crim. Cas. 451, that the copy of the indictment is deliv. 461; Hunnicutt v. State, 18 Tex. App. 498; ered to the party indicted; and that copThornton v. State, 20 Tex. App. 519. ies of all indictments for the offenses afore.

Whether the conviction of either witness said, with such lists, shall be delivered to was admissible to affect his credibility the party indicted teu days before the is not before us, because the ruling on that trial, and in presence of two or more cred. question was in favor of the plaintiffs in ible witnesses." Upon a case brought

before all the judges of Englaud, in 1840, in 7. Another question worthy of consider. which a copy of the indictment and list of ation arises out of the omission to deliver the jurors had been delivered to the de. to the defendauts lists of the witnesses to fendant 15 days and a list of the witnesses be called against them.

to he produced on the trial had been de. Section 1033 of the Revised Statutes 18 as livered to him 10 days before the trial, the follows: “When any person is Indicted of defendant, after he had been put upon his treason, a copy of the indictment, and a trial, and the jury had been sworn and list of the jury, and of the witnesses to be charged with him upon the indictment, produced on the trial for proving the in. ubjected, upon the first witness being dictinent, stating the place of abode of called, and before he was sworn, that pei. each juror and witness, shall be delivered ther that witness nor any other could bA to him at least three entire days before he examined, because the list of witnesses is tried for the same. When any person had not been delivered to him at the saine is indicted of any other capital offense, time as the indictment and the list of jusuch copy of the indictment and list of the rors, as the statute of Anne required. It jurors and witnesses shall be delivered to was argued for the crown that the list of him at least two entire days before the witnesses was seasonably delivered, and trial." This section re-enacts a provision that, if not, the objection should have of the first crimes act of the United States, been taken earlier. It was held by a ma. except that under that act the defendant, jority of the judges that the delivery of if indicted for any capital offense other the list of witnesses was not a good deliv. than treason, was not entitled to a list of ery in point of law, but that the objection

error.

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to its delirery was not taken in due time; 600n as witnesses whose names were not ard the judges agreed that, if the objec- | indorsed on either of the inflictments were tion bad been made in due time, the effect called and sworo to testify in support of of it would have been a postponement of the indictments, and before any of them the trial, in order to givetimefur a proper had given any testimony in the case; and delivery of the list. In the course of the on each occasion they duly took an argument, Chieľ Justice TINDAI. said: “Ifception to the overruling of the objectiou. no list had been delivered, the crown could The indictments charged the defendants not have called a single witness.” Regina not only with a conspiracy, which was v. Frost, 9 Car. & P. 129, 175, 197, 2 Moody, not a capital offense, but also with bav140, 158, 170.

ing, in the pruserution of the conspiracy, The supreme court of New Hampshire, committed a murder, which was a capital in 1816, under a* statute providing that offense. They could not therefore law. “every person indicted for any offense the fully be put on trial, against their objecpunishment of which may be death or tion, until at least two days after they confineinent to hard labor for life shall be had been furnished with a list of the witentitled to a copy of the indictment before nesses to be called against thein. When he is arraigned thereon, a list of the wit- they were to be tried for their lives, they nesses to be used on the trial, and of the had a right to the benefit of the statute, jurors returned to serve on the same, with and the refusal to accord it to them was the name and place of abode of each, to manifest error. be delivered to him forty-eight hours be It was contended on behalf of the United fore the trial,” held that an objection to States that this error was cured by the the list of witnesses, for want of due state. verdict acquitting the defendants of the ment of their places of a bode, was waived capital charge, and convicting them of if not taken until after one witness had the lesser crime only. The argument is been called and sworn at the trial. But that the defendants, having prevailed in Chief Justice PARKER, in delivering judg. | their defense against the capital charge, ment, said that, if the defendant's objec- have not been legally prejudiced, because tion was that no list such as the statute they would not have been entitled to a requires had been furnished to hiin, “he list of witnesses if they had been indicted may object, when the case is called, to and tried on the only charge of which proceeding with the trial until the requi. they were ultimately convicted. sition of the statute is complied with; " It may be dwubted whether this is a and that “undoubtedly it is competent to satisfactory answer to the objection. An the respondent, when a witness is called indictmeut for a capital offense usually in such a case to be examined against includes an offense less than capital, and him, to except that such witness is not the defendant may be convicted of either. named in the list furnished to him, for the For instance, one indicted of murder purpose of excluding the testimony of may be convicted of manslaughter, or of that witness. Rev. St. N. H. c. 225, § 3; an assault only. The statute does not Lord v. State, 18 N. H. 173, 175, 176.

