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ABBIE B. CLARK, Exrx. AND RUFUS D.
CHASE, Exr. of ANDREW J. CLARK,
Deceased, ET AL., Appts.,

v.

GEORGE H. WOOSTER.

(See S. C. Reporter's ed. 322-326.)

Bill to restrain, and to recover damages for, in-
fringement of patent-equity jurisdiction-
reissued patent, prima facie evidence of its
validity--established license fee, usual meas-
ure of damages.

1. A court of equity has jurisdiction of a bill filed
to restrain the infringement of a patent and to re-
cover profits and damages, although the patent
expired fifteen days after the bill was filed, when,
by the course of the court, anajunction might
have been obtained within that time. Whether to
retain or dismiss the bill was within the discretion
of the court below with which this court will not
interfere unless that discretion was illegally exer-

cised.

2. The reissued patent itself, with proof of infringement, made a prima facie case for complainant; and allegations in the answer, that the patent was illegally reissued, required to be proved.

3. Established license fees are the best measure of damages that can be used in patent cases; and the evidence in the present case as to the license fee was sufficient.

[No. 31,]

Argued Nov. 8, 9, 1886. Decided Dec. 6, 1886.

APPEAL from the Circuit Court of the United

States for the Southern District of New
York. Affirmed.

The case is stated by the court.
Messrs. Frederick P. Fish and T. L.
Livermore, for appellants.

Mr. Frederick H. Betts, for appellee.

Mr. Justice Bradley delivered the opinion of the court:

A decree was made establishing the patent,
and the infringement thereof by the defend-
ants, and referring it to a master to take and
state an account of profits, and to assess dam-
ages, and the defendants were ordered to pro-
duce their books, papers, and devices used, so
far as related to the matter in issue. Upon
this reference, the parties entered into a stipu-
lation before the master, by which the defend-
ants admitted that they had purchased and dis-
posed of 15,000 folding guides covered by the
decree; and in consideration thereof the com-
plainant waived all further testimony as to
profits received by the defendants therefrom,
and agreed to rely on proof of damages in place
of profits. The complainant adduced evidence
to show that he had an established license fee
of ten cents for each folding guide purchased
or disposed of, and had granted licenses at that
rate to divers sewing machine companies. The
master, being satisfied with this evidence, re-
ported the damages at $1,500. The defend-
ants filed a number of exceptions to the report,
none of which were sustained, and a decree
was entered for the amount of damages re-
ported. The defendants thereupon appealed.
The points taken by the appellants are:

First. That the court below, sitting as a
court of equity, had no jurisdiction of the case,
because the complainant had a plain and ade-
quate remedy at law

Second. That the reissue of the patent was

illegal by reason of laches in applying for it.

Third. That the court erred in finding that the measure of damages was an established license fee, and that such license fee was proved.

As to the first point, the bill does not show any special ground for equitable relief, except the prayer for an injunction. To this the complainant was entitled, even for the short time the patent had to run, unless the court had This is a suit on a patent, brought by Woos- deemed it improper to grant it. If, by the ter, the appellee, against the persons compos- course of the court, no injunction could have ing the firm of Johnson, Clark & Co., of New been obtained in that time, the bill could very York, to restrain them from infringing the properly have been dismissed, and ought to patent, and to recover profits and damages. have been. But by the rules of the court in The bill was filed on the 20th of December, which the suit was brought, only four days' no1879, and the patent expired fifteen days after-tice of application for an injunction was rewards. The patent was for folding guides quired. Whether one was applied for does not used on sewing machines, and is the same that appear. But the court had jurisdiction of the was involved in the case of Thomson v. Woos- case, and could retain the bill, if in its discreter, 114 U. S. 104 [Bk. 29, L. ed. 105]. It was tion it saw fit to do so, which it did. It might granted to one Douglas in October, 1858, for have dismissed the bill, if it had deemed it ina period of fourteen years, was extended in expedient to grant an injunction; but that was October, 1872, for seven years longer, and was a matter in its own sound discretion, and with then, in the same month, surrendered and reis- that discretion it is not our province to intersued. The bill does not specify the particular fere, unless it was exercised in a manner clearly ground on which the reissued patent was illegal. We see no illegality in the manner of granted; and although the answer avers that it its exercise in this case. The jurisdiction had was unlawfully granted, that the original was attached, and although, after it attached, the surrendered for the purpose of claiming more principal ground for issuing an injunction may and other things than were described and have ceased to exist by the expiration of the claimed in it, and that the reissued patent is not patent, yet there might be other grounds for for the same invention for which the original the writ arising from the possession by the dewas granted, it does not set out the original, fendauts of folding guides illegally made or nor was the original put in evidence in the procured whilst the patent was in force. The cause, and no evidence was offered to substan- general allegations of the bill were sufficiently tiate the allegations of the answer. The com- comprehensive to meet such a case. But even plainant produced the reissued patent in evi- without that, if the case was one for equitable dence and proved infringement. The defend-relief when the suit was instituted, the mere ant adduced evidence before the examiner, but fact that the ground for such relief expired by out of time, and it was ruled out by the court. the expiration of the patent would not take

