Volume 61 — United States Reports

This ease was - brought up, by writ of error, from the Circuit Court of the United States for the district of Illinois. It was the same case which was before the court at the preceding term, as noticed in 19 Howard, 8. The case is stated in the opinion of the court.

<p>In the present case, the complainant and appellant did not derive his title to the land in dispute from any statute of the United States; and therefore this court has no jurisdiction over the matter by virtue of the 25th section of the judiciary act.</p>

This case was brought up from the Supreme Court of Arkansas, by writ of error issued under the 25th section of the judiciary act. The controversy referred to the northeast quarter of section 18, in township 16 south, range 25 west of the fifth principal' meridian, south of Red river, in the county of Lafayette. The facts of the case are stated in the of the court.

Held: in and for the district of Texas. .... This suit was brought in the court below by Catherine Mcr Masters, to recoyer the possession of a tract of land in the *18 county of Goliad, in the forks of the San Antonio river and the Cabaza creek, containing four leagues of land. Four of the defendants put in a plea of not guilty.

Held: that the last-mentioned statute conferred a favor, and was not retrospective; and that plaintiffs’ action was harred, whether he knew of the act or not. 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. This case was an appeal from the District Court of the United States for the district of Texas.

This case was brought up from.the Supreme Court of the State of Pennsylvania, by a writ of error issued under the 25th section-of the judiciary act. ..As -the decision of the- court was, that the record did not show any ground of jurisdiction under the 25th section; of the judiciary act, it will be proper to state what that record was. The acts of 1833 and 1851 are recited in the opinion of the Court,-, and need not be repeated..

Held: in Linn v. Scott, 3 Texas Rep., 6 , that a survey made by a surveyor of any other county than that in which the land lies, is a nullity.

This case-came up from the Circuit Court of the United States for the southern district.of New York, on a certificate of division in opinion between the judges thereof. The case is stated in the opinion of the court. The following notice of the points made by the counsel for the plaintiff is taken from the brief of Mr. Gillet: POINTS.

This was an appeal from a decree of the Circuit Court of the United States for the eastern district of Virginia. The bill was originally filed in the' Circuit Court by Edmund Christian, general assignee in bankruptcy in said district, on the 19th of lay, 1845; and upon his death,Wyndham Kemp was appointed assignee, on the 12fh of May, 1852, by the District Court. After that, Kemp prosecuted the suit.

<p>In this case, as in the preceding, no exceptions haying been taken in tile court below to a master’s report respecting rents and profits, the questions cannot be decided by this court.</p>

This was an appeal from the Circuit Court of the United States for the district of Maryland. The case, is stated in the opinion of the court.

This was an appeal from the District Court of the United States for the northern district of California, which affirmed a decree of the land commissioners in favor of a grant of land to Cambuston. The facts are stated in the opinion of the court. Mr. Black made the following points: 1. Assuming the paper on which the claim is based to be genuine, it is, nevertheless, void and worthless, for w„ant of. a petition and inquiry. 2.

Dynes v. Hoover, 61 U.S. (20 How.) 65 (1858), was a United States Supreme Court case in which the court held that Congress's power to establish military tribunals under Article I is completely separate from its power to create Article III courts. As a result, a judgment of a military tribunal cannot be collaterally attacked with an appeal to Article III courts, and the scope of a defendant's rights is determined entirely by statutory interpretation or the customs of the military.

