OQJ,BURl'l' V. VAN VELZEB.
-case upon petition after such laches or delay. He gives no satisfactory reason for his tardiness, but enough .can be gathered from the case to lead to the conclusion that he expected to be able to make his ·defence in the name and under the answer of the defendant Stephens. Mr, Stephens testifies that Ruckman employed the counsel to put in his answer, and was looked to to pay the costs of the defence. He therefore cannot plead any want of knowledge of the proceedings as an excuse for not sooner interposing. I think the interests of all parties will be best subserved by allowing Ruckman to come in and answer and defend, but after such unwarrantable delay it must be upon terms. The terms imposed are that he shall pay to the complainant all the costs that have been incurred since the return of the subprena, including solicitor's docket fee of $20, the costs of taking the testimony and printing the record of the case. Such payment shall be made within 10 days after notice to the solicitor of the defendant Stephens of the taxation of the costs by the clerk; and the said Ruckman may have 20 days. after the payment of the costs in which to enter his appearance and file his answer.
See 6 FED. REP. 225.
t1. VAN VELZEB.
(Circuit Court, D. Minnesota.
Mmo. Where a person feeble in mind and body, and incapable of exercising contrOl over his property, or of managing it in a prudent, careful manner, or of making any contract with reference thereto, was unduly influenced to purchase an interest in a patent-right of doubtful utility, and in consideration therefor to assign notes and a mortgage on real property to the defendant, l/,el4, that (':'CD. assignment is void, and transfers no title to the assignee.
N. P. Colburn, for complainant. C. M. MacCm'thy, for defendant. NELSON, D. J. is a suit in equity brought to set a.side a.n Besignment executed by the complainant's intestate of certam notes and a. mortgage during his life-time.
FINDING OF FACTS.
I find that Joseph Prescott, a. citizen of the state of Minnesota, died at Prairie du Chien, July 14, 1880, intestate, leaving property and
effects in the county of Fillmore. On August 7, 1880, the complainant was appoin:ted administrator of the estate by the probate court of that county, and duly qualified and entered upon his duties as such administrator; that on or about November 12, 1877, Prescott had a stroke of apoplexy, followed by partial paralysis of his left side, arm, and leg; that he remained, after stricken down, for several days, in an unconscious and semi-comatose state; that his mental faculties were seriously impaired by the attack and have never been fully restored; that he was afterwards, and up to the time of his death, in a weak and feeble condition of mind and body, which incapacitated him from properly and carefully attending to his business and managing his property ; that he continued to decline in heaJth after treatment for the disease, and at no time regained the strength and vigor which he possessed before he was stricken down; that he was aware of his impaired condition of mind after unsuccessful treatment in the spring of 1878, and transacted very little business without consultation with others; that in November, 1879, he was treated at Cresco, Iowa, for his enfeebled col).dition of mind and body, and subsequently, about the middle of the month, went alone, without the knowledge of his friends, to Prairie du Chien, where he died, as stated above; that before his death, and while in an enfeebled condition of mind and body, not competent to exercise control over his property or manage it in a prudent, careful manner, and not capable of making any contract with reference thereto, and being unduly influenced by the defendant, Prescott was induced to purchase an interest in a patent-right which the defendant claimed to own and which he knew was of doubtful utility; that the transaction between the deceased and the defendant, and the circumstances surrounding them, show an intention on the part of the defendant to take advantage of the condition of Prescott's mind to overreach him and obtain, if possible, control of a part of his property; that on the ninth of December, 1879, through the undue influence of defendant, Prescott was induced to purchase an undivided one-third interest in a patent whiffletree, and as payment therefor to assign a note and mortgage of the value of more than $1,000, and also, on 01' about the first day of January, 1880, when he was in a weak and enfeebled condition of mind and body, and not competent in law to enter into a contract or manage his property, the said defendant, by undue influence and with the intention of overreaching, induced him to purchase the other two-thirds of the patent-right, and obtained as the purchase price the assignment to himself of the note of Robert Hulton for the sum
of $1,000, secured by a mortgage upon real estate in Fillmore connty aforesaid, said note bearing date March 7, 1878, and payable in three years, with interest at 10 per cent., and also the note of J. P. Tibbits for the sum of· $500, dated February 25, 1878, payable in 6 months, with interest at the rate of 12 per cent., and also the note of H. S. Bassett for the sum of $500, dated November 13, 1878, and payable in one year, with interest at 12 per cent.; that the assignment of the notes and mortgage was dated January 1, 1880, and acknowledged January 26, 1880, and on March 10, 1881, filed for record and recorded in the office of the register of deeds of Fillmore county. The further fact is found that the notes are in the possession either of the administrator, or in the bank at Preston subject to the control of the administrator. In the view taken by the court of the conclusions of law resulting from the foregoing facts, it is unnecessary to consider the evidence with reference to the proceedings taken before the judge of probate in Fillmore county, under which a guardian was appointed.
CONCLUSIONS OF LAW.
SUTTER and others.·
(Oircuit Oourt, N. D. IlliMi,.
PRACTlCE-RJIlHEARING-AFlI'IRMANCE OF FORMER DECREE,
Where, on & rehearing, granted in order that newly-discovered proof eonld be brought in and considered, the evidence failed to show that 1 he in use prior to plaintiffs'invention was an anticipatioll llierl:OI, lu,'wer l1ecree was affirmed.
In Equity. On rehearing.
Munday, Evart, cJ: Adcock, for complainants. BLODGETT, D. J. The distinctive feature of complainants' device for resweating tobacco is the water tank in the bottom of his outer chamber, so that by keeping this water at the proper temperature the atmosphere of the outer chamber can be kept warm and humid, whereby the process of resweating will be induced and carried on to whatever extent shall be deemed desirable. Since the former hearing defendants claim to have discovered the use of other devices prior to Robinson's invention, which they insist so far anticipate the Robinson device as to make it void for want of novelty; and a rehearing was granted defendants in order that this newly-discovered proof could be brought in and considered. The first is an apparatus used by John Watt for resweating tobacco j the second, twoswea.ting rooms or boxes used by Louis Specht in the tobacco factory of August Beck, of this city j and third, the Huse patent of July, 1865. No model of the Watt sweat room is shown, but from the description given of it in the testimony it is evident that it was merely a close vault heated by coils of steam pipe, and into which live steam was discharged in greater or less quantities. It did not have the water tank shown in the Robinson device. nor anything equivalent io it, but had specific provision for drawing off the water formed by condensation of the steam. The Specht device was also, as I conclude from the model, only a room or box heated with coils of steam pipe, and one or two of the lower pipes perforated so as to permit the escape of the steam These perforations were on the under side of the pipes, so that the steam was blown downward onto the floor of the room, where it came in contact with, perhaps, a small quantity of water which had collected in the troughs, so that this discharged steam, as it rose and diffused itself through the room, was to some extent satura.ted with * Reversed. See 7 Sup. Ct. Rep. :371S.