author: Mr. Justice M'Kinley

text:
    John D. Amis, Plaintiff in error, v. Nathan Smith, Defendant in error.
    Mississippi. Action on a promissory note against sundry persons surviving partners of the unincorporated Real Estate Bank of Columbus, Mississippi, founded on their certificate of deposit. All'Jthe defendants, except Wright, joined in the plea of nonassumpsit. Wright afterwards pleaded non-assumpsit, separately. At the trial, all the defendants except Wright withdrew their plea, and permitted judgment to go by default against them, and the plaintiff then discontinued the suit' against Wright. Execution was issued, and was levied on the property of Amis, who gave to the marshal a forthcoming bond with security, and the bond being forfeited, it was so returned by the marshal, which, by the statute of Mississippi, gives the bond the force and effect of a judgment against the obligor and his surety. At the succeeding term, Amis moved the Court to quash the bond, which motion was overruled. The plaintiff in error claimed., I. That the Circuit Court erred in permitting the plaintiff below to discontinue the suit against Wright, and in .rendering judgment against the other defendants. 2. The fieri facias was illegal, because it included interest, not authorized by the judgment. 3. The overruling the motion to quash the forthcoming bond was a final judgment, which ought to be reversed.
    If the contract be joint and several, and the defendants sever in their pleas, whatever may have been the doubts and conflicting opinions of former times, as to the effect of a nolle prosequi in such a case, it has never been held that a simple discontinuance of a suit amounts.to a retraxit; or that it in any manner worked a bar to the repetition of the plaintiff’s action.
    By a statute of Mississippi, all promises, contracts, and liabilities of copartners, are to be deemed and adjudged joint and several; and in all suits on contracts in writing made by two or more persons, it is lawful to declare against any one or more of them. This is such a severance of the contract, as puts it in the power of the plaintiff to hold any portion of them jointly, and the others severally bound by the contract; and there is no obligation on the part of the plajntiff to put the defendants in such condition, by their pleadings, as to compel each to contribute his portion, for the benefit of the others. Cited, Minor and others v. The Mechanic’s Bank of Alexandria, 1 Peters, 46.
    On a joint and.several bond suit must be brought against all the obligors jointly, or against each, one severally, because each is liable for the whole; hut a joint suit cannot be maintained against a part, omitting the rest. Whatever may be the defects, or illegality of the final process, no error can be assigned in the.Supreme Court on a writ of error for that cause. The remedy, according to the modern practice, is by motion in the Court below to quash the execution. If the question of the right to include the interest on the judgment in the execution were properly before the Court, no reason could be seen why interest in a judgment, which is secured by positive law, is not as much a part of the judgment as if expressed in it.
    The provisions of the third"section of the.ect of Congress of 19th May, 1828, adopted the forthcoming bpnd in Mississippi, as a part of ,the final process of that state at the time of. the passage of the act. “ A final process” is understood by the Court to be all the writs of execution then in use'in the State Cóurta..of-Mississippi, which were properly applicable to the Courts of the-United States; and the phrase, “ the proceedings thereupon,” are understood to’mean the exercise of all the duties of the ministerial officers of the state, prescribed by the laws of the state for the purpose of obtaining the'fruits of judgments — among those-are the provisions of the laws relating to forthcoming bonds, which must be regarded as part of the final process.
    The proceeding which produced the forthcoming bond, was purely ministerial; the judicial mind was in no way employed in its production. It does not then possess the attributes'of a judgment; and ought therefore to be treated in this Court as final process, or, at least, as part of the final process.
    As far as the decisions of the State'Courts of Mississippi settle’rules of property, they will.'be proper^ respected by the Supreme Court, But when -the effect of a state decision is only to regulate the practice of Courts,, and to determine what shall be a judgment, the Supreme Court cannot consider themselves bound by such decision's, upon the ground that the laws upon which they are made áre local in- their character.
    It is the duty of the Supreme Court to preserve the supremacy of the laws of the United States, which they cannot do without disregarding all state laws, and state decisions which conflict with the laws of the United States.
    No rule, under the third section of the act of .1828 which authorizes the Courts of the United States to alter final process, so far as to conform it to any changes which may be adopted by state legislation and state adjudications, made by a District Judge, will be recognised by the Supreme Court as binding, exicept those made by the District. Courts, exercising Circuit Court powers.
    The statute of Mississippi, taking away the right to a writ of error in the casé of aforthcoming bond forfeited, can have no influence whatever in regulating, writs of error to the Circuit Courts of the United States. A rule of Court, adopting the statute as' a rule of practice, would, therefore, be void.
    Regarding the forthcoming bond as part of the process of execution, a refusal to quash . the bond is npt a judgment of the Court, and much less a final judgment; and therefore no writ of error' lies in such a case.
    IN error to the District Court' of the United States for the northern district of Mississippi.
    In an action on a certificate of deposit, instituted on the 7th ofi November, 1839, by the defendant in error, Nathan Smith, in the District Court ofi the United States for the northern district of Mississippi, against the plaintiff in error, with- others, who were the surviving partners in the Real Estate Bank of Colunjbus, Mississippi ; the plaintiff obtained a judgment by default against all the defendants except Daniel W. Wright, who had .been sued with them as one of the partners. -All the defendants except .Wright, had entered a plea of non-assumpsit, whiqh they after-wards at the trial withdrew; on which a judgment was entered by nil dicit for two thousand five , hundred and eighty-four dollars and seventy cents. Wright pleaded non-assumpsit separately; and the plaintiff then discontinued the suit against Wright.
    The plaintiff issued an execution, which was levied oirpersonal property belonging to John D. Amis, who thereúpon executed, a forthcoming-bond, with Samuel F. Butterworth as security; which bond being duly forfeited, operated, under the laws of Mississippi, as a judgment against the obligors, in the bond, on -which execution may be issued forthwith,
    On the 14th December, 1840, John D. Amis, and Samuel Butterworth, moved the Court to quash the forthcoming bond. ■ 1. Because it increases the costs, not warranted by law, the execution having included interest on the judgment. 2. J’hat there is no.authority for taking.the said bond, or any such bond; and the bond creates a judgment against the obligors, and precludes them -from a defence, and a trial by jury secured by the Constitution of the United States.
    The Court, overruled-the motion, and the defendant, John D. Amis, prosecuted this writ of error.
    The .case .was argued.by Mr. Key, for the plaintiff m error; and by Mr. Walker, for the defendant.
    Mr. Key contended, 1. That there was error in the proceedings of the District Court in allowing a discontinuance as to. Daniel ,W- Wright; one of the defendants, and entering d judgment against the other defendants.
    2. There was error in the Court having refused to quash the forthcoming bond givén by John D. Amis and Samuel Butterworth. The fieri faciias which had been issued on-the judgment, was not warranted by the judgment, because it-, included interest, which' was not given by the judgment. The execution was illegal; and the bond given after it had issued, was void.
    3. Refusing to, quash the bond, and leaving it in: force as forfeited, Was a final judgment on which a writ of'error will lie.
    What does' the "record bring up for revision? The whole case; the original'judgment: this is so-from-the nature of the proceeding. The forfeited bond is -a, proceeding by statute: it is made a statutory judgment. It must, therefore, conform to the statute, and to do so, it must be founded on a lawful execution, and a valid judgment. Take away that judgment, the foundation, and all the rest falls. This is settled in 7 Cranch, 288; 5 Howard’s Rep. 191, 192, 194, 195. Hence it is that the act of the legislature, of 1837, was necessary. Without that aet the original,judgment could have been taken up to a Court of Error, and reversed; -and that reversal would have put an end to the proceedings under it. Bank of the United States v. Patton, 5 Howard, 223; 1 Howard, 98.
    2. And then the question arises as to the effect of the act of 1837, in the Courts of - the United States. How can any legislation in Mississippi affect or limit the jurisdiction of the- Courts of the United States ? Suppose the legislature of Mississippi had said there should be no appeal in any case, or, as in the Digest, 538, without a certificate of the appellate Court; that could not affect the jurisdiction of the Courts of the United States, or take away from a suitor in these Courts rights expressly conferred by the laws of the United States. It would defeat the object of the Constitution in giving jurisdiction to the Courts of the United States.
    ,3. The original judgment, is, then, here for revision, as in the case'in 7 Cranch, 202. How far is it examinable ? For what errors is it responsible ? Upon this point Mr. Key cited 7 Cranch, 202; 1 Peters, 46.
    4. It is then, upon authority, error for which judgment can be arrested, as is said by Judge Washington, in 7 Cranch, 202; and if so, it is revisable. That case is decisive ; for it adjudges that the plaintiff must proceed as far as the law allows against all the defendants, even when all were not taken; á fortiori, where they were taken, and when the other defendants had a right to expect the plaintiff would go on against all.
    This is the law, unless there is something in the laws of Mississippi .which operates in a Court of the United States, and allows a discontinuance.
    The law of Mississippi allows contracts to be sued upon either as -joint or several. This should not extend beyond the actual provisions of the statute to authorize suits to be so brought on such contracts. 3 Howard, 83. But when the suit is brought, and the parties are before the Court, then it is altogether another question whether you can discontinue t as to any of the defendants. Cited, Digest of the Laws of Mississippi, 595, 596; 2 Howard, 870; 5 Howard, 411, 412; 3 Howard, 78; 4 Howard, 364, 369, 377.
    Mr. Walker, for the defendant in error,
    made the following points:
    That the severance in the pleading was discretionary with the Court below, as every other interlocutory incidental order preceding the judgment, and furnished no ground to reverse the judgment' for error. After a severance in the .pleadings by the ' defendants, a discontinuance as to any one of them is not irregular. In this cáse the severance was by consent, and so was .the discontinuance as to .that party, and simultaneous with this, and in the same order was the withdrawal of the plea by the mother defendants, and the judgment by default final against them. By this withdrawal, after the severance, these defendants, by implication of law and in fact consented to the separate judgment against them. A judgment thus given, has in law the same effect as a judgment confessed, so as to. release all errors; and especially where no objection was made in the Court below. 3 Stewart and Porter, 269; 6 Porter, 352, 358; 2 Stewart, 13; 1 Peters, 165. The compulsory non pros, of the English practice entered by the Court upon the motion of, the defendant against the plaintiff, does not prevail in this country. Such a. non pros, which puts the whole case out of Court, is entirely unlike the discontinuance under our practice; which in this case is a mere partial forbearance for the present to proceed further in the suit against one of .the defendants, and leaves the case in Court to proceed'regularly against the other defendants. Note to Powell v. White, Douglass, 169; 1 Peters, 46, 74, 469; 5 Peters, 476; 6 Peters, 598; 3 Howard, 598. This discontinuance as to one defendant may be taken, even where both plead separately to the merits. 1 Peters, 46; 5 Johns. 160; 20 Johns. 126 ; 1 Pick. 500. Even at common law a plaintiff might always discontinue as to one defendant, where the cause of action was joint and several in its nature, or where one or more might be sued separately. Note to Parker v. Laurence, Hobart, (ed. of 1829,) 177. By the statutes, of Mississippi, this contract is made joint and several, and a separate suit authorized against , any one or more of'the defendants. Howard and Hutchinson’s Digest, Laws of Mississippi, 578, 594. Under these statutes, the right to discontinue in. such cases is expressly recognised by the decisions-of the Courts of the state. 2 Howard, 870; 4 Howard, 377. If this-discontinuance had been erroneous, it is cured after verdict by our statute of jeofails; and a judgment by nil elicit is. placed on the same footing. Howard and Hutchinson, 591; 2 Howard, 834, 902, 934.
    As to the interest, it is allowable on judgments even at common law. . 3 Anstruther, 804; 1 Har. and Johns. 755. In Mississippi, this interest is given by statute o the judgment, and the execution is required to embrace the interest. ■ Turner’s Digest, 313; Howard and Hutchinson, 375, 616, 622, 623, 626, 627, 628, 653; 3 Howard, 184; 4 Howard, 377. Even if there had been error in the original judgment, that error is released by ■the.new judgment on the forthcoming bond. Howard and Hutchinson, 541; 4 Howard, 9. The new judgment is an extinguishment of the judgment on which the bond was given, and the bond operates as an estoppel at law, as to any error in the original judgment.. The,bond.is a waiver of any error in the original judgment, and óperates as a judgment by consent or confession. 2 Call. 507; 6 Call. 1; 8 Pick. 386; 3 Cond. Rep. 244, 248, 249. The Court cannot go beyond the execution which is recited in the bond, and not the judgment preceding the execution; and the bond admits the interest ..tp be due, and is' conclusive. If the execution, had been, erroneous,-it should have been superseded'; but on;the contrary, the validity of the execution is admitted by the bond, and by the judgment which is founded upon it. 5 Howard, 566, 573, 574. , If the interest was erroneously admitted to be added to the original judgment, it is a mere clerical error which is cured by the bond and new judgment upon it. 5 Howard; 200; .1 Howard's. -The error alleged, here as to the'interest, is at most equivalent to a motion in the Court below to open the judgment on the bond. And on what ground? Because it included interest alleged to be omitted to be calculated in the original judgment. But if this omission were made, it was a mere clerical error, the interest it is conceded ia due by the law; it is included in the bond, signed by the defendant, and,-admitted'thereby to be due the plaintiff, and on that bondrhe judgment is entered; and why should the judgment be opened when it is.for no greater sum than in .law and justice was due the plaintiff?
    The bond is constitutional. 4 Howard, 363; 5 Howard, 434, 456; 4 Condensed Reports, 439, 442.
    The forthcoming bond law of the'state applies to judgments in the Courtis of the United States. 1 Cranch, 299. If it be adopted in part,- must not all its provisions be adopted, and also the construction given-by the State Courts to their local statutes? By these statutes, the original judgment, is extinguished by. the bond and. forfeiture; and it is further specially provided, that no writ of efrbr can be prosecuted as regards the original judgment,, after the forfeiture of the bond. It is said this provision cannot apply here, because the writ- of ferTor is given by act of Congress. There might be force in this argum&nt if a motion were now pending to dismiss the writ Of error for want of jurisdiction. No-such motion is made, but it is insisted that after a judgment the defendant has his choice either to arrest the judgment for error, or to waive that-right and release all errors, as in case of a judgment by confession, by giving the bond; and that such bond is p. voluntary waiver of alLsuch errors, and that this waiver must be upheld by this Court.
    As to the last error assigned, it has been expressly, decided by ths Courts of Mississippi, that the bond maybe given by one co-defendant. 5 Howard, 480, 483.
   Mr. Justice M'Kinley