<p>This case was brought up from the High Court of Errors and Appeals of the State of Mississippi, by a writ'of error issued under the 25th section of the judiciary act.</p> <p>The ease is stated in the opinion of the court.</p> <p>The points made on behalf of the plaintiff in error are taken from the brief of Mr. Yerger:</p> <p>I. There is no doubt of the jurisdiction of the court of equity upon the ease stated by the bill. (4 Cush. Bep., 86; 3 Wend. Bep., 636; 2 John. Ch. Bep., 165; 6 Paige's Hep., 262.) > '</p> <p>II. Apart from any public or private nuisance, the bill alleges special injury to the complainant, which is within the principle of the/ above-cited decisions, and others hereinafter cited.</p> <p>III. We contend that the act of 1850 is unconstitutional. First, because it provides no compensation to the complainant; and, secondly, that it is void, because prohibited by the ordinance of Congress.</p> <p>1. As to its unconstitutionality. The land of complainant is on the waters of Old river and the Narrow's. The water runs through it. This is not a navigable stream, according to common-law meaning of the term. But a grant of land on or bounded' by such a stream as this, passes the right to the land to the middle of the stream. The use of the water also, as an incident, passes by a grant,'and is' as sacred a right .as the land itself. (Sée Morgan v. Reading, 3 Smedes and Mar. ;■ 2 John. Ch. Rep., 165.)</p> <p>Where'a grant of land is on a stream above the ebb and flow of the tide, the land passes, and the w'ater also, subject only to the right of the public to navigate it. The use of the water is a part of the freehold. (Angel on Water-courses, pp. 1 — 11, 12, 13 — 29; Co. Litt., 4; .2 Brown Com., 142; Bullen v. Raynells, 2 N. Ham., 255.) > . .</p> <p>In all cases, above the ebb and flow of the tide, a right of property in the water passes with a grant of the land, and it cannot be divested or taken away, without compensation, as the above authorities show.</p> <p>The case from Harrington’s Rep., and from 2 Peters Rep., were cases of navigable waters according to common law, as the cases show, in which case there can be no individual right to the water.</p> <p>In the case in 8 Cowen, 146, the only injury to plaintiff was the temporary erection of bridges to build the pier, and that it was like materials used in building, it might be a temporary inconvenience to a neighbor, &c. (See pages 150 and 151.)</p> <p>It may be said that the principle of the common law, as to str'eams where the tide ebbs and flows, applies to the waters of the Mississippi and the streams which flow into it.</p> <p>. But this was the great point, argued most laboriously, and ■ decided by the High Court of Mississippi, in the case of Morgan v. Reading, 3 Sm. and Mar., 366, and numerous other authorities are against it. (See also Q-ardner v. Village of Newberry, 2 John. Ch. Rep., 165; Belknap v. Belknap, 2 John. Ch., 463; 3 Paige Rep., 577; 1 Dev. Rep., 121; 6 Paige Rep., 262; 4 Mason, 379.)</p> <p>IV. But the ordinance of Congress also prevents the Legislature from obstructing the navigation of the Mississippi and its waters. It may improve them, but it cannot obstruct, by damming up the water, or diverting it from its natural course, so as to entirely deprive its navigation. (Hutchinson’s Code, 55, 57, 59.)</p> <p>The case in 1 McLean’s Rep. is directly in point. It decides that a private injury must be alleged; that the mere fact of a right to navigate, without using or intending to use the right, •and without private injury alleged, would not do. But when the navigation was obstructed, and a private injury was alleged, equity would interfere. (See pages 343, 344, 346, 350, 351, 352, 353.) .</p> <p>Act of 1819, p. 106, declares Homochitto navigable, and the bill alleges that from time immemorial the grantors of plaintiff and himself used the water to supply this place, and to transport cotton and supplies to and from his place.</p> <p>Mr. Carlisle, after commenting upon the points presented by the counsel for the plaintiff in error, presented the following view of the case:</p> <p>The jurisdiction of this court is assumed upon the allegation, which the plaintiff in error is to maintain, that the statute of Mississippi is unconstitutional; because it purports to authorize the taking, of priyate property for public use, without just compensation ; and. because it is repugnant to the 4th section of the act of 1st March, 1817, (3 Stat., 349.)</p> <p>But the bill does not show any case or taking private property for ^public use. The complaint is of an apprehended consequential injury, resulting from diverting the waters of the Homochitto. No land of the complainant lies on that river. It-is a navigable river, lying wholly within the territorial limits of the State of Mississippi. As such, it is subject to the power exercised by this statute; and its waters are not the subject of private property in any sense of the words “private property” in the Constitution, or in any sense which can interfere with the full exercise of the power in question, according to the discretion of the Legislature. If the plaintiff in error suffer loss through the lawful exercise of this public power,' it is damnum absque injuria.</p> <p>Least of all (it is submitted) can a party so situated restrain by injunction the exercise of such a power.</p> <p>As to the supposed conflict with the act of 1817, the obvious answer is, that the statute is not to obstruct the Homochitto, but to improve its navigation. “Old river and the Narrows” are not “navigable rivers and waters,” in the meaning of that act. Besides, even if they were, it is submitted that the plain-tiff in error, upon the case made by bis bill, would have no standing either at law or in equity, and has no right to call upon this court to pronounce upon the constitutionality of the statute of-Mississippi.</p>

Held: under the circumstances, to be sufficient. 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 j udgments.

Held: by high authority, that the District Court never had any jurisdiction to entertain such a proceeding. (Mabry et al. v. Herndon, 8 Alab.

