are in conflict with our decision in Thompson v. Insurance Company, 104 U. S. 252. In that case it appeared that the insured, for a part of an annual premium, had given a note containing the special provision that in the event of the non-payment of the note at maturity the policy should be void. The note was not paid at maturity, nor was payment ever tendered, while the insured was alive nor at any time after his death, by or in behalf of the payees in the policy. Tò pleas setting up these facts réplications were filed, in which it was attempted to excuse the failure to make due tender of the amount of the note upon the ground that it was the usage and custom of the company, practised with the insured and others, as well before as after the making of the note, not to demand punctual payment at the day, but to give thirty days of grace; further, that it had been its uniform custom and usage, in advance of the maturity of notes, to give notice of the day of payment, whereas no such notice was given to Thompson, and thereby, it was alleged, he was put off his guard and misled as to the time of payment. It was held that the failure to tender the amount due, within the period named in the replication, was, in every view, fatal to the entire case set up by the payees in the policy. "A valid excuse for not paying promptly on the day is," said the court, "a different thing from an excuse for not paying at all." Touching the alleged failure of the company, in conformity with its uniform practice, to give notice of the day of payment, it was said that the insured knew, or was bound to know, when his premiums became due, and that the company was under no obligation to give him notice, nor did it assume any responsibility by giving notice on previous occasions.

The present case has features which plainly distinguish it from the Thompson case. In the former, there was a tender of the premium within a few days after the death of the insured, and as soon as the payees ascertained the sum required to be paid. In the latter, the amount to be paid was fixed. It was not liable to be reduced on account of dividends or for any other reason, and the insured, therefore, knew the exact amount to be paid in order to prevent a forfeiture of the policy. Now, although the policy issued upon Riddle's life required payment annually of a specific sum as a premium, that stipulation must

be construed in connection with the agreement set out in the application, that the premium might be discharged pro tanto by such dividends as were allowed to the insured from time to time. Whether the company, in any particular year, declared dividends, and what amount was available in reduction of the premium, were facts known, in the first instance, only to the company, which had full control of the matter of dividends. It certainly was not contemplated that the insured should every year make application, either at the home office, or at the office of its general agent in Chicago, in order to ascertain the amount of dividends. The understanding between the parties upon this subject is, in part, shown by the practice of the company. Independently of that circumstance, and waiving any determination of the question whether the forfeiture was not absolutely waived by the act of the general agent, in sending notice to the insured after the day fixed for the payment of the premium due Sept. 20, 1876, it was, we think, the company's duty, under any fair interpretation of its contract, having received information as to the post-office of the insured, to give seasonable notice of the amount of dividends, and thereby inform him as to the cash to be paid in order to keep alive the policy. It did, as we have seen, give such notice in 1875, and received payment of the amount due after the date fixed in the policy, Within a reasonable time after the notice for 1876 came, in due course of mail, to the hands of one of the payees, a tender of the amount was made to the general agent at Chicago. No such features were disclosed in the Thompson case, and they are, as we think, sufficient not only to distinguish the present case from that one, but to authorize the instructions of which the company complains.

The assignments of error bring to our attention numerous exceptions taken by the company to the admission of evidence, and to the refusal to give instructions asked in its behalf. We deem it unnecessary to consider them in detail. So far as they affect the substantial rights of the parties, they are disposed of by what has been said touching the charge of the court upon the essential questions in the case.

Judgment affirmed.

CALL v. PALMER.

Rule 32 applies only to cases remanded to a State court by the Circuit Court, or dismissed under the authority of sect. 5 of the act of March 3, 1875, c. 137.

APPEAL from the Circuit Court of the United States for the District of Iowa.

Motion to advance under Rule 32.

Mr, J. H. Call in support of the motion.
There was no opposing counsel.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court. Rule 32 applies only to cases which have been remanded by a Circuit Court to a State court, or dismissed, under the authority of sect. 5 of the act of March 3, 1875, c. 137. This is an appeal from a decree on the merits in a suit removed from a State court to the Circuit Court. The record shows that a motion to remand was denied, and that the cause was regularly heard and decided.

Motions under this rule should be accompanied by an agreed statement of the case, or by such extracts from the record as will show that the case is one to which the rule is applicable. Motion denied.

GOSLING v. ROBERTS.

1. The first claim of reissued letters-patent No. 5644, granted to John W. Gosling Nov. 4, 1873, for an "improvement in step-covers and wheel-fenders for carriages," if construed to be broad enough to cover the structure made in accordance with the specification annexed to letters-patent No. 90,584, granted to John Roberts May 25, 1869, is void, because the invention is not new, nor is it embraced in the original letters.

2. The invention covered by the claim of Gosling's original letters (post, p. 42) was new, and they are adequate to secure it.

APPEAL from the Circuit Court of the United States for the Southern District of Ohio.

This was a bill filed by Gosling, wherein he alleges that, being the first inventor of a new and useful improvement in step-covers and wheel-fenders for carriages, he obtained letters

patent therefor, No. 62,406, bearing date Feb. 26, 1867; that on his surrendering them, reissued letters No. 5,644, dated Nov. 4, 1873, were granted to him for that invention, and that Roberts, the defendant, was infringing them. He prays for an injunction, an account, and general relief.

Roberts denies as well the alleged infringement, the novelty, and utility of the improvement described in the reissued letters, as Gosling's claim to be the first inventor thereof. He also sets up as a defence that they are void, because they include matters not covered by the original letters.

The court, upon a final hearing, dismissed the bill, and Gosling appealed.

The specifications and claims which are set forth in .the opinion of the court refer to certain drawings. Those annexed to Gosling's original letters are as follows:

:

Fig.2.

Fic. I.

The drawings annexed to his reissued letters are as follows:

Mr. Charles L. Mitchell and Mr. D. H. J. Holmes for the appellant.

Mr. William Hubbell Fisher for the appellee.

MR. JUSTICE BLATCHFORD delivered the opinion of the

court.

As a material question in this case arises on the difference between the specifications and claims of the original and the