Volume 55 — United States Reports

This was an appeal from the Circuit Court of the United States, for the District, of Columbia. It was brought before the court upon the following motion : — The appellee in this case moves the court to dismiss the second appeal in this record from the order of the Circuit Court, overruling a motion to open the decree and grant a rehearing, . And, also, to award a writ of procedendo, commanding the said Circuit Court to proceed and execute the first decree.

This case came before the court upon the following motion and petition: — [[Image here]] The above petitioner moves the honorable the Judges of the Supreme Court of the United States, for a rule on the Judges-of the Circuit Court of the District of Columbia, for Washington County, to show cause why a mandamus should not issue commanding them to admit the appearance of the petitioner to a suit in said court, by Thomas Ewing, Jr., against said petitioner; and the petitioner…

Held: in Fox v. The State of Ohio, ( 5 How. 410 ;) that a person might be punished under a law of the State for passing counterfeit coin, although the same offence was punishable under the act of Congress, and, consequently, that the coñviction and punishment under the State law; would be no bar to a prosecution under the law of. Congress. In that case I dissented, and gave at large the grounds of my dissent.

<p>Where a motion was made, under the 12th section of the Judiciary Act, to remove a cause from a State Court to the Circuit Court of the United States, notwithstanding which the State Court retained cognizance of the case, and it .was ultimately brought to .this court under the 25th section of the Judiciary Aet, a motion to dismiss it for want of jurisdiction cannot be sustained. The question will' remain -to he decided upon the full hearing- of the case.</p>

This was an appeal from the Circuit Court of. the United States for the Eastern District of Pennsylvania, and was the conclusion of the case of Aspden et al. v. Nixon et al., reported in 4 Hów. 467. It-was affirmed by a divided court in December, 1852; and in February, 1853, a petition for a rehearing was filed by the appellants;

■ This was an ^appeal from the District Court of- the United States for the Northern District of Alabama.

In this cause Mr. Justice Catron was absent, because of indisposition, during the hearing before the court, and took no part in the decision. This was an appeal from the District Court of the United States for the District of' Texas. The facts in the case are stated in the opinion of the court.- There were several causes of demurrer filed' in the court below, but it is necessary to notice only the following, because' the decision in this court turned entirely upon them. ■ 1.

Held: not for Ticknor, but for ’Wiswall and the other parties claiming against Ticknor. 3 P. Wms. R. 379; 2 Story, Eq. § 833.

This was an appeal from the Circuit Court of the United States for the Southern District of Mississippi. The facts are all stated in the opinion of the court.

Held: that the description was vague and the sale void. Here, the five acres are fisted, and advertised as part of section 24, and the description is equally' vague as any of the foregoing. And, as the State courts have *79 settled what certainty is required, it is our duty to follow their decisions on the State laws, regulating proceedings in cases of tax-sales.

These two cases were brought up, by writ of error, from the Circuit Court of the United States for the Eastern District of Louisiana, and were argued together by Mr. Allen and Mr. Ovid F. Johnson for the defendant in error, No counsel appeared for the plaintiff in error. The points in the case were argued in the Case of League v. DeYoung, 11 Howard, 188, to which the reporter refers.

Held: that neither Maryland nor Virginia, without the consent of the other, could impair a charter granted by. their previous joint legislation, nor-could they do so even jointly. Second Point.

Held: that the order of appointment covered the case of fugitives. That the order conferred on this special magistrate authority to commit in all other criminal cases, to the full extent that the United States Judges have authority, is admitted; and that he was a magistrate of the United States government, within the direct term of the treaty, cannot be denied, as I think.

This case was brought up, by writ of error, from the Supreme Court of the State of Ohio, under the 25th section- of the Judiciary Act. As the case was decided upon, the point of jurisdiction, it will be necessary to state only so much of it as to show what the question was which came before this court. See 18 Ohio Rep. 151.