delivered the opinion of the Court.

This is a writ of error to" the District Court of the United States for the'southern district of Mississippi, exercising Circuit Court powers.

Smith brought an action of assumpsit against Amis and others, surviving .partners of the Real Estate Banking Company, of Columbus, Mississippi, founded upon their certificate of deposit. All the defendants joined in a plea of non-assumpsit; and Wright, one of them, afterwards pleaded the same plea -separately. At the trial, all 'the defendants, except Wright, Withdrew their plea, and permitted judgment to go against them by nil dicit, for the sum of two thousand five hundred and eighty-four dollars and seventy-four cents; and the plaintiff then discontinued the suit against Wright. Upon the judgment execution issued, and was lévied, by the marshal, on the property-pf Amis, who,. hi conformity with a. statute of Mississippi entered into bond, with security, conditioned for the forthcoming of the property on the day fixed for its sale. Amis failed to- dellvér. the property, according to the condition of the bond to the marshal, who thereupon made return that it was forfeited; which, by the statute, gave it the force and effect of a judgment. Howard, and Hhtchin-: Son’s Statute Laws of Mississippi, 653; Amis, at the next term,' moved the Court to quash the bond, which motion was overruled, and thereupon he prosecuted this suit.

■To remove the judgment, he' relies on these grounds: First, The-Court erred in permitting the plaintiff to discontinue the suit-against Wright, and in rendering judgment against the other ’defendants. Secondly,-The fieri facias was illegal', because it included interest not authorized .by the judgment. Thirdly, Overruling the motion to quash the forthcoming bond-was a final judgment by the Court, which ought to be reversed.'

■ Whether a.discontinuance o- the suit can be entered against one of several, defendants in a case arising on contraot, depends upon the character of the contract, and the state of the pleadings between thg parties. If the contract be joint and several, and the defendants s.ever in. their pleas, whatever may have been the doubts and conflicting opinions of former times as to the effect of a nolle prosequi in- such a case, it has néver been held that a simple discontinuance of ,a • suit amounted to a retraxit, or that it in any manner worked a bar to the repetition of the plaintiff’s action.

By-a statute of. Mississippi, all promises, contracts, and liabilities of copartners, are, to be deemed and; adjudged joint and several. And -in all suits founded on promises, agreements, or contracts in writing, by two or more persons as copartners, signed by one or more of them, hr by any person as ágéht in their behalf, it shall be lawful to declaré against any one or more of them, Howard and Hutchinson’s Statute Laws' of Mississippi, 595.. This is such a severance of the contract as puts it in the power of the plaintiff' to hold any portion of them jointly, and the others severally bound for the contract.' And there is ño obligation on his part to .put them in such condition, by his pleadings;;/as tocompel each to contribute his portion for the benefit of the others. This reduces the inquiry to this simple question: Is the discontinuance, in.this case, authorized by law?

In the case of Minor and others against the Mechanic’s Bank of Alexandria, a suit was brought on the office-bonds of the cashier of the bank, against him and his sureties. The bond was joint and several, and the defendants pleaded jointly to. the action; and, as in this case, the cashier afterwards pleaded severally, whereupon judgment was rendered against the sureties; and. afterwards the plaintiff entered a nolle prosequi against the other defendant. This Court sustained this proceeding, and held that it' did not affect the judgment against, the sureties. 1 Peters, 46. That case, we think, is decisive of the first point made in this. On a joint and several bond, suit must .be brought against all the Obligors jointly, or against each one- severally, because each is liable for the whole; but a joint suit cannot be maintained against a part, omitting the rest. ThérS is, therefore, no 'analogy between the right of action and the right to enter a nolle prosequi against one, as was done in that case. In this case, the plaintiff had a legal ..right to sue any number of the joint and several promisors, and to omit the others; and, therefore, there is a perfect analogy between the right .of action and the right to discontinue the action against one, after judgment against the others. Thus far, the propriéty. of this judgment is undoubted.

The second point involves a question not cognisable in this Court. Whatever may be the defects or illegality of the final process, no error can bé assigned here for that caused The remedy, according to modern practice, is by motion.to the Court below-to quash the execution. If, however, the question were properly before the Court we can see no good reason why interest upon a judgment, which is secured by positive law, is not as much a part of the judgment as if- expressed in it. The legislature say, All judgments shall bear interest at the rate of eight per cent,” Can the judgment be satisfied without paying the interest? It is the practice in Mississippi, and several other states, to include no interest in the judgment, except what is then due ; but to leave it to the collecting officer to calculate the amount of interest, according' to law. when he settles with the defendant.

The remaining'obj ection' will now fee examined. If an execution hád; issued upon the. bond improperly, that might have been quashed on motion of the defendant. ■ This leads us to the consideration of the grounds assumed fey the . counsel of the defendant.

