author: Mr. Justice CURTIS

text:
    Horace C. Silsby, Washburn Race, Abel Downs, Henry Herrion, and Charles D. Thompson, v. Elisha Foote.
    Upon a trial in New York, a. juror became ill, and was discharged before any evidence Was given, and before the plaintiffs’ counsel had' concluded his opening address. The court ordered another, juror to be sworn, and proceeded with the trial. The ■defendant cannot object to this. It is the practice in New York, and the Circuit Court had a- right to follow it.

      The court having erroneously refused to allow the plaintiff to offer a paper in evidence as a disclaimer 6f part of a patent, afterwards refused to allow the defendants to offer the same paper in evidence' for the purpose of prejudicing the plaintiffs’ ■ rights. This last refusal was correct. The reason given was erroneous, but this is not a sufficient'cause for reversing the judgment.
    The courts of the United States have not the power to order a non-suit against the wishes of the plaintiff.
    Under a-noti'ce given by the defendant, that the invention claimed by the plaintiff was described in XJre’s Dictionary of Arts, Manufactures and Mines, and had been used by Andrew Ure, of London, it was not competent to give in evidence a very large’ book. The place in the book should have been specified.
    Nor, under the notice, was the book competent evidence that Andrew Uro, of London, had a prior knowledge of the thing patented. The notice does not state the place where the same was used.
    One of the specifications of the patent being for a combination of certain parts of mechanism necessary to produce the desired result, it was proper for the court to instruct the jury that the defendants had not infringed the patent, unless they had Used all the parts embraced in the plaintiffs’ combination; and the jury were to find what those parts were, and whether the defendants had used them.
    When a claim does not point out and designate the particular elements which compose a combination, but only declares, as it properly may, that the combination is made up of so much of the described machinery as effects a particular result, it is a question of fact which of the described parts are essential to. produce that result, and to this extent, not the construction of the claim, strictly speaking, but the application of the claim, should be left to the jury.
    This case was brought up, by writ of error, from the Circuit Court of the United States for the Northern District of New York.
    The facts are stated in the opinion of the court.
    It was argued by Mr. Seward, for the plaintiffs in error, and by Mr. Foole, in proper person, for the defendant in error.
   Mr. Justice CURTIS

delivered the opinion of the court.

This is an action on the ease for the violation of a patent-right granted to the defendant in error on the 26th day of May, 1842, for “ a new and useful improvement in regulating the draft of stoves.5' On the trial in. the Circuit Court for the Northern District of New York, the defendants took exceptions to the rulings of the District Judge, who presided at the trial, and have brought the case here by. a writ of error.

The first exception shows the following' facts: After the counsel for the plaintiff had begun his opening address to the-jury, a juror became ill, applied to the court to be discharged, and was discharged from the panel on account of physical inability 'to sit on the residue of the trial. Thereupon the court ordered another juror to be drawn and sworn, and the panel being thus full, the trial proceeded, and the plaintiffs5,counsel concluded his address. The plaintiff assented to this proceeding: the defendant objected, and excepted to the order of the court.

"We think it was not erroneous for the presiding Judge'to treat the physical inability of the juror as simply creating a vacancy on the panel, and proceeding to fill it in the usual way by havihg a twelfth juror drawn and sworn. We understand it to have been the practice of the courts of the State of New York so- to treat such a withdrawal of a juror, when the presiding Judge in his discretion has thought proper to do so, and under the act of July 20, 1840, (5 Stat. at Large, 394,) the Circuit Court, might properly conform to that practice. Of course it must be confined to cases like the present, in which it is apparent, the party objecting received no injury. The defendant cannot be supposed to havq been prejudiced by the failure of the twelfth juror to hear a part of the opening argument for the plaintiff, r. evidence having been given, and he did not make known to the court' that he desired to attempt to exercise any right of challenge of the other eleven jurors, to which he might have been -“restored if any cause existed, and the panel had been treated as broken up. Rex v. Edwards, 4 Taunt. 309; Green v. Norville, 3 Hill, (S. C.) 262. In such a case we think it rested in the discretion of the court whether the withdrawal of a juror ■should be treated simply as occasioning a vacancy on a still ■existing panel, or as breaking up the panel altogether, and it being a matter of discretion, no error could be assigned upon it, even if there were reason to believe, what in this case there is •not, that the discretion was not wisely exercised.

• Thé next exception was to the refusal of the Judge to allow the defendant to put in evidence to the jury an indorsement on the original letters-patent. The plaintiff had previously offered in evidence a duly certified copy of the following disclaimer:

To the Commissioner of Patents, the petition of Elisha Foote, of Seneca Fall's, in the county of Seneca, and State of New

York, respéctfully represents:

■ That your petitioner obtained letters-patent of the United States for an improvement in regulating the draught of stoves, which letters-patent are dated on the 26th day of May, 1842. That he has reason to believe that, through inadvertence and mistake, the claim made in the specification of said letters-patent, in the following words, to wit: “ What I claim as my invention and desire to secure by letters-patent, is the application of the expansive and contracting power of a metallic rod, by different degrees of heat, to open and close a damper which governs the admission of air into a stove, or other structure in which if may be used, by which a more perfect control over the heat is obtained than can be by a damper in the flue,” is too broad,.including that of which your petitioner was not the first inventor.

Your. petitioner, therefore, hereby enters his disclaimer to so much of said claim as extends the application of the expansive and contracting power of a metallic ród, by different degrees of heat, to any.other .use or .purpose'than that of regulating the heat of a stove, in -which such rod shall be acted upon directly by the heat of the stove or the fire which it contains ;• such disclaimer is to operate to the extent of the interest in said letters-patent .vested in your petitioner, who has paid ten dollars into the treasury of the United States, agreeably to the act of Congress in that ease made and provided. Elisha Foote.

Witnesses — Morris Newton, Edwin L. Baltink.

The defendants objected upon the ground that the instrument did not state “ the extent of his interest in such patent.’,’ 5 Stat. at Large, 193, sec. 7. The court sustained the objection, and refused to permit the instrument to be read by the plaintiff as a disclaimer. At a subsequent stage' of the trial the defendant'offered to read to the jury a copy of this instrument indorsed on the original letters-patent, not as a disclaimer under the act of Congress above referred to, but as a confession by the plaintiff that he was not the original and first inventor of a part of the thing patented. The plaintiff objected, because the indorsement on the letters-patent was not in his handwriting, nor signed by him, and the defendants had already caused a duly certified copy of the same instrument to be rejected. The court sustained the objection.

