consider what took place upon the occasion of Mr. Jordan's second visit as having a bearing on this question."

Verdict and judgment for defendant. Plaintiffs thereupon took this writ, assigning for error, inter alia, the admission in evidence of defendant's testimony as to her having been told that plaintiff, Jordan, was a violent man, and the answers to plaintiff's various points.

W. H. Jessup and Henry Streeter, for plaintiff In error; D. A. Overton, for defendant in error.

GORDON, J., delivered the opinion of the court: On the first of May, 1877, Mrs. Olive Elliott, a widow, aged seventy-seven years, executed to Mrs. Sarah Jordan, wife of Thomas R. Jordan, a judgment note (not under seal), in the sum of $7,419.78, payable "after death." The alleged consideration for this note appears in a paper purporting to be Mrs. Elliott's receipt, bearing the same date as that of the note, but, in fact, executed the day after-that is to say, the delivery to Mrs. Elliott of a note of her son, E. T. Elliott, to Thomas R. Jordan, in the same amount as the obligation above stated, and the assignment of a policy on the life of E. T. Elliott, in the sum of $10,000, and which, it seems, Jordan held as collateral security. The note thus obtained from Mrs. Elliott was filed, and judgment confessed thereon the next day after its execution, and within five days thereafter application was made to open it, in order to permit a defense on the ground of duress and fraud, and on the sixth of the following May the rule was made absolute and a feigned issue directed.

The substantial question of this case is, whether there was such evidence of duress or fraud in the execution of the note as justified its submission to the jury. The court below thought there was, and submitted it accordingly. In this we think there was no error. The circumstances which surrounded the old lady, and which induced, or rather compelled, her to execute the paper in controversy, were of an extraordinarily rough, impudent and fraudulent character.

As first executed, it was without consideration. The arrangement between Jordan and E. T. Elliott was that the latter was to renew a former note, with his mother as surety, but instead of this, and in face of the opposition of the son, a note executed by the mother alone was taken. Practically, this made little or no difference, for, so far as we can gather from the evidence, E. T. Elliott was insolvent; legally, however, it made the difference between some consideration and no consideration. As the matter then stood, there was simply the assumption by Mrs. Elliott of the debt of her son without any consideration whatever.

The receipt, already referred to, supplies this defect by setting forth the assignment to the defendant of her son's note and the collateral life policy. But this transaction has an exceedingly suspicious appearance. It was evidently an after

thought, and designed to meet the omission of the day before.

This conclusion is strengthened by the false date which seems to have been intended to make the note and receipt appear as contemporaneous acts. When these facts are considered, together with the circumstances under which it was obtained, we can not but regard the whole affair as one of gross fraud and 1.0position.

It was drawn by himself; he put it into what suited himself, not only without her consent, but in spite of her protest that she wanted nothing from him but his absence from her house, and on his determined persistence, anxious only to be rid of the person of a man whom she most justly hated and feared, at the same time refusing to receive either the note or the policy, she put her name to what he had written. What a mere mockery of justice to call this paper the agreement of Mrs.. Elliott!

son.

The transaction of the preceding day,which produced the note in question, was both scandalous and violent. Jordan's sudden appearance in the hall of Mrs. Elliott's house; his tragic exclamation as though in soliloquy, "Perhaps this bitter cup may pass," when in the sitting room,his rapid pacing back and forth with fierce gesticulation. When pressed by the old lady to leave until the next day, that she was at that time not fit to do anything, he answered by lifting up his hand and invoking the God of heaven to bear him witness that he would have the matter settled, or forthwith prosecute her son. All these things were well calculated to fill her with great fear, and the more so, as she had heard that this man was one of great violence, and had threatened to shoot her But the fear thus produced was naturally much aggravated by Jordan thrusting his fist in Edward's face, and ordering him to keep quiet, when he attempted to interfere; for it thus be-came evident that Edward, instead of being able to protect his mother, lacked the power or courage to protect even himself. Then, when this Edward, the son, began to tell Jordan how he might have defeated his collateral by taking his own life, the climax was reached; then it was "the girls began to weep and cry," and the old lady now ready, as she says, through terror and alarm to do anything to put an end to this, as it appeared to her, frightful scene, signed the note. Even in this act there occurred a circumstance which shows the confusion of her mind, for she signed her maiden name, a thing which, on observing, she declared she had never done before since her marriage. This mistake was promptly corrected on Jordan's order to add the name "Elliott," and thus we have the signature "Olive Fox Elliott."

