601*] the supposition of his not having made any one of those inquiries which would have led to a development of the cause why he did not find him there. Non constat, but he may have removed to the next door, and the first question would, most probably, have extracted information that would have put him on further inquiry. Had the house been shut up, he might with equal correctness have returned "that he had not found him," and yet that clearly would not have excused the demand, unless followed by reasonable inquiries.

The party must, then, be considered as lying under the same obligations as if, having made inquiry, he had ascertained that the maker had

removed to a distance of nine miles, and into another jurisdiction. This is the utmost his inquiries could have extracted, and marks, of course, the outlines of his legal duties.

But the question on the recent removal into another jurisdiction is a new one, and one of some nicety. In case of original residence in a state different from that of the indorser, at the time of taking the paper, there can be no ques: tion; but how far, in case of subsequent and recent removal to another state, the holder shall be required to pursue the maker, is a question not without its difficulties.

entee, to show cause why process should not issue
to repeal the patent, the patent is not repealed, de
to be awarded is in the nature of a scire facias at
facto, by making the rule absolute; but the process
common law, to the patentee to show cause why
the patent should not be repealed, with costs of
suit; and upon the return of such process, duly
served, the judge is to proceed to stay the cause,
upon the pleadings filed by the parties, and the
issue joined thereon. If the issue be an issue of
fact, the trial thereof is to be by a jury; if an issue
of law, by the court, as in other cases.
In such a case, a record is to be made of the pro-
ceedings, antecedent to the rule to show cause why
process should not issue to repeal the patent, and
upon which the rule is founded.

Mr. Justice STORY delivered the opinion of the court:

ant.

Mere distance is, in itself, no excuse from demand; but, in general, the indorser takes upon New York, under the 10th section of the patent The district judge of the southern district of himself the inconvenience resulting from that cause. Nor is the benefit of the post-office al- act of the 21st of February, 1793, chapter 11, lowed him, as in the case of notice to the in-granted a rule upon Charles Wood and Gilbert dorser. *Brundage, at the instance and_com- [*604 plaint of Jethro Wood, to show cause why process should not issue against them, to repeal a patent granted to them for a certain invention, in due form of law; and upon hearing the parshown to the contrary, he, on the 2d day of ties, no sufficient cause being, in his judgment, July, 1823, passed an order that the said rule be made absolute, and that the said patent be repealed; and that process issue to repeal the We think that reason and convenience are in said patent, and for the costs of the complain602*] *favor of sustaining the doctrine that The patentees, by their counsel, moved such a removal is an excuse from actual de- the court to direct a record to be made of the mand. Precision and certainty are often of whole proceedings, and that process, in the more importance to the rules of law than their nature of a scire facias, should be issued, to try abstract justice. On this point, there is no the validity of the patent. other rule that can be laid down, which will the motion, upon the ground that these were not leave too much latitude as to place and dis-summary proceedings, and that the patent was tance. Besides which, it is consistent with repealed de facto, by making the rule absolute; analogy to other cases, that the indorser should and that the process to be issued was not in stand committed, in this respect, by the conthe nature of a scire facias, to try the validity duct of the maker. For his absconding or reof the patent, but merely process repealing the patent. moval out of the kingdom, the indorser is held, in England, to stand committed; and, although from the contiguity, and, in some instances, reduced size of the states, and their union under the general government, the analogy is not perfect, yet it is obvious that a removal from the sea-board to the frontier states, or vice versa, would be attended with all the hardships to a holder, especially one of the same state with the maker, that could result from crossing the

British channel.

With this view of the subject, we are of opinion that the judgment below, although rendered on a different ground, must be sus

tained.

The court denied

A motion was made, on a former day of this term, in behalf of the patentees, for a rule upon damus should not issue from this court, directthe district judge, to show cause why a maning him to make a record of the proceedings in the cause, and to issue a scire facias, for the The rule having been granted, and due service purpose of trying the validity of the patent. had, the case has since been argued by counsel, for and against the rule; and the opinion of this court is now to be delivered.

against the making this rule absolute. [*605 Two objections have been urged at the bar, The first is, that these proceedings, being summary, are not properly matters of record. The second, that this is not a case in which, by law, a scire facias, or process in the nature of a scire facias, can be awarded, to try the validity of the patent.

