
    William Serviss et al. v. David W. Stockstill.
    1. An alleged error not appearing on the record can not be considered by a reviewing court.
    2. "Where a party to an action challenges a juror on suspicion of partiality for the opposite party, the validity of such challenge must be determined by the sound discretion of the court. And where such challenge is sustained, the judgment rendered in the case will not, for that reason, be reversed, unless an abuse of such discretion is clearly shown.
    3. On the trial of an action brought on a bond, which refers, in its recitals, to a previous contract of sale between the parties, as having been made on a particular day, it is not error to permit the plaintiff to offer in evidence such written contract of sale, the execution of which is admitted by the defendant, although it may bear date a few days prior to the day stated in the bond as the day of salo. The date of the contract is not conclusive as to the time of its delivery.
    4. Where portions of authenticated public documents, relative to the issue, are offered in evidence by the plaintiff, and the defendant insists that if any portion of such documents are permitted to be offered in evidence, the whole shall be regarded as in evidence, and the plaintiff consents thereto, it is not error to permit.the whole of such documents to go in evidence to the jury, though portions thereof may be irrelevant.
    5. When A. contracts to sell and assign to B. the exclusive right to manufacture fruit cans in several methods, differing in detail, B. is not bound to accept the assignment .of a patent covering one only of such methods of manufacture, though the other specified methods are unpatentod and may lawfully be used by B.
    ■6. Where, by such contract, A. binds himself to procure and transfer to B. letters patent for an alleged invention, or in default thereof, to redeliver to B. his promissory notes given in payment for such patent right, if A. fails to procure the specified patent, and sells and transfers B.’s notes to other parties, the measure of B.’s damages is the amount necessarily paid by him in lifting his notes from the holders, and not the value of the letters patent.
    7. And in such case, where A. refuses to procure and redeliver the notes to B., it is not incumbent on B. to contest the validity of such notes in the hands of the holders. He may, without suit, and without notice to A. or his surety, avoid litigation, and lift the notes by the payment, in good faith, of any sum not exceeding the principal and interest due on the notes, and may recover the amount so paid, as damages, freim A. and his sureties.
    8. Parol evidence is not admissible to vary the terms of a written contract.
    
      9. A general exception to a charge given to a jury, “ and to every part of it,” without specifying any supposed error, or indicating the grounds of the exception, will not be regarded by a reviewing court.
    Error, to the District Court of Shelby county.
    Defendant in error brought his action against the plaintiffs in error, in the Court of Common Pleas of Shelby county, to recover damages for breaches of their bond executed and delivered by them to him and one John P. Stockstill, of which the following is a copy:
    “ Know all men by these presents, that we, the undersigned, William Serviss, Henry W. Neal, and--are held and firmly bound unto David W. Stockstill and John P. Stockstill, in the penal sum of four thousand dollars, for the payment of which, well and truly to be made, we do hereby jointly and severally bind ourselves, our heirs, executors, and administrators, firmly by these presents. Sealed with our seals, and 'dated this 5th day of August, A. D. 1867.
    
