bonâ fide dismantled prior to the sale and afterwards fitted up for the merchant service, does not pass a title above the right of capture by the other belligerent: Id.

JUDGMENT.

Estoppel-Res judicata.-A judgment, to operate as an estoppel, must be upon the same subject-matter, and between the same parties: McKinzie v. B. and O. Railroad Co., 28 Md.

The term "parties," is not restricted to those who appear as plaintiff and defendant upon the record; it includes those who are directly interested in the subject-matter of the suit, knew of its pendency, and had the right to control and direct or defend it: Id.

Justice requires that every cause be once fairly and impartially tried; but the public tranquillity demands that having been once so tried, all litigation of that question and between the same parties, should be closed for ever: Id.

LANDLORD AND TENANT.

Distress-Tenant's Remedy for an unlawful Distress-Property in hands of Receiver.-Where a landlord has levied a distress, and taken thereunder property of sufficient value to satisfy the rent then due, he cannot, without the consent of his tenant or other lawful cause, abandon his proceedings, and then levy a second distress for the same rent, upon the same or any other property of his tenant: Everett, Adm. of Tough, v. Neff, 28 Md.

Should a landlord abandon his first distress without justifiable cause, and levy a second, the tenant's remedy for the taking under the latter, is trespass, case, or trover: Id.

Where property is rightfully in the hands of a receiver, it is in the custody of the court, and cannot be distrained upon without the permission of the court by whom the receiver was appointed: in such case the landlord must apply to the court for an order on the receiver to pay the rent, or for leave to proceed by distress or otherwise: Id.

LEGAL TENDER NOTES.

Contracts for Gold Coin.-A bond given in December, 1851, for payment of a certain sum in gold and silver coin, lawful money of the United States, with interest also in coin, at a rate specified, until repayment, cannot be discharged by a tender of United States notes issued under the Act of Congress of February 25th and two subsequent acts. and by them declared to be lawful money and a legal tender for the ment of debts: Bronson v. Rodes, 7 Wall.

pay

When obligations made payable in coin are sued upon, judgment may be entered for coined dollars and parts of dollars: Id.

State Taxes payable in Gold.-An enactment in a state statute that "the sheriff shall pay over to the county treasurer the full amount of the state and school taxes in gold and silver coin," and that "the several county treasurers shall pay over to the state treasurer the state tax in gold and silver coin," infers as a legitimate if not a necessary consequence that the taxes named were required to be collected in coin. But if in the judgment of this court, this inference were not a true one, yet the Supreme Court of the state having held it to be a true one, this court will follow their adjudication: Lane County v. Oregon, 7 Wall.

The clause in the Act of Congress of February 25th 1862, and two subsequent acts, making notes of United States a legal tender for debts, has no reference to taxes imposed by state authority: Id.

MANDAMUS.

Municipal Corporation-Mandamus to levy Tax.-A return to a mandamus ordering a municipal corporation forthwith to levy a specific tax upon the taxable property of a city for the year 1865, sufficient to pay a judgment specified, collect the tax, and pay the same, or show cause to the contrary by the next term of the court, is not answered by a return that the defendants, "in obedience to the order of the court, did proceed to levy a tax of one per cent. upon the taxable property of the said city, for the purpose of paying the judgment named in the information, and other claims, and that the said tax is sufficient in amount to pay the said judgment and other claims for the payment of which it was levied." The return should have disclosed the whole act constituting the levy, so as to enable the court to determine whether it was sufficient to pay the judgment of the relator. It was also erroneous in returning that the tax was levied to pay this judgment "and other claims:" Benbow v. Iowa City, 7 Wall.

MUNICIPAL CORPORATION.

See Constitutional Law, Mandamus.

NUISANCE.

Suit by Individual for Public.—An individual cannot maintain a suit to restrain a nuisance which injures him only in rights enjoyed by him as one of the public. In such case, an information must be filed for the public, in the name of the attorney-general, on behalf of the state; and it makes no difference as to the remedy, that the individual would be much more inconvenienced by the nuisance than most others: Higbee v. The C. & A. R. R. Co., 4 C. E. Green.

But where the injury complained of is the building of a railroad station in the street in front of complainant's property, and he owns the soil in the street upon which it is built, the injury is to his individual rights, and not as part of the public, and the suit must be brought in his own name: Id.

