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It appeared from the evidence that the payee in the note granted to Hentges the exclusive right to sell in Vernon county, Wisconsin, for three years, a patented article called "Budge & Russell's Patent Sack-holder Weighing Scale;" and, also, that Budge & Russell, who appear to have constituted the scale company, held a contract in writing with Essler, Norris & Doolittle, of St. Peter, Minnesota, by which the latter firm agreed to manufacture the scales at a fixed price, and deliver them to Budge & Russell, or the holder of the contract, or their order, and that Budge & Russell indorsed on this contract, "Deliver scales to Hentges. Budge & Russell," and delivered it so indorsed to Hentges. The grant of the right to sell the scales, and the indorsement and delivery of this contract, formed the consideration for the notes.

The defences alleged to the notes were that the payee made certain false and fraudulent representations in respect to the value and usefulness of the invention, and also represented and guaranteed that Essler, Norris & Doolittle would furnish the articles on Hentges demand, according to the terms of said written contract, and that those persons would not, when he called on them so to do, furnish him any of the articles. There was no evidence whatever of such representations or guaranty. It was proved that Essler, Norris & Doolittle failed to furnish any of the articles, although Hentges called upon them to do so; but neither the payee in the notes nor Budge & Russell had made themselves responsible to Hentges for anything that firm might or might not do. The mere assignment to him of those persons' contract to furnish the articles-and its indorsement and delivery appear to have been intended as an assignment-did not make the assignors liable for any default on the part of Essler, Norris & Doolittle. Hentges' remedy was against that firm. The further defence was that the scales described were neither a new nor valuable invention, and they were practically useless for the purposes for which they were intended, and did not weigh correctly, and so the grant of the right to sell them did not constitute a valuable consideration for the notes.

There was no evidence that the invention is not a new one. The only evidence as to its being useless was given by Hentges himself. After testifying that he procured three of the scales from one Post, he was asked to "describe the character of those scales; whether you could weigh anything with them," and answered: "You could weigh with them, but you couldn't

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correct them with the Fairbanks scale." Being further asked, "Would they weigh correctly?" he answered, "No, sir."

A license to sell an article on which a patent has issued, if the patent be void, passes nothing to the licensee, for he has a right to sell without it. The license assumes to give a right in its nature exclusive; a thing which has no existence if the patent be void, for everybody possesses the right. Therefore a license or grant of a right to sell in such case furnishes no valid consideration for a promise on the part of the licensee or grantee. If, however, the patent be valid, the right to sell the article is exclusive, and is in law a valuable right, although it may not in fact be a profitable one; and as one may pay, or agree to pay, what he pleases for such a right, the grant of it to him is a valid consideration for his promise to pay for it.

Where, then, it is sought to impeach a contract as without consideration on the ground that the consideration was the grant of a right to sell a patented article, and that the article is useless, it must be shown that it is useless in the sense that will avoid the patent. Rowe v. Blanchard, 18 Wis. 462; Lester v. Palmer, 4 Allen, 145: Dickinson v. Hall, 14 Pick. 217. The patent act allows a patent to issue only for a "new and useful art, machine," etc. Judge Story, in Bedford v. Hunt, 1 Mason, 302, says: "By useful invention in the statutes is meant such an one as may be applied to some beneficial use in society, in contradistinction to one which is injurious to the morals, the health, or the good order of society. It is not necessary to establish that the invention is of such general utility as to supersede all other inventions now in practice to accomplish the same purpose. It is sufficient that it has no mischievous or noxious tendency; that it may be applied to practical uses, and that so far as it is applied it is salutary. If its practical utility be very limited it will follow that it will be of little or no profit to the inventor, and if it be trifling it will sink into utter neglect. The law, however, does not look to the degree of utility; it simply requires that it should be capable of use, and that the use be such as sound morals do not discountenance or prohibit." See, also, Lowell v. Lewis, 1 Mason, 182; Rowe v. Blanchard, ante.

If, therefore, the article be capable of use for the purpose intended, and such purpose is a useful and not mischievous or noxious one, although it may not accomplish such purpose as well as other articles intended for the same purpose, the invention is entitled to a patent. We have no hesitation in

holding the evidence in this case utterly insufficient to show the invention in question so devoid of utility that it could not be patented. That the one or three scales which Hentges saw would not weigh correctly, without anything to show how far they varied from absolute correctness, or whether the defect lay in the principle of the invention, or in faulty construction or arrangement or condition of the particular scale or scales, does not show nor tend to show that the invention itself is impracticable for the purpose intended by it.

For this reason there must be a new trial.
Order reversed and new trial ordered.

G. F. WINLAND, Assignee, etc., Respondent, vs. W. W. HOLCOMB and another, Appellants.

DANIEL E. POND, RESPONDENT, vs. W. W. HOLCOMB an another, Appellants.