Le Roy v. Tatham, 55 U.S. (14 How.) 156 (1852), is a decision of the United States Supreme Court holding that "a newly discovered principle" cannot be patented, and no one can claim in it an exclusive right. This case is considered sometimes as the earliest example of patentable subject matter controversy in the US patent law. This controversy was finally rectified in the 2012 Mayo decision, that requires for a claim, comprising a "natural principle or a law of Nature" to have an additional "inventive concept", which limits the application of the principle to a particular use. The inventors had discovered the principle that hot, but congealed, lead under pressure would re-unite as an unbroken solid material, which permitted manufacture of a superior lead pipe.

This was an appeal from the District Court of the United States, for the Eastern District of Louisiana. The petition was filed in that court by the heirs of Rillieux, under the act of June 17th, 1844, (5 Stat. at Large, 676,) which court decreedin favor of the petitioners. The United States appealed to this court, where it was argued by M,. Bibb and Mr. Crittenden, (Attorney-General,) for the appellants. No counsel appeared for the appellees.

Held: that the defendants obtained under the agreement only the privilege of making hook-headed spikes,- either by *204 hand, or by the use of any machinery which they might choose, other than that which should infringe upon Burden’s patent, then it results that the defendants relinquish the patent horseshoe business,' worth, as is proved by the testimony of Mr. Davidson, $10,000 per annum, for the privilege of doing just…

This case was brought up, by writ of error, from the Circuit Court of the United States for the Northern District of New York. The facts are stated in the opinion of the court.

This case was brought up by writ of error from the Supreme Court of Errors and Appeals for the State of Texas, under the 25th section of the Judiciary Act. Calkin and Company were merchants of the counxy oi Galveston, Texas, and Cocke was collector of Galveston under the Republic of -Texas.

<p>Where the declaration, in an action of assumpsit, contained the following counts:— 1. On a promissory note; 2. Indebitatus assumpsit for the hire of slaves3. An account stated; 4. Quantum valébat for the services of slaves; 5. Worjc 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 jur'y found a verdict for “ the defendant up.or th; issue joined as to the within note of four hundred and fifty-six dollars, and thewbhin account” — this' verdict, although informal, was sufficient to authorize to enter a general judgment for the defendant.</p> <p>An objection cannot be made, in this court to a release under which a witness was sworn, unless the objection was made in the court belów, and an exception taken. Where a cértificate 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.</p> <p>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.</p> <p>If the evidence showed that; after the maturity of the certificate, the driginal debtor admitted his liability to make it good,, the jury should have been instructed that this evidence conduced to prove that the Certificate was not taken in payment.</p>

This wás an appeal from the District Court of the United Statés for the Middle District of Alabama. The case is fully stated in the opinion of the court.

Held: that a reservation set kpart the thing reserved for some párticular use; apd that “ whensoever a tract of. land shall once have been legally appropriated to any purpose, it becomes separated from the public lands.” In the States where school lands have been reserved, the legislatures have enacted laws to carry out and effectuate the benign policy of the general government.

These four cases were brought up, by writ of error, from the District Court pf the United States for the District of Texa.s. They all involved the same principles, and were covered by the: decision in Scott’s case. It is necessary, therefore, to set out the pleadings in that case.

This was an appeal from the District Court of the United States for the State of Texas. A. statement of the facts is contained in the opinion of the court.

This was an appeal from the Ciicuit Court of the ■ United States for the Southern District of Mississippi. The case, in some of its branches, had been before the court ■ three times before. A motion to .dismiss a cáse between the same parties, at- January'term, 1848, is reported in 6 Howard, 206. It came up again at January term, 1849, and is reported in 7 Howard, 160.

Held: that he was entitled only to six per cent., to be calculated from the date of the judgment in the Cirquit Court, to the day of affirmance here. The case now before us, was decided in the early part of the last term, before the case of Mitchell v. Harmony, and consequently falls within- the operation of the same rules, and damages upon the affirmance of the decree must be calculated in like manner.

This case was brought up, by writ of error, from the Circuit Court of the. United States for the Southern District of Mississippi. The facts are stated in the opinion, of the court.

This was an appeal from the District Court of the United States for the District of Texas. The facts are stated iii the opinion of the court.

