*106 In the "finding of facts" made by the court it is, among other things, found as follows: "That under the provisions of an act of the general assemby of the state of Missouri, approved May 11, 1867, entitled, etc., the said corporation, then known as the Kansas City & Cameron Railroad Company, on the twenty-first day of February, in the year 1870, was consolidated with the Hannibal & St. Joseph Railroad Company, and all the rights, privileges, franchises, and property of said Kansas City & Cameron Railroad Company were, by said consolidation, transferred to the Hannibal & St. Joseph Railroad Company, which then and thereby became the owner of and possessed of the same." If only a sale of the road to another company had been authorized and made, then it might very plausibly have been contended that the purchasing company took and held it under its own charter only, without the franchises and privileges connected with it in the hands of the vendor company; but "consolidation" is not sale, and when two companies are authorized to consolidate their roads, it is to be presumed that the franchises and privileges of each continue to exist in respect to the several roads so consolidated. This point was considered in the case of Tomlinson v. Branch, 15 Wall. 460, and Branch v. City of Charleston, 92 U. S. 677, and was decided in accordance with this view. This being so, the authority given to consolidate, "upon such terms as may be deemed just and proper, would include the power to transfer to the consolidated company the franchises and privileges connected with the road, if the law itself did not have that effect; and the court has found that this was done. We think, therefore, that the point is not well taken. The judgment of the circuit court is affirmed. (109 U. S. 108) CITY OF OPELIKA v. DANIEL. (October 29, 1883.) JURISDICTION, WHEN DEPENDING UPON THE AMOUNT IN CONTROVERSY-REDUCTION OF VERDICT TO AVOID JURISDICTION. The jurisdiction of the supreme court depends on the matter which is directly in dispute in the particular cause in which the judgment or decree sought to be reviewed has been rendered, and it is not permitted, in determining its sum or value, to estimate its collateral effect in a subsequent suit between the same or other parties. Elgin v. Marshall, 106 U. S. 579; S. C. 1 Sup. CT. REP. 484. The trial court having once permitted a verdict to be reduced, whereby the appellate court is deprived of jurisdiction, the errors in the record will be shut out from re-examination by the appellate court, where its jurisdiction depends upon the amount involved. Thompson v. Butler, 95 U. S. 694. In Error to the Circuit Court of the United States for the Middle District of Alabama. John T. Morgan, for plaintiff in error. S. F. Rice, for defendant in error. WAITE, C. J. The action below was brought originally upon 119 interest coupons cut from 24 bonds of the city of Opelika. The bonds were in the aggregate for $24,000, and the amount claimed to be due on the coupons was more than $5,000. At first a demurrer was filed to the complaint. This being overruled, the validity of the bonds was put in issue by various pleas. Before trial, the plaintiff, Daniel, asked and obtained leave to amend his complaint so as to include only 90 of the coupons originally sued for. After the amendment a jury was impaneled, and on the trial the 90 coupons only were put in evidence. The verdict was for $4,755.64, and a judgment was entered thereon for that amount and no more. To reverse that judgment this writ of error was brought. At a former term Daniel moved to dismiss because the value of the matter in dispute did not exceed $5,000. That motion was continued for hearing with the case on its merits. We decided at the last term in Elgin v. Marshall, 106 U. S. 579, [S. C. 1 SUP. CT. REP. 484,] that our jurisdiction depends on "the matter which is directly in dispute in the particular cause in which the judgment or decree sought to be reviewed has been rendered," and that we are not permitted, "for the purpose of determining its sum or value, to estimate its collateral effect in a subsequent suit between. the same or other parties." That, like this, was a suit on coupons, and the judgment was for less than $5,000, although the bonds from which they were cut amounted to*much more, and the validity of the bonds was one of the questions in dispute. The two cases cannot be distinguished in this particular. It was clearly within the discretion of the court to permit the amendment of the complaint before trial. In Thompson v. Butler, 95 U. S. 694, we declined to take jurisdiction where the verdict was for more than $5,000, but the plaintiff before judgment, with leave of the court, remitted the excess, and actually took judgment for $5,000 and no In that case it was said, page 696: more. "Undoubtedly, the trial court may refuse to permit a verdict to be reduced by a plaintiff on his own