JURISDICTION, (Continued.)
32. A plea to the jurisdiction comes too late after a mandate has gone down
from this court to the court below. Whyte v. Gibbes, 541.
33. Where there was a demurrer to some parts of a replication, and a motion to
strike out other parts, still leaving in the replication some essential allega-
tions, a judgment upon the demurrer and motion to strike out was not
such a final judgment as can be reviewed by this court. Holcombe v.
McKusick, 552.
34. An order of the Circuit Court to quash an execution, is not such a judg-
ment as can be reviewed in this court by a writ of error. McCargo v.
Chapman, 555.
35. The jurisdiction of the courts of the United States as courts of equity is
ample to enforce the performance of trusts under both the Constitution
and laws. Irvine v. Marshall, 558.
36. The United States can declare by Congress what the law shall be with
respect to the public lands, and enforce that law through the judiciary
department. Ibid.
37. Although the officers of the land department may in practice, and as a rule
of convenience, have received the certificate of purchase as evidence of
title, yet neither that practice nor the certificate itself can control the
power either of the United States or of this court, to adjudge or to con-
firm the title to the land to the true owner. Ibid.
1. Where a sheriff was sued for taking goods under an attachment, which
goods had been previously assigned under eircumstances which were al-
leged to be fraudulent, it was proper for the court to charge the jury,
"that if they believed, from the evidence, that the sale was made for the
purpose of hindering, delaying, or defrauding creditors, it was invalid as
against the defendant; and that whether the sale was or was not fraudu-
lent was a question of fact, to be determined by the jury under all the
circumstances of the case; that if the sale were secret, and no means
taken to apprise the public of it, these were facts which threw suspicion
upon the transaction, but did not make the sale fraudulent in law as
against the defendant. Warner v. Norton, 448.
LANDS-PUBLIC, IN CALIFORNIA.
See CALIFORNIA.
LANDS-PUBLIC.
1. Where several parties set up conflicting claims to property, with which a
special tribunal may deal, as between one party and the Government,
regardless of the rights of others, the latter may come into the ordinary
courts of justice, and litigate the conflicting claims. Garland v. Wynn, 6.
2. Therefore, in a case where the register and receiver of public lands have
been imposed upon by ex parte affidavits, and the patent has been ob-
tained by one having no interest secured to him in virtue of the pre-emp-
tion laws, to the destruction of another's right who had a preference
of entry which he preferred and exerted in due form, but which right
was defeated by false swearing and fraudulent contrivance brought about
by him to whom the patent was awarded-in such a case, the jurisdiction
of the courts of justice is not ousted by the regulations of the Commis-
sioner of the General Land Office. Ibid.
3. The decision of this court in the case of Brown v. Clements (3 How., 650)
reviewed and controlled. Gazzam v. Phillips's Lessee, 372.
4. The quantity of land granted to a patentee in pursuance of a pre-emption
right under the act of 29th May, 1830, must, in an action at law, be
ascertained from the description in the patent, and cannot be controlled
by any supposed original equity to the whole of a quarter section to
which a claim might have been made before the register and receiver. Ibid.
5. Some latitude of discretion is allowed to the surveyor general under the act
of 24th April, 1820, and the instructions of the land office, in the subdi-
vision of fractional sections containing more than one hundred and sixty
acres; and he is not obliged, absolutely, and under all circumstances, to
lay off a full quarter or half quarter section, though the fraction is capa
ble of such a subdivision. Ibid.
LANDS-PUBLIC, (Continued.)
6. In May, 1830, Congress passed an act (4 Stat. at L., 420) which gave the right
of pre-emption to settlers on the public lands, but made null and void all ·
assignments and transfers of the right of pre-emption prior to the issu-
ance of patents. This act was to remain in force for one year. Marks v.
Dickson, 501.
7. In January, 1832, another act was passed, (4 Stat. at L., 496,) supple-
mentary to the former, allowing certificates of purchase to be transferred,
and patents to be issued in the name of the assignee. Ibid.
8. In June, 1834, another act was passed, (4 Stat. at L., 678,) reviving the
act of 1830. Ibid.
9. The true construction of this act of 1834 is, not that it restored the pro-
hibitory clause of 1830, but that it revived the supplement, together
with the original act; and that, consequently, an assignment was good
and legal before a patent was issued. Ibid.
