process and are so used by the defendants." It therefore seems to me that as there is no question made as to complainant's right to relief in equity as to the two later patents, and as it is charged that all these patents are used in a common process, it may be impossible to award damages for the infringement of the two later patents without also taking into consideration the value of the first patent. Field, J.-This was an action to recover I am therefore of opinion that upon the damages for injuries received by the plaincase made by the bill, it may be necessary tiff's intestate, Du Bose, from a fall caused to consider the value of all these patents by a defective sidewalk in the city of to the complainant in the common process | Washington. In 1873, the board of pubin which defendants are alleged to use lic works of the city caused the grade of them, and that it may be difficult, if not impossible, to determine their separate value or the separate profits made by defendants in their use. the carriageway of Thirteenth street, between F and G streets, to be lowered several feet. The distance between the curbstone of the carriageway and the line The bills in these cases were filed more of the adjucent buildings was thirty-six than three months before the expiration feet. At the time the accident to the deof the first patent, and the court can not ceased occurred, this portion of the street therefore say, as was said by Vice-Chan--sidewalk it may be termed to designate cellor James, that it is impossible to have given complainant an injunction on the oldest patent, or even to have reached a final decree on the merits before the expiration of the patent; an answer was due at the first rule day after the filing of the bill, and for aught the court can say, the case might have been brought to a hearing upon the bill and answer, and decree rendered before the expiration of the earlier patents; there was certainly time to have given notice, and argued the application for an injunction, which the court must assume, from the language of Vice-Chancellor James, there was not time to do in the case decided by him. It seems to me, therefore, that the case made by this bill is exceptional to those which have been cited in support of the demurrer. it from the carriageway, although only a part of it is given up to foot passengerswas, for forty-eight feet north of F street, lowered in its whole width to the same grade as the carriageway. But for some distance beyond that point, only twelve feet of the sidewalk was cut down, thus leaving an abrupt descent of about two feet, at a distance of twelve feet from the curb. At this descent-from the elevated to the lowered part of the sidewalk-there were three steps, but the place was not guarded either at its side or end. Nothing was placed to warn foot passengers of the danger. On the night of February 21, 1877, Du Bose, a contract surgeon of the United States army, while walking down Thirteenth street toward F street, fell down this descent, and striking upon his knees, The motion to dismiss, as to the patent received a concussion which injured his of June, 1867, is overruled. spine and produced partial paralysis, re Dent & Black and Cratty Bros., for Com- sulting in the impairment of his mind and plainant. ultimately in his death, which occurred Banning & Banning, and George F. since the trial below. Harding, for defendants. The present action was for the injury petency for any other cause, must be pas sed upon by the court, and to aid its judgment, evidence of his condition is admissible. But lunacy or insanity assumes so many forms, and is so often partial in its ticular subjects, whilst there is full intelligence on others, that the power of the court is to be exercised with the greatest caution. The books are full of cases where persons showing mental derangement on some subjects evince a high degree of intelligence and wisdom on others. The existence of partial insanity does not unfit individuals so affected for the transaction of business on all subjects, nor from giving a perfectly accurate, and lucid statement of what they have seen or heard. In a case in the Prerogative Court of Canterbury, counsel stated that partial insanity was unknown to the law of England; but the court replied that if by this was meant that the law never deems a person both sane and insane at one and the same time upon one and the same subject, the assertion was a truism; and added: "If by that position, it be meant and intended that the law of England never deems a party both sane and insane at different times upon the same subject, and both sane and insane at the same time upon different subjects, there can scarcely be a position more destitute of legal foundation, or rather there can scarcely be one more adverse to the stream and current of legal authority." Dew v. Clark, 3d Addams Eccl. R. 79, 94. thus sustained. He was himself a witness, his mind, not be a competent witness. His and it appeared from his testimony that incompetency on that ground, like incomhis mind was feeble. His statement was not always as direct and clear as would be expected from a man in the full vigor of his mind. Still it was not incoherent nor unintelligible, but evinced a full knowledge of the matter in relation to which extent, being frequently confined to parhe was testifying. A physician of the government hospital for the insane, to which the deceased was taken two years afterward, testified that he was affected with acute melancholy; that sometimes it was impossible to get a word from him; that his memory was impaired, but that he was able to make a substantially correct statement of facts which transpired before the injury took place, though from the impairment of his memory, he might leave out