Held: that the collision occurred by-the negligence or fault of the brig. He decreed in favor of the libellants for the value of the schooner Virginian, and of so much of the cargo as belonged to her owners. It was referred to the clerk to ascertain and report the amount of the loss and damage. The cause came on to be heard on the 3d of June, 1845, upon the clerk’s report and exceptions thereto.

Held: that an administrator could n,ot be sued in ane+her State for a debt due from his intestate, because he is bound to account for all the assets he receives, to the proper tribunals of the government, from which he derives his authority.

<p>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 vestecMn him.</p> <p>This application was refused, upon the .ground that two New Madrid certificates had been laid upon the land in 1820. Thc.right under these certificates was claimed by Ashley,</p> <p>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.</p> <p>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 were not inconsistent with each other.</p> <p>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.</p> <p>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 tlie decision.. Cunningham is therefore entitled'to the half "of the quarter section which' he claimed separately from Brumbach.</p> <p>The patents obtained- by Ashley and Beebe, being founded upon entries which were void, are void also, so far as th^y interfere with the nreemntive right of Cunningham.</p>

Held: in fee-simple, -fifty ácres of land in Baltimore county; and that in 1842, after the execution of the codicil, he entered into a contract with a certain Horatio G. Armstrong, whereby he covenanted that in consideration of the payment óf two thousand dollars, at the times specified in the agreement, and the annual ground rent of two hundred and ten dollars, payable semiannually, he would lease the said land to…

Held: that an unofficial copy of- the Commercial Code of France, could not be proved by the French Consul residing at New York, though he stated it to be conformable to the official publications ; and that it was an exact copy of the laws furnished by the French government to its Consul, at New York.

This case was brought up, by writ of error, from the. Circuit Court of the United States for the District, of Columbia, holden in and for the county of Washington.

Held: in the case of a sold note which expressed “ eighteen pockets of hops, at 100s.,” that parol .evidence was admissible to show that the 100.S. meant the price per cwt. Spicer v. Cooper, 1 Gale & D. 52; 5 Jurist, 1036. The memorandum in that case was as follows: “ Sotd to Waite Spicer, of S. Walden, 18 pos. Kent hops, as under July 23, 1840; 10 pos. Barlow East Kent, 1839; 8 pos.

■ This case was brought up, by writ of error, from the Circuit Court of the United States for the District of Columbia, holden in and for the county of Washington. The facts are stated in the opinion of the court.

Held: that the master was responsible for his servant’s act. Mr. Justice Erskine states the law in the clearest manner. “ Whenever the master has intrusted the servant with the control of the carriage, it .is no answer that the servant acted improperly in the management of it.

Held: chat so far as this, act attempted to change the law of disseisin in respect to titles ex-isting when.it was passed, the act was inoperative and void, because in conflict with the constitution of that State. The

This case was brought up, by writ of error, from the District Court of the United States for the District of Texas. The facts are all set forth in the opinion of the court.

<p>In this case, as in the preceding, it is decided, that where the plaintiff averred enough to show the jurisdiction of the court and the defendant pleaded in abatement that the plaintiff was disabled from bringing the suit, on account of residence, it was incumbent upon the defendant to sustain the allegation by proof.</p> <p>Until that was done, it was not necessary for the plaintiff to offer any evidence upon the subject.</p>

Held: rightful possessions, from the fact of his open and notorious actual occupancy,' and holding for himself, in their midst. This is the settled rule in other cases, and no reason is seen why it should not apply in this case. The reasons are quite as strong, and the rulé quite as necessary in its application here, as it was in the case of Landes v. Brant, ( 10 How. 375 ,) where we enforced the rule.

'This case was brought up by writ of error from the District Court of the United States for the District of Wisconsin. The facts are stated in the opinion of the court.

Stephens v. Cady, 55 U.S. 528 (1853), was a United States Supreme Court case in which the Court held a copyright is a property in notion, and has no corporeal tangible substance, so it cannot be seized or sold in an execution sale.