10. But it was necessary to enter the land at the land office, before the right of
assignment accrued; and, therefore, assignments made before such entry
were assignments of floats, and void. Ibid.
11. A power, however, although executed before the location, was sufficient to
justify an assignment made after the location, there being a tacit affirm-
ance of the power, when it might have been set aside. Ibid.
12. At a sale of public lands in a Territory, an agent who purchased for another
must account, as trustec, to his employer, although the statutes of the
Territory have abolished all resulting trusts. Irvine v. Marshall, 558.
13. The United States, being the owner of the public lands within the States
and Territories, have the right to say to whom, in what mode, and by
what title, they shall be conveyed. Ibid.
14. It promotes the public sales, that agents should be allowed to attend and
purchase, under the usual responsibility of agents or trustees. Ibid.
15..The control, enjoyment, and disposal, by the United States, of their own
property, is independent of the locality of such property, whether it be
situated in a State or Territory; nor are the contracts of the Government
with respect to subjects within its constitutional competency, local, or
confined in their effects and operation strictly to the sites of the subjects
to which they relate. Ibid.
16. Although a certificate may be the subject of bargain and sale, yet the United
States can take care that the conveyance shall be made to him who is
in good faith their vendec. Ibid.
17. The jurisdiction of the courts of the United States as courts of equity is
ample to enforce the performance of trusts under both the Constitution
and laws. Ibid.
18. The United States can declare by Congress what the law shall be with re-
spect to the public lands, and enforce that law through the judiciary de-
partment. Ibid.
19. Although the officers of the land department may in practice, and as a rule
of convenience, have received the certificate of purchase as evidence of
title, yet neither that practice nor the certificate itself can control tho
power either of the United States or of this court, to adjudge or to con-
firm the title to the land to the true owner. Ibid.
1. By the laws of the Republic of Texas, no action would lie on a foreign
judgment, and all actions of debt were prescribed in four years. Bacon
V. Howard, 22.
2. When about to form a Constitution, for the purpose of becoming a State
of the Union, the Legislature passed a law permitting suits to be brought
on foreign judgments, but limiting them to sixty days when the judgment
was of four years standing and upward. Ibid.
3. The plaintiffs' bill attempted to avoid the effect of the last limitation as to
their judgment, which was more than four years old, on the ground
that they lived more than two thousand miles distant, and could not
know of the passage of the last act within time to prosecute their action.
1bid.
4. Held, that the last-mentioned statute conferred a favor, and was not retro-
LIMITATION-STATUTES OF, (Continued.)
spective; and that plaintiffs' action was barred, whether he knew of the
act or not. Ibid.
5. The Constitution of the United States does not restrain the right of each
State to legislate as to the remedy on suits on judgments in other States.
Ibid.
6. In an action of ejectment, where the defendant pleads the statute of limita-
tions, he must connect his own possession with the adverse possession
and title of another person which is set up as a defence. Otherwise, the
plea is not good. Doswell v. De La Lanza, 29.
7. By the laws of Virginia, where an absent defendant is sued, and a garnishee
is found within the State having funds of the absent debtor in his hands,
the court may either suffer the fund to remain in the hands of the gar-
nishee, or be paid over to the attaching creditor, security being given in
either case to refund the money upon a final decree. Mattingly v. Boyd, 128.
8. Whilst the suit is pending, therefore, the money must be considered as in
the custody of the court, and not liable to be sued for by the absent
debtor against his garnishee. Ibid.
9. Consequently, the statute of limitations does not run whilst the suit is pend-
ing; and if an action is brought against the executor of the garnishee
after the termination of the principal suit in sufficient time to clear the
statute, a recovery must be had. Ibid.
1. A rule laid upon the district judge of the State of Texas, to show cause
why a mandamus should not be issued for him to allow an appeal in
a certain case; but upon an examination of the case, the mandamus
refused. Mussina v. Cavazos, 280.
2. Where there was an order of the Circuit Court to set aside a judgment upon
payment by the defendant of the costs which had accrued up to that
time, the plaintiff's counsel, by not insisting upon the payment of such
costs, thereby impliedly waived the condition upon which the judgment
was to be vacated, and cannot proceed upon the judgment as being still
in force. Ransom v. New York, 581.