We are of opinion the court erred in not allowing the plaintiff to put this instrument in evidence as a disclaimer, under the 7th section of the act of March 3, 1837. 5 Stat. at Large, 193. This section authorizes not only the patentee, but his executors, administrators, and assigns,- whether of the whole or of a sectional interest in the patent, to make disclaimer, “ stating therein the extent of his interest in such patent.” This instrument states that the plaintiff was himself the patentee, and having thus shown a grant to himself of the whole interest, it is silent respecting a transfer of any part of it. The fair implication is that he still owns the whole; and this implication is sufficient -Without an express declaration that he had parted with no interest. It has been argued that the words “such disclaimer is to operate to 'the extent of the interest vested in your petitioner,” imply that he had not the whole title. But-the interest previously-described as vested in him was the entire title as patentee, and this reference to that interest, accompanied by a declaration that the disclaimer was intended to operate upon it to its whole extent, strengthens, rather than weakens the implication that he owned' the whole patent. This being so, it follows, that when the defendants offered to put a, copy of the instrument in evidence, not as a disclaimer, but as a confession of the defendant, to prejudice his rights, it was properly rejected. It is true the rejection of the evidence was placed, on a different ground by .the Judge below. But.if the defendants were not deprived of any right by the rejection of the evidence, it is not cause for reversing the judgment that an erroneous reason -was given for rejecting it; and they were not deprived of any right, if the paper was not legal evidence upon the particular point for which alone it was offered, or if its reception, accompanied by proper instructions to the jury concerning its legal effect, must necessarily have assisted the opposite party.

The next .exception is to the refusal of the Judge to order a nonsuit. But, as it has been repeatedly decided that the courts of the United States have no power to order a peremptory nonsuit, agafnst the will of the plaintiff, it is not necessary to examine the grounds of the motion. Doe v. Grymes et al. 1 Pet. 469; D’Wolf v. Rabaud et al. 1 Pet. 476; Crane v. Morris et al. 6 Pet. 598.

In the course of the trial, the defendants offered to put in evidence two articles contained in Ure’s. Dictionary of Arts, Manufactures, and Mines, to prove that the patent declared- on was not valid. The plaintiff objected, and the evidence was excluded. It is incumbent on the defendants to show their right to introduce this evidence. To do so, they rely on the fifteenth section of the act of July 4th, 1836. 5 Stat. at Large, 123. This section enables the defendant, in any action on the case, founded on letters-patent, to give in evidence; under the general issue, any special matter of which notice in writing may have been given to the plaintiff, or his attorney, thirty days before the trial, tending to prove, among other things, that the patentee was not the original and first inventor of the thing patented, or of some substantial and material part thereof claimed as -new, or that it had been described in some public work anterior' to the supposed discovery thereof by the patentee; .and whenever the defendant'relies, in his defence, on the fact of a previous invention, knowledge, or use of the thing patented, -he is required to state, in his notice of special matter, the names and places of residence of those whom he intends to prove possessed a prior knowledge of the thing, and where the same had been used. The notice given in this case was as follows:

“ The patentee was not the original and first inventor or discoverer of a substantial and material part thereof, claimed as new. That it had been described in a public, work, called ( Ure’s Dictionary of Arts, Manufactures, and Mines,’ anterior to the'-supposed invention thereof by the patentee; and also, had been in public use and known before that time, and used by Andrew Ure, of London, the late M. Bonnemair, of Paris, and George H. McClary, Of Seneca Falls, New York.”

Ure’# Dictionary contains upwards of thirteen hundred pages, and the articles which the defendants offered to read were entitled “ Thermostad” and “ Heat Regulator.” The first question is, whéther this was a sufficient notice of the special matter, tending to' prove that the thing patented, or some substantial part thereof, claimed as new, had been .described in a printed publication. We are of opinion it was not. The act does not attempt to prescribe the particulars which such a notice shall contain. It simply requires notice. But the least effect which can be allowed to this requirement, is, that the notice should be so full and particular as reasonably to answer the end in view. This end was not merely to put the patentee - on inquiry, but to relieve him from'the necessity of making useless inquiries and researches, and enable him to fix with precision upon what is relied on by the defendants, and to prepare himself to meet it at the trial. This highly salutary object should be kept in view, and a corresponding disclosure exacted from the defendant of all those particulars which he must be presumed to know, and which he may safely be required to state, without exposing him to any risk of losing his rights. Less than this would not be reasonable notice, and, therefore, would not be such a notice as the act must be presumed to have intended.

Now, we do not perceive that the defendants would be exposed to the risk of losing any right, by requiring them to indicate, in their notice, what particular things, described in the printed publication, they intended to aver were substantially the same as the thing patented. This they might have done, either by reference to pages, or titles, and perhaps in other ways, for the particular manner in which the things referred to are to be identified, must depend much upon the contents of the volume, and their arrangement. It has been urged that a defendant may not have access to the book in season for the notice. But it must be remembered that, some considerable time before it is .necessary to give such a notice, the defendant has begun to use the thing patented, which, primd facie, he has no right to use, and it would "seem to be no injustice, or hardship, to expect him, before he begins to infringe, to ascertain that the patentees’ title is not valid, and if its invalidity depends on what is in a public work, that he should inform himself what that work contains, and, consequently, how to refer to it. We do not think it necessary so to construe" this act, designed for the benefit of patentees, as to enable the defendant to do, what'we fear is too often done, to infringe first, and look for defences afterwards.

Nor does a notice, that somewhere, in a volume of thirteen hundred pages, there is something which tends to prove that the thing patented, or some substantial and material part thereof claimed as new, had been described therein, relieve the patentee from the necessity of making fruitless researches, or enable him to fix with reasonable certainty on what he must encounter at the trial. Upon this ground, therefore, the exception cannot be supported.

But, it is further urged that the book' ought to have been admitted as evidence; that Andrew Ure, of London, had a prior knowledge of the thing patented. This view' cannot be sustained. For, although the name of Andrew Ure, of London, is contained in the notice of person's who are alleged to have had this prior knowledge, yet the defendants have not brought themselves within the act of Congress, because the notice does not state where the same was used,” by Andrew Ure. Besides, inasmuch as the same section of the statute provides that a prior invention in a foreign country shall not avoid a patent, otherwise valid, unless the foreign invention had been .described in a printed publication, the defendants are thrown back upon that clause of the act which provides for that defence, arising from a printed publication, which has already been considered.

The next exception was to the charge of the presiding Judge to the jury. The defendants requested the Judge to charge the jury, 3d, that it was erroneous to consider as constituent parts of the combination claimed by the plaintiff only those points which were requisite to the. operation of opening and closing-the damper; but that, on the contrary, the jury must consider as constituent parts of the combination all the parts of the machine, as described in the specification, by which the regulation of the heat of a stove, or the other structures, is effected.