By a statute of Mississippi, it is enacted that; “ No writ óf error shall fee granted in any case where á forthcoming bond shall have been given and forfeited •'? Howard and Hutchinson, Statute Laws of Miss/541; and the District Judge has, it is said, adopted this provision of the "statute, ferrule of. Court. This being the local law of Mississippi, it is contended that this Court is hound by it; and fey the expositions givenito it fey the Supreme Court of that state; .and- many decisions of that Cdurt have been referred to. In the case .of the Bank of the United States v. Patton, 5 How. Rep. 200, it is held that á forthcoming bond forfeited is an extinguishment of the' original judgment^ apd that a writ of error will not lie-to it; arid the same doctrine was held in Sanders and others v. M'Dowell, 4 How. Rep. 9.

If-these doctrines are to prevail, the act of Congress, authorizing a writ of error on final judgment, would become a dead lettei and the laws of Mississippi oh this subject become the supreme law in that state. ' If the forthcoming bond is applicable at all to the proceedings bf the Courts of the United States,,it must be in the character of final process.

By the third Section of the act of Congress of the 19th of May, 1828, It is enacted, “ That writs of execution, and other final process issued on judgments and decrees, rendered in ¿any of the Courts' of the United States, and the proceedings thereupon, shall fee the" same, except their style, in each state respectively, as are now used in. the Courts of such state, saving to the Courts of the United ’ States in . the states in which there are not Courts of

Equity with the ordinary equity, jurisdiction; the power of prescribing the mode of executing their decrees in equity by'rules of Court: Provided, however, thpt it shall be in the power of the Courts, if the}r see fit, iii their discretion, by rules.of Court, so far to alter final process in said Courts, as to conform the same to anyphange th^i may be adopted by the legislature of the several states, for the State Courts.” 4 Story’s Laws United States, 2121.

Wé think tfeis section of the act of 1828, adopted the forthcoming bond in Mississippi, as. part of the final process of that -state, at the passage of the act. And we understand- by the phrase, “ final process,” all the writs of execution'theft in use in the State Courts of Mississippi, which were properly applicable to the Courts of.the United States; and we understand by the phrase “the proceedings thereupon”-to mean, the exercise of all the duties of the ministerial .officers -of the states; prescribed, by the. laws of the state, for the purpose of obtaining the 'fruits of judgments, And among these duties is tó be . found one,prescribe.d.to the sheriff, directing, him :to restore personal property levied on, by him, to the defendant, upon his executing a forthcoming bond according to law, and the further duty, to return.it to the Court, forfeited, if the defendant fail to deliver the property; on the day of sale, according to the condition of the bond. These áre certainly proceedings upon an execution;' and, therefore,'the forthcoming bond must be regarded as part of the final ‘ process: It aids materially in securing the payment of the money to satisfy the judgment; and it is part of the process by which the plaintiff is enabled to obtain tlje payment of the money seemed to him- by the judgment.

But is this forthcoming bond a judginent as well as process ? The statute declares that it shall have the force and effect of a judgment, simply, that an execution may issue upon it against the surety as well as the principal, and for all the cqsts incurred after, the judgment. The same effect would have been produced, if the- statute had directed, execution to issue upon the forthcoming bond, without giving it the force and effect of a-judgment. .- The proceeding which produced this bond was purely ministerial; the judicial mind was, in no way, employed in its production.. It •does not then possess the attributes of a judgment, and ought, therefore, to be treated-in this Court as final process, or, at least, as part of the final process. With all due respect for the judicial decisions of State Courts, we cannot concede to those of Mississippi all that is claimed for them in this easel As. far as they settle -rules of property, they will be properly respected by this Cqurt. But when the effect of a state decision is only to regulate the practice of Courts, and to determine what shall be a judgment, and the legal effect of that, or any other judgment, this Court cannot consider themselves bound by such decisions, upon the ground that the laws upon Jhich they are made are local in their character. It is the duty of this Court, by their decisions, to preserve the supremacy of the laws Of the United States, which they cannot do without- disregarding, all state laws and state decisions which conflict with the laws of the United States.

- In exercising the power conferred upon tb Circuit Courts of the United States, by the third section of the act of 1828, authorizing them to alter final process, so far as to conform it to any change which may be adopted by the legislatures of the respective states, for the State Courts; there is the same danger to be apprehended as from state legislation, and state adjudications on the same subject. And therefore no rule ought to be made without the concurrence of the Circuit Judge. No rule made by a District Judge will therefore-be recognised -by this Court as binding, except thosé made, by District Courts exercising Circuit Court powers. The statute of Mississippi taking away the ri^ht to a writ of error, in the case of a forthcoming bond forfeited, can have no influence whatever in regulating writs of error to the Circuit Courts of the United States; a rule of Court adopting the statute as a rule of practice would, therefore, be void.

Regarding the forthcoming bond as part of the process of execution, a refusal to quash the bond is not a judgment of the Court, and much less is it a final judgment; and, therefore, no writ of error lies in such a case. 6 Peters, 648. But, in this case, the writ of error is not- to the supposed judgment, in refusing to quash the forthcoming bond, Jaut to the principal judgment. It 'nas been sued out and prosecuted by one of several joint defendants; and without asking that- the other defendants should be summoned and served; the defendant in error has, however, appeared and defended the suit, and thereby waived the irregularity. But one error has been assigned to the judgment of the Cpurt, the other two apply to the final process. The judgment of the Court below must therefore be affirmed for the reasons here stated.


source: Caselaw Access Project

author: Mr. Justice Wayne

license: Public Domain

text:
    John A. Gibson and Kinchen A. Martin, Plaintiffs in error, v. Beverly Chew, Defendant in error.
    -The Circuit Courts of the United States have not cognisance of any suit to.recover - the contents, of any prQmissory note- or other chose: in action in favour of an as- ; signee, unless a suit might have been prosecuted in such Court to recover'the said contents, if no assignment had been made; except in cases of foreign bills of exchange. . . . •
    IÑ error' to the Circuit Court of the United States for Mississippi.,
    An action was instituted in-the Circuit Court of the United States for the district of Mississippi, by Beverly Chew, a.citizen of the state of Louisiana, against John A, Gibson and Kinchen A. Martin, citizens of the state of Louisiana. ' The action was-brought to recover the amount of a'promissory note drawn by John A. Gibson in favour óf, and endorsed by Kinchen A. Martin, for three thousand five hundred dollars, and endorsed over to the plaintiff.
    . -The declaration set out the promissory note, the drawer and endorser of the same being included-in the same writ, under the provisions of an act of the legislature of Mississippi; which had been adopted as a .rule of practice in the -Circuit Court," by order of the District Judge holding the Circuit Court.
    The defendants appeared to the action,, and having demurred to the plaintiff’s declaration, filed the following causes- of demurrer.
    1. This Court has no jurisdiction, the plaintiff- in his declaration being the assignee of Kinchen A. Martin, who is a citizen of the same state’ with the maker of the note sued on, as declaration avers.
    2. The declaration does not aver defendants to be.residents of the southern district of Mississippi.
    •The demurrer’was overruled, and the defendants having refused to plead to the merits of the action, judgment was rendered in favour of the plaintiff. The. defendants prosecuted this writ of error.

      The case was argued by Mr. Walker, for the plaintiffs in error; and by Mr. Key, for the defendants.
    Mr. Walker, for plaintiffs, in error,
    stated, that this wás a suit against the drawer and endorser of a promissory note, both being alleged in the declaration to be citizens of the state of Mississippi. Then by the eleventh, section of the judiciary act of the 24th September, 1789, ho suit' could.be prosecuted in the Court below against the maker of the note. It is said a state law authorizes this proceedings but no state law can repeal, or be intended to repeal an act of Congress limiting the jurisdiction of the Courts of the United States. By the act of Congress, the Courts of the Union are expressly deprived of all jurisdiction in this case and such jurisdiction cannot be cohferred by a state law, especially in direct opposition to an act of Congress in full force tnd unrepealed.
    Mr. Key, for the defendant in error.
   Mr. Justice Wayne

delivered the opinion of the Court.

This suit was brought in the Circuit Court of the United States for the southern district of Mississippi, by the defendant in error, as the endorsee of a promissory'note, made in Mississippi, of which the plaintiff in error, Martin, was the payee, and the plaintiff, Gibson, the maker; both maker'and payee being citizens of the state of Mississippi when the note was made.

The jurisdiction of. the Court is denied,, and the plea should have been sustained in the-Court below, as the Circuit Courts of the United States, have not cognisance of any suit to recover the contents of any promissory note, or other chose in action in favour of an assignee, unless a suit might have been prosecuted in such Court to recover the said contents, if no assignment had been made, except.in cases of foreign bills of exchange. See the eleventh section of the act to establish the judicial Courts of. the United States, 1 Story’s Laws, 53.