Filed November 26, 1879.

H., a judgment debtor, owns a three-story brick building on a lot in Stillwater. He occupies the second story as a residence for himself and family. The first story is occupied by his tenant at will; the third by his tenant under a written lease for five years, to expire July 1, 1881, and for the further term of five years, if the tenant should so choose. Held, that the entire building is exempt, and that a receiver cannot be appointed, in proceedings supplementary to execution, to receive the rents to become due on the lease and apply them on the judgment.

Appeal from district court, county of Washington.
O. H. & T. V. Comfort, for respondent.

McCluer & Marsh, for appellant.

GILFILLAN, C. J. On judgments against the defendants, proceedings, supplementary to execution, were instituted against the defendant W. W. Holcomb. The disclosure showed that he owned a three-story brick building on a lot in the city of Stillwater. The second story was occupied by him as a residence for himself and his family; the first story was occupied by a tenant of his who had no lease for any definite term; the third story he had leased in writing to a lodge of Odd Fellows for a term of five years, ending July 1, 1881, with the further term of five years from that time, if desired

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by the lessee, the rent reserved being $200 a year. Upon this disclosure the court appointed a receiver of said lease, ordered Holcomb to execute to the receiver an assignment of the lease, and the receiver to collect the rents and apply them in payment of the judgments.

The statute declares that the quantity of land designated by it, and the dwelling-house thereon, and its appurtenances, owned and occupied by any resident of the state, shall not be subject to attachment, levy, or sale upon execution, or any other process issuing out of any court within this state.

In Kelly v. Baker, 10 Minn. (Gil.,) 124, the defendant in the execution owned a lot in the city of Rochester, on which was a brick building, the rear part of which he occupied with his family as a dwelling, and the front part of which was used for business purposes, part of it being rented. The execution was levied on the part of the lot covered by the front part of the building, used for business purposes, and that part was sold. The court held the sale void, because of the homestead exemption, and laid down the rule that in such case the entire lot, and not merely that part on which the building stands, is exempt, and that the part not covered by the dwelling may be devoted by the owner to any use which he may choose, without affecting the exemption. That decision controls this case.

The defendant could devote the third story of his building to any use he chose without affecting the exemption; so that, even if there were no practical difficulty in separating the third story from the remainder of the property for the purpose of a levy and sale, it could not through an execution be appropriated to the satisfaction of the judgment; and what cannot merely because of the exemption, be so appropriated through an execution cannot be so appropriated by any proceeding of a court. Now the order under consideration is in effect an appropriation of this third story for a term of years until July 1, 1881, certainly, and for five years longer if the lessee in the lease choose to continue the tenancy, to the satisfaction of the judgments; that story and the right to the use of it is for that time taken from the defendant. If by an order a court may deprive him of the right to use it for two or seven years, it may for any longer time. The power of a court to so deprive him of its use is not affected by the fact that there is an outstanding lease; if it were, then it would not be true, as held in Kelly v. Baker, that the owner may devote the part of the property exempted, not actually used as a dwelling, to

to any use he chooses, without removing the exemption from that part.

The order is reversed.

THE STATE OF MINNESOTA ex rel. S. C. WHITCHER, Relator, vs. S. V. HANFT, Justice, etc., and JAMES KING, Sheriff, etc., Respondents.

Filed November 25, 1879.

Appeals from judgments of the justices of the peace in the city of St Paul, provided for by chapter 211, Sp. Laws 1876, should be taken to the district court, and not to the municipal court. McClung v. Manson, 4 N. W. REP., 130, followed.

Appeal from order of district court, county of Ramsey, quashing alternative writ of mandamus.

Theo. E. Parker and C. S. Bryant, for relators and appellants.

McMillan & Beals, for respondent.

GILFILLAN, C. J. Chapter 2, Sp. Laws 1875, which established the municipal court of the city of St. Paul, provided (section 28) that "all appeals hereafter taken from the judgment of any justice of the peace now existing in said city shall be taken to the said municipal court, and not to the district court or court of common pleas."

The act also (section 26) took away the jurisdiction in any action, civil or criminal, from any justice of the peace thereafter to be elected or appointed.

Section 10, c. 211, Sp. Laws 1876, amended section 26, c. 2, Sp. Laws 1875, so as to provide for the election of two justices of the peace in said city, and vested them with all the jurisdiction and powers, and authorized them to discharge all the duties required by the General Statutes except in regard to criminal jurisdiction and actions of forcible entry and detainer. The act contains no provision in reference to appeals from the judgments of such justices, and there is nothing in the act indicating any intention that the provisions of the act of 1875, as to appeals from justices of the peace in said city, existing at the passage of the latter act, should

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