4. That .the index is a constituent part-of-the combination patented byjhe plaintiff.

5. That the detaching prqcess of the lever is atconstituent part of the combination patented by the plaintiff

6. That the pendulum is a constituent part of the combination. ■

And, in this connection,

• 7. That if the defendants do not use all the constituent parts of the combination patented by the plaintiff, a verdict must.be rendered for the defendants.

As to the 2d, 3d, 4th, 5th, 6th,. and 7th of the instructions prayed for by the defendants, the Judge charged the jury, that it was true as insist'd .by the defendants’ counsel, that the third article of the surrimary of the plaintiff’s specification, on which alone, if at. all, hi was entitled to recover, was for a combination ; and unless, it appeared by the evidence that the defendapts had used ail .the parts of the plaintiff’s stove embraced in such combination, he was not entitled to recover. That the eombination-claimed in the article in question was of such parts of the mechanism described in the specification as are necessary to regulate the heat of the stove. And unless it appeared by the evidence that some parts of the mechanism, not shown to have been used by thé defendants, were necessary to perform that office, or that, according to the just construction of- the specification, such parts were intended to be claimed by the plaintiff as a part of such combinatiori, they are not to be considered as embraced within it. That inasmuch as by the fourth article of the plaintiff’s summary, he made a distinct and separate claim to what had been called the detaching apparatus, there seemed to be good reason to infer that it was not his intention to claim this in the third article as a part of the combination .therein mentioned. But the Judge observed, that the question-relative to the extent of the combination, had been treated by the defendants’ counsel as a question of fact, and he had no disposition to withdraw it from the consideration of the. jury; and he therefore submitted it to the jury to decide, from the evidence, whether the parts of .the mechanism described in the specification, which were not shown to hav,e been used by the defendants, were necessary to regulate the heat of the stove ; and instructed the jury that if they should so find, the defendants would be' entitled to a verdict. And the Judge refused to charge otherwise in relation to such instructions, or any of them.

To this charge and refusal of the Judge, as the 2d, 3d, 4th, 5th,.6th, and 7th of the instructions prayed by the defendants, the defendants’ counsel then and there excepted.

The substance of the charge is, that the jury were instructed by the Judge, that the third claim in the specification was for a combination of such parts of the described mechanism, as were necessary to regulate the heat qf the stove ; that the defendants had not infringed the patent, unless they had used all theiparts embraced in the plain tiff’s combination; and he left it to, the jury to find what those parts were, and whether the defendants had used them.

We think this instruction was correct. ' The objection made to it is, that the court left to the jury what was matter of law. But an examination of this third claim, and of the defendants’ prayers for instruction, will show that the Judge left nothing but matter of fact to the jury. The construction of the claim was undoubtedly for the court. The co.urt rightly construed it to be a claim for a combination of such of. the described parts as were combined and arranged for the purpose of producing a particular effect, viz., to regulate the heat of a stove. This was in accordance with the defendants’ .third prayer. But the defendants also desired the'Judge to instruct the jury that the index, the detaching process, and the pendulum, were constituent parts of this combination. How could the Judge know this as matter of law? The claim is in these words : I also claim the combination, above described,- by which the regulation of the heat of the stove, or other structure in which it may be used, is effected.” The writing which the Judge was to construe, calls for all such elements of the combination as are actually employed to effect the regulation of the heat, according to the-plan of the patentee, described in the specification, and it therefore became a question for the jury, upon the evidence of experts, or an inspection by them of the machines, or upon both, what parts described did in point of fact enter into, and constitute an essential part of this combination. When a claim does not point out and designate the particular elements which compose a combination, but only declares, as it properly may, that the combination is made up of -so much of the described machinery as effects a particular result, it is a question of fact which of the described parts are essential to- produce that result; and to this extent, not the construction of the claim, strictly speaking, but the application of the claim, should be left to the jury. The defendants themselves so treat this matter in their third prayer, and we are satisfied the Judge did not err in so. treating it.

The defendants’ counsel exhibited to the court the models of the machines of the defendants and the plaintiff, for the purpose of satisfying the court the jury must have understood they were at liberty to construe the claim, and that they did in truth so construe it, as to exclude from the combination claimed by the plaintiff, what is called the detaching ■ process. But we can draw no such inference from an examination of those models. And while we do not think it proper to express any opinion on what is really a matter of fact, yet we think it pertinent to say, that an examination of the models has satisfied us that' a jury might fairly come to the conclusion that the defendants did use a detaching process, not substantially different from the plaintiff’s, and occupying in their combination the same place, and answering substantially the same purpose, as the plaintiff’s detaching process does in his combination ; and therefore we can draw no inference such as is contended for.

We have examined all the exceptions, and no one being found tenable,-the judgment .is affirmed.

Mr.' Justice McLEAN dissented.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Northern District of- New York, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged, by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, affirmed, with costs and interest until the same is paid, at the same rate per annum that similar judgments bear in the courts of the State of. New York.