The judgment of the Court below is reversed.


text:
    Martha Bradstreet, Demandant, Plaintiff in error, v. William F. Potter, Tenant, Defendant in error.
    The questions presented to this Court on the writ of error being the samé with those ■ in Bradatreét v, Thomas, 12 Petera, 174 the jadgmetit of the Circuit Court, in. .favour of the defendant in error, was reversed.
    The counsel for the plaintiff and defendant in err.or having applied to the Court to hear ' the case upon other points presented in the briefs of the plaintiff and the defendant, in order to obtain the judgment- of the Court upon these points, for the direction of the Circuit Court on the further' trial of the cause; the Court said-: The Court cannot give any opinion Upon points not properly before it, those points not being in the bill of exceptions filed in the record to the. ruling of the Circuit Court. The proper functions of a Court on a writ of error is to pass judgment Upon the points excepted to in the-opinion of the Court below; and hot to decide the law of the case in anticipation of its-trial in the Circuit Court
    The rule as to costs has been established by the forty-seventh rule of this Court, 8 Peters’s Reports. ( In all cáses of reversal of any judgment .or decree in the Supreme Court, except where'the reversal shall be for want of jurisdiction, cítete shall be allowed for- the plaintiffs id error or appellants, as the case- may be, unless otherwise ordered by.thé Court.,
    . IN error to' the Circuit Court' of the United States,- for the northern district of New York.
    The case had been tried' in the Circuit Court for the'northern district of New York, on a writ'of right, filed by the demandant', the plaintiff in error, for the recovery of-certain lands in-the county of Oneida, in thesta-te of New York. After various proceedings in the case, the Court gave judgment for the tenant, and this writ of error'was prosecuted by the demandant. The whole of the questions in this writ -of error weré the jsame With those presented to the Supreme Court in the .case of Bradstreet v. Thomas, 12 Peters, 174.
    Mr. Jones, for the- demandant and plaintiff, in' error;' and' Mr. Beardsley, for the defendant; it having been agreed by them that the judgment of the Circuit Court must be reversed, on the authority of the case of Bradstreet v. Thomas, 12 Peters, 174; united in an application to the Court to take up the case on the merits, in order to obtain the decision of the Court upon the whole case; to be used in the Circuit Court on-the trial of the cause, when it should be remanded under the order of this Court.
    Mr. Beardsley also presented to the. Court a question, whether the defendant in error should be subjected to costs if no judgment was given by this Court on the merits of the cause.
   Mr. Justice Wayne

delivered the opinion of the Court.

It is. admitted by the counsel for the defendant in error, that this case presents upon the record no other exceptions than such as were before this.Court, in the case of Martha Bradstreet v. Anson Thomas, 13 Peters, 174. That case then'rules it, and the judgment in the Court below must be reversed.

But it is now- suggested that both parties desire to obtain the opinion of the flourt upon ulterior points in the case, as stated in their respective briefs, so as to have those points settled for the new trial of the cause when- remanded, for the errors of procedure adjudicated in the former case of Bradstreet and Thomas; because, from the terms of this Court’s opinion in that Case, it seems doubtful if the Court could regularly consider and determine those questions upon the bill of exceptions, as no\ir framed; though it be the mutual desire of the • parties to get the Court’s opinion • upon those questions; It is only necessary to say, in reply to this suggestion, that the Court cannot give any opinion upon points not properly before it; from those points not being in the bill of exceptions filed in the record to the Court’s ruling below. The proper function of a Court, in a writ .of error, is to pass its judgment upon the points excepted to in the opinion of the Court below; and not to decide the law of the- case, in anticipation of its trial in the Court below.

In respect to costs upon cases brought to this. Court, the rule is, as may be seen in the forty-seventh rule of the Court prefixed to 8 Peters’s Reports; that in all cases of reversals of any judgment or decree in this Court, except where the reversal shall be for want of jurisdiction, costs shall be allowed in this Court for the plaintiff in error, or appellant, as the case may.be, unless otherwise ordered by the Court. ’

The question as to costs in the Circuit Court is not before us.

The judgment in the Court below is reversed.


author: Mr..justice Daniels

text:
    James Roach, Administrator of Philip Roach, Plaintiff in error, v. David W. Hulings, Defendant in error.
    The jury, in rendering their verdict; failed to respond separately to the distinct issues they were sworn to try. The defendant had pleaded three pleas1. Covenants performed. 2.. Payment , 3. Set-off, greater in amount than the claim of the plaintiff. On these, three pleas the jury gave a general verdict of damages in favour of the plaintiff, on'which judgment was entered. In the Circuit Court, no exception was taken to the verdict The counsel for the plaintiff contended that this was error'in the Circuit Court, which was properly' to be corrected in the Supreme Court By the Court. Objections of this character, that are neither taken at the usual stage of the proceedings, nor prominéntly presented on the face of the record, but which may be sprung upon a.party after an apparent waiver of -them by his adversary, and still more after a trial on the merits, can have no claim to the favour of the Court; but should be entertained in obedience only to the strict requirements of the law. The three issues were joined on affirmative allegations by the defendant, and the verdict was for the plaintiff on the'se issues. Admitting that this verdict is'not affirmatively responsive to these, issués, it virtually answers and negatives them all; for if all or either of them had'.been untrue, the verdict was untrue. Should the judgment, then, be arrested, this would be done - neither from a necessity to guard the merits of the controversy, nor from the principles of sound inductive reasoning; but solely in obedience to an artificial ' and-technical rule, which, however it may be founded in wisdom and promotive, of good in general, yet, like all other rules, is Capable of producing evil when made to operate beyond the objects of its creation,
    The third section of the act of Congress of 1789 to establish the judicial Courts of the United States, which provides that no summary writ, return of process, judgment, or other proceedings in civil cases in the Courts of the United .States, shall be abated, arrested, or quashed for any defect or want of form, &c., although it does not -include verdicts, eo nomine, hut judgments are; and the language of the provision, “ writ, declaration, judgment, or other proceedings in civil causes;” and further, “ such writ, declaration, pleading,"process, judgment, or other proceeding whatsoever,” is sufficiently comprehensive to embrace every conceivable step to be taken in'a cause, from the emanation of the writ down to the judgment. Both the verdidt and the judgment in this case are within the terms and intent of the statute, and ought to be protected thereby.
    In trials at law, while it is invariably true that decisions on the weight of the evidence belongs exclusively to the jury, it is equally true that whenever instructions upon evidence are asked from the Court to the jury, it is the right and duty of the former to judge of the relevancy, and, by necessary implication to some extent, upon the certainty and definiteness of the evidence proposed. Irrelevant,-impertinent, or immaterial statements, a Court cannot be called'upon to admit as the groundwork of instructions ; it is bound to take care that the evidence on which it shall be called upon to act is legal, and that it conduces to the issue on behalf of either the plaintiff or the defendant.

      IN error to the Circuit. Court of the United States, for the bounty of Washington', in the district of Columbia.
    •The defendánt in error .instituted an action of covenant, in áhe Circuit Court of the’county. of Washington, against Philip Roach, upon certain articles of covenant. Before the -trial of the. cause, the defendant died, and his administrator became the defendant in the suit, a verdict apd jirdgment were rendered' for the plain tiff, and the defendant prosecuted this writ of error.
    The case; is. fully stated; in. the opinion of the Court. It was argued by Mr. Brent, the younger, for the plaintiff in error, arid by Mr: Bradley, for the defendant..
   Mr..justice Daniels

delivered the opinion of the Court.

This case comes up on a writ-of error to’the Circuit Court of Washington county,in the district of Columbia,- It appears fróm the' record, that,.Philip Roaph, the plaintiff's intestate,^having contracted by agreement in writing on the ,3d day of April, 1829, with' one. Samuel Davidson, for the workmanship to be performed in the construction of á lock described as the outlet lock at a place, called Lewistownydid, on’the 27th of April, in the same year, enter into a covenant with Hulings, the defendant in error, in which it was agreed that the defendant should supply-all the ■ timber, plank, arid boards, required in building this lock, at prices stipulated in the' said covenant, to be paid by the plaintiff’s intes-tate. On the 13th of March,' Í837, an action’of covenant wás instituted by Hulings in the. Circuit Court of Washington county against Philip Roach, to recoyer the value of the timber,'plaftk, &c., alleged to haye been furnished by the former, in performance of the contract. The covenant is by profprt made a part of the record.. ’ An account, exhibit (B), is filed, showing; the amount. arid,value of the materials for which compensation is claimed; also the deposition of. a witness, Samuel Davidson, to prove the justice of this account. Philip Roach having died after appearance to the suit, process was directed against his representative; and the defendant having subsequently appeared as administrator of the. deceased, filed 1st, the pleas of covenants performed, and payment by his intestate; and next the plea of set-off of an alleged debt of three thousand dollars due to' the intestate in his lifetime, and greater in amount than the damages claimed by the plaintiff. ' On these three pleas, issues were joined; and the jury rendered a general verdict in .damages for the plaintiff. ■, The questions of law decided by the Court below, and now presented fór rey tew here,, arise upon two hills of exception sealed by the Judges of the Circuit Court, and made parts of. the .record. But before-going hito, an examination of these questions; it is proper, to advert to a point which was, ¿either suggested nor decided in the Circuit Court, but which has been urged'for the first time'by the counsel for the plaintiff in error before this Court. The point thus raised and pressed by counsel is the following:. that the jury, in rendering their verdict, failed to respond separately to the distinct issues they were swprn to try; aftd that this failure by the jury constitutes an error for which the judgment of the Circuit Court should be arrested. Objections .of this character, that,'are neither taken at the usual stage of the. proceedings, nor promineritly presented upon the face of the, record, but which may be sprung upon a- party after ah apparent waiver of them by his adversary, and still more after a trial Upon the merits, can have no eláim to the favour of the Court; but should be entertained in obedience only to the -strictest requirements of the. law. Let us see ho ■ far in the present instance the Court is controlled .by any such, absolute and inflexible authority: The three issues were joined upon affirmative allegations by'the defendant: 1st, That his intestate had performed,his covenant': 2d, That he had paid whatever was due the plaintiff: and 3d, That the defendant possessed iii right, of his intestate a cláim against the plaintiff, greater in amount than the plaintiff’s demand against him. Upon these affirmative averments, the jury find.a verdict for the plaintiff, Admitting that-this .Verdict is not technically responsive to the several .pleas, it virtually answers and negatives them all; tfor if all br either of the pleas had been true, the verdict was untrue. Should the judgment then be arrested, this would be done neither from a necessity to guard the merits of the controversy, no from the principles of sound inductive reasoning; but solely in obedience to an artificial and technical rule, which, however it may be founded in wisdom-ápd'¡be promotive of good in general, yet, like all other rules, is capable of producing evil when made to operate beyond the objects of its creation. It Was to prevent the mischiefs ensuing from a misapplied rigour that statutes of jeofails have been enacteu, and their salutary influence is invoked whenever the intrinsimmerits of parties litigant would, without'that influence, be sacrificed to mere modes and forms of practice. By the thirty-second section of the act to establish the judicial Courts of the United States, it Is provided, “ That no .summons, writ, return, process, judgment, or other proceedings in civil causes in any of the Courts of the United States, shall be abated, arrested, quashed or reversed, for any defect or want of form, but the. said Courts respectively shall proceed and give .judgment according as the right of the cause and matter in law shall appear to them, without regarding any imperfections,.defects, or .want of form in such writ, declaration, or other pleading, return, process, judgment,-.or course of proceeding whatsoever, except those, only in cases of demurrer, which the party demurring shall specially set down and express together with his demurrer as the causé thereof,” It is true that á verdict, eo no-mine, is not comprised within this provision of the statute, but judgments are: and the language of the provision, “writ, declaration,., judgment, or other proceedings in civil causes,” and further, “ such writ, declaration, pleading, process, judgment, or other proceeding whatsoever,” is sufficiently comprehensive to embrace every.conceivable step to be taken in a cause, from the emanation of the writ down to the judgment. The Court have-shown that the proceedings in this cause were according to the right of the case, that they brought into view the real merits of the parties litigant before the jury; they-therefore consider both the verdict and judgment are within the terms and intent of the statute,, and ought to be protected thereby.