make a defendant's right to a list of the There is no occasion to consider how witnesses to be called against him depend far, had the government delivered to the upon the degree of the crime of which defendants, as required by the statute, upon trial he is ultimately convicted, but lists of the witnesses to be produced for upon the degree of crime for which he is proving the indictments, particular wit. indicted. The list is to be delivered before : nesses, afterwards coming to the knowl the trial to “any person indicted of a cap-.. edge of the government, or becoming ital* offense. " The objection that these* necessary by reason of unexpected devel. defendants had been furnished with no opments at the trial, might be permitted, list of the witnesses was not like an ordi. on special reasons shown, and at the nary objection to the competency of pardiscretion of the court, to testify in the ticular testimony, but it affected the whole case.

course of the trial, and put the defendants In the present case, copies of the indict. | in anxiety and danger of being capitally ments, having indorsed on each the numes con sicted until the return of the verdict. of the witnesses upon whose testimony True, the government inight have electit had been found by the grand jury, were ed not to indict them for the capital delivered to the defendants more than offense, or might perhaps, when the obtwo days before the trial. But no list of jection to the want of a list of witnesses the “ witnesses to be produced on the was first taken, hare entered a nolle trial for pruving the indictment” was ever prosequi of so much of the indictment as delivered to any of them; and 40 wit contained the allegations necessary to nesses, none of whose names were in- make out that offense, and unnecessary dorsed on the indictments, were called by to constitute the lesser crime of conthe governinent, and admitted to testify spiracy, and have thereupon proceeded to as of course to support the indictments, trial without delivering any list of the and make out the case for tbe government, witnesses. But the government, having without a suggestion of any reason for elected to indict and to try the defendants not having delivered to the defendants for the capital crime, may well be held the lists required by the statute.

bound to afford them those means of preThere is no pretense that there was any paring their defense which the statuie waiver on their rart of their right to required, and which, had they been fursuch a list. On the contrary, they took nished, might perhaps have enabled the the objection when the case was called for defendants to secure a complete acquittal trial, and before the impaneling of the of everything charged against them. The jury; and they renewed the objection as case bears some analogy to that of a

*309

defendant held to answer for an infamous involve no question of public interest, and crime without presentment or indictment may not again arise in the same form. of a grand jury, of which this court has Judgment reversed, and case remanded said: “The question is whether the crime to the circuit court, with directions to set is one for which the statutes authorize the aside the verdict, and to order a new trial. court to award an infamous punishment, not whether the punishment ultimately •Mr. Justice LAMAR did not concur in the awarded is an infamous one. When the opinion of the court on the construction accused is in danger of being subjected to of section 5508 of the Revised Statutes. an infamous punishment if convicted, he has the right to insist that he shall not be Mr. Justice BREWER was not present at put upon his trial, except on the accusa the argument, and took no part in the tion of il grand jury. E: parte Wilson, decision of this case. 114 U. S. 417, 426, 5 Sup. Ct. Rep. 935. It is unnecessary, however, in this case,

(144 U. S. 221) to express a definitive opinion upon the Pope MANUF'G Co. v. GORMULLY. (No. 204.) question whether the omission to deliver

(April 4, 1892.) the list of witnesses to the defendants would of itself require a reversal of their

PATENTS FOR INVENTIONS-LICENSE-EQUITY-UN

CONSCIONABLE STIPULATIONS_VALIDITY. conviction and sentence for less than a

1. The owner of some 65 patents for improve. capital offense, inasmuch as they are en.

ments on bicycles and tricycles granted a license titled to a new trial upon another ground.