This case was brought up, by writ of error, from the Circuit Court of the United States for the district of Indiana. It was an action of assumpsit, brought by Patten and Lane, merchants of New York, against the plaintiffs in error, merchants of Port "Wayne, Indiana.

This was an appeal from the Circuit Court of tbe United States for the district of West Tennessee. The bill was filed by Sarah Ann Thorp, but in the course of proceedings her marriage with J. M. Mattingly was' suggested, and the suit thereafter conducted in the names of Mattingly and wife. The-case is stated in the opinion of the court.

This was an appeal from the Circuit Court of the United States for the eastern district of Louisiana. It was before this court at a preceding term, and is reported in 18th Howard, 508. When the mandate of this court went down, the money therein mentioned was tendered to McMicken, who refused' to accept it; whereupon, an order was obtained to attach him for contempt, in refusing to make the conveyance required by the decree.

Held: also, that the law does not give a right to compensation for an indirect or consequential damage or expense, resulting from a right use of property belonging to the public.

This case was brought up, by writ of error, from the Circuit Court of the United States- for the district of California. The facts are particularly stated in the opinion of the court.

This was an appeal from the District Court of the United States for the district o'f Wisconsin. The facts of the case are stated in the opinion of the court. Mr. Bradley admitted that the bill was very inartificially drawn, bnt contended that there were three grounds upon which the jurisdiction of the court could be sustained. First. Complicated accounts between the parties. Second.. The breach of the trust with which the said no£e was clothed. Third.

Held: “no suit for services performed by the master, as a factor, or in any other character than that of master, is cognizable in the admiralty.” And again, in Plummer v. Will, 4 Mason C. R., 380, it was said, “a contract of a special nature is not cognizable in the admiralty, merely because the consideration of the contract is maritime.

<p>Where a suit was brought upon a bill of exchange in one of the State courts of Louisiana, and by that court was transferred to another "State court for the purpose of being connected with Certain proceedings in insolvency, and this transfer was pleaded in bar in the Circuit Court of the United States to the prosecution of the suit in that court upon the bill, the plea was not good.</p> <p>The jurisdiction of the courts of the United States over controversies between citizens of different States cannot be impaired by the laws of the States, which prescribe the modes of redress in their own courts, or which regulate the distribution of their judicial power.</p> <p>The insertion of the bill amongst the debts of the insolvent upon his schedule, is evidence of the fact of notice; and the sufficiency of the evidence was a question for the jury, and is not subject to review in this court.</p>

This case was brought up, by writ of error, from the Supreme Court of the Territory of New Mexico. The facts of the case are stated, in the opinion of the court, The counsel upon both sides argued the case upon its merits; but as it went off upon a question of pleading, these arguments . are omitted.'

Held: on the 8th November, 1843, that at no time in the history of Pennsylvania, neither before October 13th, 1760, nor since, have islands in her great rivers been open to settlement on the same terms with fast land generally. They could be settled only on agreed terms.

This case was brought up, by writ of error, from the Circuit Court of the United States for the District of Columbia, holden in and for the county of Washington. ' ’ The facts of the case are stated in the opinion of the court. made the following, points: The act of Congress, September 24,1789, empowers the Circuit Courts of the United States, in the trial of actions at law, on motion and due notice thereof being given, to require the plaintiffs to produce books or writings,…

Held: in a case similar to this, that the licensee’s privilege continued under the extension of the patent by Congress, the same as under prior extensions; but the court refused the motion; consequently, the appeal does not bring before us any question under the la3t extension of the patent.

Held: that if this was a defect inquirable into by it, it was cured by appearance. ( 8 Wheat., 699 .) *206 Iu 4 Cranch, 180 , it was held, that where the writ of error is returned, although not at the first term, the appearance of defendant in error waives all objection to the irregularity.

