JURISDICTION (Continued.)
of habeas corpus and certiorari to bring up the defendant and the record from
the Circuit Court, for the purpose of having the decision of that court ex-
amined. Ibid.
11. The motion was refused; the writs prayed for denied, and the petition dismissed.
Ibid.
12. Where the Supreme Court of a State certified that there was "drawn in ques-
tion the validity of statutes of the State of Ohio," &c., without naming the
statutes, this was not enough to give jurisdiction to this court, under the 25th
section of the Judiciary Act. Lawler v. Walker, 149.
13. Nor, in this case, would the court have had jurisdiction if the statutes had been
named, because, -
14. In 1816, the Legislature of Ohio passed an "act to prohibit the issuing and circu-
lation of unauthorized bank paper,” and, in 1839, an act amendatory thereof;
and the question was, whether or not a canal company, incorporated in 1837,
was subject to these acts. In deciding that it was, the Supreme Court of
Ohio only gave a construction to an act of Ohio, which neither of itself, nor
by its application, involved in any way a repugnancy to the Constitution of
the United States, by impairing the obligation of a contract. Ibid.
15. The case of the Commercial Bank of Cincinnati v. Buckingham's Executors,
(5 How. 317,) examined and sustained. Ibid.
16. Two statutes of Mississippi, one passed in 1843, and the other in 1846, provide
that where the charter of a bank shall be declared forfeited, a trustee shall be
appointed to take possession of its effects, and commissioners appointed to
audit accounts against it. Peale v. Phipps, 368.
17. Where these steps had been taken, and the commissioners had refused to allow a
certain account, the Circuit Court of the United States had no right to enter-
tain a bill filed by the creditors to compel the trustee to pay the rejected ac-
count. There was a want of jurisdiction. Ibid.
18. The cases upon this point, examined. Ibid.
19. A claim by the trustee, in re-convention, was not a waiver of the exception to
the jurisdiction. Ibid.
20. When a plea is filed to the jurisdiction of the court, upon the ground that the
plaintiff is a resident of the same State with the defendant, it is incumbent on
the defendant to prove the allegation. Sheppard v. Graves, 505.
21. Where the marshal of the District of Wisconsin attached property at the suit
of creditors in New York, and then gave it up upon the execution of a bond
to himself, for the use of those creditors, it was within the jurisdiction of the
District Court of the United States for Wisconsin, to entertain a suit by the
marshal, suing upon the bond for the New York creditors, against the claim-
ants in Wisconsin, although both parties resided in the same State. Huff v.
Hutchinson, 587.
22. The name of the marshal was merely formal; the real plaintiffs were averred to
be citizens of New York. Ibid.
23. It was not a good exception upon the ground of variation between the evidence
and declaration, that the latter stated the bond to have been given to Hutchin-
son as marshal of the District of Wisconsin, and the former said the State of
Wisconsin. They mean the same thing. Ibid.
24. Judgment having been rendered for the plaintiffs in the attachnlent, by a court
having jurisdiction over the subject, it was too late to object to those proceed-
ings in a suit upon the bond, in which they were collaterally introduced. Ibid.
25. The bond given to the marshal was in conformity with the statute. Ibid.
26 The objections, that the declaration on the bond did not show the jurisdiction
of the court in the attachment suit; that the verdict was entered for the amount
due instead of the penalty of the bond, and that the recovery was for a sum
greater than vas claimed by the ad damnum in the declaration, were not suffi
cient for a new trial. Ibid.
1. Upon a trial in New York, a juror became ill, and was discharged before any
evidence was given, and before the plaintiffs' counsel had concluded his open-
ing address. The court ordered another juror to be sworn, and proceeded
with the trial. The defendant cannot object to this. It is the practice in New
York, and the Circuit Court had a right to follow it. Silsby v. Foote, 218.
2. One of the specifications of the patent being for a combination of certain parts
of mechanism necessary to produce the desired result, it was proper for the
court to instruct the jury that the defendants had not infringed the patent, un-
less they had used all the parts embraced in the plaintiffs' combination; and
the jury were to find what those parts were, and whether the defendants had
used them. Ibid.
3. When a claim does not point out and designate the particular elements which
compose a combination, but only declares, as it properly may, that the combi-
nation is made up of so much of the described machinery as effects a particu
lar result, it is a question of fact which of the described parts are essential to
produce that result, and to this extent, not the construction of the claim,
strictly speaking, but the application of the claim, should be left to the jury.
Ibid.