The first bill of exceptions states, that the plaintiff having introduced his proofs, the defendant then gave evidence that in' the spring of 1831 the plaintiff stated to the witness that he had just settled with Philip Roach, (the defendant’s intestate,) all his private accounts, as well as an account of one Davidson against said Roach, and had been paid the same except, five hundred dollars, for which he had Roach’s due-bill or note, payable on demand, but the witness was uncertain whether the plaintiff said it was a due-bill or note: arid further stated that he and Roach were going to Washington where Roach had provided to pay said due-bill or note. And the defendant further proved, that about the time of this statement by plaintiff, Roach drew out of a partnership a considerable sum of money lot his.own use; whereupon the defendant. moved the Court to instruct the jury, “ That if they believed the account in suit was settled by a due-bill or note given by defendant’s intestate to the plaintiff, then the presumption is that the said due-bill or note had been paid;’’ and after-wards further, prayed the Court to instruct the jury, “-That if the jury believe from the evidence, that the defendant’s intestate, in the spring of 1831, closed the account' in suit, by giving to the plaintiff his due-bill or note payable-on demand, and that immediately afterwards the plaintiff with Philip Roach came to Washington for the purpose of receiving the money for the said due-bill or note; that about the time Of said visit to Washington, a considerable sum of money was withdrawn by said Roach, from a partnership in which áaid Roach was engaged with Patrick Donelly, in consequence of which Donelly abandoned the partnership ; then the jury may presume from the above facts, arid from the non-production of the due-bill or note by the plaintiff, no account being given by the plaintiff of said bill or note, that the same was paid and delivered to the said Philip Roach, and by him destroyed;” but the Court refused, &c.

In trials at law, whilst it is invariably true that the decision of questions upon the weight of the'evidence belongs exclusively to the jury, it is equally true, that wherever instructions upon evidence are asked from the Court to the jury, it is the right and duty of the former to judge of the relevancy and, by necessary implication, to some extent, upon the certainty or definiteness of the evidence proposed. Irrelevant, impertinent,'or. immaterial statements, a Court cannot be called upon to admit as the groundwork of instructions ; it is bound to take care that the- evidence on which it shall be called to act, is legal; and that it conduces to the issue on behalf either of the plaintiff or of tile defendant. To apply these principles to the cáseunder review.. — The purpose of the defendant below was tcf .show, that the demand of the •plaintiff, if originally well founded, had been paid by the execution of a note by the testator of the defendant, which note had been subsequently satisfied, surrendered to the maker, and by him destroyed. And wfiat was the evidence introduced to establish these 'conclusions ? The - statement by a witness of a conversation between, himself arid the plaintiff in 1831, wherein it was stated, amongst other things, by the former, that he had settled all.his private accounts,'as well as on account of one Davidson, against, said Roach, and had been paid the sarrie, except five hundred-dollars, for. which he; had Roach’s due-bill or noté payable - on demand, .but the witness was uncertain whether the'plaintiff said'it was a due-bill or note; and further said that he and ’Roach were going ttí Washington^ where Roach had promised ter pay said .due-bill or note :• and further, that about this time Roach drew out of a. partnership a considerable, sum of money for his own uses.

: Now, the first thirig which strikes the attention with respect to the .testimony of the witness is, that' he does not prove with certainty, if at allj\the existence of any instrument whatsoever: he saw none, and cannot give a.clear and certain description of it as reported to. him by the plaintiff:’ he does n’ot know whether it Was a.due-bill or a note. In the next place, the witness does not- disclose whether this note óp due-bill, or whatever it may have been, Was given, for the benefit of Davidson, or for that of. the plaintiff; for we are told that the plaintiff professed to havé settled with Roach his own private accounts, as well as on account of one Davidsori. Now, although there was a contract between. Roach and one Davidson, for the building of the outlet lock, yet there is nothing in the plaintiff’s- contract with Roach, nor any proof in the record, which connects the plaintiff, or his undertaking, or the obligations of Roach to him, With any transaction between Davidson and Roach. Then,-when the plaintiff is represented as speaking of a settlement with Roach on account of Davidson, distinguishing it. at the same time from a settlement of his own private account, and as speaking of a note or due-bill taken upon these settlements, it would be as regular to presuriae that such note or due-bill, (if it were practicable to_ conjecture which it wás,) belonged as much to the one settlement as the other. Upon these loose statements the Court Were asked to instruct the jury, that, if they-believed the account in suit .was settled by a due-bill or note given by the defendant’s intestate to the plaintiff, then the presumption is, that the said due-bill or note has been paid. And further, that if they believed from the samé evidence, xnat the defendant’s intestate, in 1831, closed the account in suit, hy giving to the plaintiff his due-bill , or hóte, payable on demand, and that' immediately afterwards; .the plaintiff with Philip Roach came to Washington for the purpose of receiving from Philip Roach the money for- said due-bill or note; and that money was drawn by said Roach from a partnership in which he was engaged.; then' the jury may presume from the above facts, and the non-production of the dué-bill or note by the plaintiff, (no account being given by the plaintiff of the said due-bill or note,) that the same was paid, and delivered to the said Philip Roach, and by him destroyed, &c. The propositions which the Court were here required to affirm, so far. from following as regular or allowable inferences from the evidence, appear to be in nowise dependent upon it. No witness had proved so muchasthe.existence of any particular writing Whatsoever; much, less’that of an obligation payable to the plaintiff, and in his own interest and behalf. How, then, could- the jury, with any • propriety,, be directed to presume, not only the existence of such an obligation, but also its discharge; and, in addition to these facts, its actual surrender to, and destruction by the defendant’s intestate ; thereby relieving him from all the presumptions naturally arising, against a party from the non-prodüction of a document, .whenever the custody thereof is brought home to him, either by direct or circumstantial proofs. Almost any other propositions which can be imagined could with as much regularity have been required from the Court as instructions to the jury, as those which the Court was requested to affirm.

The cases of Swift v. Stevens from 8 Pick. 431; and of Freeman and Another v. Boynton, from 7 Mass. Rep. 483, have been relied on in .argument for the plaintiff in error. Any influence of these cases' in favour of the plaintiff, the Court is unable to perceive. The former was an action upon a lost promissory note; the latter was also an action upon a note, in which the question of diligence, was chiefly involved. In these cases the only points ruled which seem to have any affinity with this case, were that in the first, the existence at one period and the subsequent lpss or. destruction of the note was required to be clearly shown; ant in the second it was decided that, as a general rule, the demand for payment of a note must be accompanied with the possession pf thé note. Accordingly, in, the case from 8 Pick., the existence and-subsequent loss of-the note -v/ere established by a disinterested depositary with whom ikhad beén lodged. These cases were, rhled, and most properly So, upon the principle that a debtor, when Jie makes payment, shall receive the. best, allowable protection, against a repetition of the same demand upon him, viz. : his bond or his note'when either has been-giyen. The bases of Clark v. Young and Company, 1 Cranch, 181; of Harris v. Johnson, 3 Cranch, 311; and of Morgan v. Reintzel, 7 Cranch, 273, all turn upon the same, principle. In' the plaintiff’s first hill of exceptions the evidence tendered is vague ,and confused ; it-establishes nothing pertinent to,the point raised, and does.not warrant, as. a legitimate conclusion from it, the instruction asked,for. The. Court, -therefore, prdperly denied that instruction.