source: Caselaw Access Project

author: Mr. Justice NELSON

license: Public Domain

text:
    E. P. Calkin and Samuel Jones, trading under the Firm and Style of E. P. Calkin and Company, Plaintiffs in error, v. James H. Cocke.
    The State of Texas was admitted into the Union on the 29th of December, 1845, (9 Stat. at Large, 108.) and from that day the laws of the United States were extended over it.
    Consequently, on the 30th of January, 1846, the revenue laws of Texas wore not in force there, and goods seized for a non-compliance with those laws, were illegally seized.
    This case was brought up by writ of error from the Supreme Court of Errors and Appeals for the State of Texas, under the 25th section of the Judiciary Act.
    Calkin and Company were merchants of the counxy oi Galveston, Texas, and Cocke was collector of Galveston under the Republic of -Texas.
    By a joint resolution of Congress, approved on the 1st of March, 1845; the President of the United States was .authorized to submit one of two alternative propositions to • the Republic of Texas, as an overture for her admission as a State into the Union. One of these contemplated the completion of this measure and the adjustment of its terms, by legislation, and the other by negotiation. The President selected the former, and presented to Texas the proposals contained in the first and second sections of the said resolutions. The first section declared “ that Congress doth consent that the Territory of Texas may be. erected into a State, to be called the State of Texas, with a republican form of government, to be adopted by the people of said Republic, by deputies in convention assembled, with the consent of the existing government, in order that the same may be admitted as one of the States of this Union.”
    And the second section declares that this consent, on the part of the United States, was given upon several conditions, one of which required the constitution, which was to be framed by the Convention, to be transmitted, with the proper evidences .of its adoption by the people of the said Republic of Texas, to the President of the United States, to be laid before the Congress of the Union for its final, action, on or before the first day of January, one thousand eight hundred and forty-six. This consent, with the conditions on which it was given, was communicated to the Republic Of Texas, and in the course of the following'summer and autumn the people of Texas, by deputies in Convention assembled, with the consent of the then existing government, erected it into a new State, with a republican form of government,.as shown by the constitution then adopted by them for its government, and declared and ordained that they accepted the proposal contained in the resolutions just spoken, of, and assented to the conditions on which it was made.. The constitution adopted by the people of Texas, with the evidence of its adoption, and of their acceptance of the proposal made by Congress, and their assent to the conditions with which it was accompanied, was-laid before Congress at the opening of the session of 1845-6, and on the 29th of December, 1845, the Congress of the United States, after taking cognizance of the acceptance of the proposal and of the conditions annexed to it by the people of Texas, and of the constitution adopted by them, declared that the State of Texas “shall be one, and is, hereby declared to be one, of the United States, of America,” &c.
    This constitution of Texas, thus adopted by that State and laid before Congress, contained, amongst others, the following provisions. By the first section of the twelfth article of the said constitution, it was declared that “ all process which’ shall be issued in the name of the Republic of Texas, prior to the organization of the State government under this constitution, shall be as valid as if issued in the name of the State of Texas.” In the second section of the same article it was provided, that “ all criminal prosecutions or penal actions which shall .have arisen prior to the organization of the State government under this constitution, in any of the courts of the Republic of Texas, shall be prosecuted to judgment and execution in the name of the State,” &c. The sixth section contained a provision that if it should appear, on the second Monday of November, 1845, from the returns, that a majority of the votes polled of the péople of Texas were given for the adoption of the constitution, the President should make proclamation of that fact, and thenceforth the constitution was ordained and established as the constitution of the State, to go into operation, and be of force and effect, from and after the organization of the State góvernmentunderthe said constitution. By section ten, it was declared “ that the laws of this Republic relative to the duties of .officers, both civil and military, of the same, shall remain in full force, and the duties of their several, offices shall be performed in conformity with the-existing laws, until the organization of the government of the State under this constitution, of until the first day of the meeting of the legislature,” &c.
    On the same day that Congress declared that Texas shall be and is hereby declared to be one of the United States, viz. on the 29th of December, 1845, (9 Stat. at Large, 108,) Congress passed an act extending the laws-of the United States over Texas, and declaring them to have full force and effect within the State. It provided also for the establishment of a court of the United States, with its necessary officers. And on the 31st of December, 1845, another law was passed, constituting Texas a collection district, and making Galveston a port of entry.
    The Legislature of Texas did not meet, nor was the State government completely organized under its new constitution, until the 16th of February, 1846.
    On the 30th of January, 1846, Calkin and Company imported into Galveston, from New Orleans, a large amount of merchandise, principally the growth and manufacture of the United States.
    These goods were seized by Cocke, claiming one thousand dollars as duty, under the revenue laws of' Texas. Calkin and Company protested against this, and demanded that the goods should be delivered to them in accordance with an act of Congress of the United States, of the 31st December, 1845', and of a circular of the Secretary of [the] Treasury of the United States, of 9th January, 1846, declaring that “ vessels and their cargoes arriving in any port of the State of Texas, either from a foreign port, or a port in any other State or Territory of the United States, are to be placed on a similar footing with vessels and their cargoes arriving at ports in any of the States of the Union.”
    On the trial of the case in the District Court of the State of Texas, on the 5th of January, 1847, a judgment was rendered therein in favor of plaintiffs, restraining the defendant from claiming any duties on the merchandise, and condemning him to pay to the plaintiffs the sum of two hundred, and-fifty dollars, ' the damages assessed by the jury, as damages for the unlawful detention of the -merchandise, and the costs of the suit. From this judgment a writ of error was prosecuted to the Supreme Court of Texas, and by that tribunal the judgment was reversed, and one given in favor of the defendant jor the sum of nine hundred and sixteen dollars, the amount of duties .unpaid, and the amount of costs expended in and about the suit.
    A writ of error brought this judgment up to this court.
    ■The case was argued, in printed arguments, by Mr. Miles Taylor, for the plaintiff in error, and Mr. Harris, for the defendant in error.