some important part, that there would be some confusion of ideas in his mind, and that he should not be held responsible for any criminal act. A physician of the freedmen's hospital, in which the deceased was at one time a patient after his injuries, testified to a more deranged condition of his mind, and that he was, when there in June, 1879, insane. He had attempted to commit suicide, and had stuck a fork into his neck several times. Upon this, andother testimony similar import,and the feebleness exhibited by the deceased on the stand, the counsel for the city requested the court to withdraw his testimony from the jury, on the ground that his mental faculties were so far impaired as to render him incompetent to testify as a witness. This the court refused to do, but instructed the jury that his testimony must be taken with some allowance, considering The general rule there is that a lunatic his condition of mind and his incapacity or a person affected with insanity is ad to remember all the circumstances which missible as a witness if he have sufficient might throw some light on his present understanding to apprehend the obligacondition. This refusal and ruling of the tion of an oath, and to be capable of givcourt constitute the first error assigned. ing a correct account of the matters which The ruling of the court and its instruc- he has seen or heard in reference to the tion to the jury were entirely correct. It questions at issue; and whether he have is undoubtedly true that a lunatic or in- that understanding is a question to be sane person may, from the condition of determined by the court, upon examina tion of the party himself, and any com- he that does it will go to hell for all petent witnesses who can speak to the eternity." He was then sworn, and gave nature and extent of his insanity. Such a perfectly collected and rational account was the decision of the Court of Criminal of a transaction which he declared that he Appeal in England, in the case of Regina had witnessed. He was in some doubt as v. Hill (5th Cox's Criminal Cases), 259. to the day of the week on which it took There the prisoner had been convicted of place, and on cross-examination said: manslaughter; and on the trial a witness "These creatures insist upon it, it was had been admitted whose incompetency Tuesday night, and I think it was Monwas urged on the ground of alleged in- day;" whereupon he was asked: "Is what sanity. He was a patient in a lunatic you have told us what the spirits told you, asylum, under the delusion that he had a or what you recollected without the number of spirits about him which were spirits?" And he said: "No, the spirits continually talking to him, but the medical assist me in speaking of the date, I thought superintendent testified that he was it was Monday and they told me it was capable of giving an account of any transaction that happened before his eyes; that he had always found him so; and that it was solely with reference to the delusion about the spirits that he considered him a lunatic. The witness himself was called, and testified as follows: "I am fully aware I have a spirit, and twenty thousand of them. They are not all mine. I must inquire. I can where I am. I know which are mine. Those that ascend from my stomach and my head, and also those in my ears. I don't know how many they are. The flesh creates spirits by the palpitation of the nerves and the rheumatics. All are now in my body and around my head. They speak to me in cessantly, particularly at night. That spirits are immortal, I am taught by my religion from my childhood, no matter "Various authorities," said the Chief how faith goes, all live after my death, Justice, "have been referred to, which lay those that belong to me and those that do down the law that a person non compos not." After much more of this kind of mentis is not an admissible witness; but talk he added: "They speak to me in- in what sense is the expression non compos stantly; they are speaking to me now; mentis employed? If a person be so to they are not separate from me; they are such an extent as not to understand the around me speaking to me now; but I nature of an oath, he is not admissible. can't be a spirit, for I am flesh and blood. But a person subject to a considerable They can go in and out through walls and amount of insane delusion may yet be places which I cannot." He also stated under the sanction of an oath and capable his opinion of what it was to take an oath: of giving very material evidence upon the "When I swear," he said, "I appeal to the subject-matter under consideration." And Almighty. It is perjury, the breaking of the Chief Justice added: "The proper test a lawful oath, or taking an unlawful one; must always be-does the lunatic under Christmas eve., Tuesday; but I was an eyewitness, an occular witness to the fall to the ground." The question was reserved for the opinion of the court whether this witness was competent, and after a very elaborate discussion of the subject, it was held that he was. Chief Justice Campbell said that he entertained no doubt that the rule laid down by Baron Parke, in an unreported case which had been referred to, was correct, that wherever a delusion of an insane character exists in any person who is called as a witness, it is for the judge to determine whether the person so called has a sufficient sense of religion in his mind and a sufficient understanding of the nature of an oath, and it is for the jury to decide what amount of credit they will give to his testimony. 