In the second bill of exceptions the Court is asked to -instruct the jury that, should they be of-opinion, from the said .evidence, that Philip Roach made and delivered his negotiable note payable on demand- to the plaintiff for the balance due him on a final settlement of all accounts, that the plaintiff cannot "recover, unless he has produced the said note, or proved that.thé sanie was lost, cfr that the same wqs'cancelled, &c. This hill of exceptions may he. disposed of- in veryffew words. The instruction it prays for purports to be founded upon the evidence contained in the former hill; and it asks,.that if .jhe.jury shall' believe, upon the evidence, that Philip'Roach did execute and ffeliver. to the plaintiff his negotiable note payable orf,demand, then, &c..' -Now,’, in the evidence referred to, there is not qne word contained/; relative tó a negotiable note made and delivered by Philip Roach'to the plaintiff, or to any other person. .It would have been,improper for. the jury to Have embraced in their 'contemplation, or belief any thing concerning -a negotiable- note; and improper for the Court to have given them any instruction-concerning' a-dopui, ment which was not in the cause, and about which not a tittle of evidence was adduced from any quarter. Jn refusing the instrue--, tions asked for,, as set .forth in this second bill, the Circuit Court have also' decided correctly; and this Court, approving its .decision upon both the points adjudged by it, doth affirm the judgment of the Circuit' Court.


author: Mr. Justice Daniel

text:
    William H. Fresh,Plaintiff in error, v. Riah Gilson,Christopher Midlar, and James Fresh, Defendants in error.
    Liability for the acts of others may be created either by a direct authority given for their performance,.or it may flow from their adoption, in some instances from acquiescence -in those acts. But presumptions can stand only whilst they are compatible with the conduct of those'to whom it may be sought to apply them; and must still more give place when in conflict with clear, distinct, and convincing proof.
    The Circuit Court of the District of Columbia admitted as evidence a statement by one witness of what had been' testified by another on the trial'of a cause, to which the plaintiff in the cause and against whom the evidence was to operate, was not a party. Held that this was error. Wherever the rights of a parly, founded upon a deed, are dependent on the terms and conditions of that deed, the instrument thus créating and defining those rights must be resorted to; and must regulate, moreover, the modes by, which they are to be enforced at daw. These identical rights cannot be claimed as being derived from a different and inferior source. If the deed be in force, all who claim by its provisions must resort to it.
    When the contract contained in a deed has been varied or substituted by the subsequent acts or agreements of the parties, thereby giving rise to new relations'bétweén them, the remedies, originally arising out of the deed, may be varied in conformity with them. . An action upon the deed would hot be insisted upon, or permitted, because the rights and obligations of the parties to the suit would depend on a state of things by which the deed had been put aside.
    IN- error tp the Cixeuit Court of the United States, for Washington co'unty, in the District of Columbia.
    This case was argued by Mr. Brent, junior, for the plaintiff, in error ; and by Mr. Bradley, for the defendants.
   Mr. Justice Daniel

delivered .the opinion of the Court.

This case arjses un,der the attachment law pf the state of Maryland, passed in 1795; and comes before this Court upon a writ of .error to the-Circuit Court of the District of Columbia, for Washington county; within which the law of Maryland above mentioned-is in force. The proceedings instituted in this case, although commencing by an attachment, and upon what is termed- a- short note in lieu of-a formal declaration, assume, nevertheless, the essential character, and in some respects the usual forms of, the action of-assumpsit, and must be governed by the rules applicable 'to such an action. The defendants dissolved the attachment by appearing and entering special bail, and pleading “non-assumpsit;” and upon the issue made up on this plea, the cause was tried in the Circuit Court.

Upon the trial, exceptions were taken m five separate instances to the rulings of the Circuit Court, and in each of them. the ex, ception sealed by the judges is made a part of the record. To test the accuracy both of the decisions thus pronounced, and of the objections alleged against them, it will be necessary, to advert to the facts adduced in proof.

It appears that on the 23d of August, 1832, the defendants in error entered into a covenant with the Chesapeake and Ohio Canal Company, for certain rates and prices stipulated in a covenant sealed between the defendant and the company by their president, and in a specification appended to the said covenant, to construct in a substantial and workmanlike manner, culvert No. 116, on the 150th section of the Chesapeake and Ohio Canal-;' and to prosecute the work upon the said culvert .without intermission, with such force as should in the opinion of; the resident engineer secure its completion by the first day of August, 1833:

On the third' day of November, 1832, a covenant was entered into between the plaintiff in error and the defendants, -or rather with Riah Gilson, one of the defendants, styling himself superintendent for- Gilson and Company, by which the construction of the culvert No.. 116 was let to the plaintiff, at the contract prices to be paid by the company for the work; with the exception that Fresh should pay to the defendants, from whom he took this contract, the sum of one hundred dollars,- which sum appears to have been a profit reserved to themselves by the first contractors upon the transfer of their undertaking. In this .second covenant, the plaintiff in error bound himself “ to be urgent- in the performance of the work, so that it might progress in accordance with the specification and directions of the engineers.” And' further, that in the event of neglect or failure on his part;-the defendants'should have authority to declare the work abandoned, to assume the direction, and to complete it at the plaintiff^ ex-. pense. - Having thus obtained a contract under the defendants, the plaintiff, on the second day of May, 1833, made an agreement with Elijah Barret for building of this culvert, by the latter; stipulating to pay Barret the price of one dollar twelve and a half cents for every perch of stone work of twenty-five cubic feet, upon a certificate and approval of the engineer or superintendent of masonry as to the fidelity of the work. The plaintiff on the trial offered these several contracts ■ in evidence; also an account against the defendant stated, on the 24th of December, 1833, for masonry, excavation, and paving performed, and for cement not supplied by the plaintiff in the construction of culvert 116; on which account, after allowing a credit of one thousand one hundred and forty-two dollars and seventy-three cents, a balance of one thousand three hundred and forty-three dollars and one cent was claimed. This was the. account on which the warrant óf attachment issued. The plaintiff further proved the delivery of the letter dated December 25th, 1833, addressed by him to Wells the agent of the defendant, in which he required, a statement of his account with them, and expressly forbade the payment to Elijah Barret of any amount whatever.

The defendants, to rebut the plaintiff’s demand, offered the account, exhibit (C), commencing December 5th,. 1832, and ter'minating the 21st of December, 1833, amounting to the sum of one thousand three hundred and sixty-nine dollars and thirty-six cents; and proved by their clerk that the work on the said culvert was completed on the 21st of December, 1833, and that the account last mentioned was received by the plaintiff without objection except as to the quantity of cement charged therein. The defendants likewise offered in evidence several orders, numbered from 1 to 7, drawn by Elijah Barret, by himself and his agents, in favour of William Harris, upon the defendants, at different periods during the autumn and winter of 1833, and claimed the benefit of them as payments to the plaintiff. These orders purport to have been paid all on the same day, viz., April 29th, 1835, rather more than two years posterior to the date of the letter delivered to the defendant’s agent,.positively forbidding any payment to be made to Barret or to his order, and nearly one month after the institution' of this suit. And it is admitted that the orders were never shown to the plaintiff, nor expressly recognised by him at any time. The defendant offered seven other papers purporting to be orders and due-bills signed and certified by Elisha Barret, in November and December, 1833; three of them said to be for work done upon culvert No. 1165 and amounting in the whole to two hundred and seventy-three dollars and fifty cents; these last orders and certificates, it is also admitted, were never shown t'o the plaintiff, nor acknowledged by him, and it does pot appear that they .have ever been paid. . Oral testimony was also introduced on the part of tne defendants, in order to show that the work had been abandoned by. the plaintiff, and its completion assumed and accomplished by the defendants; and on the part of the plaintiff, like evidence was offered 'to prove that he continued on the'work and laboured on it until-it was finished on the 21st of December, 1833.

Upon the foregoing state of facts, the counsel for the plaintiff moved the Court to exclude from the jury the orders drawn by Barret in favour of Harris,, as well as the evidence offered to prove the payment of those orders in April, 1835, more than two years after their payment had been forbidden bv the plaintiff: the Court, admitted this evidence to go to the jury, and this produces the auestion presented by the first bill of exceptions.

We aré unable to perceive upon wfiat correct legal principle this question was ruled as it has been by the Circuit Court. There is no express power apparent in the record,nor indeedwas any attempted to be shown in the proofs, existing in Barret to bind Fresh for any amount with any person. It is true, that under the contract between them, the former would have had a claim on his own behalf, whenever he should have fulfilled his undertaking; but not even then until he should have procured a certificate from the engineer of the company. But the right or claim he would then have acquired, differs essentially from the pretension sanctioned by the decision of the Court, which amounts to an evasion of the stipulated test of his own conduct and his own rights, and to a claim by that very evasion to bind his employer ad libitum to any amount and to any person. Nor is it perceived that the admission of these orders was warranted by any presumption arising from the fact that orders previously drawn by the sanie person were comprised in the account proved to have been presented by Fresh; and not objected to by him,, except as to the quantity of cement charged therein. Liability for the acts of others may be created eithér. by-a direct authority given for their performance, or it may flow from their adoption, of,.in .some dnstancesfixom acquiescence in those acts. But presumptions can. stand only whilst, they are compatible with the conduct óf those-to whom it may be sought to apply them; and still more must give place when in conflict with clear, distinct, and convincing proof’ 3 Bac. Abr. 318, (H) Presumptive proof; 4 Starkie’s Evidence, 53. The letter of the plaintiff Fresh, delivered to .the agent of the defendants more than two years anterior to the alleged payment of the orders drawn by Barret, fully accords with the character of the proof just described; it justified rio presumption of right or- authority in Barret to make, nor of any obligation upon the defend^ ants to pay those drafts; and the Circuit Court therefore erred in permitting them to be given as evidence, instead of excluding them wholly from the jury.

The next question arises upon the admissibility of the. second series of orders and certificates or due-bills' signed by Barret, amounting together to three hundred and seventy-two-dollars ánd fifty cents, embraced in the second bill of exceptions. These-orders are obnoxious, to even stronger objections than", those existing against the former orders drawn by Barret; they not only, like the former, were, never (as is admitted) shown to or acknowledged by the plaintiff, but they carry on their face-no receipt nor other semblance of payment, nor is proof attempted aliúñde, that the defendants have given, or are bound to give, any consideration for them. The Circuit Court should have excluded these ^papers also.

