ery kind situated thereon, reserving such jurisdiction as the state has in other places within same, ceded to 01' held by the United States for similar purposes." On February 18, 1871, the legislature of Maine passed the following act: "Section 1. That the consent of the legislature of the state of Maine be, and the same is hereby, given to the purchase by the government of the United States, or under the authority of the same, of any tract, piece, or parcel of land, from any individual or individuals, bodies politic or corporate, within the boundaries or limits of the state, for the purpose of erecting thereon light.houses, and other needful public buildings whatever," etc. In view of the foregoing acts, we can come to no other conclusion than that the legislature of the state of Maine intended to give its consent to the purchase by the government of the United States of the land on which Fort Popham is situated. The supreme court of Maine declined to take jurisdiction in this case. The court held that Fort Popham is a United States fort, and that the purchase was made by consent of the legislature of the state. State v. Kelly, 76 Me. 331. By the twenty-seventh assignment of errors, it is charged that the court erred in overruling the respondent's motion in arl'est of judgment. The first objection urged under the motion in arrest is that the indictment does not state that the land on which the fort stands was purchased by the consent of the legislature of the state of Maine. The first count in the indictment alleges as follows: "The site of which said fort was purchased by the said United States, and of the said United States for then and there held by and in the the erection of a fort. with the consent of the legislature of the state of Maine. in which said state said fort is situated, and which said fort was, at the last mentioned day, then and there a place under the sole and exclusive jurisdiction of the said United States, and within the jurisdiction of this court." We think this averment of jurisdiction clearly sufficient. The language beaI'S out the construction that the purchase, holding, and possession were all for the erection of a fort, and all with the consent of the legislature of Maine. It is unnecessary to consider in detail this averment in the two other counts. We think, however, the allegation in these counts is sufficient under the statute defining the offense charged. In U. S. v. Gilbert, 2 Sum. 19, 87, STORY, J., says: "If the offense is so laid in the indictment as to bring the case within the language of the statute in point of jurisdiction and certainty of description, that is all which can properly be required in our country." I have carefullyexamin,ed the numerous qnestions raised upon the record by the learned counsel for the plaintiff in error, and have considered the more important ones, and the conclusion reached is that there is no error in the proceedings in the district court. The judgment of the district court is affirmed; the respondent to stand at the bar of this court 10r sentence.
KELLY fl. UNITED STATES.
NOTE. Dying declarations, to be admissible in evidence, must be made, not merely in arti<'Uto mortis, but under the sense of impending death, without expectation or hope of recovery. People v. Abbott, (Cal.) 4 Pac. Rep. 769. See State v. Cantieny, (Minn.) 24 N. W. Rep.458.. _ ... . lJ\'ing declaratIOns, made under a bellef of ImmlDent del\th, and WIthout hope ofrecovery, are admissible in evidence, although others thought at the time that declarant would not die, and even though death may not have followed for some time. People . ' v. Simpson, (Mich.) 12 N. W. Rep. 662. The party signing or making dying declarations must have been in such a state of mind at the time as to have had a clear understanding of the contents of the doculllent he is said to have signed, or of the declaration he is said to have made. Binfield v. State, (Neb.) 19 N. W. Rep. 61)7. A dying declaration is admissible in evidence, although not signed by the declarant, and although it was not given in voluntary expressions. but by assenting words to leading questions, provided the declarant was on the point of dE'ath, and knew that he was, and was too weak for the mechanical exertion of signing his name. People v. Callaghan, (Utah,) 6 Pac. Rep. 49. The dying declarations must be as to facts, and not merely expressions of opinions; and their credibility is for the jury, and is to be determind from considerations in connection with all the surrounding circumstances. Statev. Clemons, (Iowa.) 1 N. W, Rep.