<p>These cases were brought up, by writ of error, from the Circuit Court of the United States for the district of Rhode Island.</p> <p>At an early day of the term, Mr. Pitman,-counsel for the defendant in error, moved to dismiss the writs of error upon the ground stated below, and filed the following affidavit in support of the motion:</p> <p>SUPREME COURT OP THE UNITED STATES, NO. 51; DEC. TERM, 1857.</p> <p>Edwin M. Chaffee, Trustee of Horace IT. T)a%, Plaintiff in Error, v. Nathaniel Hayward.</p> <p>The defendant in error in this cause moves that this cause be dismissed, the citation herein having been signed by the clerk of the Circuit Court, and not by the judge, as required by law. By his attorney, Joseph S. Pitman.</p> <p>I, Joseph 8.. Pitman, of the city and county of Providence, and State of Rhode Island, &c., attorney at law, on oath say, that I am and have been associated with Charles S. Bradley, Esq., in the defence of the above cause; that he is the junior counsel in said cause'; that he left the city of Providence for Europe on the first or second day of December, 1856; that we had no consultation respecting the management of said cause before his departure, Mr. Bradley expecting to return by the first of March, 1857; that after his departure I caused an appearance to be entered in said cause, and did not file a motion for the dismissal of said cause at the last term, because I did not wish to decide on the expediency of that motion without consultation with him; that I expected he would return in season for such consultation, either before the court adjourned, or that I should have opportunity to make that motion after consultation with him at an adjourned term of this court, which I supposed would be held as at the December term, 1856; that to my surprise this court adjourned about the seventh day of March, and the opportunity was lost, as Mr. Bradley did not return to this country until the twenty-fourth of March, 1857.</p> <p>Joseph S. Pitman.</p> <p>RHODE ISLAND DISTRICT, ss.</p> <p> Clerk's Office, Circuit Court of the United States. </p> <p>On this nineteenth day of December, A. D. 1857, came the above-named Joseph S. Pitman, and made oath that the foregoing statements are true. Before me.</p> <p>[seal.] Witness my hand and official seal, at Providence.</p> <p>Henry Pitman,</p> <p> Clerk Circuit Court U. S., JR. I. JDist. </p> <p>Upon which motion Mr. Chief Justice TANEY delivered the opinion of the court.</p> <p>In this case, a judgment in favor of the defendant in error was rendered in the Circuit Court of the United States for the district of Rhode Island, at its June term, 1856. The plaintiff sued out a writ of error on the 27th of October, 1856, returnable to the December term of this court then next following; but the. citation to the defendant was signed by the clerk of the court, and not by the judge who allowed the writ of error.</p> <p>In pursuance of this writ of error, the record was filed here and the case docketed on the 24th of November, 1856; and on the 4th of December the defendant appeared by counsel in this court.</p> <p>A motion has been made at the present term to dismiss the case, because the citation is signed by the clerk and not by the judge. '</p> <p>The citation is, undoubtedly irregular in this respect, and the defendant in error was not bound to appear under it. And if a motion had been made at the last term, within a reasonable time, to dismiss the case upon this ground, it would have been dismissed. But tbe appearance of tbe party in this court, without making a motion to dismiss during the first term, is a waiver of .any irregularity in the citation, and is an admission that he has received notice to appear to the writ of. error. This point was decided in the cases of McDonogh v. Millaudon, 3 How., 693; United States Yulee, 6 How., 605; and Buckingham et ah v. McLean et ah, 13 How., 150. And these cases have been recognised and affirmed in the case of Carroll et al. v. Dorsey et ah, decided at the present term.</p> <p>Indeed, any other rule would be unjust to a plaintiff in error, and is not required for the protection of the defendant. The latter is not bound to appear, unless he is legally cited, except for the purpose of moving to dismiss. He knows, or must be presumed to know, whether the notice Which the law requires has been served on him or not. And if the objection is made at the first term, the plaintiff, by a new writ and proper citation, might bring up the case to the succeeding term. But if the defendant does not, by motion at the first term, apprise him of the irregularity of his proceeding in this respect, and of his intention to take advantage of it, the plaintiff is put off his guard by the defendant’s appearance; and if the motion is permitted at the second term, he will be delayed an entire year in the prosecution of his suit, whenever it is the interest of a defendant in error to delay and harass his adversary.