<p>This was an appeal from the Circuit Court of the United States for the District of Massachusetts, in. admiralty.</p> <p>The facts are stated in the opinion of the court.</p>

Held: that the act of January, 1808, for the relief of Oliver Evans, does not authorize. those who erected their machinery between the expiration of their old patents and the issuing of the new one, to use it after the issuing of the latter.

This case came up from the. Circuit Court of the. United States for the District of Ohio, on a certificate of division in opinion between the,Judges thereof. The following was the entire record in the case-: The United States of America, District of Ohio, ss.

Tijfs case was. brought up from the Supreme Judicial Court of the. State of Maine, by a writ of error issued under the 25th ^section of the Judiciary Act. . The facts in.-the case are stated in the opinion of the court.

<p>This case Was brought up by writ of error from the Circuit Court of the United States for the District of Columbia, holden in and for the county of Washington.</p> <p>Boyden was a citizen of Massachusetts,; and Burke was Commissioner of Patents at the time when the transactions took place which were the subject of the suit.</p> <p>The ground of the action was, that Burke wilfully, maliciously, and corruptly, and with intent to injure Boyden, had refused to- give copies of certain patents.</p> <p>The bills of exceptions referred to certain letters, which will be mentioned c! nologieally.</p> <p>On the 14th December, 1847,-Boyden wrote a long letter to Burke, too long to be inserted. The following extract from it will be sufficient:</p> <p>“ If, in your letter of August 10, 1847, you mean by the ‘ office ’ yourself, or the author of the letters which I have received from you, you prescribe two conditions in said letter which are inconsistent, viz., that my. letters to you, or to the author-of those letters subscribed by you, should-be both respectful and proper. It is improper to treat a person respectfully while it is known that he is unworthy of respect; theiefore, it is impossible to comply with your prescriptions. The claim of unworthy office-holders to. have people, as they say, respect the,offices they hold, while it is known that the incumbents are unworthy of respect, is absurd. Do you mean, when you urge people to respect ‘ the office,’ to have them respect you merely because you hold the office, while it is known that you are unworthy of respect ? This is a free country! ” &c. &e.</p> <p>On the same day Mr. Boyden wrote to Mr. Greenough, in Washington, as follows: •'</p> <p>Boston, Mass., December 14,1847.</p> <p>Sir, — Your letter of the 23d ult. was duly received. I wrote to Mr. Burke to-day, criticizing his conduct, and informing him that I wish him to .deliver to you a certified copy of each of the following patents, including drawings, specifications, and claims, or of all of them which .are recorded in the Patent-Office:</p> <p>■ George W. Henderson, and John E. Cayford’s patent, dated April 14,1830, Charles Kenzie’s patent,'dated July 1,1836, and J. K. Millard’s patent, dated May 9, 1846.</p> <p>You 'will oblige by tendering the fees for those copies if he declines furnishing them; and if you obtain them, I wish you to send .them by mail to me at Boston. Respectfully,</p> <p>(Signed) Uriah A. Boyden.</p> <p>Test: John A. Smith, Clk.</p> <p>Mr. Greenough, accordingly, called upon Mr. Burke, who de-? dined to,cause the copies .to be prepared for him, as the agent of Mr. Boyden, and addressed to Mr. Greenough an explanatory letter, from which the following is an extract:</p> <p>“ Of these reasons, for declining to cause the copies to be made for him, which you requested, you were duly apprised. And you were also informed, as Mr. Boyden himself has been informed, that,' until he comes to the conclusion to treat this office with the civility which the customs aijd rules of .official intercourse require, this office'will have no intercourse with him, directly or through the agency of others. When, he concludes to conduct his intercourse with this office with decency and propriety, his business will be attended to.”</p> <p>. On the 20th of January, 1848, Mr. Burke made the following memorandum, which he handed to Mr. Laskey, who ha.d called for the same papers:</p> <p>Patent-Office, January 2(4,1848.</p> <p>Mr. R. H. Laskey, as the agent of Uriah A. Boyden-, calls for the following copies of patents, including drawings, specifications, and claims, or of all of them, which are recorded in the Patent-Office, viz., George W. Henderson and John E. Cay-ford’s patent, dated April 14, 1830; Charles Kenzie’s patent, dated July 1,1846; and J. K. Millard’s patent, dated May 9, 1846 ; for which he offers to pay the usual fees required! by law for copies.</p> <p>I hereby refuse to give him the copies called for for Mr. Boy-den, or to transact any other business for Mr. Boyden with Mr. Laskey. I do not refuse copies of any patents or other papers which Mr. Laskey requires for himself or for any other person, except Mr. Boyden. I refuse' to do any business for Mr. Boy-den, whether he applies for the same personally-or by agent, until he comes to the conclusion to observe, in his communications with this office, or its official head, the proprieties usually observed in official intercourse. When he comes to the conclusion to address this office, or 'its head in respectful language, any. business which he may have with it will be done as it is done for other persons, whether he applies in person or by agent.