opinion by the declal'ant that the defendant was the man who shot him, was not admissible. In People v. Abbott, (Cal.) 4 Pac. Rep. 769, the defendant was taken to the bedside of a wounded man, and the latter declarer! that he was the man who had wounded him with a knife, and the court admitted this declaration. In People v. Simpson, (Mich.), 12 N. W. Rep. 662, two women were walking together, and one oft11em was fatally shot. and immediately after the shot was fired the injured woman exclaimed: "My God, Simpson, you have Sllot me I" and the court held it to be admissible in evidence. . The competency of dying declarations is restricted to thnse cases in which the death IS the subject of the charge. Railing v. Com., (Pa.) 1 Atl. Rep. 314. An offer in evidence of dying declarations should be preceded by evidencE' that they were actually made in expectation of impending death; and this lllay be ShO\lll by the nature of the injury; by what the injured person said, or what physicians or attendants said in his hearing; by the evident stat'3 of his mind, etc. It is not essential that the injured person should have said that they were made in the expectation of death, or that any person should have said in his presence, that death must speedily follow. People v. Simpson, (Mich.) 12 N. W. Rep. 662. In order to make dying declarations admi3sible in evidence, it is not necessary that the declarant state everything constituting the res geBtl£ of the subject of his statement, hut only that his statement of any o';ven fact be a fnll expression of all that he intended to say as conveying his meaning as to such fact. State v. Patterson, 45 Vt. 308. In Brown v. Com., 73 Pa, St. 321. where a man, bearing marks of violence, was found dead about 300 yards from his honse, and his wife was fonnd in the house, (which had the appearance of having been robbed,) with wounds of which she subsequently died, the conrt held that the dying declarations of the wife were not admissible in the trial of a prisoner for the murder of the husband. A man was wounded in a fight with the defendant, and on the same dav, while expectin.g to die, made certain statements in relation to the fight. He lived 10 days longer, and hiS physicians expressed the hnpe to him that he would recover, and he said, "I h?pe 80 too;" but at last died of the wounds. It was held by the court that evidence of Ins statements was admissible on trial of defendant for murdtlr. Swisher v. Com., 26 Grat.963. Dying declarations are admissible in evidence if the declarant had given up all hope of life, although he did not state that he was expecting to die immediately, and although the same matter had been testified to by the declarant on a preliminary examination of the accused, and that testimony had been properly given in evidence. State V. Wilson,
546. It was said in People v. Wasson, (Cal.) 4 Pac. Rep. 555, that the expression of the
Dying declarations are not admisl:lible in evidence if the declarant had the slightest hope of recovery, although he dies within an hour afterwards. People v. Hodgdon, 55 Cal. 72. . The admissibility of dying as evidence isa blended question of law and of fact. They are not incompetent becau,a made in answer to questiona by the wife and the physician of the decellSed. State v. Trivas, 32 La. Ann. 1086. are admissible in evirl Tlce on a trial for murder, when made in vhw of Impending death aud after abandonment of all hope of recovery. as to the facts
and clrcumstancei constituting the ru geJltr£ "I the homicide, but not as to matters occurring anterior to and not immediately connected with it. Statev. Draper, 65 Mo. 335. Dying declarations, not part of the ru fle8t/l, are not competent in exculpation of the accused. Moeck v. People, 100 Ill. 242. In Boyle v. State, (Ind.) 5 N. E. Rep. 203, the dying declaration of the deceased was taken in the form of questions and answers; aud he was asked, "What reason, if any. had the man for shooting you?" to which he aIlswered: .. Not any that I knowof. He said he would shoot roy damned heart out." Held to be admissible, aud not the expression of an incompetent opinion. .
Hamp8hilre. May 22, 1886.)
PATENTS FOR INVENTIONS-INFRINGEMENT-SPECIAL LICENSE-INVENTOR IN CENSEES' EMPLOYMENT.
The plaintiff was in the employment of the defendants; and, in experi· menting upon his inventions, of which he had several, he took the time which belonged to the defendants, used their tools, workmen, and materials, and tested the inventions in the machinery which was run by them. He was given to understand in regard to inventions he brought out prior to the one in question that the defendants claimed the right to use his inventions because he was in their employ. About the time of patenting the invention in question he received a sum of $250 a year in additIOn to his salary from the defendants, and he now claimed that this sum was given as a royalty for the use of his patent for spindle bolsters; but it appeared from the evidence that he had made, about this time, a complaint of being unfairly treated, and his receipts showed that the $250 had been received by him as an increase of salary. There was also evidence that he was anxious for the defendants to adopt his first invention, as it would be an advantage to him in introducing it elsewhere. and agreed to allow them to use it free. and that this agreement was extended to his other subsequent inventions, including the one in question. Held, in an action for infringement, that the defendants had shown a special license for the use of the patented spindle bolster and other improvements, put into their mills while in their employ.
In Equity. Wood rt Clark, for complainant. Livermore rt Fisk, for defendants.
COLT, J. This bill in equity is brought for infringement ofletters patent No. 168,644, granted the complainant for improvement in spindle bolsters. 'fhe suit is between citizens of New Hampshire, and the first question to be determined is whether there is a subsisting license between the plaintiff and the defendant corporation covering the patented bolsters in controversy. The plaintiff was in the employ of the defendant corporation as overseer or superintendent from 1861 to 1877. During this time he made several improvements in the machinery used in the mills. His patented adjustable rings were put into the mills in 1868 and 1870, and his patented traveler cleaner in 1868 and 1870. The patented bolster upon which suit is now brought was put in between 1875 and 1877. The date of the patent is October 11, 1875. The defendants