</p> <p>An affidavit has been filed by one of the counsel for the defendant in- error, stating that he is the junior counsel in the case, and that he did not make the motion at the last term, because the senior counsel was absent in Europe, and the deponent did not wish to decide on the expediency of the motion to dismiss without consulting him; that he expected him to return before the term ended, but the court adjourned sooner than he anticipated, and the senior counsel did not return until the court had finally adjourned to the next term.</p> <p>The facts stated in this affidavit cannot influence the decision of the motion. The absence of one or of all the counsel employed by one party, in pursuit of other business, furnishes no ground for delaying a case in this court, without the consent of the adverse party.</p> <p>The motion comes too late, and is therefore overruled.</p> <p>Day ■) v. j-No. 52. Hayward. J</p> <p>The motion to dismiss in this case stands on the same ground with that of Chaffee, trustee of Day, v. Hayward, just disposed of; and must, for the reasons assigned in that case, be also overruled.</p> <p>Mr. Jenckes made the following points:</p> <p>Point I. The Circuit Court for the district of Rhode Island, having jurisdiction of the subject-matter, may issue its process in the same form, and the process itself may be served in the same manner, as process issuing from the Supreme Court of that State for any cause of action within its common-law jurisdiction.. (Process Act of May 8th, 1792, sec. 2, Stat. at L., I, 276.) ■</p> <p>If the service was good by the laws of that State as. they were at the date of the passage of the process act, then it is good under the laws of the United States.</p> <p>1. The form of the writs in these cases and the modes of proceedings to bring- the defendant before the court, were strictly in accordance with the law of Rhode Island. (Public Laws of Rhode Island, Digest of 1844, pp. 110, 113, 115.)</p> <p>The statute law of Rhode Island regulating attachments on ' original writ was the .-sarne in 1789 as in’ 1855. (See Digest of 1767, p. 12; Digest of 1798, p. 201.) In all the statutes authorizing attachments of personal property, the same provision is found which is contained in the Digest of 1844, p. 113, sec. 3:</p> <p>“ "When any attachment is made in manner aforesaid, the sam^ .shall be sufficient to bring the cause to trial.” Neither in the ease of attachment of personal property, nor of real estate, (p. 115, see. 11,), is there any provision made for personal service on the defendant. In the case of personal estate, a copy of the writ- must be left at the defendant’s usual place of abode, (p. 113, sec. 3,) and, in the case of real estate, with the person in possession of the land, and with the clerk of the town where the land lies, (p. 115, sec. 11.) Such service (sec. 3, p. 113) is expressly declared sufficient to bring the cause to trial. In case of real estate, the execution runs against the property attached, (sec. 11, p. 115.)</p> <p>2. The above-cited statutes of Rhode Island show that the service of the process in a case in the Supreme Court of that State, made in the same manner as in this, ease, would have been sufficient to compel the attendance of the defendant, for the purpose of giving that court jurisdiction of the cause, and to form the basis of a judgment by default in case,of his non-appearance. ,</p> <p>Point II. The eleventh section .of the judiciary act of 1789 does not prohibit the taking of jurisdiction over this (cause.</p> <p>The provisions of that section apply to the cases of jurisdiction founded on the citizenship of the parties. There is no reference in that section to- suits at common law in which the Circuit Courts have jurisdiction over the parties by reason of their exclusive jurisdiction over the subject-matter. Most of the cases decided under that statute were cases where the jurisdiction depended solely on the citizenship of the parties, and were within the letter of the prohibition. (Picquet v. Swan, 5 Mason, 561; Richmond v. Dreyfous, 1 Sumner, 131; Toland v. Sprague, 12 Peters, 300.)</p> <p>The case of Day v. The Newark India Rubber Manufacturing Company, 1 Blatchford, 628, was rightly decided, inasmuch as the mode of proceeding adopted in the commencement of that suit had not been adopted by the Circuit Court in New York; and it is submitted that it was not necessary to construe-the eleventh section of the judiciary act as extending to a class of cases not referred to in that statute, and in which the jurisdiction does not depend on citizenship.</p> <p>It is submitted that the Circuit Court in Rhode Island takes jurisdiction of cases under the patent laws, in the same manner that the Supreme Court of that State takes jurisdiction of any transitory action, and may use the same process to compel the appearance of .the defendant, that could have been used by tire State court at the date of the passage of the process, act.