Both of these objections are founded upon the provisions of the 10th section of the patent

1. He cited Stearns v. Barrett, 1 Mason's Rep. 153; 8 Mod. 28; 1 Salk. 144.

2. He cited 1 U. S. Law Journal, 88; Ex-parte O'Reilly, 1 Ves., Jun., 112; Ex-parte Fox, 1 Ves. & Beames, 67; Jefferson's case, 2 Saund. 15.

But the more material question is, whether the proceedings, so far as the rights of the patentees are concerned, terminated with the rule being made absolute, so that, ipso facto, the patent was repealed, and the process to be issued was only process to enforce or declare the repeal; or whether the process was in the nature of a scire facias at common law, to repeal the patent, if, upon a future trial, the same should be found invalid.

act, and must be decided by a careful examina- | that rule can only be granted under special cirtion of those provisions. The words are, that, cumstances prescribed by law; it is not suffiupon oath or affirmation being made, before the cient to show that the rule itself was granted, judge of the District Court, where the patentee, but it must also appear, by the proceedings, that his executors, &c., reside, that any patent, it was rightfully granted. which shall be issued in pursuance of this act, was obtained surreptitiously, or upon false suggestion, and motion made to the said court within three years after issuing the said patent, but not afterwards, it shall and may be lawful for the judge of the said District Court, if the matter alleged shall appear to him to be sufficient, to grant a rule that the patentee, or his executor, &c., show cause why process should not issue against him, to repeal such patent; and if sufficient cause shall not be shown to the This question must be decided by the terms contrary, the rule shall be made absolute; and of the section in controversy; but in the interthereupon, the judge shall order process to be pretation of those terms, if their meaning is issued against such patentee, or his executors, somewhat equivocal, that construction ought &c., with costs of suit. And in case no suffi- certainly to be adopted which, not departing cient cause shall be shown to the contrary, or from the sense, is most congenial to our inif it shall appear that the patentee was not the stitutions, and is most convenient in the admintrue inventor or discoverer, judgment shall be istration of public justice. *The securing [*608 rendered by such court for the repeal of the to inventors of an exclusive right to their insaid patent. And if the party at whose com- ventions, was deemed of so much importance, plaint the process issued, shall have judgment as a means of promoting the progress of science 606*] given against him, he shall pay all *such and the useful arts, that the constitution has costs as the defendant shall be put to in defend-expressly delegated to Congress the power to ing the suit, to be taxed by the court, and re- secure such rights to them for a limited period. covered in due course of law." The inventor has, during this period, a propUpon the slightest inspection of this section, erty in his inventions; a property which is it will be at once perceived, that however sum- often of very great value, and of which the law mary the proceedings may be, they are of vast intended to give him the absolute enjoyment importance to the parties, and involve the whole and possession. In suits at common law, where right and interest of the patentee. The juris- the value in controversy exceeds $20.00, the diction given to the court is not general and constitution has secured to the citizens a trial by unlimited, but is confined to cases where the jury. In causes of equity and admiralty jurispatent was obtained surreptitiously, or upon diction, they have the security of a regular and false suggestions; where the patentee resides settled course of proceedings, where the rules within the district; and where the application of evidence and the principles of decision are is made within three years after the issuing of well established. And in all these cases, there the patent. It is, therefore, certainly necessary, is the farther benefit conferred by our laws, of that all these facts, which are indispensable to revising the judgments of the inferior courts, found the jurisdiction, should be stated in the by the exercise of appellate jurisdiction. motion and accompanying affidavits; and with- not lightly to be presumed, therefore, that Conout them, the court cannot be justified in award-gress, in a class of cases placed peculiarly within ing the rule. It follows, of course, that in any its patronage and protection, involving some of record that is to be made of the proceedings, the dearest and most valuable rights which sothey constitute the preliminary part, and ought ciety acknowledges, and the constitution itself not to be omitted. In the present case, they have means to favor, would institute a new and sumbeen wholly omitted, and the record is, in this mary process, which would finally adjudge upon respect, incomplete and inaccurate. those rights, without a trial by jury, without a right of appeal, and without any of those guards with which, in equity suits, it has fenced round the general administration of justice. The patent acts have given to the patentee a right to sue at common law, for damages for any violation of his invention; *and have given [*609 him a farther right to claim the interference of a court of equity, by way of injunction, to protect the enjoyment of his patent. It would be somewhat surprising if, after such anxious legislation, there should exist in the act a clause which, in a summary manner, enables any person to repeal his patent, and thus sweep away his exclusive property, without interposing any guards by way of appeal, or any regular proceedings, by which the validity of titles, in ordinary cases, is examined and contested.