      “The condition, of the above obligation is such that, whereas, the said "William Serviss and H. W. Neal did, on the 1st day of August, a. n. 1867, sell to the said David W. Stockstill and John P. Stockstill, the exclusive right to use and sell in the states of Indiana, Ulinois, Michigan, Missouri, Kansas, Iowa, and Wisconsin, a certain invention, discovered by said William Serviss, for the manufacture of fruit cans, for which said Serviss has made application for letters patent, in payment whereof the said David W. Stockstill and John P. Stockstill, on the 1st day of August, a. D. 1867, executed and delivered to the said William Serviss and IT. W. Neal their joiiit and several-promissory notes for three thousand five hundred dollars, as follows : One note for one thousand dollars, payable two-months after date; one note for one thousand dollars, payable eight months after date; one note for one thousand dollars, payable twelve months after date; and one note for five hundred dollars, payable fourteen months after date. Now, if said William Serviss and H. W. Neal shall procure-letters patent for said invention, and convey to the said David W. Stockstill and John P. Stockstill the sole right to the same in the states of Indiana, Hlinois, Michigan,. Missouri, Kansas, Iowa, and Wisconsin, or, in default of procuring said letters patent, shall redeliver said promissory notes to said David W. Stockstill and John P. Stock-still, and save them harmless by reason of any payments they may have made upon said promissory notes to any parties holding the same, then these presents to be void; otherwise in full force and virtue in law.
    “ In witness whereof, the said parties have hereunto set their hands and seals, the day and year first hereinbefore written.
    “ (Signed) H. W. Neal, [seal.]
    William Serviss, [seal.]
    J. P. Erazer. [seal.]
    The plaintiff below in his petition alleged :
    “ That said William Serviss and Henry W. Neal did not, nor did either of them, ever obtain letters patent for said. invention, but their application for said patent was rejected by the patent office, and the patent refused, nor did they ever convey to the said David W. Stockstill and John P. Stockstill, or either of them, the sole right to the same in said states, hereinbefore mentioned, nor did they (al•though they made default in procuring said letters patent) ■redeliver said promissory notes to the said plaintiff, David "W. Stockstill and John P. Stockstill, or either of them, although, prior to the commencement of this action, plaintiff demanded the same. Plaintiff further says, that ■ on or about the 15th day of April, a. d. 1871, he was compelled to pay on one of said notes the sum of one thousand dollars to one Benjamin W. Maxwell, to whom said note had "been transferred by the defendants, William Serviss and Henry W. Neal; and that, on or about the 24th day of .April, a. d. 1871, he was compelled to pay to‘one William P. Reed sis hundred and fifty-dollars, and upon a judgment which the said William P. Reed obtained in the Court of Common Pleas of Shelby county, Ohio, against the said plaintiff) upon another of said notes, which was also transferred by the said William Serviss and Henry W. Neal to said William P. Reed; that on the 6th day of December, a. d. 1869, he was compelled to pay ninety-four dollars and ninety-five cents on the same judgment, and thirty-eight dollars and ninety-one cents costs on the same judgment; that although frequently requested so to do, the said defendants have not, nor has either of them, repaid to plaintiff' said sums of money, or any part thereof; that, the plaintiff' was also, by reason of the premises, put to large expenses, in counsel fees and otherwise, in'the defense of suits brought upon said notes, by reason of the default of defendants upon said bond, to wit, the sum of five hun•dred dollars; to the plaintiff’s damage, by reason of the premises, twenty-three hundred' dollars; for which sum, with interest from the 24th day of April, a. D. 1871, he asks judgment.”
    Defendants below answered as follows :
    