</p> <p>An objection to this view, taken by Mr. Justice Story in Picquet v. Swan, is, that the process act was not intended to enlarge the jurisdiction of the Circuit Courts as defined by the judiciary act. This objection is not tenable in a patent cause, because the jurisdiction of the court is enlarged, by the patent laws, and the process acts are to be applied for the purpose of carrying into effect the jurisdiction so conferred, as well as that founded on citizenship.</p> <p>Point III. This is a case of attachment of specific property, real and personal, which, by the Rhode Island statute at the date of the process act, is made a sufficient service to bring the cause to trial, and therein differs from all the cases decided under the eleventh section of the judiciary act, which were bases of foreign attachment. In Picquet v. Swan there was an attempt to attach the real estate of the defendant, but this attempted service was declared, by Judge Story, “defective and nugatory.” - The statute of Rhode island in effect declares that a defendant is to be found in that State for the purposes of the jurisdiction of its courts, by his visible personal and real property, which can be seized and levied on by the sheriff. The decisions of the courts of the United States, in cases where tlie jurisdiction rests exclusively on citizenship, declare that a defendant is not found in a district where one of his debtors resides. There is no conflict in maintaining both propositions.</p> <p>If specific property cannot be attached when the owner resides out of the district, then an assignee under the bankrupt laws would be deprived of his remedy against a debtor of the bankrupt, in the Circuit Court of the district where his property might be found, although that court has jurisdiction of the subject-matter of the suit.</p> <p>■So, also, it would be impossible to commence a suit at law against an American residing abroad, for infringing a patent for a product by sales in this country, although he might have here warehouses full of goods.</p> <p>Point IV. If the dictum in Toland v. Sprague, “ that even in case of a person being-amenable to process in personam, an attachment against his property cannot be issued against him, except as a part of or together with process to be served upon his person,” is to be established as a rule for the service of process from the courts of the United States in all cases, then it is not possible to obtain security for a debt by attachment on original process from the Circuit Court in the district of Rhode Island.</p> <p>An attachment cannot be made on original writ, if the debtor be within the marshal’s precinct. He can attach goods and chattels only when he “cannot find the body of the defendant within his precinct,” (Dig. of 1844, p. 113, sec. 3;) and real estate can be attached only when “ the defendant’s body or personal estate cannot be found within the State,” (p. 115, see. 11; Dig. of 1857, pp. 438, 439, secs. 4, 5, 15.)' No provision is made in either ease for personal service on the defendant.. . A copy of the writ is to be left at his last and usual place of abode, if he has any in the State, and, if not, notice is to be given by advertisement. But the form of the writ is such that if personal service can be made, no attachment can be made, and, when an attachment is made, no personal service is required or expected.</p> <p>Many judgments have been rendered in the Circuit Court of Rhode Island, in suits commenced by attachment against citizens of Rhode Island who have been absent, in the belief that the process of that court was to be served like the process of the State courts, and with like effect. Property has been sold, and titles to real estate have passed, upon sales made on executions issued on judgments obtained by default. A decision against the validity of such attachments would not -only unsettle the titles to property thus acquired, but would deprive suitors in the Circuit Court of the United States for that district of the most valuable portion of their remedial process against their debtors. '</p> <p>The counsel for the defendant in error referred to the following authorities:</p> <p>' No civil suit can be brought in a Circuit Court against the defendant’ in any district whereof he is not an inhabitant, or is not found at the-date of the alleged service of the writ. (Judiciary act of 1789, sec. 11, Stat. at Large, vpl. 1, p. 79; Hollingsworth v. Adams, 2 Dallas, 396; Pollard v. Dwight, 4 Craneh, 424; Picquet v. Swan; 5 Mason, 35,48, 50; Richmond v. Dreyfous, 1 Sumner, 131, 132; Harrison et al. v. Rowan et ux., 1 Pet. C. C. R., 489; Toland v. Sprague, 12 Pet., 300, 328, 330; Com. and R: R. Bank of Vicksburg v. Slocumb et al., 14 Pet., •60; Levy i’. Fitzpatrick, 15 Pet., 171; Louisville R. R. Co. v. Letson, 2 How., 556, 557; Herndon v. Ridgway, 17 How., 424; Sadlier v. Fallon, 2 Curtis, 579, 581.)</p> <p>The law has been equally well settled in relation to service of process in patent suits. (Horace H. Day v. The Newark India Rubber .Manufacturing Co., 1 Blatch., 629; Saddler et al. v. Hudson et al., 2 Curtis, 6.)</p>