But it is said that, technically speaking, these proceedings are not matters of record. They are certainly proceedings of a court of record, for such are all the courts of the United States, in virtue of their organization, both upon principles of the common law, and the express intendment of Congress. In general, the interlocutory pro ceedings in suits are not entered of record, as they are deemed merely collateral incidents. 607*] But where *a special jurisdiction is given to a court, as in the present instance, it appears to us that, in conformity to the course of decisions in this court, upon the subject of jurisdiction, all the preliminary proceedings required to be found that jurisdiction should appear of record, as they constitute an essential part of In general, motions and rules made in the course of suits, over which the court has an acknowledged jurisdiction, are not entered of record. But where a rule is the sole foundation of the suit, and the first step in its progress,

the case.

It is

With these considerations in view, let the 10th section of the act be examined. Its object is to provide some means to repeal patents which have been obtained surreptitiously, or upon

1824

EX-PARTE WOOD & BRUNDAGE.

46

it is not necessary to lay any particular stress
on this word, as a known juridical phrase, ex-
pressive of the final decision of the court; but
if the making the rule absolute repealed the
patent, and the process is merely an execution,
how could any subsequent judgment be ren-
dered in the case? It would be contrary to all
analogy, to all rules of judicial interpretation,
to suppose that judgment is to succeed, and not
to precede, the writ of execution. The clause
goes on "and if the party, at whose complaint
the process issued, shall have judgment against
him, he shall pay all such costs as the defendant
shall be put to in defending the suit, to be taxed
*by the court, and recovered in due [*612
course of law." The language is here still
more distinct and persuasive. It imports, in a
clear manner, that some proceedings were to be
had after the process issued, by which the case
might be farther investigated; and if upon such
investigation judgment should be against the
complainant, the patentee should recover his
costs. The language is, that the party, at whose
complaint the process issued, not the rule is-
sued, shall have judgment against him. Upon
what? the rule? Certainly not; but upon the
process issued. He shall pay the costs to which
the defendant is put in defending the suit.
What suit is here intended? We think it is
clear that it means the suit upon the process,
that is, upon the scire facias; for the proceed-
ings upon the rule are not, in a technical, or in
any accurate sense, a suit. The costs of defend-
ing the suit are to be paid. But how can any
costs arise from a defense upon a process which
is final and absolute? It appears to the court,
that to give the construction contended for by
the counsel against the rule, would be to reject
the plain and obvious purport of the whole of
the last clauses of the section, and make them
a perfect nullity. In the other view, they have
entire effect, and are as reasonable and just, in
themselves, as they are promotive of the security
of vested rights and property.