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away the jurisdiction, and preclude the court |
from proceeding to grant the incidental relicf
which belongs to cases of that sort. This has
often been done in patent causes, and a large
number of cases may be cited to that effect;
and there is nothing in the decision in Root v.
R. Co. 105 U. S. 189 [Bk. 26, L. ed. 975] to
the contrary. Cotton Tie Co. v. Simmons, 106
U. S. 89 [Bk. 27, L. ed. 79]; Lake Shore & M.
S. R. Co. v. Car-Brake Co. 110 U. S. 229 [Bk.
28, L. ed. 129]; Consolidated Valve Co. v. Crosby
Valve Co. 113 U. S. 157 [Bk. 28, L. ed. 939];
Thomson v. Wooster, 114 U. S. 104 [Bk. 29, L.
ed. 105]. It is true that where a party alleges
equitable ground for relief and the allegations
are not sustained, as where a bill is founded on an
allegation of fraud, which is not maintained by
the proofs, the bill will be dismissed in toto, both
as to the relief sought against the alleged fraud,
and that which is sought as incidental thereto.
The point insisted on, that the bill contained
no charge of continued infringement, or of in-
fringement at the time of commencing the suit,
if it were material, is not sustained by the fact.
The bill does contain such a charge.

JAMES HAMILTON, Piff. in Err.,

v.

VICKSBURG, SHREVEPORT AND PA-
CIFIC RAILROAD COMPANY.

(See S. C. Reporter's ed. 230-285).

Construction of bridges across navigable
streams-regulation of, within power of States
when Congress has not acted-damnum ab-
sque injuria.

1. Whenever the exercise of a right conferred by
law for the benefit of the public is attended by tem-
porary inconvenience to private parties, in common
with the public in general, they are not entitled to
damages therefor.

2. Where a railroad company has been authorized by a State to construct a bridge across a navigable stream, and some obstruction to navigation is unavoidable during its construction, a private party damaged by such obstruction cannot hold the company liable for such damage.

River.

3. There is nothing in any of the Acts of Congress
which deprives the Legislature of the State of
Louisiana of the power to determine the character
of the bridges which may be erected over the Boeuf
4. When a State provides for the form and char-
acter of a bridge its directions will control, irre-
spective of its effect upon navigation, except as
against the action of Congress.
[No. 23.]

As the court had jurisdiction at the inception
of the suit, even though upon a narrow ground,
yet, as the defendants did not ask the dismissal
of the bill on the ground of want of jurisdic-
tion, we should be very reluctant, if we had Argued and submitted Nov. 10, 1886. Decided
the power, now, on an appeal, after the case has
been tried and determined, to reverse the decree.

The second point raised was substantially

Dec. 6, 1886.

IN ERROR to the Supreme Court of the State
of Louisiana. Affirmed.

The case is stated by the court.
Mr. John T. Ludeling, for plaintiff in
error:

The Supreme Court of Louisiana held that the Legislature of that State had the power to confer upon the defendant the right to build all necessary bridges across any navigable stream in the course of its line.