</p> <p>Edmund Burke.</p> <p>■ Mr. ■ Boyden soon afterwards brought his action against Burke, as above stated.</p> <p>On the trial of the cause', the plaintiff’s counsel took fpur bills of exceptions; the first three of which related to evidence, ■ and the fourth an exception to a general instruction, that the plaintiff was not entitled tp recover.</p> <p>■They were as follows :</p> <p> First Exception. </p> <p>On the trial of the issue in this cause, the plan tiff,' to maintain the issue on his part joined, offered to give evidence tending to show that he is a citizen of the United States, residing in .Boston, in the State of .Massachusetts; that he is a civil engineer and machinist, and as such was, in the month of January, 1848, engaged in making improvements in “ Turbines” and “water-wheels;” that this fact was known to the defendant ; that the defendant was at the ■ same time Commissioner of1 Patents; that the plaintiff, in order to see what machinery having in view the same purpose, had been theretofore patented, as well to guard himself against any suit by such previous patentees, for any alleged infringement of their said patents, as ■ also to avoid any infringement thereof, and to save himself time, labor, and expense, required copies of certain patents then of record in the Patent-Office, and which had' been theretofore issued to the persons mentioned in the memorandum of January 20th ; that, on the 20th day of January, 1848, the said plaintiff applied to the said defendant, as Commissioner of Patents, as aforesaid, for copies of .the said patents, and tendered himself ready, and “ offered to pay the usual fees required by law for copies,” and the. defendant thereupon, as Commissioner, as aforesaid, answered the said application in writing, as follows.</p> <p>- 'To all which evidence, so as aforesaid offered by the plaintiff, and to every part thereof, except- the said memorandum last-above mentioned, the defendant by his counsel objects, as inadmissible upon the issue joined, and the court refused to permit the said evidence, so objected to, to-be given; and thereupon, the plaintiff, by his counsel, excepts thereto.</p> <p>' Second Exception.</p> <p>The plaintiff then read in evidence,- without objection, the memorandum made by the defendant, dated 20th January, 1848, and then gave evidence tending to show that, on or about the 22d day of December,. 1847, J. J. Greenough, by-authority of-the plaintiff, called at the Patent-Office-to obtain'for him copies-of three " several patents, which had theretofore been issued,by- said.office for “ Turbines” or “ water-wheels;” that he - was referred by the clyi;k,.to- whom he applied, to the defendant, and informed defendant, that he had been requested by the. plaintiff to obtain for him copies of those patents, arid defendant refused, saying he would not have any thing to. do with Mr. Boyden, directly or indirectly, or words to that effect; and, upon his cross-examination, witness stated, that he asked Mr. Burke to give him in writing his reasons for so refusing, which .he ■then and there promised to do ; and some days after the witness, received a letter from the defendant containing Those reasons,■which letter he had transmitted to the plaintiff.; and then, upon cross-examination, the counsel for' the defendant called upon the plaintiff to produce said letter, and the plaintiff, admitting he had said letter then in court, refuses to produce thé same; on the ground that the said letter, if produced, would not be evidence ; but the court, overruling the objection of the defendant, ordered the same to be produced, and thereupon the said letter was produced by the plaintiff; and the defendant, by his counsel, offers to read the same in evidence, and the plaintiff, by his counsel, objects thereto, but the court permits the same to be. read in evidence, and it is read accordingly, as follows; and the plaintiff, by his counsel, excepts thereto, &c. &c.</p> <p> Third Exception. </p> <p>And here the. plaintiff rested; and thereupon the defendant, offered to read, in evidence, a letter addressed to him by the plaintiff, dated 14th December, 1847, and also a letter from plaintiff to J. j. Greenough, which it is admitted is the same letter referred to in the testimony of said Greenough, as- eonr taining thé- authority under which he applied for the copies of patents, as testified by him in his examination by the plain-' tiff, which letter bears date -the 14th December, 1847, to the admissibility of which said letters, or either of them, as evidence in, this cause, the plaintiff, by his counsel, objects, arid the' court overrules the said objection, and permits both of said letters to be read in evidence; and the handwriting of the plaintiff thereto being admíttedythe same are réad accordingly, and the plaintiff, by his counsel, excepts thereto, &c. &c.</p> <p> Fourth Exception. </p> <p>And thereupon, and upon thé whole evidence aforesaid,, the defendant prayed the court to instruct the jury that upon the evidénce aforesaid, if the same is believed by the jury, the plain- • tiff is not entitled to recover in this action; which instruction the court gave, and the plaintiff, by his counsel, excepts thereto, &c. &e.. . '</p> <p>Upon these exceptions, the case came up' to this court, and was argued by Mr. Bradley, for the plaintiff in error, and Mr. Coze, for the defendant in error.</p>