      Mr. Taylor, after reciting the laws and other proceedings relative to annexation, .continued:
    Now it is an undoubted truth; that when a proposition, made by one party to another, is accepted as made, there is, from the instant of the acceptance, á valid contract, which from that moment is obligatory upon both, and must, to.the full extent of its provisions, thereafter regulate the respective rights and obligations of the respective parties.. Here the proposition was, that Texas, should be admitted a member of the Union, on her compliance with certain terms and conditions. She complied with the terms and conditions, and accepted the proposition,.ánd the Congress, in' which the power to admit was vested, admitted her as a State into the Union, and on the 29th day of December, 1845, declared that she “ is one of the United States.” Was she not so ? I believe she was, and that whilst this necessarily results from the terms of the proposition to admit her into the Union,-and of its acceptance, it is further shown by the action of Texas herself.
    Texas regarded the contract for her admission into the Union as complete, when she had given her assent to the proposition submitted to her in relation to it, and had acceded to the specified conditions. This is at once evident from the fact that immediately after her assent was given,'she called on the Executive óf the' United States to employ the military force of the. nation to protect her from hostilities threatened by Mexico. I have not the public documents before me, so as to b.e able to refer to the precise date of this application. It was made, however, some time, -before the meeting of Congress, in the aufumn .of 1845, and was based upon the obligation imposed on the "national government, by the Constitution, of : exercising its power to protect every .member of the confederacy from invasion'. That this construction given by Texas to the effect of her acceptance pf the proposition submitted to her is correct, cannot be doubted.' The contract was complete from the time, of her acceptance. She was entitled, from that moment, to all the advantages growing out of it, and was subject to all the-burdens- resulting from it. It is true, there was a new state of things created,, not contemplated by the existing laws, and that borne action oil the part of Congress was necessary to’give effect to the new rights and obligations, and to extend the laws of the nation over Texas'. That was' the eaqe \vith respect to the- judiciary, the rovenue system, the operations of the post-office, &c. But whilst something was necessáry for these purposes on .the part of the Congress of the United States, there was nothing which wa& required.to be done'by Texas'. The.Constitution of the United . States, and the laws made in pursuance thereof, is the supreme law of the land, and when Congress exercised the power delegated to it by the Constitution, on the 29th day of December, 1845, by act of Congress, and said that all the laws of the United States were thereby “ declared to extend to and over, and to have full force and effect within the. State of Texas, admitted at the present session of Congress into the confederacy and Union of the United States,” the revenue and other laws were extended proprio vigorej and not because of any thing contained in the constitution of Texas, which had just been adopted, for “the Constitution of the United States, and the laws made in pursuance thereof,” being the supreme law erf the land, if any thing had been contained in the constitution of Texas, which conflicted with them, it would have been' absolutely null and void, and have no more force or effeqt than if not written.
    The pretensions set up by the defendant, in his pretended capacity of collector, under the authority of the revenue laws of the late Republic of Texas, are understood to be based on the 10th section of the twelfth article of the. constitution of Texas, in which it is declared “ that the laws of this Republic, relative to the .duties of officers, both civil and military, of the same, shall remain in full for.ee, and the duties of their several offices shall be performed in conformity with the existing laws,, until the organization of the government of the State under this constitution, or until the first day of the meeting of the legislature.”
    An attentive consideration of this section, and of the other sections embraced in the same article of the constitution of Texas, will, I think, make it apparent that no such consequence as that now contended for, was contemplated, or could legitimately flow from it. . The. different sections contained in that article were designed to provide for the transition from, an independent government to one adapted to the new order of things, and were not intended or designed to limit or restrain the rightful authority of the Constitution or laws of the United States, within the territory of Texas, or to fix a time when the independent authority of Texas should yield and give place to the national authority of the United States. By the first section1 of this article, it was declared, that “ all process that should be issued in the name of the Republic of Texas,.prior to the organization of the - State government under the constitution, should be as valid as if issued in the name of the State of Texas.” The second section provided, “ that all criminal prosecutions or penal actions ” which should have arisen prior to the organization of the State government under the constitution, in any of the courts of the Republic of Texas, should “ be prosecuted to judgment and execution in the name of the State,” &c, The sixth section directed, that “if it should appear on the second Monday of November, 1845, from the returns, that a majority of the votes polled of the people of Texas, were given for thé adoption of the constitution, the President should make proclamation of that fact, and thenceforth the constitution was ordained and established as the constitution of the State, to go. into operation and be of force and effect from and after the organization of the State government under the constitution. And then in the tenth section of the same article, 'is found the provision before recited, to the effect that the laws of the Republic relative to the duties of officers, both civil and military, of ,the same, should remain in full force, and the duties of the seve'ral offices be performed “in conformity with the existing laws, until the organization of the government of the State,” under the constitution, or “ until the first day of the meeting of the legislature,” &c.
    . These various provisions were introduced into the constitution of Texas, not, ás I before remarked, to bind or restrain the rightful authority of the Constitution and laws of the United States within the territory of Texas,-' or fix a time when' the independent authorities of Texas should yield to and give place 'to the national authorities of the United States, but to obviate the inconveniences which might otherwise have grown out of the change from one constitution to another. In the absence of any declaration, fo the contrary, it cannot be presumed that any limitation or condition, on the contract just completed by their formal assent, was intended by these general expressions, because full effect can be given to them without adopting -.such a .construction. But if it were' otherwise, and it were the design of. the people of Texas to impose such a limitation, the provision would have produced no such effect. . If Texas ever has been an integral part of the Union, she was so when Congress declared her to be so, on the 29th day of December, 1845, after her acceptance of the proposition submitted to her in relation to' it. If she were so at-that time for any purpose, she was so for all-purposes';’and then it would of necessity follow, that as -the Constitution of the United States, and the laws adopted under its authority, are the supreme laws of the land, the constitution and laws of the Republic of Texas, wherever they •conflicted with them,-were at once abrogated, and that the people o{ Texas could not at any future time give validity or .binding force to any new constitutional-or legal provision which conflicted with it.

      Mr. Harris, for the defendant in error.-
    It is obvious that the main question presented by the record is, whether Texas was annexed to the United States, on the 26th of December, 1845, or on the 16th of February, 1846'; and, as a consequence, at which of th.ese periods the right of the late Republic to collect import duties terminated. It is contended by the plaintiffs, that this right ceased on the-29th of December, 1845, when the joint resolution of Congress was passed for the admission of Texas as one of the States of the Union; while it is contended, on the part of the defendant, that it did not cease until the 16th day of February, 1846, the day on which the State government was organized.
    For the settlement of this question, resort must be mainly had to the terms of the joint resolution “ for the annexation of Texas,” &c., approved March 1,1845; to those of the constitution of the State of Texas, and of the joint resolution of the 29th of December, mentioned above.
    It is submitted that the first of these amounts to nothing •more than a proposition, on the part of Congress, for*the annexation of Texas, and this resolution may be said to be only preliminary to that object. The first and second sections, it is contended, clearly fehow that it was not the intention of Congress' to concede to Texas the power to consummate annexation by any act of her own; for it provides that the constitution-of the proposed ‘State, “with the proper evidence-of its adoption by the people of the said Republic of Texas, shall be transmitted to the President of the United States, to be laid before Congress, for its final actiop, on or before the first day of January, one thousand eight hundred and forty-six.” • This is-entirely consistent with the preamble of ’the' joint resolution “for the admission of xhe State of Texas into the. Union.”
    The last section of the constitution of Texas, provides that “the ordinance passed by the convention on the fourth day of July, assenting to the overtures for the annexation of Texas to the United States, sháll be attached to the constitution, and form a part of the same.” They were transmitted to the President, to be laid before Congress together, and the meaning of the ordinance was restrained and limited, not only by the intention of the first joint resolution, but also by the spirit and terms of the constitution -itself. .
    •This constitution, containing the conditions upon tvhich ■Texas consented to be annexed, and having been accepted by Congress, must, with all its terms, and conditions, be regarded as a part of the contract, or treaty of annexation. It having been adopted by Congress, it is supposed that its provisions became a portion of the laws of the United States, and that the constitution of Texas, and the joint resolution of the 29th of December, 1845, should be. taken and construed- together. Under this view, attention is most respectfully invited to several atticies of that instrument.
    The first section of the 12th article of the constitution provides, that “ all process which shall be issued in the name of the Republic of Texas, prior to the organization of the- State government under this constitution, shall be as valid as if issued in the name of the State of Texas.” In the second section, it is provided, “ that all criminal ‘prosecutions, or penal actions, which shall have arisen prior to the organization of the State government, under this constitution, in any of the courts of the Republic of Texas, shall be prosecuted to judgment and execution, in the name of the State,” &c. The sixth section, under the same article, among other things, provides, that if the constitution be adopted by the people, it shall “ go into operation, and be of force and effect, from and after'the organization of the State government, under said constitution,” &c.
    By the 10th section it is declared, “that the laws of the Republic relative to the duties of officers, both civil and military, of the same, shall remain in full force, and the duties of their several offices shall be performed in conformity with the existing laws until the organization of the government of the State under this constitution, or until the first day of the meeting of the legislature.”
    It is most respectfully submitted, that these provisions furnish cumulative and convincing evidence, that the people of Texas (one of the contracting parties) intended and stipulated that the government of the Republic of Texas and all its laws should remain in full force until the 16th of February, 1846, “ the first day of the meeting of the legislature.” It' is also submitted, that the other party, by accepting this constitution, became bound by all its terms and stipulations, as portions of the contract of annexation.
    For the convenience of the argument, it may be supposed that Texas proposed to be annexed- upon the terms and conditions contained in her State constitution, and that this proposition was accepted by -the government of the United States. Had such been- the - case, it is easy to seé that the effect of the contract would, not be changed. If it had been so consummated, it is equally obvious that no diversity- of opinion would have arise n in regard to its construction.
    Then the condition, that the sovefeignty and laws of the Republic should remain -unimpaired until the 16th of February, 1846, was proposed by Texas and assented to by Congress.
    It may be-further remarked, that' Congress must have understood this to be one of the stipulations of the- contract. By reference to the act of Congress, of the 29th of May, 1846, (see acts of 1845, ’46, page 23,,)- it will be seen, that the 3d section provides that the Postmaster-General was not authorized to pav the expenses incurred for carrying the mail in Texas, prior to the 16th of February, 1846. When the contract of annex-' ation was.one and indivisible, was it the intention of - Congress to receive its benefits from the 29th Of December, 1845, and to postpone its burdens to the 16th of February, 1846 ?
   Mr. Justice NELSON