Smoke, Noise, &c., in Cities.-When the prosecution of a business of itself lawful, in the neighborhood of a dwelling-house, renders the enjoyment of it materially uncomfortable by the smoke and cinders or noise or offensive odors produced by such business, although not in any degree. injurious to health, the carrying on such business there is a nuisance, and will be restrained by injunction: Ross and Others v. Butler, 4 C. E. Green.

A clear, unmistakable nuisance, which it is intended to commit periodically, will not be permitted on the ground that it does not exist the greater part of the time, but only for a small part of it: Id.

The qualification that a lawful business will not be restrained for every trifling inconvenience and that persons must not stand on extreme rights and bring actions in respect to every matter of annoyance, does not refer to the proportion of time for which the nuisance is continued, but only to the degree or kind of annoyance: Id.

Matters that are an annoyance by being merely disagreeable or un

sightly, as a well-kept butcher shop, or a green grocer, near a costly dwelling-house, or any other business that attracts crowds of orderly persons, or numbers of carts and carriages, although very undesirable neighbors, are not nuisances, even should they seriously affect the value of the property by driving away tenants, and prevent it being let to any who would pay high rents: Id.

Because a certain part of a town is occupied by tradesmen and mechanics for residences and carrying on trades which occasion some degree of noise, smoke and cinders, and contains no elegant or costly dwellings, and is not inhabited by the wealthy and luxurious, it is not therefore a proper and convenient place for carrying on a business which renders the dwellings there uncomfortable to the owners and their families by offensive smells, smoke, cinders, or intolerable noises: Id.

A dense smoke laden with cinders (caused by the burning of pine wood) and continued for twelve hours twice in each month, falling upon and penetrating houses and premises at distances varying from forty to two hundred feet, held to cause such injury, annoyance and discomfort as to constitute a legal nuisance: Id.

PARTNERSHIP.

Compensation to Agent by Share of Profits.-A participation in the profits of any business or undertaking, to constitute one a partner, must be a general participation in the profits as such. A person who is not a principal, has no control of the business, and no power as a partner in the firm, but who is employed as a superintendent or agent, receiving by way of compensation for his services a certain share of the profits, is not thereby a partner: Hargrave v. Conroy, 4 C. E. Green.

Such relation does not, as between the parties, constitute them partners, and generally does not as to strangers. If the profits are so greatly out of proportion to the services rendered as to show that the arrangement is a shift to avoid responsibility, and that creditors are injured by the abstraction of so large a part of the avails of the business, it will be held, as to them, that such person is a partner: Id.

But where a party agrees to serve another for a part of the profits to be derived from the business, but they are by the express terms of the agreement to be paid for his services, he cannot call for an account as partner, but he has a right to an account of the profits, and to the aid of this conrt in discovery and taking an account of profits: Id.

Where a party under a contract to perform a certain work at a certain rate, has performed part, and the performance of the residue was prevented without the fault of either party, he is entitled to payment in proportion, at the rate agreed upon for the whole: Id.

· PATENT.

New Substance from Combination of known Materials.-When a patent is claimed for a discovery of a new substance by means of chemical combinations of known materials, it should state the component parts of the new manufacture claimed with clearness and precision, and not leave the person attempting to use the discovery to find it out "by experiment:" Tyler v. City of Boston, 7 Wall.

The term "equivalent," when used with regard to the chemical action of such fluids as can be discovered only by experiment, only means equally good: Id.

Whether one compound of given proportions is substantially the same as another compound, varying the proportions, is a question of fact and for the jury Id.

PLEADING.

Rules-Practice-Res Judicata.-In a case having long and complicated pleadings, where a second count of a declaration has been left by the withdrawal of a plea without an answer, so that judgment might have been had on it by nil dicit, a superior court will not, on error, infer, as of necessity, that a judgment below for the plaintiff was thus given; the case being one where after such withdrawal there were numerous demurrers, pleas, replications, and rejoinder, arising from a first count, and the proceedings showing that these were the subject of controversy. The second count will be taken to be waived: Aurora City v. West, 7 Wall.