false suggestions; the very cases for which a scire facias issues at the common law. As the patents are not enrolled in the records of any court, but among the rolls of the Department of State, it was necessary to give some directions as to the correct time and manner of instituting proceedings to repeal them. It accordingly directs, that the district judge may, upon proper evidence, under oath, and motion made 'grant a rule to the court, in his discretion, that the patentee, &c., show cause why process should not issue against him, to repeal such patent; and if sufficient cause shall not be shown to the contrary, the rule shall be made absolute, and thereupon the judge shall order process to be issued against such patentee, &c., with costs of suit." It is obvious, from the language of this clause, that the rule is a rule not to repeal the 610*] patent, if it is made absolute, but a *rule for process to issue to repeal the patent. It is not, then, the rule, but the process contemplated It is not a by the act, that repeals the patent. mere form, but it is of the essence of the proceedings, without which the rule has no efficacy. Is the process to be issued a process which, per se, repeals the patent, or are the words "to repeal such patent," to be construed as merely descriptive of the nature of the process, and of the effect of it, if judgment shall be finally pronounced in support of it? In other words, is it a process in the nature of an execution, or a judicial process, in the nature of a scire facias, calling for further proceedings? If the words of the section had stopped at the clause already referred to, it would, perhaps, have been difficult to find a sufficient explanation of the legislative will, to have led the court to the conclusion, that judicial process, in the nature of a scire facias, was certainly intended; there would have been some reason for hesitation; but, even then, an interpretation against such process would not have been without serious embarrassments. It could not be arrived at, without leaving much of questionable reasoning behind. But the secNor does the occurrence of the words "costs It goes on to make tion does not stop here. farther provisions, which, if the process abso- of suit," in the preceding part of the section, lutely repealed the patent, could have no op- where it is said that the process shall be eration, and no intelligible meaning. On the issued, &c., with costs of suit,” in the slightest other hand, if the process was to be in the nat- degree impugn *this interpretation. [*613 ure of a scire facias, all the words are sensible The true meaning of these words in this conand operative, and describe the proper progress nection, is not the costs of suit, already and proceedings upon such a writ. The clause incurred, shall be paid and collected, but that is in these words: "And, in case no sufficient the process shall be, to show cause why the In this view it 611*] *cause shall be shown to the contrary, patent shall not be repealed, and costs of suit or if it shall appear that the patentee was not given to the complainant. the true inventor or discoverer, judgment shall fortifies the construction already asserted by be rendered by such court for the repeal of the the court. That this is the true exposition of patent." These words follow after the clause the words, is made apparent by examining the awarding the process, and, of course, suppose 5th section of the patent act of 1790, ch. 34, the process already issued. The party is sup- which is exactly similar in terms to the 10th costs of suit." These posed to be called upon to show cause, which is section of the present act, except that it omits, precisely what a scire facias requires in its offi- in this place, the words cial mandate; and if no sufficient cause is shown words, therefore, were not intended to change, to the contrary, or if it shall appear that the and cannot be admitted to change, the natural patentee was not the true inventor or discover, meaning of the other parts of the section. And then the patent is to be repealed. If the process if the other words used in this connection are is merely to repeal the patent, and not to insti- descriptive of the nature of the process, these tute a trial, how can the party show cause? words are merely explanatory of the legislative how can it judicially appear that the patentee intent, that the costs of the suit should follow is not the inventor? These provisions are intel- upon the final judgment in favor of the comligible in a scire facias, for that authorizes sub-plainant. Without this provision, as the other sequent inquiry into the law of the facts. But, clause giving costs applies to the patentee only, farther, "judgment" is to be rendered. Now, the complainant, although he should prevail in

173

1824

THE MONTE ALLEGRE, TENANT, CLAIMANT.

Vasques, Consul-General of Portugal, on behalf of the owners of the proceeds of the ship Monte Allegre and her cargo, resisting the claim of the appellant:

1. Because the court had no jurisdiction or power whatever to sustain the petition, inasmuch as it was calling on the court to award damages on a claim in the nature of an action for a deceit, or on a warranty, as an incident to a cause, in its nature wholly of admiralty and 618*] maritime cognizance, *the claim being entirely of common law jurisdiction, and could not be made an incident to that which appertains exclusively to the admiralty. And, secondly, the claim was resisted upon the merits. Proofs were taken on both sides, in the court below, and a decree, pro forma, was entered by consent, dismissing the petition with costs; on which the cause was brought by appeal to this

court.

as made with itself, and will interfere, under
equitable circumstances, to relieve the pur-
chaser, where it would not interfere in a private
contract. This is the established doctrine in
equity. The same principle applies to sales
under decrees in the Court of Admiralty,
which executes a wide equity."