delivered the opinion-of the court.

This is a writ of error to the Supreme Court of the State of Texas. The suit was 'originally brought by the plaintiffs in error before the District Court of Galveston county, to recover the possession of a stock of goods from the defendant, who had seized them at Galveston, as collector of thát port, under the. authority of the Republic of Texas, for non-payment of duties They recovered a judgment in that court; but, on a writ of error from the Supreme Court, the judgment was reversed, and the goods held liable to the duties.

The case was this: The plaintiffs shipped from New Orleans into Galveston the stock of goods, on the 30th. January, 1846, and the defendant, claiming to act as collector under the Republic of Texas, and also that the revenue laws of that government were then in torce, charged them with ' a rate of .duty in conformity with those laws, and for the non-payment by the plaintiffs, they insisting that the goods were not liable to any rate óf duty since the admission of Texas into the Union, he-seized and took possession of, • and detained theni, until they Were redelivered to the plaintiffs, by the order of the District.Court.

The question in the case is, whether the revenue laws of this government were- in force in the , State .of Texas at the date of the importation, or those of the former government of that country. The Supreme Court held the latter were in force, and charged the goods with the customary duties.

The State - of Texas was admitted into the Uniqn on the 29th December, 1845, on an equal footing with the original States, in all respects whatever. 9 Stat. at Large, p. 108. And-by the 1st section of an act of Congress, passed the same day, all the laws of the United States were declared to-be extended over, and to have full force and effect within, the State. And,, by the 2d section, the State was declared to constitute one judicial district, called the District of Texas, for which a judge should be appointed, and should hold the first term of his court at Galveston, on the first Monday of February then next. The remaining part of the section cbnfers upon the court,the usual powers belonging to a district court, and also of a circuit court of the United States. The 3d section provides for the appointment of - a district attorney, and marshal for the district, and for a clerk of the court. Id. p. 1, 2.

Orí the 31st December, 1845, the next' day after the admission :nto the Union, Congress passed an act declaring the State to be one collection district, and making the city of Galveston a port of entry,'and to which was annexed several other places, as ports of delivery. The 2d section provides for the appointment.of .a collector for the port of Galveston, and the 3d section for the appointment of a surveyor for each port of delivery.

Now it is quite apparent, from the joint resolution of Congress, admitting the State of Texas into the Union, and the acts passed, organizing the Federal courts and revenue system, over it, that the old system of government, so far as it conflicted with the federal authority, became abrogated immediately on her admission as a State. This is clearly so, unless some provision is found in the act of admission postponing the time when it shall take effect, and, as applied to the case before us, postponing it until after the 31st January, 1846, when these goods were shipped to the port of Galveston.

This has been attempted on the part of the defendant in error.

We have been referred to the 1st section oí the 13th article of the constitution of Texas, which provides, “ that all process which shall be issued in the name of the Republic of Texas, prior to the organization of the State government under this constitution, shall be as valid as if issued in the name of the State of Texas.” And also to the 2d section of the same article, which provides that “ all criminal prosecutions or penal actions, which shall have arisen prior to the organization of the State government under this constitution, in any of the courts of the Republic, shall be prosecuted to judgment and execution in the name of the State.” And also, to' the 6th section, which provides, upon its appearing that a majority of tlic votes of the people given is for the adoption of the constitution, “it shall be the duty of the President (of the Republic of Texas) to make proclamation of the fact, and thenceforth this constitution shall' be ordained and established as the constitution of the State, to go into opération, and be of force and effect, from and after the organization of the State government.” And also, to the 10th section, which declares, “ that the laws of the Republic, relative to the duties of officers, both civil and military, of the same, shall remain in full force, and the duties of the several offices shall be performed in conformity with the existing laws, juntil the. organization of the government of the State under this constitution, or until the first day oí the meeting of the legislature.”

It is supposed, that these several provisions of the constitution of Texas, and which is the one accepted, when she was admitted, into the Union by Congress, have the effect to postpone and fix the period of admission to the time of the first meeting of the legislature of the State and organization of the government under the constitution, which was on the 16th February,-1846 ; and, of course, to postpone the operation of the laws of the Union over her till that period.

But the obvious answer.to this .view is, that these' several provisions in the constitution were designed and intended, and had the effect, to organize a government at once, pn the adoption of the constitution by the people, and thereby to avoid an interregnum between the abrogation of the old and the erection of the new system, and until the legislative body could .meet, and put the government in operation in. conformity with the requirements of the organic láw.

The whole of the 10th section, a 'part of. which has been already referred to, affords an illustration of the design of the framers of the constitution. It is as follows: “ That notinconvenien.ce may result from the change of government, it is dé-. dared, that the laws of the Republic, relative to the duties of officers, both civil, and military, of the same, shall remain in full force, and the duties of the several offices shall be performed in conformity with existing laws, until the organization of the government of the State under this constitution, or.until the first day of the meeting of the legislature.” This section, taken in connection with the. 3d section of the same article, completed an organization which effectually prevented any interval between the old and new systems, when the laws did not operate, or an organized government was not in force. That section provides, that u all laws and parts of laws, now in force in the Republic of Texas, which are ■ not repugnant to the Constitution-, of the United States, the joint resolutions for annexing Texas to the United States, or to the provisions of this constitution, shall remain in force, as the laws of this .State, until they expire by their own limitation or repealed by the legislature,

This-section, as it'will be seen, also negatives the idea, tna-t the Constitution and laws of the Union were not in force within the State as soon, as her admission into the Union took place.