Jordan, having now accomplished his object, departs, but only, as we have seen, to reappear the next day, in order to correct by Mrs. Elliott's hand what he had neglected to accomplish the day before, and to force upon her a valueless consideration, which she refused to accept.

Now we are free to admit that, to a man of ordinary courage, this fuss and fume of Jordan might have been regarded as a mere farce, and would probably have been productive of a consequence no more serious than a summary and unceremonious ejectment of the intruder from the premises. But to this old lady, helpless as she was, and unprepared either to encounter or deal with such sham heroics, the matter was altogether different, and the jury were justified in believing that she was much frightened, and that her will was so controlled thereby that the obligation which she signed was not her free and voluntary act.

We are aware that neither under the rule of the civil nor common law, as formerly expressed, would there be sufficient to release Mrs. Elliott from her contract. For, according to Blackstone, the threats to produce such an effect must be of such a character as to induce a well grounded fear in the mind of a firm and courageous man of the loss of life or limb; and the rule of the civil law was of like import; the fear must be of that kind which would influence a man of the greatest constancy, "metus non vani hominis, sed qui in homine constantissimo cadat." As we have already said, the fantastic heroics of Jordan would not have been sufficient to induce a courageous man to do that which he was not disposed; hence, if this rule is to be applied to the case in hand, the defense is insufficient. But, fortunately for the weak and timid, courts are no longer governed by this harsh and inequitable doctrine, which seems to have considered only a very vigorous and athletic manhood, overlooking entirely women and men of weak nerves. Pothier regards this rule as too rigid, and approves the better doctrine, that regard must be had to the age, sex and condition of the parties. Since that fear, which would be insufficient to influence a man in the prime of life and of military character, might be deemed sufficient to avoid the contract of a woman or man in the decline of life. Evans' Poth. on Oblig. I. 18. And we think the opinion of Mr. Evans expressses the doctrine which is now approved by the judicial mind, both of this country and of England, that is, that any contract produced by actual intimidation, ought to held void, whether, as arising from a result of merely personal infirmity, or from circumstances which might produce a like effect upon persons of ordinary firmness. Parsons, in his work on Contracts (Book I., p. 395), considers the rule now to be, that where the threat, whether of mischief to the person, property or reputation, is such as to destroy the threatened party's freedom of will, the law will not enforce a contract executed under such a threat. This view of the law has strong support in the case of Williams v. Bayley, H. L. Ca., 1 L. R. 200. A son had obtained money from a bank on forged indorsements; on discovery, the bank officers insisted on a settlement, to which the father should be a party. He, knowing the fact of the forgeries by

his son, though there was no direct threat of prosecution, yet, under this pressure, execnted an agreement to mortgage his property, and the notes with the forged indorsements were delivered to him. Held, the agreement was invalid. Lord Westbury, in his opinion, holding that there were two reasons for refusing to enforce it: 1. That the defendant was not in the execution thereof a free and voluntary agent. 2. That the contract was illegal. In support of the first of these reasous, he says, among other things, that the power of properly considering whether he ought or ought not thus to bind himself; whether it is prudent so to do or not, is altogether taken away, from a father who is brought into the situation of either refusing and leaving his son in a perilous situation, or of taking upon himself the amount of the obligation.

t

How aptly those authorities bear on the case in hand I need not say, for any one who reads the evidence will at once see that Mrs. Elliott was so thoroughly overcome by fear, produced by the conduct of the plaintiff, that in the execution of the note in suit, she was anything but a free and voluntary agent. Her sole object was to free herself on any terms from the presence of her impudent persecutor, and to rescue her son from prosecution. Had this man insiduously gained the confidence of this old lady, and by his lies in-, duced the signing of this obligation, as in Hun v. Moore, 2 Barr, 105, it would, without doubt or hesitation, have been regarded as fraudulent and void, but how much less fraudulent is that conduct, which produces the same result through fear? It may, indeed, be the fear of a weak mind, but I can not see how that helps the matter; to the generous mind it is rather an aggravation. It is the weak that is the most easily imposed upon; hence, the weak, in an especial manner need our protection.