Held: in the case of Hartshorn et al. v. Day, that under the agreement of the 5th September, 1850, between Chaffee, the patentee, and William Judson, the entire ownership in the patent, legal and equitable, passed to Judson, for the benefit of Goodyear and those holding rights under him, and on that ground decided in favor of the licensees.

This case was brought up, by writ of error, from the Circuit Court of the United States for the eastern district of Louisiana. As originally brought, the suit was Niles & Co. v. Knox, and the circumstances which led to the change of title are stated in the opinion of the court. On the 8th of February, 1856, the Circuit Court dismissed the intervention, with costs, when the intervenors sued out a •writ of error, and brought the case up to this court.

This case was brought up, by writ of error, from the Circuit Court of the United States for the eastern district of Louisiana. The case is stated in the opinion of the court.

• • This case was brought up, by writ- of error,' from the Circuit Court of the United States for the district of Indiana. Shepherd and the other defendants in error, styling themselves citizens of Ohio, brought an action of trespass on the case against the Covington Drawbridge Company, citizens of the State of Indiana, for injuries sustained by a steamboat belonging to the plaintiffs, in consequence of negligence in attending to the draw.

Held: in the case of McIlvane v. Coxe’s lessee, ( 4 Cra., 216 ,) that a citizen of New Jersey did not forfeit his citizenship by joining the British army during our revolutionary war, and thát his heirs took by descent, although their ancestor continued to reside abroad. Nor did the expression in. the deed that Manso was a citizen of Mexico establish alienage, as the State might claim his citizenship, notwithstanding.

This case was brought up, by writ of error, from the Circuit Court of the United States for the southern district of Alabama. The case is stated in the opinion of the court.

This was an. appeal from the Circuit Court of the United States for the district of Massachusetts, sitting in admiralty. The judgment of the Circuit Court was affirmed' by a divided court, and a mandate was issued for the amount named in such, judgment, but no interest was mentioned, as none was given in the judgment of the Circuit Court.

These four cases are put together, because they were all covered by oné decision of the court. They were cases from California. In the first, Mr. Oritiendcn moved to dismiss the appeal. 1st. Because it was not taken during the term at which the decree was rendered. 2d. To docket and dismiss pursuant to the sixty-third rule of court.

Held: sufficient. *265 This case was brought up, by writ of error, from the Circuit Court of the United States for the eastern district of Louisiana.

Held: and was daily in court. No application seems to have been made in court on thesubject of the appeal; no citation was presented to the district judge; no bond for his approval. The conversation with Mr. Atchison, at the chambers of the judge, respecting the appeal, is all that was said to him on the subject.' If it were mentioned in open court, he has no recollection of it.

Held: that if an appeal is taken in court at the time of rendering the decision, or during the term, no citation is necessary, and as appéals are, perhaps, more frequently taken within the ten days after the decision is pronounced and entered on the minutes by the clerk, it may be admitted that when thus taken it is regular, and stays execution in the court below.

Held: “The admiralty jurisdiction granted to the District Courts of' the United States under the Constitution extends to the navigable rivers and lakes of the United States, without regard to-the ebb and flow of the tides of the ocean.” It is-difficult to perceive how this language could have been mistaken, as alleged by the counsel in argument.

Held: on the authority of Crook v. Jadis; no additional reasons are given, for the opinion, except that Patteson, J., had “no hesitation in saying that the doctrine first laid down in Gill v. Cubitt, and acted upon in other cases, has gone too far, and ought to be restricted.” In Goodman v. Harvey, decided in 1836, a non-suit was taken, and the case came before the court in bank, on a rule nisi for a new trial.

This case was brought up, by writ of error, from the Supreme Court of the State of Alabama. The parties claimed under the same titles which were before this court-in the case of Brown v. Clements, reported in 3 How., 650.. A diagram is there given, explanatory of'the mode in which the fractional section was divided between Stone and Etheridge.

Held: that the patent was valid, notwithstanding the verdict of the jury on the feigned issues, and also that the defendants had.been guilty of an infringement, and referred the cause to a master, to ascertain and report the profits which the defendants had derived by reason of said infringement.

Held: “That it is very clear that the admiralty law creates a lien in' favor of a party who does work or- furnishes supplies to a foreign ship, and that a ship owned in another 'State is foreign. “That in determining the question whether such lien is created also in favor of the builder of a ship, as well as of him who furnishes work and supplies to her after she is built, the court is not controlled by the restricted…

This was an appeal from the Circuit Court of the United States for the northern district of Illinois, sitting as a court of equity. The bill which was filed by McCormick alleged that the defendants in error had infringed his patent for a reaping machine ; called upon them for an account, and prayed for an injunction. The defendants denied the infringement, and claimed a right to construct their machines under letters patent granted to John H. Manny.

This was an appeal frond the District Court of the United States for the northern district of California. Fossat claimed an interest of three-fourths in the tract of land granted to Justo Barios by Governor Alvarado, on the 1st' of August, 1842.

Held: in accordance with the principle here advanced, that the action of the Circuit Court of this District, in sustaining a demurrer to a plea of performance in a suit on a replevin bond, was the subject of revision on a writ of error; and the. rulé adopted in that case was undoubtedly correct, as the effect of the demurrer was to make the error apparent in the record; and when that is so, it becomes the subject of…

<p>Where a bill of exchange vas drawn in proper form and protested for non-acceptance, parol evidence of an understanding between the drawer and the party in whose favor the bill was drawn, calculated to vary the terms of the instrument, was not admissible.</p>

Held: in Thornton v. Davenport, 1 Scam., 296 , that where possession of goods is permitted to remain with the vendor, the sale is fraudulent, unless the retaining is consistent with the deed.