to another to manufacture and sell under 15 of 8. The court went too far in admitting them, in consideration whereof the licensee extestimony on the general question of con pressly admitted the validity of all the licensor's spiracy

patents, covenanted not to manufaciure or sell Doubtless, in all cases of conspiracy, the machines covered by any of them after the license act of one-conspirator in the prosecution

expired or was in any way terminated, even after of the enterprise is considered the act of

the patents themselves expired, and agreed that all, and is evidence against all. U. S. v.

on violation of such covenants the licensor might

treat him as liable for the breach, or as a mere Gooding, 12 Wheat. 460, 469. But only

infringer, and that, in either case, upon suit those acts and declarations are admissible brought, an injunction might issue against him urider this rule which are done and made without notice. Heid, that these stipulations while the conspiracy is pending, and in were oppressive and unconscionable, and, it furtherance of its object. After the con

appearing that the licenseo was probably unaspiracy has come to an end, whether by

ware of their legal import, equity will not lend success or by failure, the admissions of its aid to enforce them.

2. Whether or not an action could be main. one conspirator, by way of narrative of

tained at law for a breach of the covenants not past facts, are not admissible in evidence to manufacture and sell the specific devices, against the others. 1 Greenl. Ev. § 111; the stipulation not to set up any defense to an 3 Greenl. Ev. § 94; State v. Dean, 13 Ired. action under any of the patents was void as 63; Patton v. State, 6 Ohio St. 467 : State against public policy. 7. Thibeau, 30 Vt. 100: State v. Larkin, 49 34 Fed. Rep. 877, afirmed. N. H. 39; Heine v. Com., 91 Pa. St. 115;

Appeal from the circuit court of the Davis v. State, 9 Tex. App. 363.

United States for the northern district of Tested by this rule, it is quite clear that

Illinois. Affirmed. the defendants on trial could uot bu

STATEMENT BY MR. JUSTICE BROWN. affected by the admissions made by others

This was an appeal from a decree dis. of the alleged conspirators after the conspiracy bad ended by the attack on the missing, a bill in equity, wherein the plain.

tiff sought an accounting upon a con. prisoners, the killing of two of them, and

tract, and an injunction prohibiting tbe the dispersion of the moh. There is no

defendant from manufacturing and selling evidence in the record tending to show

bicycles and tricycles containing certain that the conspiracy continued after that

patented devices, in violation of a contract time. Even if, as suggested by the coun

entered into between the parties on Desel for the United States, the conspiracy included an attempt to manufacture evi.

cember 1, 1884. A copy of this contract 18 dence to shield Logan, Johnson's subse printed in the margin.1

*The bill alleged that the plaintiff was enquent declarations that Logan acted with

gaged in the manufacture and sale of bicy. the mob at the fight at Dry creek were

cles and tricycles of superior quality; that: not in execution or furtherance of the conspiracs, but were mere narratives of a

1"This agreement, made this first day of Decempast fact. And the statements to the ber, 1884, by and between the Pope Manufacturing same effect, made by Charles Marlow to his Company, a corporation established under the companions while returning to the Denson laws of Connecticut and having a place of busifarm, after the fight was over, were in. ness in Boston, Massacbusetts, party of the first competent in any view of the case.

part, and R. Philip Gormully, of Chicago, IlliThere being other evidence tending to

nois, party of the second part, witnesseth: prove the conspiracy, and any acts of

"That whereas letters patent of the United

States, numbered and dated as in the following Logan in furtherance of the conspiracy list, were duly granted for tbe inventions there. being, therefore, admissible against all in set forth, and by certain good and valid as. the conspirators as their acts, the admis- signments the same are now owned by the party sion of incompetent evidence of such acts

of the first part: of Logan prejudiced all the defendants,

(Here follows a descriptive list of sixty-five and entitles them to a new trial.

patents.) Upon the other exceptions taken by the

"And whereas said party of the second part is

desirous of making, usiog, and selling to others Jefendants to rulings and instructions at to be used, bicycles embodying in their construothe trial we give no opinion, because they tion and modes of operation certain of the said

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