4. Where a certificate of deposit in a bank, payable at a future day, was handed
over by a debtor to his creditor, it was no payment, unless there was an express
agreement, on the part of the creditor, to receive it as such; and the question,
whether there was or was not such an agreement, was one of fact, to be decided
by the jury. Downey v. Hicks, 240.
5. The bank being insolvent when the certificate of deposit became due, there was
no ground for imputing negligence in the collection of the debt by the holder,
as no loss occurred to the original debtor. Ibid.
6. If the evidence showed that, after the maturity of the certificate, the original
debtor admitted his liability to make it good, the jury should have been in-
structed that this evidence conduced to prove that the certificate was not taken
in payment. Ibid.
1. This court again decides, as in 11 Howard, 580, that under the acts of Congress
of 1824 and 1844, the District Court had no power to act upon evidence of
mere naked possession, unaccompanied by written evidence conferring, or pro-
fessing to confer, a title of some description. U. S. v. Heirs of Rilleaux, 189.
2. By the treaty of 1763, the land in question passed from France to Great Britain;
and the certificate of two French officers in 1765, certifying that the claimant
had been for a long time in possession, furnished no evidence of title. No ap-
plication was made to the British government for a grant. lbid.
3. A purchase from the Indians, whilst the province was under French authority,
conveyed no title unless sanctioned by that authority. Ibid.
4. In this case, also, there is no proof that the claimants are the heirs of the party
originally in possession. Ibid.
5. On the 25th of December, 1824, Cunningham applied to the Land-Office at
Batesville, in Arkansas, to become the purchaser of a quarter section of land
under a Cherokee certificate which had become vested in him. Cunningham v.
Ashley, 377.
6. This application was refused upon the ground that two New Madrid certificates
had been laid upon the land in 1820. The right under these certificates was
claimed by Ashley. Ibid.
7. In 1830, Cunningham said that Brumbach had an improvement on the same
quarter section, which Brumbach assigned to Ashley. The law sanctioned the
division of a quarter section, under such circumstances. Ibid.
8. In 1831, Cunningham claimed a preemption right under the act of 29th May,
1830. The claims under this act, and under the Cherokee float, were not in-
consistent with each other. Ibid.
9. In 1838, two floats were entered upon the same quarter section, viz.: one by
Plummer, for the east half of it, under the act of 1830, and the supplemental
act of 1832; the other for the west half by Jenbeau, under the act of 1834,
and the circular of the General Land-Office of 1837. Patents were issued,
and the title became vested in Ashley. Ibid.
10. The title of Cunningham is better than that derived from these floats. The title
under the New Madrid certificates is not decided in this case, or affected in any
way by the decision. Cunningham is therefore entitled to the half of the
quarter section which he claimed separately from Brumbach. Ibid.
11. The patents obtained by Ashley and Beebe, being founded upon entries which
were void, are void also, so far as they interfere with the preemptive right of
Cunningham. Ibid.
12. This court decided, in 8 Howard, 223, that the recitals in a patent for land, refer-
ring to titles of anterior date, were not of themselves sufficient to establish the
titles thus recited.
LANDS, PUBLIC (Continued.)
13. The titles themselves being now produced, it is decided, that a permit given by
the Lieutenant-Governor of Upper Louisiana, in 1799, to a person to form an
establishment on the Mississippi, followed by actual possession and improve-
ment, entitled the occupant to 640 acres, including his improvements, although
the Indian title was not then extinguished. Marsh v. Brooks, 514.
14. It was not the practice of the Spanish government to make treaties with the In-
dian tribes, defining their boundaries; but to prevent settlements upon their
lands without special permits: such permits, however, were usual. Ibid.
15. The construction of the treaty between the United States and the Sac and Fox
Indians, must be that the latter assented to an occupancy which was as noto-
rious as their own. Ibid.
16. The act of Congress, approved April 29, 1816, (3 Stat. at Large, 328,) confirm-
ing certain claims to land, confirmed this one, although the Recorder of Land
Titles, in his report, made in 1815, had added these words, "if Indian title
extinguished." These words were surplusage. Ibid.
1. Where a scire facias was issued to enforce a lien upon a house under the lien law
of the District of Columbia, there was no necessity to file a declaration. Win-
der v. Caldwell, 434.
2. Where the contract between. the owner and the builder, (who was also the car-
penter,) stipulated for a forfeiture per diem in case the carpenter should delay
the work, the court below ought to have allowed evidence of such delay to be
given to the jury by the defendant, under a notice of set-off, and also evidence
that the work and materials found and provided upon and for the building,
were defective in quality and character, and far inferior in value to what the
contract and specifications called for. Ibid.