      “First. The defendants say, that on the 24th day of March, 1868, the said William Servias did obtain, from the-United States letters patent for said invention or discovery, in plaintiff’s petition mentioned, and on the 26th day of March, 1868, executed a deed, in due form of law, conveying to the said David W. Stockstill and John P. Stockstill the sole right to said patent in and for the States of Indiana, Illinois, Michigan, Missouri, Kansas, Iowa, and Wisconsin, and on the said 26th day of March, 1868, the said William Serviss duly tendered said deed to the said William Stockstill, who then and there refused to- accept the-same.
    “ Second. The defendants deny that the said David W. Stockstill was compelled to pay on one of said notes the-sum of one thousand dollars, or any other sum, to the said Benjamin W. Maxwell, but aver that any and all payments-by him to the said Benjamin W. Maxwell, on any of said notes, were voluntary payments by him, the said David W. Stockstill.
    “ Third. The defendants deny that the said David W. Stockstill was compelled to pay, or did pay to the said William P. Reed the sum of seven hundred and forty-four dollars and ninety-five cents on said judgment, as stated in said petition, and deny that he- paid any more than five-hundred dollars thereon.”
    To this -answer the plaintiff' below replied, denying all the statements therein contained.
    Upon the issues thus joined, the case was twice tried in the court of common pleas, and upon the second trial,, which is now brought under review, there was a verdict and judgment for the plaintiff'. Several bills of exception were taken by the defendants below, of which the first is-as follows:
    “ Be it remembered, that at the trial of this case, before the Court of Common Pleas of Shelby county, Ohio, at the January term, 1873, of said court, this case came on to be heard; whereupon came the following persons, who were-the regular jurors in attendance upon the said court, at said term, duly drawn and summoned as petit jurors for said term of said court, to-wit: W. E. Brown, Silas Johnston, James W. Aiken, Henry Menke, J. A. Edmiston, D. K. Brown, Balzar Hagelbarger, Nicholas Stanley, Michael Cochlin and James M. Roberts; and thereupon Henry Slater and Joseph Smith being called as talesmen, and the panel being filled, the said plaintiff, by his counsel, rose and objected to the said James M. JRoberts, one of the above named regular jurors in attendance, as aforesaid, sitting as a juror in said case, because the said James M. Roberts was the father of one Henry Roberts, who was the brother-in-law of Henry W. Neal, defendant in this case, and because the said Henry "W. Neal had two days before visited his said brother-in-law, Henry Roberts, and staid one night with him at his, the said Henry Roberts’, residence, and with whom, to-wit, said Henry Roberts, said James M. Roberts resided; and thereupon said counsel for plaintiff challenged said James M. Robei-ts for suspicion of partiality, for said Henry W. Neal; and thereupon the said James M. Roberts, being duly interrogated, stated that he had never heard of the ease on trial until called in court, and had never talked or heard any talk concerning the case, by which he could form an opinion, and that he had neither formed nor expressed an opinion on the case. The said James M. Roberts then requested that he might be excused; that he had been acquainted with the said Henry W. Neal for several years, said Neal living in Sidney, Ohio, and said Jarnos M. Roberts living in Port Jefferson, five miles distant; and there being no other evidence or statement or agreement in regard to the facts, other than the facts hereinabove stated, in regard to the relationship of said Neal to said Henry Roberts, to the visit and acquaintance of said Neal, as heroin above set forth, or in regard to the said James M. Roberts having heard of the case, or formed or expressed an opinion, the court thereupon sustained the challengé of the said counsel for plaintiff, against the express objection of defendants, and excused the said James M. Roberts from the panel, to which sustaining of said challenge to said James M. Roberts, excluding him from said panel, defendants, by their counsel, then and there excepted, and asked the court to sign and seal this their bill of exceptions, which is accordingly done.”
    Another bill of exceptions embodies all the evidence offered by the respective parties on the trial, and shows that a portion of the evidence offered by plaintiff’ below was admitted against the objection of defendants below. It also contains twenty propositions of law, asked by defendants below to be given in charge to the jury, all of which, except the fourth, the court of common pleas declined to give; also the charge given by the court to the jury. To the charge as given, and to each and every part thereof, the ■defendants below excepted. The jury having rendered a verdict for the plaintiffs below, the defendants filed a motion for a new trial and in arrest of judgment, which was •overruled, and defendants excepted. The questions arising' on the admission of evidence, and on the instructions asked and refused to be given in charge to the jury, will sufficiently appear in the opinion in this case. The errors assigned in the district court, to which the case was taken by petition in error, were as follows :
    
      First. That the said court of common pleas erred in sustaining the demurrer of plaintiff below to defendant’s second ground of defense, in their original answer con-tained.
    
      Second. That the said court erred in sustaining the challenge and objection of said David 'WV Stockstill to James M. Eoberts as a juror in said cause, and in.excusing, excluding and discharging from the jury in said trial of said case the said James M. Eoberts.
    
      Third. The said court erred in overruling the objection ■of defendants to the testimony and evidence offered by plaintiff below, and in admitting said evidence so objected to.
    
      Fourth. The said court erred in refusing to give to said jury the instructions which were prayed for by the said defendants below.
    
      
      Fifth. That the said court erred in the instructions given to the jury on the trial of said action.
    
      Sixth. That said court erred in overruling the motion of. the said defendants below, and each of them, to set aside the verdict of the jury, and to grant a new trial in said cause.
    
      Seventh. The said judgment was given for said plaintiff below, when by the law it should have been given for defendants.
    The district court affirmed the judgment of the common pleas, and the reversal of this judgment of affirmance is •now asked.
    