34 La. Ann. 973.

Upon rehearing the court said: "As to streams which are navigable only within the limits of a single State, the authority of its Legislature is complete." Id. 975.

disposed of in the case of Thomson v. Wooster,
qua supra. The allegations in the present bill
are the same as they were in that case. Neith-
er the bill nor the proofs show any thing from
which the court can infer that the reissue was
illegally granted; and the allegations of the an-
swer are unsupported by evidence. The re-
issued patent itself made a prima facie case for
the complainant. The allegations of the an-
swer, that it was issued for the mere purpose
of expanding the claim of the original, and
that it was for another and different invention,
should have been proved. But we have no
evidence on the subject, not even the original
patent with which to compare the reissue. This The navigable rivers and waters in the Ter-
point, therefore, is wholly without foundation. ritories of Orleans and Louisiana are made pub-
The third point, as to the measure of dam-lic highways by the Act of March, 3, 1811. The
ages and the want of proof thereof, is equally Mississippi and navigable waters leading into
untenable. It is a general rule in patent causes, the same, or into the Gulf of Mexico, are made
that established license fees are the best meas- public highways and forever free by the Act
ure of damages that can be used. There may of the 20th of February, 1811, Act of March 1,
be damages beyond this, such as the expense 1817, and by the Act of June 4, 1812.
and trouble the plaintiff has been put to by the Gordon, Digest, 640, note.
defendant, and any special inconvenience he
has suffered from the wrongful acts of the de-
fendant; but these are more properly the sub-
jects of allowance by the court under the au-
thority given to it to increase the damages.

As to the sufficiency of the proof, we see no
occasion to disturb the conclusion reached by
the master on this point. The complainant
proved several instances of licenses given by
him to large sewing machine companies, the
fees on which were regularly paid, and corre-
sponded with the rate allowed by the master.
We think that the defendants have no occasion
to complain of the amount awarded.

The decree of the Circuit Court is affirmed.
True copy. Test:

James H. McKenney, Clerk, Sup. Court, U. 8.

They are so declared by the Revised Statutes of the United States, sections 5251 and 2476. The Boeuf River is in fact navigable, and is therefore in law a public navigable river. The Montello, 20 Wall. 441 (87 U. S. bk. 22. L. ed. 394).

Usefulness for purposes of transportation for rafts, boats, or barges, gives a navigable character; reference being due to its natural state rather than to its average depth the year round.

The Montello, supra; Little Rock R. R. Co. v. Brooks, 39 Ark. 403; The Daniel Ball, 10 Wall. 557 (77 U. S. bk. 19, L. ed. 999); Moore v. Sanborne, 2 Mich. 519; Morgan v. King, 35 N. Y. 454; Brown v. Chadbourne, 31 Me. 9; Walker v. Allen, 72 Ala. 456; Ingram v. Police Jury, 20 La. Ann. 226.

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If the proof is not sufficient to show the navigability of the water, the court will take judicial notice of such navigability.

1 Greenl. Ev. § 6; Win. Lake Co. v. Young, 40 N. H. 420; Atwater v. Schenck, 9 Wis. 160; The Peterhoff, Blatchf. Prize Cases, 463; Mossman v. Forest, 27 Ind. 233; Ind. & C. R.R. Co. v. Stephens, 28 Ind. 429; Neaderhouser v. State, 28 Ind. 257; Wright v. Hawkins, 28 Tex. 452; McManuv. Carmichael, 3 Iowa, 1; Wood v. Fowler, 26 Kan. 682; Pennsylvania v. Wheeling ete. Bridge Co. 13 How. 519 (54 U. S. bk. 14, L. ed. 267).

Waters navigable in fact come within the power of the General Government, when by themselves or their connections with other waters they form a continuous channel for commerce among the States or with foreign countries.