3. A master builder, undertaker, or contractor, who undertakes by contract with
the owner to erect a building, or some part or portion thereo, on certain terms,
does not come within the letter or spirit of the act of Congress passed March
2, 1833, (4 Stat. at Large, 659,) entitled an act to secure to mechanics and
others, payment for labor done and materials furnished in the erection of
buildings in the District of Columbia. Ibid.
MAINE, STATE OF
See CONSTITUTIONAL LAW.
MANDAMUS.
1. A rule will be refused for the judges of the Circuit Court of the District of Co-
lumbia, to show cause why a mandamus should not issue, unless a case is pre-
sented which primâ fucie requires the interposition of this court. Ex parte
Taylor, 3.
2. Such a case is not presented where the Circuit Court decided that, under an act
of Congress, an affidavit was sufficient to hold a party to special bail. That
court had the power, by the act, to exercise its judicial discretion. Ibid.
3. This act of Congress regulated the subject, and not the statute of Maryland,
passed in 1715. Ibid.
4. Where there was a blank in the record of the Circuit Court, in the taxation of
the costs recovered by the plaintiff, and the judgment being affirmed by this
court, a mandate with the same blank went down to the Circuit Court; and a
motion was there made to open the original judgment for the purpose of tax-
ing the costs, which motion was refused by the court, such refusal cannot be
reached by a mandamus from this court. Er parte Many, 24.
5. The refusal of the court was not a ministerial act, but an exercise of judicial
discretion. This court could issue a mandamus for the Circuit Court to pro-
ceed to judgment, but such a writ would not be appropriate to the present
case. Ibid.
A master is liable for the tortious acts of his servant, when done in the course
of his employment, although they may be done in disobedience of the master's
order. P. & R. R. R. Co. v. Derby, 468.
The courts of the United States have not the power to order a nonsuit against
the wishes of the plaintiff. Silsby v. Foote, 219.
1. In a patent for improvements upon the machinery used for making pipes and
tubes from lead or tin when in a set or solid state, by forcing it, under great
pressure, from out of a receiver, through apertures, dies, and cores, the claim
of the patentees was thus stated: "What we claim as our invention, and desire
to secure by letters-patent, is the combination of the following parts, above
described, to wit, the core and bridge, or guide-piece, the chamber, and the die,
when used to form pipes of metal, under heat and pressure, in the manner set
forth, or in any other manner substantially the saine." Le Roy v. Tatham,
2. The Circuit Court charged the jury, "that the originality did not consist in the
novelty of the machinery, but in bringing a newly-discovered principle into
practical application, by which an useful article of manufacture is produced,
and wrought pipe made as distinguished from cast pipe." Ibid.
3. This instruction was erroneous.
4. Under the claim of the patent, the combination of the machinery must be novel.
The newly-discovered principle, to wit, that lead could be forced by extreme
pressure, when in a set or solid state, to cohere and form a pipe, was not in the
patent, and the question whether it was or was not the subject of a patent, was
not in the case. Ibid.
5. In 1834, Burden obtained a patent for a new and useful improvement in the
machinery for manufacturing wrought nails and spikes, which he assigned to
the Troy Iron and Nail Factory, and also covenanted that he would convey to
that company any improvement which he might thereafter make. Troy Iron
and Nail Factory v. Corning, 193.
6. In 1840, he made such an improvement, for making hook and brad-headed spikes,
with a bending lever, which he assigned to the Troy Iron and Nail Factory, in
1848. Ibid.
7. Before this last assignment, however, viz., in 1845, Burden made an agreement
with Corning, Horner, and Winslow, in which, amongst other things, it was
agreed, that both parties might thereafter manufacture and vend spikes of such
kind and character as they saw fit, notwithstanding their conflicting claims.
Ibid.
8. Owing to the peculiar attitude of the parties to each other at the time of making
this agreement, and the language used in it, it cannot be construed into a per-
mission to Corning, Horner, and Winslow, to use the improved machinery
patented by Burden in 1840; and the right to use it, having passed to the
Troy Iron and Nail Factory, a perpetual injunction upon Corning, Horner, and
Winslow will be decreed. Ibid.
9. Under a notice given by the defendant, that the invention claimed by the plain-
tiff was described in Urc's Dictionary of Arts, Manufactures, and Mines, and
had been used by Andrew Ure, of London, it was not competent to give in
evidence a very large book. The place in the book should have been specified.
Silsby v. Foote, 219.
10. Nor, under the notice, was the book competent evidence that Andrew Ure, of
London, had a prior knowledge of the thing patented. The notice does not
state the place where the same was used. Ibid.