It is next stated that in addition to the evidence previously introduced by the defendants, they offered to prove by a..competent witness, that at the trial of a cause brought by orie Hammond against two of the defendants, and to which the 'plaintiff was not a party, certain facts were proved by a witness examined in that cause. The plaintiff asked the exclusion of this testimony by the Court, but his motion was denied,-and this denial presents the point upon the third bill of exceptions. The" evidence let'in by this decision of the Circuit Court was not the exhibition of a record, nor even of a judgment, nor -of process; but simply a statement by one witness of what had beeii testified by another, on the trial of a cause to which the■ plaintiff was not a party, without an attempt to account for the absence of the person whose testimony was thus given at second hand. The principles, that the b.est,. evidence the nature of the case admits of. must, always be produced, arid that a person shall not-be affected by that-which is res inter alios acta, are too familiar to require authorities to support them. We will mention, however, as applicable to these points, 3 Bac. Abr. 332 (I); 3 East, 192; 2 Wash. 287; 5 Cranch, 14; 1 Starkie’s Ev. 58, 59. But familiar as these principles may be as rudiments of the law, they are elements which enter essentially into the security of life, character, and property- The Circuit Court in conflicting with these principles have further erred.

In the fourth bill of exceptions it is statedy thaf defendants offered to. prove, that Riah .Gilson and Christopher Midlar, two of .the defendants, superintended the performance of the work on the culvert No. 116, and that, their.superintendence was worth one hundred and fifty dollars. That to the admissibility of this proof, the plaintiff objected.- but the Court permitted it to be received.' The questions here raised, or rather the facts which make the basis of those questions, are somewhat vaguely and imperfectly stated. Enough however can be gathered from them to justify the following conclusions. 1st, That by the written contract'between the plaintiff and the defendant, or by any oral agreement attempted to be shown between these, parties, there is, no. condition established authorizing or requiring the defendants to become the supervisors of the plaintiff in the performance of his work. 2d, That if the defendants have performed the work either in fulfilment of their original contract with the Canal Company, or in consequence' of an abandonment by the plaintiff, a charge for superintendence would appear inconsistent with the’ position they would have occupied in either view. Such a claim is therefore regarded as irregular and unauthorized, and should have been excluded.

.Upon the fifth and final'bill of exceptions, it is in substance set forth, that the'plaintiff haying given in evidence the contract between the Canal Company and the defendants, and the contract under the seals of the plaintiff and Riah Gilson, one of the defendants; the latter offered their account against the plaintiff, arid proof that the culvert No. 116, was not completed until after the 1st of August; 1833, the period designated in the original contract with the company. 'The plaintiff then offered evidence to show that the work was carried on until the 21st of December, 1833, at which date it was completed, and afterwards accepted formally and .expressly by the company. And thé defendants offered oral evidence to prove that the work had been abandoned by the plaintiffs, and was finished- by the defendants. Then follow the instructions moved for and granted, in the following term?. The defendant then prayed the Court to instruct the jury that “ If from the evidence the jury shall find, that there was an agreement under seal between the said plaintiff and the defendant, for the execution of the work and labour for which this action was brought, the plaintiff is not entitled to recover in this action;” and further, that “If from the evidence the jury, shall find, that, the said plaintiff performed the work and labour for which this action is brought under a sealed agreement between the said plaintiff and Riah Gilson, then the plaintiff is not entitled to recover in this action;” to the granting of which two “instructions unless qualified, the plaintiff objected; but the Court overruled the objection, and gave the said instructions as prayed.”

Had the ruling of the Circuit Court in this instance been limited, to an affirmance of the second proposition insisted on by the defendants, this Court could not hesitate in sustaining the decision: for we hold it as invariably true, that wherever the rights of a party founded upon a deed are dependent upon the terms and conditions of that deed, the instrument thus creating and. defining those rights must be resorted to, and must regulate, moreover, the modes by which they are to be enforced at law. These identical ■rights cannot be claimed as being derived from a different and an inferior source. If the deed be in force, all who claim by its provisions must resort to it. This is regarded as a canon of the law, and numerous authorities might be adduced to sustain it, both from compilations and from the adjudged cases. 2 Bac. Abr. title Debt, letter (G), citing 13 H. 4, 1, and Roll. Abr. 604; 1 Chitty’s Pleading, 75; 4 Bos. & Pull. 104; Atty v. Parish, 12 East, 585; Clark v. Smith, 14 Johns. 316; Munroe v. Perkins, 9 Pick. 298.

These authorities, to which many .more might be added, are-full and express to the point that where a deed is the foundation of the claim, and can still be regarded as subsisting and in full force between the parties, the action to enforce its provisions must be upon the instrument itself. In the case of Tilson v. The Wartrick Gaslight Company, 4 Barn & Cres. 962; there .are some expressions of Bayley, Justice, which indicate an opinion by that learned judge, in opposition to the doctrine aboye laid down, and as counsel in the case of Atty v. Parish, he had maintained an opposite doctrine: but it should be borne in mind, that in Tilson v. The Gaslight Company, the decision did' not turn upon the principle ruled in the several authorities above cited, but entirely upon a state of the pleadings in which the judges declared they would be justified, if necessary, in presuming the existence of a deed. It should be remembered too, that in deciding the case of Atty v. Parish, Chief Judge Mansfield, after advisement,' and delivering the unanimous opinion of the Court, declared the doctrine contended for by Justice (then Serjeant) Bajdey, to be such as. he did not understand, or did not feel the application of. With all the deference justly due to so learned and able a jurist as Justice Bayley, his argument as counsel, or his opinion intimated not upon the point adjudged, should not overrule a current of authorities extending from the Year Books to our own day.

There cannot be a doubt that where the contract contained in á deed.has been vaiied or, substituted by the subsequent acts or agreements of the parties,, thereby giving rise to new relations between- them,' the. remedies originally arising out of the deed, may be varied in conformity with them. An Action upon the. deed woiild not be insisted upon or permitted, because the rights and obligations of the parties to the suit would depend upon a state of things' by which the deed had been put aside. Hence it has been ruled, that where a person who had covenanted to perform certain work had failed or refused .to fuífil his covenant, but had afterwards, upon the pároi engágement of the covenantee, or by (his acts amounting in law to án engagement, gone on dm whole or in part to do the work, he'might recover the value of the work in'assumpsit, upon a; quantum íneruit.' So- too, between partners, though articles- of copartnership have been sealed between them, yet, lipón an account stated, and a balance struck, assumpsit will lie( This principle is illustrated in several of the, authorities already quoted,-and in none of them more forcibly than in those of White v. Parkin, 12 East, 585; Monroe v. Perkins, 9 Pick. 289; to which may. be added the cases of The Marine Insurance Company v. Young, 1 Cranch, 331; Baird v. Blagrove, 1 Wash. 170; and, Latimore and others v. Harsen, 14 Johns. 330 ; and in the case of Fletcher v. Gillespie, 3 Bing. 635, although a charter-party had been entered into* yet expenses incurred by the captain • in loading the ship were recovered in assumpsit; for, say the Court in that case, “ This claim does not rest upon the charterparty, it is for money paid dehors the contract, for the ease and benefit of the defendants, and from which they have derived advantage.” Numerous cases applicable to the point here considered Will be found collected by Saunders, in his Treatise on Pleading and Evidence, vol. i. p. 110. It is upon this well-settled distinction, that. this Court, whilst it recognises the principle affirmed by the second instruction contained in the fifth bill of exceptions, feel bound to disapprove and overrule the first'instruction in that bill. It is manifest, that at the trial testimony was introduced tending to show that' the contract between the defendants and the Canal Company, as well as that entered into between the same defendants and the plaintiff, had been modified or substituted by other and new contracts, tending too to show acts of performance by the parties to these new or modified engagements. It was certainly competent for the parties to use such evidence, and to rely fipon its effect .before the jury. The first instruction of the Circuit Court, contained in the last bill of exception, cuts off from the plaintiff ■ at least all benefit of such evidence, however strong it might have been. 'In this we consider that instruction as having deprived the plaintiff.of an undoubted legal right. . We regard it therefore as erroneous; and for this/cause., and for the reasons assigned for disapproving the. rulings of the Circuit Court upon the other instructions given in this case, the judgment of that Court is hereby reversed, and the cause is remanded to be again tried by a jury in conformity with the principles of this decision.


author: Mr. Chief Justice Tanéy

text:
    David Prouty and John Mears, Plaintiffs in error, v. Draper Ruggles et al., Defendants in error.
    The plaintiffs, in the Circuit Court, claimed damages for the'infringement of their patent for “a new and useful improvement in the construction of a plough.” . The claim of the patentees was for the combination of certain parts of the plough, not for the parts separately. The Circuit Court- charged the jury, that unless it is proved that " the whole combination is substantially used in the defendant’s ploughs, it is not a violation of the'plaintiff’s patent; although one or more' of the parts specified in the letters patent may be used in combination by the defendant. The plaintiffs, by their specification and summing up, treated the parts described as essential parts of their combination, for the purpose of brace and draft; and the use of either alone by the defendant would not be an infringement of the combination patented. 'Held, that the instructions of the Circuit Court were correct.
    The patent is for a combination, and the improvement consists in arranging different por- • tions of the plough, and combining them together in the manner stated in the’ specification, for the purpose of producing a certain effect.' None of the paTts referredto are new, and none are claimed as new; nor is any portion of the combination less than the whole claimed as new, or stated to produce any given result. The end in view is proposed to be accomplished by the union of all, arranged and combined together in the manner described;'and this combination, composed of all the parts mentioned in the specification, and arranged with reference to each other, and to other parts of the plough, in the manner therein described, is stated to be the improvement, and is the thing patented. The use of any two of these parts only, or of two combined with a third, which is substantially different in the form,- or in the-manner of its arrangement and connection with the others, is, therefore, not the thing patented. It is not the same combination, if it substantially differs from it in any of its parts.
    IN error to the Circuit Court of the United States, for the district of Massachusetts.
    The plaintiffs in error instituted a suit, in the Circuit Court of Massachusetts, for the recovery of damages for the violation of á patent granted to them by the United States, for a new and useful improvement in the construction of a plough.
    The cause was tried before a jury, at October sessions of the Circuit Court, in 1841, and a verdict and judgment were rendered for the defendant. The plaintiffs took exceptions to the charge of the Court, and prosecuted this writ of error.
    The case was submitted to the Court on printed argunients by Mr. Choate, for the plaintiffs in error;, and by Mr. Dexter, for the defendants. The case is fully stated in the opinion of the Court.
   Mr. Chief Justice Tanéy

delivered, the opinion of the Court.

