of a determinable nature. Much the same view was taken in Caldecott v. Caldecott (1 Y. & C. C. C. 312), where an express direction for investment as trustees should think fit was construed so as to protect parties interested in remainder after the death of a tenant for life. A trust for investment as trustees "should think fit" seems, therefore, to justify investment outside the orbit of ordinary trust securities; but the trustees are none the less bound, in the language of Vice-Chancellor Kindersley (Stretton v. Ashmall, 3 Drew, 9), "to exercise a fair and honest discretion to invest upon sufficient securities." In the lastnamed case it was held that, unless the trustees used this discretion, a clause purporting to indemnify them was not sufficient protection. Consequently, trustees with powers to invest "as they should approve" were held liable for loss occasioned by investing in trade buildings without having ascertained that they were worth at least twice the money put into them. The above cases show pretty clearly that the courts look with no favorable eyes on these discretionary powers of investment, but are ready, in the interests of the cestuis que trust, to hold trustees liable for any neglect of their duties, and impose upon them (Stretton v. Ashmall, sup.) the onus of showing that the securities are of sufficient value, and not upon the cestuis que trust that they are insufficient. -[Law Times. CURIOUS WILL-MORE TALK THAN PROPERTY. IN THE NAME OF GOD, AMEN: I. William Dunlop, of Gairbraid, in the township of Colburne, county and district of Huron, Western Canada, Esquire, being in sound health of body, and my mind just as usual (which my friends who flatter me say is no great shakes at the best of times) do make this my last will and testament as follows, revoking of course all former wills. I leave the property of Gairbraid and all other landed property I may die possessed of to my sisters, Helen Boyle Story and Elizabeth Boyle Dunlop, the former because she is married to a minister whom (God help him) she hen-pecks; the latter because she is married to nobody nor is she like to be, for she is an old maid and not market rife. And also I leave to them and their heirs my share of the stock and implements on the farm, Provided Always that the enclosure round my brother's grave be reserved. And if either should die without issue then the other to inherit the whole. I leave to my sister-in-law, Louisa Dunlop, all my share of the household furniture and such traps with the exceptions hereinafter mentioned. I leave my silver tankard to the eldest son of Old John, as the representative of the family. I would have left it to Old John himself, but he would melt it down and make temperance medals and that would be sacrilege; however, I leave him my big horn snuff box to him, he can only make temperance horn spoons of that. I leave to my sister Jenny my Bible, the property formerly of my great-grandmother, Bethia Hamilton, of Wood Hall, and when she knows as much of the spirit of it as she does of the letter she will be another guise Christian than she is. I also give my late brother's watch to my brother Sandy, exhorting him at the same time to give up whiggery, radicalism and all other sins that do most easily beset him. I leave my brother Alan my big silver snuff box, as I am informed he is rather a decent Christian with a swag belly and a jolly face. I leave Parson Chevasse (Maggy's husband) the snuff box I got from the Sarnia militia, as a small token of my gratitude for the service he has done the family in taking a sister that no man of taste would have taken. I leave John Caddle a silver tea-pot, to the end that he may drink tea therefrom and comfort him under the affliction of a slatternly wife. I leave my books to my brother Andrew, because he has been so long a Jungley Wailah, that he may learn to read with them. I give my silver cup with a sovereign in it to my sister Janet Graham Dunlop, because she is an old maid and pious, and, therefore, will necessarily take to horning, and also my Grann's snuff box, as it looks decent to sce an old woman taking snuff. I do hereby constitute and appoint John Dunlop, Esquire, of Garbraid; Alexander Dunlop, Esquire, Advocate, Edinburgh; Alan C. Dunlop, Esquire, and William Chalk of Tuckersmith; William Stewart and William Gooding, Esquire, Goderich, to be the executors of this my last will and testament. In witness whereof I have set my hand and seal the thirty-first day of August, in the year of our Lord one thousand eight hundred and forty two. (Signed.) W. DUNLOP. [L. S.] The above instrument of one sheet was at the date thereof declared to us by the testator, William Dunlop, Esquire, to be his last will and testament, and he then acknowledged to each of us that he had subscribed the same, and we, at his request, signed our names hereunto as attesting witnesses. (Sgd.) JAMES CLOATING. PATRICK MCNAUGHTON. Correspondence. AN UNFORTUNATE DECISION. To the Editor of the Albany Law Journal: In Carpenter Sewing Machine Co. v. Searle, 20 U. S. Appeals, 301, the U. S. Circuit Court of Appeals for the Second Circuit, affirming Judge Coxe in 52 Fed. Rep. 809, has laid down a principle concerning re-issued patents that is at variance with the doctrine of the U. S. Supreme Court elaborated in many cases since. Miller v. Brass Co., 104 U. S. 350, disregards the broad equities of the patent law emphasized by the higher court, and involves harsh and inequitable consequences. The Circuit Court of Appeals there holds that a reissue granted to correct a blunder in the original patent by which the original failed to state and claim the real intention of the patentee, is void unless it describes and claims only that invention which, by the blunder, was described and claimed in the original. "A prerequisite of a valid reissue