This was an appeal from the Circuit Court of the United States for the Southern District of Mississippi, sitting as a Court of Equity. The facts in the case are set forth in the opinion of the court.

This case was brought up, by writ of error, liom the District Court of the United States for the District of Wisconsin. The facts are stated in the opinion.of the court.

<p>A society called Separatists, emigrated from Germany to tlie United States. They were very poor, and one of them, in 1817, purchased land in Ohio, for which he gave his bond, and took the title to himself. Afterwards, they adopted two constitutions, one in 1816, and one in 1824, which they signed, and in 1832 obtained an act of incorporation. The articles of association, or constitutions of 1819 and 1824, contained a renunciation of individual property.</p> <p>The heirs of one of the members who signed these conditions, and died in 1827, cannot maintain a bill of partition.</p> <p>Brom 1817 to 1819, the contract between the members and the person who purchased the property, vested in parol, and.was destitute of a consideration. Ho legal rights were 'vested in the members.</p> <p>The ancestor of these heirs renounced all right of individual -property, when he signed the articles, and did so upon the consideration that the society would support him in sickness and in health; and this was deemed by him an adequate compensation for his labor and property, contributed to the common stock.</p> <p>The principles of the association were, that land and other property were to be acquired by the members, but they were not to be vested with the fee of the land. Hence, at the death of one of them, no right of property descended to his heirs.</p> <p>There is no legal objection to such a partnership; nor can it be considered a forfeiture of individual rights for the community to succeed to his share, because it was a matter of voluntary contract. '</p> <p>Nor do the articles of association constitute a perpetuity. The society.exists at the will of its members, a majority of whom may at any time order a sale of the property, and break up the association.</p> <p>The evidence shows that they are a moral, religious, and industrious people.</p>

<p>Under the attachment laws of Maryland, a share in the Baltimore Mexican Company, which had fitted out an expedition under General Mina, was not, in 1827, the subject of an attachment under a judgment, whether such share was held by the garnishee under a power of attorney to collect the proceeds, or under a¿ equitable assignment to secure a debt.</p> <p>The answers of the garnishee to interrogatories filed, were literally correct. He had not in his hands any.“funds, evidences of debt, stocks, certificates of stock,” belonging to the debtor, nor “ any acknowledgment by the Mexican government,” on which an attachment could be laid.</p>