The Daniel Ball, supra; Escanaba, etc. Co. v. Chicago, 107 U. S. 682 (Bk. 27, L. ed. 444). Where the power of the State and that of the Federal Government come in conflict, the latter must control. (683)

The decisions are that the Ordinance of 1787, and that the Act of Sep. 9,1850, admitting California, "must be considered as in no way impair ing the power which the State could exercise if the cause had no existence."

Escanaba, etc. Co. v. Chicago, 107 U. S. 678 (bk. 27, L. ed. 442); Cardwell v. American Riv. Br. Co. 113 U. S. 205 (28: 959); Pollard v. Hayan, 3 How. 212 (44 U. S. bk 11, L. ed. 565); Permoli v. Munic. No. 1 of N. 0.3 How. 589 (11: 739); Strader v. Graham, 10 How. 82 (51 U. S. bk. 13, L. ed. 337).

Such a decision does not apply to a valid law which Congress had the power to enact where the waters were within a State or territory. Wallamet Iron Br. Co. v. Hatch, 19 Fed. Rep.

347.

But whatever may be the construction of the Acts of Congress, admitting the States of Louisiana, Mississippi, etc., Congress has, since the admission of Louisiana into the Union, legislated upon the subject of the navigation of Boeuf River.

Rev. Stat. U. S. 1878, §§ 2476, 5251. The decision in Wilson v. Blackbird Creek Marsh Co. 2 Pet. 245"was based entirely upon the absence of any legislation of Congress upon the subject."

Escanaba, etc. Co. v. Chicago, supra.

In cases last cited, the decision rested upon the fact that "bridges over navigable streams which are entirely within the limits of a State," are regulated by the State. E converso, rivers running through two or more States are not.

In the Slaughter House Cases, "the right to use the navigable waters of the United States, however they may penetrate the territory of the several States," is recognized.

16 Wall. 79 (83 U. S. bk. 21, L. ed. 409). See 8 Kent, Com. 411.

Messrs. George Hoadly, Jr., Edgar M. Johnson, Edward Colston and George Hoadly, for defendant in error:

The power of the original States to authorize the obstruction of navigable streams, within their territory, was recognized in Wilson v. Blackbird Creek Marsh Co. 2 Pet. 245 (27 U. S. bk. 7, L. ed. 412).

Gilman v. Phila. 8 Wall. 713 (70 U. S. b. 18, L. ed. 96).

The Statutes of the United States upon which the plaintiff in error relies have no bearing up on the power of the States to thus obstruct navigable waters within their limits.

Pound v. Turck, 95 U. 8. 459 (Bk. 24, L. ed. 525); Escanaba, etc. Co. v. Chicago, 107 U. S. 678 (27: 442); Cardwell v. American Rio. Br. Co. 113 U. S. 205 (23: 959).

Mr. Justice Field delivered the opinion of [281]

the court:

The authority vested by its Act of incorporation in the Vicksburg, Shreveport and Texas Railroad Company, to construct a railroad from a point opposite Vicksburg to the state line of Texas, empowered it to construct as part of the road all necessary bridges for the crossing of navigable streams which might be on its line. It was so held by the Supreme Court of the State of Louisiana, and it would seem to be a self-evident proposition. What the form and character of the bridges should be, that is to say, of what height they should be erected, and of what materials constructed, and whether with or without draws, were matters for the regulation of the State, subject only to the paramount authority of Congress to prevent any unnecessary obstruction to the free navigation of the streams. Until Congress intervenes in such cases, and exercises its authority, the power of the State is plenary. When the State provides for the form and character of the structure, its directions will control, except as against the action of Congress, whether the bridge be with or without draws, and irrespective of its effect upon navigation.

As has often been said by this court, bridges are merely connecting links of turnpikes, streets and railroads; and the commerce over them may be much greater than that on the streams which they cross. A break in the line of railroad communication from the want of a bridge may produce much greater inconvenience to the public than the obstruction to navigation caused by a bridge with proper draws. In such cases, the local authority can best determine which of the two modes of transportation should be favored, and how far eithe: should be made subservient to the other. Gilman v. Phila. 3 Wall. 713, 729 [70 U. S. bk. 18, L. ed. 96, 101].