      J. S. Conklin, Thompson & Mathers, and James Murray, for plaintiffs in error.
    
      Houk, & McMahon, for defendants in error.
   Scott, J.

Plaintiffs in error claim that the district court •erred in affirming the judgment rendered by the court of common pleas. Should .that judgment have been reversed for any of the causes assigned in the district court ? The first error there assigned, was that the court of common pleas erred in sustaining the demurrer of plaintiff' below to defendants’ second ground of defense, in their original answer contained.

The record does not show that any such demurrer was interposed by plaintiff' below or sustained by the court. The alleged error, not appearing on the record, can not be •considered.

The second error assigned was, “ that the said court erred in sustaining the challenge and objection of said David W. Stockstill to James M. Roberts as a juror in said cause, and in excusing, excluding, and discharging from the jury, in said trial of said case, the said James M. Roberts.” ‘

The act of 1831, relating to juries, after specifying a number of principal causes of challenge, provides that •“Any petit juror, . . . against whom no principal' cause of challenge can be alleged, may, nevertheless, be-challenged on suspicion of prejudice against, or partiality for either party, or for want of a competent knowledge of the English language, or any other cause that maj^ render him, at the time, an unsuitable juror; and the validity of such challenge shall be determined by the court.” S. & C. 754.

The enforcement of this provision necessarily involves-the exercise of a large discretionary power by-the court. The objection here is, not that an improper person was retained on the panel, but that a particular person was excluded therefrom. Nothing short of a clear abuse of discretion would justify a reversal of the judgment for this exclusion. We think the circumstances shown furnished such reasonable ground for suspicion of partiality on the part of the juror, Roberts, as would justify the action of the-court. His son, with whom he resided, was the brother-in-law of Neal, one of the plaintiffs in error. Two days before the trial, after the petit jury must have been drawn, and Roberts was found to be one of them, Mr. Neal saw fit to visit his brother-in-law, and stay there over night with the juror. He may not have tampered with him, or brought any improper influences to bear upon him; and under the-disavowals of the juror, on his voir dire, the overruling of the challenge might, not have been reversible on error; still it is clear that Neal had full opportunity for influencing the mind of the juror — he had voluntarily placed him in circumstances calculated to excite suspicion, and the degree of credence to be given to his disavowals could be-much more correctly determined by the court below, in whose presence he testified, than by a reviewing court. We can not, therefore, say that the court erred in sustaining the challenge to this juror.

It is claimed, thirdly, that the court erred in overruling the objection of defendants below to the evidence offered by plaintiffs below, and in admitting the same.

The record shows that plaintiff below offered in evidence :- First. The contract for the sale and assignment of the patent right in question, by the said William Serviss, to the plaintiff below, dated July 27, 1867, the execution of which was admitted by defendants below; Second. The bond on which the suit was brought, as set out in the petition, the execution of which was also admitted; Third. The record of a judgment in the court of common pleas of Shelby county, Ohio, recovered by William P. Reed, against defendant in error, for $2,123.66, on two of the notes given by him to Serviss and Neal, in payment for said patent right, and transferred and assigned by them to said Reed.

Fourth. The plaintiffs then produced D. W. Stockstill, one of the plaintiffs, who testified that he made the following payments on said judgment above referred to :

October 7,1869 ...................................$ 94 95
Costs on same..................................... 94 00
April 24, 1871.................................... 550 00

He further testified, that on the 7th day of March, 1868, one of the notes, described in the petition, dated August 1, 1867, and payable two montiis after date, for $1,000, was assigned by the payees therein to B. W. Maxwell, and that he, Stockstill, paid to Maxwell, on and in satisfaction of said note, on April 15, 1871, $942 57.

It was admitted that these were the notes given by the plaintiff to* Serviss and Neal, and covered by the bond in suit.

Fifth. The plaintiff then gave, in evidence, the certified copy of the letters patent, which were obtained by Serviss and Neal for their invention.

Sixth. Also the certified copies of papers under the certificate of the acting commissioner of patents, with the seal of the patent office thereto.

Seventh. Also the sheet-iron models of the alleged invention.