11. One of the specifications of the patent being for a combination of certain parts
of mechanism necessary to produce the desired result, it was proper for the
court to instruct the jury that the defendants had not infringed the patent, un-
less they had used all the parts embraced in the plaintiffs' combination; and
the jury were to find what those parts were, and whether the defendants had
used them. Ibid.
12. When a claim does not point out and designate the particular elements which
compose a combination, but only declares, as it properly may, that the com-
bination is made up of so much of the described machinery as effects a parti-
cular result, it is a question of fact which of the described parts are essential
to produce that result, and to this extent, not the construction of the claim,
strictly speaking, but the application of the claim, should be left to the jury.
Ibid.
13. The patent for Woodworth's planing-machine was extended from 1842 to 1843,
by the Board of Commissioners. Bloomer v. McQuewan, 539.
14. Under that extension, this court decided, in Wilson v. Rousseau, (4 How. 688,)
that an assignee had a right to continue the use of the machine which he then
had. Ibid.
15. In 1845, Congress, by a special act, extended the time still further from 1849 tr
1856. Ibid.
16. Under that extension, an assignee has still the same right. Ibid.
17. By the cases of Evans v. Eaton, (3 Wheat. 548,) and Wilson v. Rousseau, (4
How. 688,) these two propositions are settled, viz.:
1. That a special act of Congress in favor of a patentee, extending the time be-
yond that originally limited, must be considered as ingrafted on the gene-
ral law.
2. That, under the general law, in force when this special act of Congress was
passed, a party who had purchased the right to use a planing-machine dur-
ing the period to which the patent was first limited, was entitled to continue
to use it during the extension authorized by that law, unless there is some-
thing in the law itself to forbid it. Ibid.
18. But there is nothing in the act of Congress, passed in 1845, forbidding such use;
and, therefore, the assignee has the right. Ibid.
19. Where an action was brought against the Commissioner of Patents for refusing
to give copies of papers in his office, and no special damage was set out in the
declaration, evidence of the professional pursuits of the applicant was not ad-
missible. Boyden v. Burke, 576.
20. Where the application was made through a third person, letters of both parties
to this third person were admissible in evidence, as part of the res gesta. Ibid.
21. Patents are public records, and it is the duty of the Commissioner to give au-
thenticated copies to any person, on payment of the legal fees. Ibid.
22. But the party entitled to such services must request their performance in a pro-
per manner, and not accompany his demand with insult and abuse. Ibid.
23. Hence, the Commissioner could not be held responsible for refusing to comply
with a demand couched in such language. Ibid.
24. But when a second application was made in a proper manner, the Commissioner
ought to have complied with it. Ibid.
See EVIDENCE.
PENNSYLVANIA.
1. By the law of Pennsylvania the River Delaware is a public navigable river, held
by its joint sovereigns in trust for the public. Rundle v. Delaware & Raritan
Canal Co., 80.
2. Riparian owners, in that State, have no title to the river, or any right to divert
its waters, unless by license from the States. Ibid.
3. Such license is revocable, and in subjection to the superior right of the State, to
divert the water for public improvements, either by the State directly, or by a
corporation created for that purpose. Ibid.
4. The proviso to the provincial acts of Pennsylvania and New Jersey, of 1771,
does not operate as a grant of the usufruct of the waters of the river to Adam
Hoops and his assigns, but only as a license or toleration of his dam. Ibid.
5. As by the laws of his own State, the plaintiff could have no remedy against a
corporation authorized to take the whole waters of the river for the purpose of
canals, or improving the navigation; so, neither can he sustain a suit against a
corporation created by New Jersey for the same purpose, who have taken part
of the waters. Ibid.
6. The plaintiffs being but tenants at sufferance in the usufruct of the water to the
two States who own the river as tenants in common, are not in a condition to
question the relative rights of either to use its waters without consent of the
other. Ibid.
7. This case is not intended to decide whether a first license, for private emolument,
can support an action against a later licensee of either sovereign, or both, who,
for private purposes, diverts the water to the injury of the first. Ibid.
1. Where the declaration, in an action of assumpsit, contained the following counts:
1. On a promissory note; 2. Indebitatus assumpsit for the hire of slaves;
3. An account stated; 4. Quantum valebat for the services of slaves; 5. Work
and labor, goods sold and delivered, and money lent and advanced; 6. Money
had and received; 7. An account stated; 8. A special agreement for the hire
of slaves. And the defendant pleaded, -1. The general issue; 2. Statute of
limitations; 3. Payment. And the jury found a verdict for "the defendant
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