In this, the main branch of this case, we discover no error in the rulings of the court below. The third exception complains of the allowance of the question to, and the answer of, the defendant as to what she had heard of the plaintiff's reputation for violence. This was altogether proper. not indeed, as proof of character, for that was not in question; but as a circumstance affecting the defendant; as showing her conviction that she was dealing with a dangerous man, whose will it would not be safe to resist. Again, in the 4th specification, complaint is made that the court submitted the note to the jury for construction, or rather, perhaps, as to the effect which it would have as evidence. But it did nothing of the kind. The language of the learned judge, which in this assignment is specially emphasized, is this: "It is for you to say what is sufficient to set aside a paper of this kind. We do not determine this question, for you. It is not for us to say what would be sufficient to set it aside. There might be circumstances which would justify the setting it aside, and the question of the evidence and the effect of it are for you and not for us."

the woman with whom he had lived as his wife and for whose murder he was on trial, was not irrelevant. Resulting, as it seems to have done at time, in quarrels and alienations between them of such a character as to drive the woman from her house, they were in themselves circumstances, in connection with the circumstances of the homicide, for the consideration of the jury. They tended to show the state of the defendant's feelings towards the woman and his treatment of her, and, in some degree, to show a motive for taking her life. Where acts or words of a defendant in a criminal case tend in any degree to establish any fact in a series tending to the fact in dispute, they are not subject to the objection of irrelevancy. People v. Kenn, S. C. Cal., August 21, 1882, 10 Pac. Coast L. J., 17.

6. DAMAGES

BREACH OF CONTRACT OF SALE

MEASURE OF DAMAGES. Ordinarily, in actions between vendee and vendor for breach of contract to deliver goods, the measure of damages is the difference between the contract price and the market price at the time and place of delivery. But where the articles are purchased for shipment abroad, delivery to be made at the ship's side, the rule is the difference between the market price of the merchandise contracted for and the prices realized upon a sale at the place of destination, with costs and expenses. Consolidated Oil Co. v. Schlens, Md. Ct. App., April Term, 1882, 14 Rep., 309.

7. EQUITY-EQUITABLE RELIEF-FAILURE OF JU

RISDICTION.

1. Where a cause of action cognizable at law is entertained in equity on the ground of some equitable relief sought by the bill, which, it turns out, can not, for defect of proof or other reason, be granted, the court is without jurisdiction to proceed further, and should dismiss the bill and remit the cause to a court of law. 2. Hence, where a suit in chancery was instituted to foreclose a mortgage securing certain notes, and the mortgage turns out on the proofs to be void, the court has no jurisdiction to give a personal decree on the notes, and should dismiss the bill without prejudice. Mitchell v. Dowell, U. S. S. C., May 8, 1882, 4 Morr. Trans, 763.

BRIDGING PUBLIC

8. FEDERAL JURISDICTION WATERS-FREE NAVIGATION. 1. The court after reviewing congressional legislation on the subject of bridging the public waters of the United States, and especially the act passed May 3, 1869, authorizing the construction of the Newport and Cincinnati bridge, which contained a reservation of the right to withdraw assent in case the free navigation of the river shall be substantially and materially obstructed, decides that the United States are not liable for the cost imposed upon the bridge company by the alterations made necessary by the subsequent act of March 3, 1871, the right to impose such requirements being a limitation which formed a part of the original grant. 2. And this is true notwithstanding any rights conferred upon the bridge company by State law, such rights being subject to the supreme power of Congress. 3. The question whether a bridge is such an obstruction to navigation as to justify Congress in withdrawing a consent previously given to its erection is a question to be decided by Congress, and is not a judicial question for the courts. 4. Although the franchise to erect a bridge is a species of property, yet from its origin its continued existence was de

pendent on the will of Congress, and it might be altered or abolished without making compensation. Newport, etc. Bridge Co. v. United States, U. S. S. C., May 8, 1882, 4 Morr. Trans., 878. 9. LIMITATIONS-COURT OF CLAIMS. The limitation of six years imposed by § 1069 of the Revised Statutes of the United States on bringing suits in the court of claims applies to an action brought by a paymaster in the army to establish a right to relief for money stolen from him, where it appears that he had paid up the money and that the government had always refused to allow his claim; such a case being materially different from that of United States v. Clark, 96 U. S. 37. United States v. Smith, U. S. S. C., May 8, 1882, 4 Morr. Trans,, 808.