The defendants objected, severally and successively, to each and every item and part of all said evidence, but the court overruled each and all said objections, and admitted each and every item and part of said evidence, to which defendants excepted in each and every instance, except only that no objection was made to the introduction of said letters patent, or said models, or the said record of the judgment.

In offering the certified copies from the patent office, plaintiff’s counsel stated that they offered the entire paper, .as certified by the commissioner of patents, because it was .an entire paper, hut did not read the same to the jury at the time of offering the same. They also stated that they desired to offer only the certified copy of the specifications .and amendments thereto, and the action of the commissioner and examiners upon the application; but counsel for defendant, in open court, insisted that, if any part went in, the whole paper should be regarded in- evidence, to which plaintiff’s counsel then agreed.

The plaintiff then rested, and no more evidence was • given for him.

We are unable to see how the plaintiffs in error could have been prejudiced by the introduction of any of this evidence ; or for what reason it should have been held to be incompetent. The bond offered in evidence was fully set -out in the petition, and was not denied by the answer. The •contract which gave rise to it, and which is referred to in the recitals of the bond, was admitted to have been executed by Serviss, and though it was in fact dáted on the 27th of July, 1867, whereas the bond sued upon refers to the sale as having been made on the 1st of August, 1867, yet this apparent discrepancy was no ground for its exclusion. The contract of sale was probably written and signed by Serviss on the day of its date, July 27, though not delivered until August 1, at which time the notes given by the Stockstills bear date. Defendants below admitted its •execution, and do not appear to have claimed that any other contract of sale was referred to in the recitals of their bond.

One of the main issues of fact, to be tried by the jury, was as to the identity of the invention for which letters patent were obtained and tendered to plaintiff below, and the invention described in the application and specifications pending in tbe patent office at tbe time when the contract an d bond were executed.

The duly certified documents which plaintiff below desired to give in evidence, tended to show that a patent was refused by the proper department, on the application ponding at the time the sale and bond were made; and that no patent was issued until, a material portion of the claim made by the applicants was subsequently withdrawn by them, and their specifications were substantially amended by corresponding limitations. We think this evidence was both relevant and competent, and if any other documents accompanied this evidence, they were submitted to the jury at the request of plaintiffs in error. And we see no ground of objection to the oral testimony of D. W. Stockstill, nolis any suggested in argument. To the residue of the evidence offered by plaintiff below, no objection was taken.

The fourth assignment of error is, that the court erred in refusing to give to said jury the instructions which were’ prayed for by the defendants below.

The instructions asked for were very numerous, embracing no fewer than twenty-several propositions : The fourth was given, the rest were refused, though some of them were substantially embraced in the charge as given by the-court. We shall consider them in detail no farther than we understand them to be relied on in argument. At the date of the bond in suit, Serviss and Neal had an application pending in the pateut office, at Washington, for letters patent for a certain invention, alleged to have been discovered by William Serviss, for the manufacture of fruit cans,, in three methods, differing in details, though depending, to-some extent, on the same general principle. Eor one of these methods, a patent was obtained, and tendered toplaintift below. But for one or more of these methods a, device similar in-principle was found to have been in previous use by manufacturers, and a patent was therefore refused, until Serviss and Neal withdrew their application- and specifications, so far as those methods were concerned. Defendants below asked the court to -charge, in substance,. that if the patentee could legally manufacture cans in each of the ways specified in the original application, then the plaintiff below could not recover, though the claim as to some of those ways was abandoned before the patent was issued. We think the instructions to this effect were properly refused. The plaintiff below had purchased the exclusive right to manufacture cans in each of the modes proposed. If the patent issued conferred no exclusive right to manufacture in each of these modes, the plaintiff below was not bound to accept its transfer.

The court was asked to instruct the jury that if they found that Serviss failed to procure letters patent for the invention mentioned in the bond sued on, the plaintiff could recover no damages, except the value of the letters patent to which he was entitled. This instruction was projjerly refused. The plaintiffs in error were not bound to procure and assign to the plaintiff* below, letters patent. But if they failed to do so, they were bound to return to him the promissory notes which he had executed and delivered to them. If they failed to do either, the proper measure of damages was the amount which the plaintiff below would reasonably have to pay, and which he did in fact pay, in ■order to lift these notes which he found hi the hands of bona fide assignees.

