Jackson Rundlet.

and pay it in the business of said association; yet he hath not so used it, nor accounted for it, nor paid the same to or

for the association.

Though inartificial in some degree, this breach is much like those assigned in Shum v. Farrington, and Cornwallis v. Savery. And though no question was raised as to duplicity, in the first case, it was in the last, and it was held to be single (not needing to be cured by the statute of William III).

Here the duty was to use the money in behalf of the association; there, to account for it. Here, then, the breach is, that he did not so use the money, and the other allegations which follow are merely connected with that averment, to make this single breach complete and full by adding, not new breaches and independent ones, but facts showing him liable for not so using the money, because he had not, instead of that, paid it over or in any way accounted for it. But these last allegations do not seem meant, nor are they fairly to be construed, as separate and independent breaches. They are rather component parts or elements, tending to show the first breach existing unatoned for, and not in any way satisfied or commuted.

Strange as it may seem, also, it is not averred that any duty to pay over the balance existed, and hence of necessity on that account, also, an averment of not paying them over cannot be considered as an averment, of a second distinct breach of what there is not stated to have been any duty to be broken or fulfilled.

For reasons like these the replication is adjudged good.

NOTE. On announcing this opinion as formed, the case was disposed of on the docket by agreement.

CIRCUIT COURT OF THE UNITED STATES

FOR THE FIRST CIRCUIT.

Fall Circuit.

MASSACHUSETTS, OCTOBER TERM, 1846, AT BOSTON.

BEFORE

Hon. LEVI WOODBURY, Associate Justice of the Supreme Court.

{Hon. PELEG SPRAGUE, District Judge.

WM. W. WOODWORTH IN EQUITY vs. ISAAC HALl and another,

AND

WOODWORTH vs. STONE.

Where evidence is offered to prove, that the "acting commissioner," who signs a patent, was not appointed by the President, it is questionable whether it be competent to admit it in controversies, where he is not a party.

Under the patent law of 1836, the chief clerk is held to be the "acting commissioner," as well in the necessary absence of the head of the office, as in case of a vacancy de jure.

The sanction of the Secretary of State, to a correction of a clerical mistake in letters patent, may be given in writing afterwards; and he need not re-sign the letters themselves.

If the correction be of only a clerical mistake, it operates back to the original date of them, unless perhaps as to third persons, who have acquired intervening rights to be affected by the alteration.

If a new patent, issued on a surrender of old ones, he void for any cause connected with the acts of public officers, it is questionable whether the original patents must not be considered in force till their terms expire.

An injunction once granted will not be dissolved on account of any doubts, as to the validity of a new patent in such cases, caused by the errors of such officers, if measures are pending in Congress to remove them by legislation.

Woodworth v. Hall.

In these cases, injunctions were granted at May term, 1845, and at May term, 1846, a motion was made, in the firstnamed case, to dissolve the injunction. An opinion was given at the same term, stating the facts, and retaining the injunction as to one of the defendants, but dissolving it as to the other, for reasons applicable to the merits. Ante, p. 248.

Among the objections which were then urged against the validity of the patent, on which the claim of the plaintiff was founded, were these: Because it was signed by H. Sylvester, as acting commissioner, rather than by Edmund Burke, Esq., the commissioner; and because the patent had been altered at the patent-office since it originally issued.

For further particulars in relation to these objections, and the detailed facts on which they rested, reference can be had to the opinion and case, as drawn up.

At an adjourned session of the same term, held at Boston, in September, 1846, the motion to dissolve the injunction was renewed as to the first case, and a like motion made as to the second case, both of which are now to be disposed of. They were founded on the same grounds, accompanied by new evidence, offered under the first objection, to show that Mr. Sylvester, at the time of signing this patent, was not acting under any appointment made by the President, by virtue of the 8th section of the act of Congress, passed May 8th, 1792, ch. 37; but, being then chief clerk in the patent-office, claimed to be authorized to sign it in the necessary absence of the commissioner, under the power conferred by the 2d section of the act of 4th of July, 1836, ch. 357, (5 Stat. at Large, 117) reorganizing the patent-office.

In respect to the second objection- the alteration of the patent—it was further proved that a mistake, as to the time it was intended to run when renewed, occurred in the patent itself, as well as the record and copy of it; the proof, at the

Woodworth v. Hall.

first hearing, extending only to the copy. Thus it was issued for fourteen years, but was meant to be for twenty-eight, and was afterwards altered to twenty-eight. In answer to this, it was now shown that the Secretary of State subsequently expressed in writing his assent and sanction to the correction of the mistake, though he was not consulted at the time it took place.

The present motion was argued by Giles, in support of it; and by B. R. Curtis, against it.

WOODBURY, J. It is not necessary to go into many of the facts and principles considered in the former motion on this subject, and then disposed of; but the new and material facts since obtained are to be examined, so far as they may weigh upon the objections, and affect the principles before settled.

The first inquiry now is, whether the chief clerk in the patent-office, not having been in fact specially appointed to be acting commissioner by the President, in the absence of the commissioner himself, could legally sign this patent, under the general provision in the 2d section of the patent law of 1836, ch. 357. The words of that section, bearing on this question, are: "The chief clerk, in all cases, during the necessary absence of the commissioner, or when the said principal office shall become vacant, shall have the charge and custody of the seal, and of the records, books, papers, machines, models, and all other things belonging to the said office, and shall perform the duties of commissioner during such vacancy."

It is contended by the defendant that this clause empowers the chief clerk to act as Commissioner only when his office is entirely, or de jure, vacant; and not when he is merely absent from sickness, or other necessary cause, constituting a de facto vacancy, only, or a want of the commissioner present to discharge the duties, arising from some such cause. It is certain that the words here used, looking no

Woodworth v. Hall.

farther, appear to countenance the more narrow and limited view of the word "vacancy;" but if we look to the object of the clause, to other sections of this and the succeeding patent act, to the contemporaneous construction placed upon it, to the long acquiescence under that construction, and the great public as well as private interests which have grown up in conformity to it within the last ten years, a broader meaning to the term seems fortified by the whole spirit of the act, and by the analogies of the case.

It is proved as a fact, that the chief clerk, since July, 1836, has been accustomed to perform, under this section, all the duties of commissioner during his necessary absence, and without any new special authority being obtained from the President, under the law of 1792. It has been uniform in the office to consider the word "vacancy" here as meant to cover an actual, or de facto vacancy, by a necessary absence from the city; and the act has been construed so as to include as a vacancy, for this purpose and object, the inability of the commissioner at the seat of government to discharge his official duties, arising from any necessary cause, as well as a vacancy arising from his death or resignation.

It is conceded, also, that many patents during that period have been signed, and many records certified, by the chief clerk, as acting commissioner, under the 2d section of the patent law, and which must become invalid if this one be so pronounced, for that cause.

It is further apparent, from the 4th section of the same law, that, unless this broad construction be correct, the chief clerk is not empowered to certify copies of the original records and papers, in the necessary absence of the commissioner, however urgent may be the necessity for them, in the protection of public or private rights. But, by a subsequent act, passed March 3d, 1837, ch. 45, section 2, (5 Stat. at Large, 191) the chief clerk is expressly empowered, in the absence of the commissioner, to give copies of former records supplied