In the case at bar no specific directions as to the form and character of the bridges over the streams on the line of the railroad were prescribed by the Legislature of the State. The authority of the Company to construct them was only an implied one, from the fact that such structures were essential to the continuous connection of the line. Two conditions, however, must be deemed to be embraced within this implied power: one, that the bridges should be so constructed as to insure safety to the crossing of the trains, and be so kept at all times; and the other that they should not interfere unnecessarily with the navigation of the streams.

The line of road crossed a small stream, one of the tributaries of the Ouachita River, called Boeuf River, which was navigable for about six months in the year. This river has its rise

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this river and of all other navigable waters in
Louisiana, and had thereby interdicted the plac-
ing of any obstruction in them, even of a tempo-
rary character, to the passage of vessels. He cites
in support of this position the Act of February
20, 1811, enabling the people of the Territory of
Orleans to form a constitution and state govern-
ment, the third section of which enacted that
the convention called to frame the Constitution
should, by an ordinance irrevocable without the
consent of the United States, provide, among
other things, "that the River Mississippi and
the navigable rivers and waters leading into the
same or into the Gulf of Mexico, shall be com-
mon highways and forever free, as well to the
inhabitants of the said State as to other citizens
of the United States, without any tax, duty, im-
post or toll therefor, imposed by the said State"
(2 Stat. at L. 642); and also the proviso to the
Act of April 8, 1812, for the admission of Loui-
siana, which declares that it is upon a similar
condition that the State is incorporated into the
Union. Id. 701, § 1.

in Arkansas, and by its connection with the | tion to navigation caused by the construction of Ouachita, which empties into the Red River, its the new bridge was unavoidable, and the Comwaters find their way to the Mississippi. Over pany could not, therefore, be held responsible this river the Company constructed a bridge for any injury resulting therefrom; that it was with a draw sufficiently large to allow the pas- a case in which the defendant was entitled to sage of steamers. It was used for years with the protection of the rule of damnum absque inout complaint from anyone, so far as the record juria. It accordingly reversed the judgment, discloses. But in 1880 it was found, upon in- and ordered that the action be dismissed. spection, to be decayed and unsafe for the pas- The plaintiff contends that Congress had presage of trains. The defendant, which had suc-viously acted with respect to the navigation of ceeded to the property and interests of the Vicksburg, Shreveport and Texas Company, therefore determined to rebuild it. To carry out this purpose with as little inconvenience as practicable to vessels navigating the river, the [283] Company contracted with an experienced builder to construct the bridge during the summer months, when the river was usually too low for navigation. The work could not be begun until the subsidence of the water in July. In order to expedite its construction, the Company stipulated with the contractor to prepare the timbers at its workshops and transport them to the ground as soon as the state of water would permit the work to be commenced; and it carried out its stipulation in that respect. In the construction of the new bridge it became necessary to dismantle the draw of the old one, and to erect temporary supports while the timbers and draw of the new bridge were being put in place. To prevent the stoppage of its trains while this building was going on, the Company constructed a temporary bridge adjoining the old one, for their transportation, expecting to have the new bridge completed before the winter rise, which usually began near the close of December, should render the river navigable. But early in August rains set in, and continued almost incessantly for months, rendering the river navigable in November, auch earlier than usual. The work on the new bridge was thereby greatly impeded. To obviate this impediment, as far as possible, the Company added to the contractor's force a gang of its own bridge laborers, who assisted by working at night and on Sundays.

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A similar provision is found in the Acts admitting the States of California, Wisconsin and Illinois into the Union, with respect to the navigable rivers and waters in them, the purport and meaning of which have been the subject of consideration by this court. Escanaba Co. v. Chicago, 107 U. S. 678 [Bk. 27, L. ed. 442] and Cardwell v. American Bridge Co. 113 U. S. 205 [28: 959]. In the latter case we had before us the clause in the Act admitting California, and we held that it did not impair the power which the State could exercise over its rivers, even if the clause had no existence. We there referred to previous decisions upon a similar enactment, and said "that if we treat the clause as divisible into two provisions, they must be construed together as having but one object; namely, to insure a highway equally open to all without preference to any, and unobstructed by duties or tolls, and thus prevent the use of the navigable streams by private parties to the exclusion of the public, and the exaction of any toll for their navigation; and that the clause contemplated no other restriction upon the power of the State in No-authorizing the construction of bridges over them, whenever such construction would promote the convenience of the public."