of letters-patent is that it shall be for the same invention as the original patent, as such invention appears from the specification and claims of such original," and "the reissue is not justified by the fact that the patentee actually made the invention, but by some mishap omitted to describe it in the original letters-patent." But the doctrine of the Supreme Court is: Where, by a strictly proven blunder, the patent as actually issued did not describe and claim the real invention intended, there the broad equities of the patent law allow a reissue to correct that blunder and state the true invention, although that invention may be different from the one stated in the specification and claims of the blundering original. For the invention intended by the statute is not expressed in the blundering original instrument as issued, but is that brought to view when the blunder is corrected. Under the broad equities of the patent law, if not under the strict terms of the statute, this correction is permitted. But, being an equitable right, its exercise is subjected to a strict application of the equitable doctrines of mistake and laches. Stated thus in Mahn v. Harwood, 112 U. S. 354: "Reissues for the purpose of enlarging and expanding claims were not comprised within the literal terms of the law which created reissues * * * but it may be fairly inferred that a mistake whereby the claim is too narrow, is within the equity if not within the words of the statute." This is the doctrine of a long line of cases. And the broadened reissues permitted by this doctrine of the Supreme Court, are, under its definitions of what constitutes the identity of the invention of the reissue with that of the original patent, reissues for different inventions, and void if the principles announced by the Circuit Court of Appeals is law. For the test of that identity is whether the claims of the reissue cover only the same things as were claimed in the claims of the original patent and were stated in the specification to be the inventions intended to be covered by the original patent. If the reissue claims more than these it covers a different invention. For "it is immaterial whether the latter" (the reissue) "might have been covered by the language of the specification as included in the invention. We are dealing with the claims and nothing else." Haskins v. Fisher, 125 U. S. 217. To the same effect are many cases. Parker & Whipple v. Yale Clock Co., 123 U. S. 87, 99; Ives v. Sargent, 119 U. S. 652 and others; and such also is the doctrine of the Circuit Court of Appeals in the present case. Under this doctrine, reissue claims for single elements; for sub-combinations of fewer elements, where the original patent claimed only combinations of more elements; and even reissue claims for a larger number of elements, where the original patent claimed fewer elements, have all been held to be for different inventions from those of the original patent. But the reissues for single elements and sub-combinations are the very ones to which Miller v. Brass Co. applies, when "the claim" (of the original patent) "is too narrow that is, does not contain all that the patentee is entitled to," "through a real bona fide mistake." If such reissues are void, then reissues to broader claims, where the original patent was a blunder, can practically never be granted. But when the many decisions of the Supreme Court on this question are carefully collated no doctrine can be reached, except that such reissues for single elements, sub-combinations and larger combinations are permissible, when the original patent was issued by a blundering mistake, and there are no laches in applying for the reissue to correct the blunder, and no adverse equities have accrued between the grant of the original and the application for the reissue. If such reissues, correcting a proved blunder, are void simply because they contain an invention different from that of the original patent, as determined by settled rules of identity, then much of the reasoning of the Supreme Court in many cases is senseless, and having one sure and universal ground of decision, they have gone laboriously about to find another. Thus in Coon v. Wilson, 113 U. S. 268, the court found that the reissue in fact covered a different invention from the original patent, but the case was decided solely on the ground that no mistake was shown to authorize the reissue. Also in Turner & Seymour Mfg. Co. v. Dover Stamping Co., 111 U. S., 319; Brown v. Davis, 116 U. S. 237; Cornell v. Weidner, 127 U. S. 261, the court found the reissue to be for a different inven tion, but in each case decided it invalid not on that ground, but because of the absence of mistake and presence of laches. from that of the original patent as patented; and that, under that decision, the unquestioned blunder of the Patent Office does not authorize the grant of the reissue to correct the blunder, because the correction of the blunder involves the introduction into the reissue of a different invention. Ruling thus, the commissioner of patents would be exactly under the decision of the Circuit Court of Appeals, but his ruling would certainly be opposed to the doctrines of the Supreme Court, elabo In Cornell v. Weidman, the court found that "defendant's plea that the invention of the " (second) "reissue was for a different invention from that of the patent or first reissue, was rightly ad-rated in a line of cases covering many years. The judged to be good by the Circuit Court," but put the invalidity of the reissue solely on the ground of laches in applying for it. Topliff v. Topliff, 145 U. S. 150, when due effect is given to all parts of it, is unquestionably an authority for the opinion here expressed. If the narrow view of it taken by the Circuit Courts of Appeals were correct, then the