This subject was very fully, considéred in Benner ef al. v. Porter, (9 How. 235,) which involved-an inquiry into the affect of'the admission of Florida'into the Union as á State. . Some of the questions there were very similar to fhose raised In this case, as the machinery of the térritorial government had been adopted by an ordinance in the constitution until'the organization was effected under' the constitution by the legislature.

We there said, “that, on the admission-of Florida as a State into the Union, the organization of the government under -the new constitution became complete; as every department became filled, at once, by the adoption of the territorial laws, and the appointment of the territorial functionaries for the time being.” That “ the convention being the fountain of all political power, from which flowed that embodied in the organic law, were, of course competent to prescribe the laws and appoint the officers under the constitution, by means whereof the government could be-put into immediate operation, and thus avoid .an interregnum that must have intervened, if left to an organization according to the provisions of that instrument. This was accomplished in a few lines, adopting the machinery of th.e territorial government for the time being, and until superseded' by the agency and'authority of the constitution itself.”

An argument is attempted to be drawn against the conclusion that-the laws of the Union were extended over Texas as soon as she was admitted into it, founded upon certain acts of Congress' concerning the establishment and regulation of the post-office system over the State. On the 6th February, 1846, various post routes were established in Texas, and the Postmaster-General was authorized to .contract for conveying the mail on them as soon as could be conveniently done, after the passage of the act. A joint resolution was also passed on. the 20th May, 1846, authorizing the Postmaster-General to continue the mail service existing in the State under the laws and authority of Texas, or such part as, in his judgment, the public interest, required, from the time that Texas became a State in the Union, and until contracts could be made, and the mail service put in operation on post routes' established by Congress at its then session. And on the 29th of the same month, another act was passed establishing several post routes, and repealing the act of the 6th Febiuary, refeh-ed to. The second section of this act authorizes the Postmaster-General to continue in operation' the existing mail service in Texas, established under its former laws, upon any of the routes mentioned, as he may deem expedient, not to extend,/however, beyond the 30th June, 1850. And the third section provides for the payment of mail contractors in Texas for service performed by them since the 16th February, 1846, and also, the officers employed in superintending the mail service, with a proviso, that such payment shall in no case exceed the compensation agreed upon with the late authorities of Texas. The act then provides, that the several postmasters in Texas, appointed by the late government, shall account to the Postiriaster-General for all balances accruing at their offices respectively, after the 16th February, 1846.

We perceive nothing in these several acts expressing or implying that Congress possessed no power to extend the system of mail service over the State from the time of its admission into the Union, or that the date of the admission is to be limited to the 16th February, 1846.

There was necessarily some delay in' putting the system into practical operation; and to avoid any inconvenience in the mean time, the existing system under the laws of the former government was recognized and adopted, until the several post routes were designated by Congress, and contracts made for the performance-of- the service in the usual way. The period fixed when the payment of the old contractors and superintendents of the service should commence; and, also, when the existing postmasters should begin to account to the Postmaster-General for the money collected, and the allowance of compensation, to wit, the 16th February, 1846, rglate simply to the arrangement as to compensation; and as to the adjustment of the accounts of these several officers. The system, as established under the Republic of Texas, was recognized, and not interfered with- in the adjustment down to the period mentioned; after that it Was placed under the laws and regulations of the Post-Office Department of the general government.

That these acts do not admit the want of powers in Congress to extend the post-office laws over Texas until the 16th of February, 1846, is shown by the act passed the 5th of that month, designating several post routes, and conferring the power upon the -Postmaster-General to enter into contracts for cojiveying the mail over them. This act continued in force until repealed on the 29th of May following, when a new and somewhat different arrangement of mail routes was provided for.

Without pursuing -the case farther, our opinion is, that the admission of Texas into the Union is to take date from the 29th of December, 1845, the time of its admission by Congress, and that the laws of the Union extended over it from that time;- and, consequently, the seizure of the stock'of goods in question by the defendant under the revenue laws of the Republic, on the 30th of January, 1846, was without authority of law.

The judgment of the Supreme Court below, must therefore be reversed with costs ; and that the proceedings be remitted to that court with, directions that the judgment of the District Court be affirmed with costs in Supreme Court and District Court.

Order.

This cause came on to be heard on the transcript of the record from’ the - Supreme Court of Errors and Appeals for the State of Texas, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged, by this court, that the judgment of the said Supreme Court of Errors and Appeals in this cause be, and the same is hereby, reversed, with costs, and that this cause be, and the same is hereby, remanded to the said Supreme Court of Errors and Appeals, with directions to affirm the judgment of the District Court for the county of Galveston in said cause, with costs in said Supreme and District Courts.


author:
Mr. Justice McLEAN
      Mr. Justice DANIEL,

text:
    James W. Downey, Executor of Samuel S. Downey, deceased, Plaintiff in error, v. Mary M. Hicks, Executrix of Joseph T. Hicks, deceased.
    Where the declaration, in an action of assumpsit, contained the following counts:— 1. On a promissory note; 2. Indebitatus assumpsit for the hire of slaves3. An account stated; 4. Quantum valébat for the services of slaves; 5. Worjc and labor, goods sold and delivered, and money lent and advanced ;' 6. Money had and received; 7. An account stated; 8.' A special agreement for the hire of slaves- And the defendant pleaded,— 1. The general issue; 2. Statute of limitations; 3. Payment ; — and the jur'y found a verdict for “ the defendant up.or th; issue joined as to the within note of four hundred and fifty-six dollars, and thewbhin account” — this' verdict, although informal, was sufficient to authorize to enter a general judgment for the defendant.
    An objection cannot be made, in this court to a release under which a witness was sworn, unless the objection was made in the court belów, and an exception taken. Where a cértificate of deposit in a bank, payable at a future day, was handed over by a debtor to his creditor, it was no payment, unless there was an express agreement . on the part of the creditor, to receive it as such ; and the question, whether there was or was not such an agreement, was one of fact to be decided by the jury.
    The bank being insolvent when .the certificate of deposit became due. there was no ground for imputing negligence in the collection of the debt by the holder, as no loss occurred to the original debtor.
    If the evidence showed that; after the maturity of the certificate, the driginal debtor admitted his liability to make it good,, the jury should have been instructed that this evidence conduced to prove that the Certificate was not taken in payment.