20 stand what he is saying; and does he un. purpose of showing the condition of the street, and the liability of other persons to fall there. The witness answered that he had seen persons stumble over there. He remembered sending home in a hack a woman who had fallen there, and had seen as many as five persons fall there. The admission of this testimony is now urged as error, the point of the objection being that it tended to introduce collateral Were issues and thus mislead the jury from the matter directly in controversy. such the case the objection would be tenable, but no dispute was made as to these accidents, no question was raised as to the extent of the injuries received, no point was made upon them, no recovery was sought by reason of them, nor any increase of damages. They were proved simply as circumstances, which with other evidence tended to show the dangerous character of the sidewalk in its ungarded condition. The frequency of accidents at a particular place would seem to be good evidence of its dangerous character—at least it is some evidence to that effect. Persons are not wont to seek such places, and do not willingly fall into them. Here the character of the place was one of the subjects of inquiry to which the attention of the defendant was called by the nature of the action and the pleadings, and he should have been prepared to show its real character in the face of any proof bearing on that subject. Those accidents also tended to show that the dangerous character of the locality was a matter likely to be brought to the attention of the city authorities. In Quinlan v. City of Utica, 11 Hun, 217, which was before the Supreme Court On the trial, a member of the metro- of New York, in an action to recover politan police, who saw the deceased fall damages for injuries sustained by the on the sidewalk and went to his assistance, plaintiff through the neglect of the city to was asked, after testifying to the accident, repair its sidewalk, he was allowed to whether while he was on his beat, other show that while it was out of repair other accidents had happened at that place. persons had slipped and fallen on the The court allowed the question against walk where he was injured. It was objected the objection of the city's counsel, for the that the testimony presented new issues which the defendant could not be prepared 630; Calkins v. Hartford, 33 id. 57; Darto meet, but the court said: "In one sense ling v. Westmoreland, 52 N. H. 401; Hill every item of testimony material to the v. Portland and Rochester R. Co., 55 Me. main issue introduces a new issue; that is 439; Kent v. Lincoln, 32 Vt. 591; City v. to say, it calls for a reply. In no other Delphi v. Lowery, 74 Ind. 520. The above sense did the testimony in question make however are sufficient to sustain the action a new issue. Its only importance was of the court below in admitting the testithat it bore upon the main issue, and all mony to which objection was taken. legitimate testimony bearing upon that Judgment affirmed. issue the defendant was required to be prepared for." This case was affirmed by the Court of Appeals of New York, all the judges concurring, except one, who was absent. 74 N. Y. 603. WISCONSIN SUPREME COURT. Briffitt v. State of Wisconsin. PROSECUTION FOR THE SALE OF INTOXICATING LIQUOR WITHOUT LICENSE TO SELL.-The opinion states the case. Defendant below took a writ of error to review a judgment of conviction. J. H. Rogers, for plaintiff in error. Orton, J. The complaint before the justice was that the defendant had sold "intoxicating liquors" without first having obtained a license therefor. The case was appealed to and finally tried in the Circuit Court. The only question really presented by the exceptions, either to the evidence or to the charge of the court to the jury, is whether proof that the de In an action against the city of Chicago, to recover damages resulting from the death of a person who in the night stepped off an approach to a bridge while it was swinging around to enable a vessel to pass, and was drowned-it being alleged that the accident happened by reason of the neglect of the city to supply sufficient lights to enable persons to avoid such dangers the Supreme Court of Illinois held that it was competent for the plaintiff to prove that another person had under the same circumstances met with a similar accident. City of Chicago v. Powers, 42 Ill. 168. To the objection that the evidence was inadmissible, the court said: "The action was based upon the negligence of fendant had sold beer was sufficient proof the city in failing to keep the bridge properly lighted. If another person had met with a similar fate at the same place and from a like cause, it would tend to show a knowledge on the part of the city that there was inattention on the part of their agents having charge of the bridge, and that they had failed to provide proper means for the protection of persons crossing on the bridge. As it tended to prove this fact it was admissible; and if the appellants had desired to guard against its improper application by the jury, they should have asked an instruction limiting it to its legitimate purpose." that he had sold malt or intoxicating liquor. In ruling upon a question of evidence the court said, "I suppose everybody knows what is meant by beer." When the question was asked whether malt is used in ordinary beer, the court said: "I do not think it is necessary. I think a man must be almost a drivelling idiot who does not know what beer is. I do not think it necessary to prove what it is." The charge of the court on the same subject was substantially of the same import. It was proved that the defendant had sold "beer." There was some proof tending to show that the beer sold had an exhilarating effect, and that it was such beer as was brewed in large breweries Other cases to the same general purport might be cited. See Augusta v. Hafers, 61 Ga. 48; House v. Metcalf, 27 Conn. of the State. But such evidence scarcely |