Held: and were authorized to.collect it, a draft on a merchant of responsibility for its full amount, under a reasonable expectation and belief that the money would be paid.

Held: to be fatal to the title of the plaintiff in error. This question will be re-examined in connection with new and very material facts, appearing on the record, which change, it is conceived,- the whole aspect of the case.

This was an appeal from the Circuit Court of the United States for the eastern district of Louisiana. The facts in the case are fully stated in the opinion of the Circuit- Court, which the reader will find referred to in the opinion of this court, as constituting a part of the statement of this report. It is therefore transcribed from the record, and was as follows: Opinion of the Circuit Court.

Held: that the holder was not bound to prove notice on the trial. (Walker v. Laverty, 6 Manf., 487.) An unconditional promise by the endorser of a bill to pay it, or an acknowledgment of his liability, and knowledge of his discharge by the laches of the holder, will amount to an implied waiver of due notice of a demand of the drawee, acceptor, or maker.

Held: that the assignment made in August, 1840, to William Dickson, was lawfully made, and that Marks had no equity to sustain his petition, in. which he demanded partition and possession. His petition was dismissed in the State courts.

This was an appeal from tbe Circuit Court of the United States for the District of Columbia. It was a bill filed by Selden, under the circumstances particularly stated in the opinion of the court. The Circuit Court dismissed the bill, and Selden appealed to this court. As this was a case depending entirely upon testimony, where no general principle of equity jurisprudence was involved, the arguments drawn from that testimony are omitted.

-This was an appeal from the Supreme Court of the Territory of Minnesota. It was a bill filed by Ahl, under the circumstances stated in the opinion of the court. The principal point in the case was, whether time was of the essence of the contract. Mr. Cooper contended that it was. not: HE.

This case was brought up from the Supreme Court of the State of Iowa, by a writ of error issued under the twenty-fifth section of the judiciary act. The ease is stated in the opinion of the court.

This case was brought up, by writ of error, from the District Court of the United States for the district'of Iowa. The case is stated in the opinion of the court.

These three cases depended upon the same principle, and are therefore classed together. The report in the first-named case will apply to them all. It was a case which was brought up from the Supreme Court of the State of Arkansas, by a writ of error, issued under the twenty-fifth section of the judiciary act. The cáse is stated in the opinion of the court.

These two cases depended upon the same principle, and a report of the first will apply equally to the second— It was brought up from the Supreme Court of the State of Arkansas by a writ of error issued under the twenty-fifth section of the judiciary act, The case is stated in the opinion of the court.

This ease was brought up, by writ of error, from the Circuit Court of the United States for the northern district of Illinois. The case is stated in the opinion of the court. -

These were cross appeals from tbe Circuit Court of the iJnited States for the'distriet of Maryland. ' Iñ the report, the first casé only will be mentioned, viz.: that of Williams against Oliver’s executors. .- The case was formerlybefore-the court, and is -reported. in 17 How., 239. - The facts are stated in the opinion of the .court.

"These -were cross appeal's from the Circuit Court of the United States for the District of Maryland, and were argued together with the preceding- case by the same counsel.

<p>Where a tow-boat wag descending the Mississippi river with a vessel fastened to each side, and another at the stern, and a collision ensned between one of the' vessels thus lashed and an ocean steamer ascending the river, the evidence shows that the latter was in fault, and must pay for all the damage.</p>

This case was brought up, by writ of error, from the Supreme Court of the Territory of Minnesota. The case is stated in the opinion of the court.

" This case was brought up, by writ of-error,, from the Circuit Court of the United States for the southern district of Mississippi. ■ _ _ The facts of the case áre set forth in the opinion of the court.

This was ah appeal from the Supreme Court of the Territory of Minnesota. The facts are stated in the opinion ofithe court. It was argued by Mr. Cooper for the appellant, and by Mr. Bradley for the appellee, upon which side there was also filed a brief by Mr. Brisbin and Mr. Stevens.

This case was brought up, by writ of error, from the Circuit Court of the United States for the .district Of Massachusetts. The facts are stated in the opinion of the court.

This was a motion made by Mr. Keller to issue to the Circuit Court of the United. States for the southern district of New York a peremptory writ of mandamus, commanding'it to carry into execution a judgment which had been entered upon the records of the court, or to issue an alternative writ of mandamus* commanding the judgment to be carried into execution, or cause to be shown why it was not done.

Held: that under these circumstances the property could not be taken in execution by the marshal upon process from the District Court of the United States.