motion; and if the object of the reduction is to deprive the appellate court of jurisdiction in a meritorious case, it is to be presumed the trial court will not allow it to be done. If, however, the reduction is permitted, the errors in the record will be shut out from our re-examination in cases where our jurisdiction depends upon the amount in controversy." That case was stronger in favor of jurisdiction than this. There the reduction was made after verdict; here, before trial. The plaintiff, in effect, discontinued his suit as to part of the coupons. He certainly could have discontinued as to all, and it is difficult to see why he might not as to a part. The writ is dismissed for want of jurisdiction. (109 U. S. 106) HASKINS v. ST. LOUIS & S. E. RY. Co. (Consolidated) and others. (October 29, 1883.) JURISDICTION-CITATION AND SECURITY ON APPEAL. Section 1000 of the Revised Statutes requires the justice or judge signing the citation on an appeal to take the security. This power cannot be delegated to the clerk or to a commissioner. If the appeal is allowed in open court the security may be taken by the court, and no citation is necessary; but if the security is not given until after the term, a citation must be issued and served. Appeal from the Circuit Court of the United States for the Middle District of Tennesee. F. E. Williams, for appellant. No counsel for appellee. WAITE, C. J. We have no jurisdiction in this case. The appellee has not appeared and has never been served with a citation. The decree was entered on the fourteenth of June, 1879, and at the foot of the entry is the following: "Petitioner prays an appeal, which is granted upon bond and security being given, according to law, within thirty days." A copy of what purports to be an appeal bond, filed on the third of July, 1879, is found in the transcript, but there is no evidence that it was ever approved or taken as good and sufficient security by the court, or any justice or judge thereof. A commissioner of the circuit court has certified that he knew the obligors to be good and responsible for any cost that might accrue in the cause, but that is not enough. Section 1000 of the Revised Statutes requires the justice or judge signing the citation to take the security. This power cannot be delegated to the clerk or to a commissioner. O'Reilly v. Edrington, 96 U. S. 726. If the appeal is allowed in open court the security may be taken by the court and no citation is necessary; but if the security is not given until after the term is over, a citation must be issued and served. Sage v. Railroad Co. 96 U. S. 715. Unless an appellee voluntarily appears, we cannot proceed against him if the record does not show affirmatively that he has been brought within our jurisdiction by proper notice. The appeal is dismissed for want of jurisdiction. (109 U. S. 90) LAVER V. DENNETT and others. (October 29, 1883.) CONTRACT-GRANTING LICENSE TO SELL PATENT-MISTAKE IN THE INSTRUMENT- Where the intention of the parties to a written agreement is clearly understood by each, and by them acted upon from the time the instrument is executed, a discovery afterwards that the words of the instrument do not give the legal effect intended is not enough to invalidate the contract. Such a mistake, where the intention is clearly understood, is a mistake in the instrument undertaking to express the agreement, and not in the agreement itself. That such an instrument as the one above described imperfectly expressed the agreement of the parties, cannot justly be considered the exclusive fault of either party, since it was as much the duty of the one as of the other to have discovered the error before executing the contract; and if the party whose interest it is to have the mistake corrected does not accept the offer of the other party to correct it, he will be allowed no other equity in the premises unless he prove some default on the part of the other party. Appeal from the Circuit Court of the United States for the District of California. John F. Swift, for appellant. R. E. Houghton and Frank W. Hackett, for appellees. MATTHEWS, J. This appeal is from a decree dismissing the complainant's bill, and the record discloses the following as the facts material to the determination of the controversy: The appellees, in 1870, being British subjects, were owners of letters patent of the United States bearing date January 4, 1870, granted to one Dennett, for the term of 17 years from August 13, 1863, for an improvement in the construction of concrete arches for building. On November 2, 1870, they entered into a written contract with the appellant, an architect, then residing in Albany, New York, but at the time of filing this bill a citizen of California. By this contract the appellees granted to the appellant, his executors, administrators, and assigns, during the residue of the unexpired term of the letters patent, "full and free liberty, license, and