Plaintiffs in error also asked the court to instruct the jury, that the plaintiff below could not recover the ten per cent, interest paid by him in satisfaction and discharge of his note which he had lifted from Maxwell, to whom it had been transferred by plaintiffs in error. The record does not show that plaintiff' below paid interest at the rate of ten per cent, in lifting either of his notes from the parties to whom they had been transferred ; but it does show that they were each lifted and discharged by the payment of ■sums less than the principal named on their face, with interest thereon at the rate of six per cent. This must have been done'by compromise, and beiug beneficial to plaintiffs in error, they have no- reason to complain of the arrangement. They should have lifted the notes themselves, and have returned them to plaintiff below. Failing to do so, they would have no right to complain if he had paid the full amount of principal and interest due upon them. The instruction asked on this subject was therefore properly refused..

Plaintiffs in error claimed upon the trial, and offered to prove, that at the time the contract was made, they had exhibited to plaintiff below but one model, and they asked the court to instruct the jury, that if they had not represented their application as covering any thing more than the mode of manufacture shown by this model, then the plaintiff below could not recover. The proof thus offered, and the instruction asked, was properly refused by the court. ,The contract of the parties was in writing, and could not be thus varied by parol evidence. The written contract-was for the assignment of the exclusive right to use an invention “ fully set forth in the specifications prepared and executed by Serviss, preparatory to the obtaining of letters patent therefor.” These specifications were the only proper evidence of what was sold. By some of the instructions prayed for, the court was asked to say to the jury that the letters patent, an assignment of which was tendered to the plaintiff below, included and covered the invention described in the contract between the parties. But this was a question of fact, to be determined by the jury according to the evidence in the case, and was properly submitted by the court to the jiiry for its finding thereon.

Again, it is claimed that the court.of common pleas erred, to the prejudice especially of Frazer, who was a surety on the bond in suit, in refusing to give to the jury the eleventh instruction asked upon the trial, as follows: “ If the note mentioned in the petition, for $1,000, payable two months after date, was assigned to Maxwell after it became due, and Stockstill voluntarily paid it, the plaintiffs can recover nothing by reason of such payment if they failed to give notice to Frazer to defend against payment.”

If the consideration of the note had failed, by the inability of Serviss to obtain such a patent as he had agreed to obtain and assign to Stockstill, then, upon the refusal of Stockstill to accept the patent tendered him, it was the-duty of Serviss to return and surrender the promissory notes which he had received from Stockstill. For the faithful performance of this duty, Frazer, as well as the, other obligors of the bond, were bound by their covenants. But in disregard of their stipulations, the notes were afterward sold and transferred tó other parties, as valid choses in action. Stockstill was sued upon one of them, and attempted a defence, which proved to be unsuccessful. To avoid a suit upon another he lifted it by a compromise with the-holder. When, by a breach of their bond, the necessity was imposed upon the plaintiff’ below either of paying the notes, or litigating with the holders, they have no right to complain of his choice between the hardships to which he was thus wrongfully subjected.

Their main defense in the action, as shown by their' answer, and by the evidence offered on -the trial, was that their contract had been fully performed, on their part, by the procuring and tendering to plaintiff below of a patent for the invention, the right to which they had sold to him; that they were not bound to return the notes, but that he was legally bound for their payment. The surety, Frazer, united with the other defendants below in this defense, which is quite inconsistent with the claim that payment should not have been made without notice to him..We think there was no error in refusing to give the instruction asked.

Exception was also taken, by plaintiffs in error, to the-charge given 'by the court to the jury. The bill of exceptions states : “ The defendants excepted to the charge as given, and to each and every part thereof.”

This exception is too general and indefinite to justify consideration by a reviewing court. A party desiring to except to the charge of a court ought to call the attention of the judge to the precise points as to which he is supposed to have erred, and thus give him an opportunity to consider the questions intended to be raised. This is the object of the code in requiring an exception to be taken at the time. But an exception to the charge generally, “ and to every part of it,” without specifying any supposed error, or showing the grounds of the exception, wholly fails to accomplish this object, and is not to be regarded by a reviewing court. Adams v. The State, 25 Ohio St. 584; P., Ft. W. & C. R. R. Co. v. Probst, 30 Ohio St. 104.