elaborate reasoning on page 171 is meaningless. Had the learned judges been conversant by long personal experience with the detail of a patent solicitor's work and the routine of the Patent Office, I think the decision would not have been rendered, for they would have perceived that that detail and routine occasionally lead to that very blundering original patent which the Supreme Court permits to be corrected, but they refuse to permit. This case may occur: The inventor of a very novel broad invention may furnish his solicitor with a careful adequate written statement of the operation and construction of the machine and of the inventions he claims, and the sketches of the machine. The solicitor properly describes and claims the invention in its broadest scope. The Patent Office finds all the claims novel as filed; but, owing to certain technical rules, insists on the division of the case into two cases. The inventor is too poor to pay for two cases, and instructs his solicitor to strike out one invention and retain only the other. The solicitor sends the proper amendment to the Patent Office, but in the rush of the numerous Supreme Court to assert the equitable grounds for just such reissues, but the doctrine of the Circuit Court of Appeals, unless reversed or essentially modified, will introduce a different and unnecessarily harsh principle into the patent law. The American Law Review for November-Decemcontains a full discussion of this question. D. WALTER BROWN, 111 Broadway, New York city. ber, NEW YORK, December 12, 1895. Abstracts of Recent Decisions. JUDGMENT SATISFACTION--ATTORNEY AND CLIENT. An attorney of record has no power to satisfy a judgment upon receiving less than the amount due thereon, without the consent of his client. (Faughnan v. City of Elizabeth [N. J.], 33 Atl. Rep. 212.) MASTER AND SERVANT-PAYMENT.-If a workman agree with his employer to take pay for his work in part in merchandise, the merchandise so furnished does not constitute a ground of set-off; it is a payment, and goes in diminution of the claim for work. (Cumberland Glass Manuf'g Co. v. State [N. J.], 33 Atl. Rep. 210). MECHANIC'S LIENS-FILING OF CONTRACT.-When it appears by the contract that the builder is to do all the work and furnish all the materials necessary for the construction of a building, it is not neces sary to file the specifications with the contract in order to protect such building from the liens of mechanics and material-men under the provisions of the second section of the mechanics' lien law. amendments the examiner, in marking the specification and drawings, cancels out the wrong invention and drawings, and retains what the inventor intended to cancel. The case, being novel, goes at once to allowance, without further correspondence with the solicitor, who knows nothing of the blun- (La Foucherie v. Knutzen, [N. J.], 33 Atl. Rep. der until the blundering document reaches him. Immediately the inventor applies for a reissue, with clear proof of the facts. The commissioner of patents on the authority of Carpenter Sewing Machine Co. v. Searle,, refuses to grant it, holding that under that decision all reissues for inventions different for those contained in the original patent are void; that the Patent Office, by requiring division has found the invention which it is proposed to cover by the reissue to be different 203.) PUBLIC LANDS-EXCLUSION FROM GRANT. It is not necessary, in order to exclude lands from the operation of a grant by congress in aid of a railroad company, that title to such lands should have passed to another company, but it is sufficient if such lands have been in any way segregated from the public domain, so as to indicate an intention to exclude them from the grant. (United States v. Oregon & C. R. Co., U. S. C. C. [N. Car.], 69 Fed. Rep. 849. The Albany Law Journal. ALBANY, JANUARY 18, 1896. Current Topics. [All communications intended for the Editor should be ad character to the complaint in order to justify recovery? "There has been much discussion in the books as to the standing of the dog, both as to the right of ownership in him and the limitations under which he may be kept and used. He has become now, if he had not before, a dressed simply to the Editor of THE ALBANY LAW JOURNAL. recognized article of property and adopted All letters relating to advertisements, subscriptions, or other business matters, should be addressed to THE ALBANY LAW JOURNAL COMPANY.] SEL ELDOM is it, indeed, that we can greet a distinguished judge of the Supreme Court as a wit and a lover of poetry. The study of law allows but little time for the wooing of the Muse, while the stern realities of every day practice are not akin to the merry and genial flow of humor. Hence, our welcome to a judge who is both a wit and a lover of poetry, for it from the wild state into that of fera domesticæ. As a pet, companion, watch dog or herder he has his uses, sentimental or otherwise. For his courageous and faithful qualities he has been admired by all walks of mankind and immortalized by eminent writers. More than 300 years before the Christian era Socrates said of him, 'When I see some men I love my dog the more,' and early in the present century "But the poor dog, in life the foremost friend, sweet to hear the watch dog's honest bark Bay deep-mouthed welcome as we draw near shows that he, at least, must have a well follows: "The complaint avers that the defendant wrongfully kept several fierce and dangerous dogs, well knowing them to be ferocious, vicious and of a mischievous disposition and accustomed to attack and bite mankind; that on the 10th day of May, 1895, the said dogs, or some of them, while in the keeping of the defendant as aforesaid, attacked and bit the plaintiff and severely wounded him. home.' "At the present day this animal is one of those which are