authority to make, use, and sell, or vend to others to be sold," the said invention within the divisions of the United States, as thereinafter specified, or one or more of them, in the manner and according to the provisions and agreements thereinafter contained, and upon the payment of the sums of money as therein provided, and not otherwise. For the purposes of the license the territory of the United States was divided into four districts, named, A, B, C, and D, respectively, and a royalty of 10 shillings sterling per square of 100 square feet was to be paid for all work actually done under the patent, and which, from certain specified dates, it was agreed should amount to an annual minimum sum of £500, and not to be payable in excess of an annual maximum sum of £1,000 in each of such divisions. It was also stipulated that the appellant might surrender the license at any time upon giving six months' notice, and that the appellees might revoke it upon any default of the appellant after 30 days' notice. It appears that this contract was entered into after many conversations between the parties, and after a draft agreement had been prepared, and submitted to the appellant for examination. Upon his suggestion it was amended and finally executed. Various unsuccessful efforts appear to have been made by the appellant while at Albany, and after his removal to San Francisco, and also by one Fuller, who acted as his agent at Albany, to introduce the patent; and some correspondence took place between the parties in regard to its progress and prospects. This correspondence, as well as the negotiations which led to the execution of the contract, was conducted on the part of the appellees by Frederick Ingle; and it was to him that the following letter was addressed by the appellant: "SAN FRANCISCO, April 26, 1873. "Frederick Ingle, Esq., 5 Whitehall, London, England: "DEAR SIR: It now turns out, just as Mr. Fuller and myself are about to close negotiations for the sale of your patent-right, that I have no power to sell. Will you, therefore, send me the proper papers from your firm, stating that you will not grant licenses to any one else in the United States? I inclose you an eminent legal opinion thereon. Mr. Fuller had arranged for the sale of Massachusetts, which includes Boston; but we wait for your proper authority, which must be exclusive, or no value can be attached to the license I hold. Of course I am aware of the understanding which I have stated your firm would not go back on, but then the parties purchasing hold that it is not exclusive. In like manner I am unable to close with parties here for section D. I have had so much trouble with this matter, and now that it appeared to be in a good way to be productive of profit, this annoyance arose. You can, however, remedy it in the way prescribed. 66 Yours, very truly, AUGUSTUS LAVER. "P. S. Send the papers to Mr. Fuller, at Albany, and then he will send me duplicates. A. L." This letter seems to have been received by Ingle, and in reply he sent by cable the following: "Fuller, Architect, Albany, New York: "MAY 6, 1873. "Dennett will alter agreement, giving Laver exclusive right. "ROBERT DENNETT & Co." Fuller had evidently written a letter to Ingle, to the same effect, about the same time, for, although it is not contained in the record, Ingle's reply to it, written the day he sent the cable message, was produced and read in evidence. In this letter, dated May 5, 1873, he says, referring to the objection to the terms of the license, that "there is no objection on our part to alter it in any way to suit the requirements of the case.' He adds: "You will bear in mind that this lease was granted to Mr. Laver to pay as an annual royalty. If it had been proposed then to purchase out and out, I dare say the terms to the exclusive right would have been more precise; at any rate, our intention was for Mr. Laver to have the exclusive right, (in all our negotia'tions,) and when the document was signed we looked upon it as so settled, unless he elected to throw it up before certain dates for the respective sections as specified in the agreement. He had the document to examine before signing it, and could have made the objection then. At any rate you will, I think, give us credit for having faithfully carried out both the letter and spirit of the agreement. We have had many applications from parties for permission to work the patent in the United States since October, 1870, the date of our agreement, but have had to reply in each case that our arrangements as to licensing were made. I shall write to our solicitor, Mr. Van Santvoord & Hauff, of Times Building, Park Row, New York, and instruct him to get whatever you require with regard to the specification. I don't know in what respect it is incomplete. The agreement can be altered to give any parties who propose to purchase the most absolute rights, on payment of the * * * |