Johnson, J.,

dissenting. I concur in the opinion just announced, except as to the judgment against Frazer.

He was only surety, and as such entitled to all the rights of a surety.

The bond was executed to the Stockstills by Serviss and Neal as principals, with Frazer as their surety.

It recites that the Stockstills had made and delivered sundry promissory notes to Serviss, on a contract of purchase by them of a patent right for certain territory, which Serviss had applied for and expected to obtain, and which, when obtained, he agreed to convey to them.

The condition of the bond was, that in the. event that Serviss should fail to obtain the issue of said patent, and to convey the same for the given territory to the Stockstills, then the notes so given were to be returned to the makers, but if any of them had been paid, then the money so paid wTas to be refunded.

By the findings and judgment we learn that Serviss failed to obtain a patent, and therefore could not perform his covenant to convoy the patent right.

Under the condition of the bond on which Frazer was surety, Serviss was jbound to return these notes. At that time, that is when his application for a patent was definitely and finally rejected, these notes were still in his hands unpaid.

After breach of the bond its conditions became operative m favor of the Stockstills. These conditions bound Serviss to return the notes then in his hands. He could not recover on them if due, and his title to them had ceased and determined.

After this, and after one of these notes for $1,000 had ■matured, Serviss sold and transferred it to one Maxwell. In his hands it was subject to the same defenses as if still held by the payee.

Maxwell being the indorsee and purchaser after maturity, could no more have enforced payment than could Serviss.

. The Stockstills, with full knowledge of all these facts, had a clear right to demand back this note, although it was in Maxwell’s hands, and they could have maintained replevin to recover it after such demand.

The same was true of all the notes that had not passed into the hands of bona fide holder's, which they were compelled to pay, or that had been paid before the rejection of the application for a patent was known.

To constitute a breach of the bond so as to make the surety liable, there must have been a failure to return the notes on hand, or a failure to return the money on such of them as had been paid to him before it was known that Serviss could not make a conveyance of the patent right, or to return moneys which they were compelled to pay to bona fide holders of such notes.

More than a year afterward, and with full knowledge that they had a valid defense to this note in Maxwell’s hands, they compromised with him, and purchased, it in at a discount. This appears to have been done to save litigation. It was their voluntary'act. To avoid possible litigation they waived their defense to the note in his hands. Eor the amount so voluntarily paid Maxwell, they now seek a recovery on the bond as well against the surety as the principal.

There is no averment in the petition nor proof in the record that auy demand was ever made of Maxwell for the 'return of this note. Their right to have it returned was clear, and for aught we know such demand has been complied with.

The principals on the bond having assigned this note to Maxwell, would be estopped from availing themselves of the failure to make such demand, but the surety was not. He was no party to these transactions, and had no notice of the failure by his principals. It was not within the power of the obligees of this bond to voluntarily waive their defense to an action on the note and pay when they were under no obligations to do so, and thus create for themselves a right of action on the bond against the surety. Before such voluntary payment (made to save litigation) they had no right of action on the bond, and it is very clear that by their own acts they could not create one against a surety.

It was their duty to have demanded the return of this note, and, if Maxwell had refused to return it, and had brought suit to recover the amount, to have defended the action, giving the obligors on the bond notice of the action. The condition of the bond was to save the makers of these notes from any loss or damage by reason of giving them before receiving the consideration.

Erazer was surety for the defaults of Serviss specified in the bond, and hot for the uncalled for and voluntary acts of the obligees. If the Stockstills had paid Serviss this note while in his hands, or, as the fact was, they purchased it in at a discount to save litigation, no one will claim any foundation was laid for an action on the bond. As Maxwell wTas an indorsee after maturity, he stood in no better position than Serviss. In neither case were the Stockstills compelled (as is alleged) to pay.

Such payment to Maxwell gave no right of action against the surety.  