This case is brought here by a writ of error - tó the Circuit Court of the United States, for the district of Massachusetts.

The action was instituted for the purpose of ', recovering damages for an infringement of a patent, which the plaintiffs had obtained for an improvement in the construction of the plough.

The invention is described in the specification, as follows:

"Be it known, that we, the said Prouty and Mears,have jointly invented, made, and applied to use, a new and useful improvement in the construction of the plough, which invention and improvement we describe and specify as follows, viz.:

Heretofore, the standard and landside of the plough has been placed perpendicular to, and at right angles with the plane of the share; on this standard the beam has been placed in-such manner as to form, an acute angle with the landside, of such extent as to place that part of the beam to which the moving power, is applied at the distance of three of more inches from an extended line of the landside, to the right; while thei after-part of the beam extends one or more inches to the left of the'perpendicular of the landside, near the handle; the object has been to cause the plough ‘to run. to land/ or hold its width Of furrow. The-effect produced has been an- uneasy, struggling motion, as it meets resistance at the point, wing, or heel.

We make our plough with the standard and landside forming an acute angle'with the plane of the share-, the standard inclining to the right or furrow side, in such manner as to enable us to place the centre of the beam on a line parallel with the landside, the forepart thereof at such distance from theextended line aforesaid, as to cause the plough to hold- its width, of furrow, and the after-part falling within the perpendicular of the landside of the plough, the centre of it being nearly perpendicular to the centre of resistance, on the mould-board, which we conceive' to be at about one-fourth part of the lateral distance from the landside to the wing of the share, and at about one-third part of the perpendicular height from the plane - of the share to the upper edge of the mould-board.

This locatidn of the centre of resistance, we base on the-fact,that many ploughs which have been used in sharp, sandy soils, have been worn quite through at that point. The result of this formation of the plough, is-a steady, well-balanced motion, requiring less power of draft, and less effort in directing the plough in its course.

The inclination of the standárd and landside canses, the plough to. cut under, and take up the furrow in the form of an bbliqueangled parallelogram, or like a. board, feather-edged, which being turned over, falls in level with the last furrow more'readily than right-angled or square-edged work.'

The coulter or knife, having, a similar inclination, cuts the roots of the grass, &c., and leavés all vegetable m'attér on the, surface, at a greater- distance from the under edge of the. furro.w, which being turned over, more readily falls in, and is far better covered than with square-edged work»

The top of the standard, through which the bolt passes to .sect" 3 the beam, is transversely parallel to-the plane of the share, and extends back from the bolt tó such.distance as to.form-a., brace to the beam, when thé’after-part is'passed down by lifting at the forepart; the share being fast under a-rock, or other Obstruction, the after-part of this extension is squared ,in such manner, that being jogged into the beam, it' relieves the bolt in heavy draft.

The bolts which we use to fasten the pieces of cast iron, of which our ploughs- are made, together, arid- the wood-work,'are round, with inverted convex heads, like the wood screw, with a projection on the under side of the-.head, -of semicircular form, which fits into a groove in the counter-sink part of the bolt hole, as it is- cast to receive it, which not only prevents its turning, but also diminishes the liability of breakage at the. corners of square holes;.all which will more fully appear by reference to the drawing annexed to, and forming part of this specification!

We hereby declare, that what we claim as new, and of our invention, is the construction of such ploughs as aforesaid, and the several parts thereof, not separately, but In combination, for the purposes aforesaid, viz.:

. 1. The inclining the standard and--landside so as to form an acute angle with the plane of the share.

2. The placing the béahron a line parallel to the landside, within the .body of the plough and- its centre, nearly in the perpendicular of the centre of resistance.

3. The forming' thé top of. the standard for brace and draft. We do not intend to confine our ciaim to any particular form or construction, excepting such form as may be necessary to place ,the beam in the perpendicular of the centre of resistance, and parallel, to the landside, and also to such form of the top of the standard, ás shall- serve for brace" and. draft, but have given siich form as we deem to be most conveniént, which may be varied, as is obvious.”

The plaintiffs offered to prove the utility of the alleged improvement, which proof was dispensed with by the defendants. Certain, ploughs alleged by the plaintiffs to be made in conformity with their letters patent, and certain ploughs, made by the defendants, which were the alleged infringement of the- plaintiff’s patent, were produced in Court; .and no "substantial'difference -between ..them was shown by the defendants to exist, unless'the fact, that the' top of the standard m the defendant’s plough was not jogged into the beam,'and did not extend sd -far back upon the-beam, was to be so considefed.

•And the plaintiffs offered evidence to show,.that the top of the standard formed, as stated in the specification, would sei-ve for both purposes óf brace and draft, álthough not jogged into the beam.

> The defendants introduced ho evidence. .Tile- counsel for the plaintiffs requested the Court -to instruct -the jury as follows, to wit:

The counsel, of plaintiffs respectfully move thé CoUrt to instruct the jury, that if the defendants have used, in combination with- the other two parts, a standard of the description set forth in the specification^ and- it is proved to serve both fór Iprace and draft, such use was an .infringement of the plaintiffs’ claim in that particular, although the defendants may not have inserted into a jog in. the beam.

. Also, that if any two of the three parts described,, as composing the construction claimed -in the specification, had been used in combination by the defendants, it was an infringement of the patent, although the third had not been used with them.

The Court refused, to give the instructions so prayed, or either of them, in manner and form as prayed by the plaintiffs; but did instruct the jury as follows, to wit:

That upon the true construction'of the patent, it is for a combination, and for a . combination only. That the combination, as stated in the summing up,- consists , of three things, viz.:

1: The inclining the standard and'landside so as to form an acute angle with the plane of the share.

2. The placing the beam on a line parallel.to the landside, within the body of the. plough and its centre, nearly in the perpendicular of the centre of resistance.

3. . The forming the top of the standard for brace and draft-.,.

That Unless it is proved, that the" whole combination is substantially Used in the defendants’ ploughs, it is not a violation of the plaintiffs’ patent, although One or more of the parts specified, as. aforesaid, may be used, in combination • by the defendants. And; that the plaintiffs, by their -.specification and summing up, have,treated the jogging of the standard behind, as wéll.as .the. extension; tó be essential parts of their combination’ for the purpose of brace and draft; and that the Use-of either aloné by the defendants would' not be an infringement of the combination-patented.

And thereupon the jury, rendered their verdict for-' the' defendants.

The first question presented by the exception is, whether the extension of. the standard, and the jogging of it into the beam, are claimed as material parts of thé plaintiff’s improvement: We think they are. In the paragraph in which it is described, he states that it «extends back from the bolt to such a distance as to form a brace to the-beam;” 'and also, «that being jogged into the beam it relieves the bolt in a heavy draft-.” And in their summing up, they declare that they claim as new,-and of their invention, the. construction of such ploughs as aforesaid, and the several parts thereof, not separately but in .combination;' and proceeding then to specify the parts so claimed, they mention, «the forming of the top of the standard for brace and draft.” They indeed say that they do not mean to confine their claim to any particular form of construetioh, except “ to such form of the top as shall serve for brace and draft.” That is to say, the top is to be so formed and so connected with. the. beam as to answer both purposes. And as those purposes, according to the preceding part-of the specification, are to be accomplished by its .extension back from the . bolt, and by jogging it into the beam, these two things are' essential to. it whatever variation may be made in its shape or size. They are, therefore, materiál parts of the improvement they claim.

The remaining question may.be disposed, of in a few words. The patent is for a combination, and- the improvement consists in arranging different portions of the plough, aM combining them together in the manner stated in the specification for the purpose of producing a certain effect. None of the parts referred to are new, arid none are claimed- as new; nor is any portion of the combination less than the whole claimed as new, or stated to produce any given result. .The end in view is proposed to be accomplished by the union of all, arranged and combined together in the manner described. And this combination^ composed of all the parts mentioned in the specification, and arranged with reference to each other, and'to other parts of the plough in the manner therein described, is stated- to be the.improvement, and is the thing, patented; The use of any two of these parts only, or. of two combined with a third, which is substantially different, in form or in the manner of its arrangement and connection with the others; is therefore not the thing patented, It ismot the same combination if it substantially differs from it in any of its parts. The jogging oí the standard-'into the beam, and its extension backward from the,bolt, are both treated by the plaintiffs' as essential parts of thqir combination for the purpose, of brace and draft. Consequently the .use of either alone,-by. the defendants, would not be the. same improvement, nor infringe the -patent of the plaintiffs.

The judgment of the Circuit Court must therefore be affirmed.