The court below found that the Company did everything in its power to accelerate the work on the new bridge, but it was not completed until December 20, following. The water in the river being increased by the unusual rains, there was sufficient depth on the 6th of November to carry the plaintiff's steamer with freight above the bridge. But the steamer could not pass owing to the temporary structure and the supports used in the erection of the new bridge. For the losses alleged to have been sustained from this obstruction between the 6th of vember and the 20th of December, the plaintiff brought this action.

The District Court of Louisiana gave judg ment for the plaintiff in the sum of $1,000, from which both parties appealed to the Supreme Court of the State-the plaintiff because he did not recover as much as he claimed, and the defendant because there was a recovery of any sum. The supreme court reversed the judgment, holding that the Company was authorized by the charter of the original company, to which the defendant had succeeded, to construct a bridge over the river for the passage of its trains, and, when out of repair and decayed, to replace it with a new one; that the obstruc

The objection to the authority conferred upon the Company to construct the bridge, from the legislation of Congress, is therefore not tenable; and we agree with the ruling of the court below that whenever the exercise of a right, conferred by law for the benefit of the public, is attended with temporary inconvenience to private parties, in common with the public in general, they are not entitled to any damages therefor. The obstruction caused to the navigation of the stream during the progress of the work on the new bridge, therefore, afforded no ground of action. The inconvenience was damnum

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absque injuria. Bennett v. New Orleans, 14 La. | davit of its execution, which is certified by the
Ann. 120; Barbin v. Police Jury, etc. 15 La. Ann. Consul of the United States, the proof of execution
is sufficient to entitle the deed to admission in evi-
559. Judgment affirmed.
dence.

True copy. Test:

7. Where it appears upon the face of a deed that James H. McKenney, Clerk, Sup. Court, U.S. wherever the name of the grantor was mentioned in the body, the name, as originally written, was Elizabeth O'Brien, and that a portion of said name had been erased so as to read Eliza O'Brien, proof that Elizabeth O'Brien and Eliza O'Brien, were one and the same person, met any objection based upon the erasure. The presumption was that the erasure was made before the execution of the deed.

EDWARD G. HANRICK, Plf. in Err.,

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W. A. PATRICK, Admr. of ELIZA M. O'BRIEN, Deceased, ET AL.

8. Where some of the parties who have executed a power of attorney, granting authority "to recover their interest in an estate," died before action under the power, as to them and their heirs or assigns. if not as to all who have executed, the power is revoked. Such a power does not authorize the exe

WHARTON BRANCH ET AL., Intervenors, cution of a deed conveying away the interest of

Plffs. in Err.,

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the principals.

9. While by the law of Texas property purchased during the marriage, whether conveyed to the M. husband or the wife, is prima facie community property, the rule only holds where the purchase is made with community funds. Where the consideration was nominal, and the deed was made to the wife, the presumption is that it was intended to vest the title in her as separate property. [Nos. 20, 475.]

Argued Oct. 28, 29, 1886. Decided Nov. 29, 1886

IN ERROR to the Circuit Court of the United

(See 8. C. Reporter's ed. 156–176.) Separate writs of error from joint judoment— alienage-construction of the Texas Statutes repeal-grantor of present interest in real property not estopped as to subsequently acquired title by covenant of general warranty-Motion to dismiss denied and judgment affirmed. evidence-objections to deed-erasure-execution-power of attorney-conveyance of real property in Texas to wife, upon nominal consideration-intention to vest title in her, pre

sumed.

1. When a judgment against defendants is joint, all the parties affected thereby must join in the writ of error, or there must be a summons and severance, or its equivalent.