10. MANDAMUS-TO COMPEL A COURT TO REMAND A CAUSE.'

Mandamus will not lie to compel an inferior court to remand a cause after it has once overruled a motion to remand, even though the amount involved be not sufficient for an appeal. Ex parte Hoard, U. S. S. C., May 8, 1882, 4 Morr. Trans., 800. 11. MORTGAGE APPARENT AMBIGUITY IN DE SCRIPTION.

The description of the premises in a mortgage deed was by section, township and range only, and nothing was said of the county or State. Held, that although a patent ambiguity appeared, it was competent to show by parol that the mortgagor resided on the land, and that it was his property in order to identify it within the State, and that in the absence of evidence that he owned land without the State, the apparent ambiguity disappeared. Chambers v. Ringstaf, S. C. Ala., 14 Rep. 304.

12. MORTGAGE-SEIZURE AND SALE-LIEN OF SUB. SEQUENT MORTGAGES-LOUISIANA PRACTICE 1. A seizure and sale by virtue of executory process under a mortgage, according to Louisiana prac tice, is not affected by the existence of subsequent mortgages the owners of which are not made parties, but yests the title in the purchaser at such sale, extinguishing the lien of the other mortgages and transferring it to the proceeds of sale. 2. An agreement by a mortgagee in advance of a sale to resell the property, in the event of his becoming the purchaser, to the wife of the mortgagor for an amount sufficient to pay the mortgage debt and costs, is not a fraud or injury to the other creditors of the mortgagor. 3. The failure to advertise the separation of the property of husband and wife, as required by article 2429 of the Louisiana Civil Code, does not render the judgment of separation void. 4. The requirement that the judgment of separation shall be executed, imposed by section 2428 of the Louisiana Civil Code, applies only to cases where the judgment requires the transfer of property or payment of money, and not to cases where the object is merely to protect future earnings of the wife from the husband's debts, and the only money decree is for costs; in which latter cases the exercise of the right is the only execution required. 5. The mere allegation of the embarrassed condition of the husband, or of his insolvency, is sufficient to support such a decree of separation of property under section 2425 of the Louisiana Civil Code. 6. The fact that the husband consented to the fixing and trial of the case does not avoid the decree of separation. 7. The fact that the suit involved no money claim did not deprive the parish court of jurisdiction. Carite v. Trotot, U. S. S. C., May 8, 1882, Morr. Trans., 782.

18. MUNICIPAL BONDS - MANDAMUS TO COLLECT JUDGMENT-ADMISSIBLE DEFENSES.

1. Where coupons of questioned validity have been merged into judgment and a mandamus has been issued to enforce the payment of such judgment, no defenses can be set up against the mandamus which go to the validity of such coupons, their validity being conclusively established by such judgment. 2. Where a legislative act authorizes a county to issue coupon bonds, the power to tax in order to pay them necessarily results therefrom, in the absence of a special limitation. 3. A limitation of one-half of one per cent. on the power to tax "to defray the expenses of the county" is not such a special limitation. 4. A State law purporting to repeal the power of the county to levy taxes for the payment of its bonds is void. 5. The defense that the bonds were not actually delivered till after the statute requiring registration went into effect, can not be set up after judg ment and against the mandamus. Ralls County v. United States ex rel., U. S. S. C., May 8, 1882, 4 Morr. Trans., 871.

14. MUNICIPAL CORPORATIONS

WHARVES AND

WHARFAGE-CONSTITUTIONAL LAW.