3. Other circumstances lead to the opinion that it was the understanding of
both sides that the judgment should be vacated. Ibid.
4. This court therefore overrule a motion for a mandamus directing the court
below to set aside the order vacating the judgment, or for a rule to show
cause why a mandamus should not issue. Ibid.
1. Creditors of the vendor, who recovered judgments and sold the property,
pending a suit for a specific performance, in which the purchase-money
had been paid into court, are not necessary parties to the suit, nor are
the purchasers at the sheriff's sale under such judgments. Secombe v.
Steele, 34.
PARTNERSHIP.
See COMMERCIAL LAW.
PATENT RIGHTS.
1. Where a bill is filed to enforce the specific execution of a contract in rela-
tion to the use of a patent right, this court has no appellate jurisdiction,
unless the matter in controversy exceeds two thousand dollars. Brown v.
Shannon, 55.
2. The jurisdiction, where the bill is founded upon a contract, differs materially
from the jurisdiction on a bill to prevent the infringement of the mo-
nopoly of the patentee, or of those claiming under him by legal assign-
ments, and to protect them in their rights to the exclusive use. I bid.
3. The penalty of the bond taken, when an injunction is awarded, is no evidence
of the amount or value in dispute. Ibid.
4. In suits for the infringement of a patent right, the rule of damages is the
amount which the infringer actually realized in profits, not what he
might have made by reasonable diligence. Dean v. Mason, 198.
5. After a bill is taken pro confesso in the Circuit Court, a motion to allow an
answer to be filed is addressed to the discretion of the court; and from
a refusal so to do, an appeal does not lie to this court. Ibid.
PATENT RIGHTS, (Continued.)
6. A motion to dismiss the complainant's bill, upon the ground that he had
parted with his interest, was properly overruled, because such assignment
was not made until after the time when the computation of profits ended.
1 bid.
7. By the judiciary act of 1789, no civil suit shall be brought against an in-
habitant of the United States by an original process in any other district
than that whereof he is an inhabitant, or in which he shall be found at
the time of serving the writ. Chaffee v. Day, 208.
8. This provision of law is not changed by any subsequent process act, or by
the law giving jurisdiction to Circuit Courts in patent cases, without
regard to citizenship. Ibid.
9. Therefore, where a suit was commenced for an infringement of a patent
right, and process was served by attaching the property of an absent
defendant, this was not sufficient to give the court jurisdiction. Ibid.
10. The Union India Rubber Company have a right to manufacture articles of
India Rubber. Day v. Union India Rubber Company, 216.
11. Foote's patent declared good, for the combination of machinery used in "the
application of the expansive and contracting power of a metallic rod by
different degrees of heat, to open and close a damper which governs the
admission of air into a stove, in which such rod shall be acted upon
directly by the heat of the stove or the fire which it contains." Silsby v.
Foote, 378.
12. The award by the Circuit Court of damages for an infringement of the
patent affirmed, by an equal division of this court; but the allowance of
interest overruled. Ibid.
13. Where a patentee claims more than he is entitled to, his patent may still be
good for what is really his own, provided he enters a disclaimer for the
surplus without any unreasonable delay. In this case, the patentee was
allowed to recover damages for an infringement, but not to recover costs,
agreeably to the provisions of the act of Congress of the 3d March, 1837.
Ibid.
14. The reaping machines made by Manny do not infringe McCormick's patent,
either as to the divider, the manner in which the reel is supported, or the
combination of the reel with a seat for the raker. McCormick v. Talcott, 402.
15. McCormick not being the original inventor of the machine called a divider,
but the patentee of only an improvement for a combination of mechanical
devices, could not hold as an infringer one who used only a part of the
combination. Ibid.
16. The manner of supporting the reel in Manny's machine is not like that in
McCormick's, and was used before McCormick's first patent. lbid.
17. With respect to the raker's seat, McCormick's patent was for a combination
of the reel with a seat arranged and located according to his description.
But Manny's arrangement differs from McCormick's in principle as well
as in form and combination, and is therefore no infringement of McCor-
mick's patent. Ibid.
1. By the laws of Pennsylvania before the Revolution, a pre-emption right to
islands in the Susquehanna river could not be obtained by settlement.
Fisher v. Haldeman, 186.
2. The courts of that State have so decided, and this court adopts their decision.
Ibid.