A reversal in a court of last resort, remanding a case, cannot be set up as a bar to a judgment in an inferior court on the same case: Id. The rule that judgment will be given against the party who commits the first fault in pleading does not apply to faults of mere form: Id.

The plea of res judicata applies to every objection urged in a second suit, when the same objection was open to the party within the legitimate scope of the pleadings in a former one, and might have been presented in it: Id.

PRIZE. See International Law.

PUBLIC LANDS.

Meandered Streams-Rights of Riparian Proprietor. The meander lines run in surveying fractional portions of the public lands bordering upon navigable rivers, are run not as boundaries of the tract, but for the purpose of defining the sinuosities of the banks of the stream, and as the means of ascertaining the quantity of the land in the fraction, and which is to be paid for by the purchaser: Railroad Co. v. Shurmeir, 7 Wall.

Congress in providing, as it does in one or more acts relating to the survey and sale of public lands bordering upon rivers-that navigable rivers, within the territory to be surveyed, should be deemed to be public highways, and that where the opposite banks of any stream, not navigable, should belong to different persons, the stream and the bed thereof should become common to both-meant to enact that the common-law rules of riparian ownership should apply in the latter case, but that the title to lands bordering on navigable streams should stop at the stream and not come to the medium filum: Id.

But such riparian proprietors have the same right to construct suitable landings and wharfs, for the convenience of commerce and navigation, as riparian proprietors on navigable waters affected by the ebb and flow of the tide: Id.

A government grant of land in Minnesota (9.28 acres) bounded on one side by the Mississippi, was held to include a parcel (2.78 acres) four feet lower than the main body, and which at very low water was separated from it by a slough or channel 28 feet wide through which no water flowed but in which water remained in pools; where at medium water it flowed through the depression, making an island of the parcel; and where at high water the parcel was submerged; the whole place

having previous to the controversy been laid out as a city, and the municipal authorities having graded and filled up the place to the river edge of the parcel: Id.

If by the laws in force in Minnesota in 1859, the recording of a town or city plot indicating a dedication for a public purpose of certain parts of the land laid out, operated as a conveyance in fee to the town or city, yet it could operate only as a conveyance of the fee subject to the purpose indicated by the dedication, and subject to that it must be held by any future claimant: Id.

RECEIVER. See Debtor and Creditor, Landlord and Tenant.

REVENUE LAWS.

Duties paid under protest―Jurisdiction of Court of Claims.—Under the Act of Congress of February 26th 1845, relative to the recovery of duties paid under protest, a written protest signed by the party, with a statement of the definite grounds of objection to the duties demanded and paid, is a condition precedent to a right to sue in any court for their recovery: Nichols v. United States, 7 Wall.

Cases arising under the revenue laws are not within the jurisdiction of the Court of Claims: Id.

SUPREME COURT OF THE UNITED STATES.

Jurisdiction-Practice.-If it is apparent from the record that this court has not acquired jurisdiction of a case for want of proper appeal or writ of error, it will be dismissed although neither party ask it: Edmonson v. Bloomshire, 7 Wall.

An appeal or writ of error which does not bring to this court a transcript of the record before the expiration of the term to which it is returnable, is no longer a valid appeal or writ: Id.

Although a prayer for an appeal, and its allowance by the court below, constitute a valid appeal though no bond be given (the bond being to be given with effect at any time while the appeal is in force), yet if no transcript is filed in this court at the term next succeeding the allowance of the appeal, it has lost its vitality as an appeal: Id.

Such vitality cannot be restored by an order of the Circuit Court made afterwards, accepting a bond made to perfect that appeal. Nor does a recital in the citation, issued after such order, that the appeal was taken as of that date, revive the defunct appeal or constitute a new one: Id.

WILL.

Testamentary Competency-Undue Influence.-The law concedes to a man of sound mind the right to dispose of his property in any manner he may deem proper consistent with its policy; and it is no valid objection to a will that the testator gave his property to his wife, or to strangers to his blood, provided he was mentally competent, and was free from undue influence at the time: Higgins et al. v. Carlton, 28 Md.

It is not sufficient to avoid a will, that its dispositions are imprudent and unaccountable: Id.

The influence to vitiate a will, must be an unlawful influence, and exerted to such a degree as to amount to force or coercion, destroying