protected by the philanthropy of the society which believes and maintains that the lower animals should be shielded from cruelty as well as the human animal. He is thus recognized as entitled to his proper place in the economy of civilization. "But what is that place? The answer to this inquiry may solve not only the rights of the animal himself as a dog, but also the rights of his owner to use and keep him. "One of the ablest of the opinions in the jurisprudence of this State upon this subject is written by the late Justice W. F. Allen as far back as 1856 in the case of Wiley v. Slater, 22 Barb. 506. In that case the defendant had a dog evidently of superior ability in the fighting line to that of the dog owned by the plaintiff, so that in a fierce contention upon the merits of the respective animals the defendant's dog succeeded in depriving the plaintiff's dog of his existence. Being a supposably valuable dog, the plaintiff sued the defendant and recovered for the value of his dog. It became, therefore, necessary for the General Term, "Is it necessary to add an allegation of this upon an appeal being taken from the affirm "It will be observed that no allegation is made, in addition to the statements of fact as to the character of the dogs and their maintenance by the defendant, of any active participation by the defendant in the injury, or of any act of negligence on his part. VOL. 53 No. 3. ance by the County Court of the justice's judgment, to determine whether, prima facie, the fact of the killing justified the recovery, there being no evidence as to which dog was originally the aggressor. "Justice Allen frankly confessed his incompetency to speak by authority of the code duello of dogs. He recognized, however, and judicially adopted the poet's commentary on the nature of dogs : "That dogs delight to bark and bite, For God hath made them so,' and judicially announced the rule that, when dogs fight in pursuance of their disposition to do so, the mere killing of one dog by another does not justify a recovery, and that the owner of the slain dog is entitled only to the salvage, consisting of the skin of the deceased. "He, however, limits the application of the rule laid down by him by the statement that there was no proof in the case that the dog triumphant was of a vicious or dangerous disposition, and the implication fairly is that, if this kind of a character had been proven to exist in the surviving dog, the trial court might have been justified in its judgment. "This was a case to determine the responsibility of the owner in a controversy between dog and dog. The rule should be stronger as against the owner of the offending animal where the victim of the propensities of the dog is a human being. Conceding the highest place here or hereafter to this companion of man which is claimed by any one, even to the faith "That in the happy hunting grounds His faithful dog shall bear him company, still in the walks of life he must give way to the interests of man. Whether this be so or not, as a question of pure ethics, it is so recognized by man-made law in courts administered by man. As against the dog, man has the right of way. It is not a presumption of law or fact that a human being is of a fierce, vicious or dangerous disposition. It is as yet the belief of mankind, recognized and acted upon, that the ordinary nature of human beings has the proper elements of kindness and justice. It, therefore, seems to be a necessary deduction that when a fierce, vicious, dangerous animal, accustomed to bite mankind, attacks and wounds a human being, the presumption is that the dog is the aggressor and the offender, which presumption may, of course, be rebutted, but, without rebutting proof, must be acted upon as well founded. 66 Starting with this presumption, as between the dog and the man, that the facts stated show the dog to be in the wrong, what is the presumed liability of the owner? It is an undoubted fact that owners have a right to keep fierce and dangerous dogs for the protection of their premises, if so guarded that they will inflict no injury, except in unusual emergency which justifies their resort to nature's weapons in defense of their master's belongings. Such a state of facts may well be a justification to the owner as well as the dog. But it is not to be presumed without proof, and, therefore, upon the ground that, where a fierce, vicious and dangerous dog, accustomed to bite mankind, known to be such by the owner, attacks and wounds a human being, the burden lies upon the master to show the provocation or excuse, this controversy is decided." In Peevey v. Haughton, it was held by the Supreme Court of Mississippi, upon rehearing, that where a bill for specific performance of a contract to sell land is brought by the party who has not signed the agreement, the filing and signing of the bill take the contract out of the statute of frauds. The court says: The "offer to perform," referred to in the original opinion as satisfying the statute, is, of ant. course, not a verbal offer, but the offer made in the bill signed in writing by the complainThe case of Metcalf v. Brandon, 58 Miss. 843, announcing that "if he (complainant) admits it in writing, over his signature, the terms of the statute are met," was not referred to by us, because we did not think it could be seriously questioned, and hence we addressed ourselves to the task of satisfying counsel of the inapplicability of his authorities, in other views. But as the case does not pass unchallenged, as it would seem, we say only that it is certainly undoubted law, and thoroughly settled elsewhere. In Sams v. Fripp, 10 Rich. Eq. 459, the court says, "It has always been held that the requirements of the statute of frauds concerning agreements to convey lands were fulfilled by the signature to the contract |