1. In an action against the owners of a ferry boat, for personal injuries sus-
tained by the negligence of its officers, it was held that the plaintiff might
show that he was engaged in a particular business, and had been inca-
pacitated from attending to it, as exhibiting the extent of the injury, and
that it had occasioned expense, suffering, and loss of time which had
value to him, although the nature of his occupation was not set forth in
the declaration. Wade v. Leroy, 34.
2. A demurrer only admits facts which are well pleaded. Commercial Bank of
Manchester v. Buckner, 108.
3. Where the statute of limitations imposes a bar upon certain specics of con-
PLEAS AND PLEADINGS,, (Continued.)
tracts after three years, and upon others after two years, and the ples did
not show that the contract in question was of the latter class, the plea
was bad. Lyon v. Bertram, 150.
4. The laws of California require that actions shall be prosecuted in the name
of the real party in interest, and that all parties having an interest in the
subject of the action may be joined. So that this statute is complied
with, it is not a fatal objection that the respective interests of parties
jointly concerned are not accurately set forth. Ibid.
5. Where a bill in chancery was filed for the purpose of enjoining a judgment
at law, obtained upon a promissory note, and the bill did not allege that
adequate relief could not be had at law, and did not contain any charges
of fraud; neither did it aver that it was owing to the contrivance or un-
fairness of the defendant that an adequate remedy could not be had at
law, nor did it show the necessity of interference by a court of equity to
obtain a discovery, the bill must be dismissed. Hungerford v. Sigerson, 156.
6. In New Mexico, the laws of the provisional Government authorized an attach-
ment against the property of a debtor, in cases in which a party claiming to
be a creditor, upon a petition and affidavit, charged that his debtor had
fraudulently disposed of his property, so as to hinder, delay, or defraud, his
creditors. By the same law, an issue was directed to be tried upon the
petition and affidavit of the plaintiff; upon which issue, if the finding
sustained the petition and affidavit, the plaintiff was authorized to proceed
to the proof of his debt; if the finding was against the charge in the peti-
tion, the attachment was to be dismissed. These proceedings with refer-
ence to the attachment are in their nature proceedings in abatement, and
are not final as to the rights of the parties, and therefore cannot be
reviewed upon writ of error in this court. Leitensdorfer v. Webb, 176.
7. An averment, in pleading, that the Covington Drawbridge Company were
citizens of Indiana, was sufficient to give jurisdiction to the Circuit Court
of the United States, because the company was incorporated by a public
statute of the State which the court was bound judicially to notice.
Covington Drawbridge Company v. Shepherd, 227.
8. The former decisions of this court upon this subject examined. Ibid.
9. A plea to the jurisdiction comes too late after a mandate has gone down
from this court to the court below. Whyte v. Gibbes, 541.
10. Where there was a demurrer to some parts of a replication, and a motion to
strike out other parts, still leaving in the replication some essential allega-
tions, a judgment upon the demurrer and motion to strike out was not
such a final judgment as can be reviewed by this court. Holcombe v.
McKusick, 552.
1. A refusal of the court below to grant a new trial is not a proper subject
for a bill of exception. Doswell v. De La Lanza, 29.
2. Exceptions to the master's report respecting rents and profits not having
been taken in the court below, they cannot be sustained in this court.
Hudgins v. Kemp, 45.
3. The penalty of the bond taken, where an injunction is awarded, is no evi-
dence of the amount or value in dispute. Brown v. Shannon, 55.
4. Where this court affirmed a decree of a Circuit Court, which was, that a
conveyance of property should be executed upon the payment of a sum
of money; and the Circuit Court proceeded to carry out its decree by
issuing an attachment against the party who refused to execute such
conveyance, an appeal will not lie to this court from the order directing
the attachment. McMicken v. Perrin, 133.
5. The appeal must be dismissed, with costs, on motion. Ibid.
6. A writ of error will not lie from the refusal of the court below to continue a
case. Thompson v. Selden, 194.
7. After a notice to produce books and papers, there must be a motion for an
order to produce them.
8. After a bill is taken pro-confesso in the Circuit Court, a motion to allow an
answer to be filed is addressed to the discretion of the court; and from
a refusal so to do, an appeal does not lie to this court. Dean v. Mason, 198.
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