2. In an action to try the title to real estate, where intervenors are admitted, who claim under the plaintiffs, but hostile to them, and who can only recover by establishing the rights of the plaintiffs to recover, a finding for the plaintiffs and against both the intervenors and the defendant, and a judgment thereon, although single, is upon different and distinct issues, and must be regarded as joint only in form, and severable in fact and law; and a motion to dismiss a writ of error sued out by the defendant, on the ground that the judgment was jointly against him and the intervenors, and that all should have been in the same writ, will be denied.

3. The same principle must govern judgments at law, rendered in actions according to the forms of procedure prescribed by the statutes of the State in which they are tried, where interventions to assert title are permitted, as in equity, where interventions pro interesse suo have been permitted to those affected by the proceeding, but not parties to the original controversy; which principle is, that where the decree is final, and separate or separable, those not affected by it are not necessary parties to the appeal.

4. This court holds, both upon reason and the authority of the Supreme Court of Texas, that the Act of 1854 of that State, defining the rights of aliens, did not repeal the provision of the Act of 1848, providing that alien heirs of real property should be entitled to nine years in which to dispose of it, or to become citizens and take possession thereof; and that, under the Act of 1854, the English Act of 1870 changed the defeasible title of the alien heirs of an owner of lands situated in Texas, who died in 1865, into an indefeasible title. 5. In the absence of a recital in a deed which estops the grantor as to the character of his title, or the quantum of interest intended to be conveyed, a covenant of general warranty, where the estate granted is the present interest and title of the grantor, does not operate as an estoppel to pass a subsequently acquired title.

6. Where a deed, executed in a foreign country, professes to have been signed, sealed and delivered in the presence of two witnesses, one of whom, a justice of the peace, certifies to such execution, and the other subscribing witness makes an afli

States for the Northern District of Texas.

The history and facts of the case appear in the opinion of the court.

defendants in error, on motion to dismiss writ Messrs. J. T. Brady and H. N. Low, for of error for want of jurisdiction.

The writ of error is prosecuted by the plaintiff in error, Hanrick, alone, and the record does not show any attempt to join the other parties against whom judgment was also rendered, nor does it disclose any reason for their non joinder. The judgment is joint.

Simpson v. Greeley, 20 Wall. 152 (87 U. S. bk. 22, L. ed. 338); Masterson v. Herndon, 19 Wall. 416 (77 U. S. bk. 19, L. ed. 953); Burleson v. Henderson, 4 Tex. 55; Schram v. Gentry, Galveston Term, 1885, Sup. Court of Texas; Smith v. Gentry, Id.

The writ of error must be dismissed.

Simpson v. Greeley, and Masterson v. Herndon, supra; O'Dowd v. Russell, 14 Wall. 402 (81 U.S. bk. 20, L. ed. 857); Hampton v. Rouse, 13 Wall. 187 (80 U. S. bk. 20, L. ed. 593); Williams v. Bank, 11 Wheat. 414 (24 U. S. bk. 6, L. ed. 508); Owings v. Kincannon, 7 Pet. 399 (32 U. S. bk. 8, L. ed. 727); Todd v. Daniel, 16 Pet. 521 (41 U. S. bk. 10, L. ed. 1054); Fields, Fed. Courts, 296; 2 Abb. U. S. Pr. 248, 250.

See also authorities under next proposition. The objection to nonjoinder of Branch and Sargent in the petition for writ of error goes to the jurisdiction of the court, and may be made at any time.

Wilson's Heirs v. Life & Fire Ins. Co. 12 Pet. 140 (37 U. S. bk. 9, L. ed. 1032; Simpson V. Greeley and Masterson v. Herndon, supra; Semple v. Hagar, 4 Wall. 431 (71 U. S. bk. 18, L. ed. 402); 2 Abb. U. S. Pr. 250.

This defect can only be cured by dismissing the writ and bringing another in which all against whom judgment is rendered are made parties.

Mussina v. Cavazos, 20 How. 280 (61 U. S. bk. 15, L. ed. 878).

Messrs. W. Hallett Phillips and L. W. Goodrich, for E. G. Hanrick, plaintiff in

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