1. A city ordinance imposing a rate of charge on vessels landing at wharves owned by the city, graded according to their tonnage, and also a penalty for landing any where else than at such wharves, is neither a tax in a general sense, nor a tax on tonnage in the meaning of the United States Constitution. 2. A city, if allowed by its charter, has a right to build such wharves and charge for their use, and also to prescribe where vessels shall land and discharge cargo; and the exercise of such right, if a regulation of commerce at all, is valid as long as Congress fails to make any provision on the subject. 3. Although relief might be given against an oppressive abuse in the exereise of such right and in the rates of wharfage charged, yet the facts alleged in the case at bar do not prove that the rates in question are excessive. Cincinnati, etc. Pkt. Co. v. Callettsburg, U. s. S. C., May 8, 1882, 4 Morr. Trans., 811.

15. NEGOTIABLE PAPER-SIGNATURE OBTAINED BY FRAUD INNOCENT HOLder. Where one is induced to sign a note by fraudulent representations that it is another instrument (e. g. a receipt), negligence on his part will render the defense nugatory as against a bona fide holder for value, before maturity. Mackey n. Peterson, S. C. Minn., July, 1882, 14 Rep., 313.

16. PARTNERSHIP SEIZURE OF FIRM PROPERTY FOR PRIVATE DEBT.

The seizure and actual removal of specific chattels known to belong to a partnership, on an execution against one partner for his private debt, and the exclusion of the firm from the possession of its property, constitute a trespass, for which the firm may maintain an action at law against the officer. Sanborn Royce, S. Jud. Ct. Mass., May, 1882, 14 Rep., 812.

17. PATENT-AUTOMATIC DEVICE-NOVELTY. It appearing from the evidence that automatic devices for raising shelves attached to stove doors and closing them. and for producing simultaneous operations according to the wants of the case, have long been known, Bussey's patent No. 180,001 for an automatic device of that character, if valid at all, is only valid for that special device, and is not infringed by patents which accomplish the same purpose with a different device. Bridge

v. Excelsior Mfg. Co., U. S. S. C., May 8, 1882, 4 Morr. Trans., 768.

18. PATENT — INTELLIGIBILITY OF SPECIFICATION -COMBINATION OF KNOWN DEVICES.

1. A specification in letters patent is sufficiently clear and descriptive when expressed in terms intelligible to a person skilled in the art to which the invention belongs, 2. Evidence is admissible to show the meaning of terms used in a patent, as well as the state of the art, for the purpose of enabling the court or jury to understand it. 3. If an improvement of a well known appendage to a to a machine is fully described in a specification, it is not necessary to show the ordinary modes of attaching the appendage to the machine; the patent is to be read as if the machine and its appendage were present, or in the mind of the reader, and he a person skilled in the art. 4. Query: Whether the defense of insufficient description can be set up without alleging an intent to deceive the publie? 5. A new combination of known devices, producing a new and useful result (as that of greatly increasing the effectiveness of a machine), is evidence of invention, and may be the subject of a patent. 6. Webster's improvement in looms for weaving pile fabrics, which tonsisted in such a new combination of known devices as to give to a loom the capacity of weaving fifty yards of carpet a day, when before it could only weave forty, held to be patentable, and his patent for the same, dated August 27, 1872, sustained. 7. Of two original inventors, the first will be entitled to a patent unless the other puts the invention into public use more than two years before the application for a patent. 8. An invention relating to machinery may be exhibited as well in a drawing as in a model, so as to lay the foundation of a claim to priority, if sufficiently plain to enable those skilled in the art to understand it. 9. Though the defense of prior invention ought to be set out in the answer, yet if the omission to set it out is not objected to at the proper time in the court below, it can not be objected to in this court. Webster Loom Co. v. Higgins, U. S. S. C., May 8, 1882, 4 Morr. Trans., 845.

19. PATENT-MEAT CANNING-NOVELTY. 1. Where the process of packing cooked meats had long been known, the mere change of the mode of cooking to one not before used is not patentable. 2. The Wilson reissued patent No. 6,370 for canning cooked meats, construed not to cover in its claims and specifications the Appert process, nor the process of cooking the meat to be canned by plunging it into water already heated to the boiling point; and the patent is void because all the elements included in it are old. 3. Reissued letters-patent No. 7,928 to John A. Wilson, for improvements in metallic cans for containing cooked meats: Held, on the facts, to be void for want of novelty. Wilson Packing Co. v. Chicago Packing, etc. Co., U. S. S. C., May 8, 1882, 4 Morr. Trans., 738.