4

*3. But, even admitting that the sale [*620
in this case is to be governed by the stricter
rules of the common law, it may be brought
within those rules. The proof shows, conclu-
sively, that this was a sale by sample, which is
equivalent to a warranty; and such warranty
extends as well to the soundness and merchant-
able condition of the commodity, as to its par-
ticular species. The proof, and the admission
on the record, are conclusive, to show that at
the time of the sale the tobacco was unsound
and unmerchantable; and if the sale by sample
amounts to a warranty, the purchaser was not
bound to examine the tabacco. Such an exam
ination, if made, would have been no waiver
of the warranty."

6

The marshal, however, being the agent of the court, in all sales under its decrees, is to be considered strictly as a general agent, and is therefore authorized to do all acts within the scope of his employment.

*5. The proceeds now remaining in [*621 the registry, though not the specific proceeds of the tobacco, are, notwithstanding, liable to this claim. The proceeds of the tobacco were disbursed in payment of duties and expenses, which were a joint charge of ship and cargo. The fund now in court is a common fund, on which the owners of the tobacco have a claim for their distributive charge.

Mr. Meredith, for the appellant, in answer to the objection as to defect of jurisdiction, stated, 1. That this claim was an incident to the principal 4. The marshal, being the agent of the court, case of The Monte Allegre, which had been forwas authorized to sell by sample, that being, merly determined in this court by a decree of restitution to the original Portuguese owners. The according to the proof, the usual and customgeneral rule is, that where a court has jurisdic-ary mode of sale; and this even if he be contion in the principal question, it has jurisdic-sidered as a special agent. tion, incidentally, over all interlocutory matters that are connected with, or arise out of, the original cause. It would seem to follow, therefore, that a sale, made in virtue of an interlocutory decree, by a court exercising a rightful and exclusive jurisdiction over the cause in which such decree is pronounced, must necessarily be considered as an incident. It could not be denied that the interlocutory decree itself was strictly incidental; and if so, the sale must necessarily have the same character, since it and the decree are inseparably connected. The decree and sale both depend on the jurisdiction in the principal cause, and so Mr. D. Hoffman, for the respondents, con619*] does the title acquired by the purchaser. The proceeds of the sale are in tended that the marshal possessed no power to court, and the court has an undoubted power warrant the quality of the article sold, he being to distribute them according to equitable cir- a special agent, with limited powers; and that cumstances, and, so long as they remain within if he had exceeded the scope of his authority, its control, to decide on all claims respecting he could not thereby implicate the proceeds of That the limited authority them. The answer in this case, however, the property, being the agent of the court, and places the jurisdiction on distinct ground. It not of the owners. is said, that the claim is in the nature of an ac- of the marshal, in the case of sales by order of tion for a deceit, or on a warranty, which are the court, is universally known and acknowlactions known only to the common law, and edged; that all persons, therefore, are presumed cannot, therefore, be an incident to that which to purchase on their own means of judging; appertains exclusively to the admiralty. Such, and public officers are never presumed to possess however, is not the rule. Whether the original the same extent of knowledge in regard to the cause of action be either of admiralty or com- quality of property sold by them, as the ownmon law jurisdiction, all incidental matters fol-ers thereof would be presumed to possess. low the jurisdiction of the original cause, whatever the complexion of those matters, separately considered, may be."

2. In judicial sales, the court has entire control over the contract. It considers the contract

1.-7 Wheat. Rep. 520.

2.-Smart v. Wolff, 3 T. R. 323.

3. 3 Bl. Com. 107; 2 Bro. Civ. and Adm. Law, 107: 2 Saund. 259; Cro. Eliz. 685; Doug. 594; Bee's Adm. Rep. 370.

4.-Sugd. Vend. 34, 115, 1st Am. ed.; Saville v. Saville, 1 P. Wms, 746; Morehead v. Frederick, Sugd. Vend. App. 524; Lawrence v. Cornell, 4 Johns. Ch. Rep. 542.

5.-Hibbert v. Shee, 1 Camp. 113; Klinitz v. Sur

Admitting, then, argumenti gratia, that there has, in fact, been gross fraud, or a warranty express or implied, by the marshal, or by his agent, the auctioneer, or by both, such fraud or warranty would neither implicate the prop