      Mr. Chief Justice Taney did not sit in this cause.
    ' This case was brought up, by writ of error from the Circuit Court of the United States for the Southern District of Mississippi.
    There were three bills of exceptions taken upon the trial in the Circuit Court, which extended over more than one hundred pages of the .printed record. The last one included the whole of the evidence. The substance' of the case is given in the opinion of the court, to which the reporter refers the rea.der.
    It was argued by Mr. Badger, with whom was Mr. William A. Graham'^for the plaintiff hi error, and Mr.. Volney E. Howard with whom was Mr. Walker, for the. defendant in error.
    The*argument of the counsel for the plaintiff in error, was so intermingled with their statement of the facts in the case, that it will be necessary to insert the whole.
    The declaration of the plaintiff in error, who was the plaintiff in thé court below, is an assumpsit, and contains eight counts.
    The first is on the promissory note of testator, in the name of Hicks & Arnold, for $456 ; the second is indebitatus assumpsit for hire of forty slaves ; the fourth a quantum valebat for the services of forty other slaves ; the third and seventh, each upon an account stated; the fifth for work and labor, goods sold and delivered, and money lent and advanced, and the seventh for money had and received; the eighth and last count is upon a special agreement of testator to hire from the plaintiff certain slaves mentioned in the count, and to pay the same rates of hire as ’ the testator .had agreed to pay Williams & Mills for the same slaves, &c.
    The deféndant pleaded 1st, the general issue; 2d, the statute of limitations ; 3d, payment, upon which plea issues were joined, and the cause tried. The jury found a verdict in these words : “ That-they find for the..defendant upon the issues joined, as to the within note of four hundred and fifty-six dollars, and the within account,”, and upon this finding, the court gave a general judgment for the defendant.
    It is insisted, on the part of the plaintiff in error, that the verdict is imperfect, irresponsive to the issues, and does not dispose of the whple matter submitted by the pleadings,; that upon the most favorable interpretation which can be given of it, it passes only on the first count on the note, and- the third and seventh upon 'accounts stated, and leaves the matters arising upon the five other counts entirely undisposed of. That this verdict being thus imperfect, partial, and irresponsive to the issue, and consequently illegal, does..not support the judgment, which is therefore erroneous.
    The first bill of exceptions states, that the plaintiff objected tc the reading of the deposition of Andrew Arnold, taken for the defendant, on- the ground of his incompetency, but the objection was overruled, and the deposition read to the jury. Arnold was at one time plainly interested and incompetent.
    In order to meet the objection, the defendant, by his 16th interrogatory, asks the witness, “Are you interested in this case ?■ if you have any release from the executrix of Joseph T. Hicks, please mark it, ard inclose it.” To which the witness answers, “ I am not interested in this case ; I have a release from Mary M. Hicks, the surviving executrix of Joseph T. Hicks, deceased, which is marked with the letter A, and is hereto attached.” By reference to the paper set out in the second, it appears to have been attested as a witness by one John Curan.

      It is insisted, for the.plaintiff in-error, that the deposition ought not to have been read, because there was no legal evidence of the execution of the release.
    1. The subscribing witness ought to have been produced, or. his absence accounted for, and his handwriting proved, or other proper matter shown, to let in'secondary evidence of-the execution of the deed. This rule is of general application to all instruments attested, or appearing to have been attested, by a witness, whether produced to support the hction, or used collaterally in evidence, and that no acknowledgment of the party, however solemn, though made on oath, w ill supply the want of evidence as to the subscribing witness. 2 Phillips, Ev. ch. 6, p. 201 to 203; Call v. Dunning, 4 East, 53.
    The rule is very well and forcibly stated by Mr. Starkie. 1 Stark, on Ev. Part 2, see. 139, p. 330.
    In order to render-a witness competent by a release, it must be produced and proved as in other cases. 2 Stark. Ev. Part 4, p. 759; Corking v. Jarrard, 1 Camp. 37; and it is then evidence in the cause for all purposes. Starkie, ut supra; Gibbons v. Wilcox, 2 Stark. Cas. 39.
    2. There is no evidence of the-execution of the release'at all. The witness says, “ I have’ a release,” which I annex. He does not swear to the execution, or the handwriting, or the acknowledgment of it. Suppose it a forgery, how could he be indicted for perjury ?
    Another bill of exceptions, is to the admission by the Judge, of A. W. Brien as a witness for the defendant. Brien, in his voir dire, stated that he was the husband of a daughter of Sarah Curan, to whom, by the will of defendant’s testator, a legacy was given ; that he and his wife had received $1500 in full of his.share of the estate, and had released to the defendant.
    It is insisted that the witness was liable to refund to the defendant, and without her release was not competent. Moffit v. Lane, 2 Ired. 254.
    The same bill states that the defendant produced an account-book, kept by the testator, and the said witness having deposed that a certain portion .of the bo'ok was in the handwriting of .John R. Hicks, that portion of the account was allowed by the Judge to be read to the jury, notwithstanding objection taken thereto by plaintiff’s counsel.
    It is insisted, on the part of the plaintiff, that - this account -was not competent evidence, because the said John R. Hicks was not a general agent of plaintiff, nor his agent to state the account, nor in any other manner so connected with the plaintiff as to make his statement evidence against plaintiff.
    By the third bill of exceptions, jt appears that the defendant’s testator was, in 1836, the agent of plaintiff to receive the hires of certain slaves, owned by him in Mississippi; that he collected large sums on account thereof; that he afterwards took • the slaves into his own employment, as hirer, to execute a contract on the Mississippi Railroad; that subsequently, in 1838, having fortfied a partnership with one Arnold, he continued the slaves in the employment of this firm of “ Hicks & Arnold.”
    The said testator, and Hicks & Arnold, being thus indebted .to the plaintiff in a large amount, Dr. John R. Hicks, a neighbor of plaintiff’s in North Carolina, and a brother of the testator, visited Mississippi, in June, 1839, to collect hires due for his own negroes, and took with him a letter from plaintiff, desiring the testator to send him whatever was due him, to the amount of $12,000, if possible. An account was then stated, showing a balance due plaintiff, 1st January, 1839, of nearly $10,000. The testator thereupon drew a check upon the Mississippi Railroad Bank, for the amount, which the witness Arnold deposfes was received by John R. Hicks, as plaintiff’s agent, in payment,but Hicks himself deposes that he had no authority to bind the plaintiff, merely acting as his friend. The said testator and John R. Hicks then went to Natchez, to make further arrangements respecting the business, where the check was converted into a certificate of deposit for the same amount, dated 10th January, 1849, and payable with eight per cent, interest, on the 1st of November following. This certificate is copied in the record.
    .It was proved, by the deposition of Eli Montgomery, president of the bank, that this certificate was not issued upon any deposit, but in settlement of a debt due to Hicks & Arnold, and made payable on the 1st of November, by which day it was supposed the bank would have funds to meet it; that, in March, 1840, it was admitted. by the testator, Andrew Arnold, and the plaintiff, that “ Hicks & Arnold” owed plaintiff a large debt, for the hire of negroes, and had sent this-certificate to him on account of their debt, and that plaintiff had refused to accept it inpayment or satisfaction of any part of the debt; that Hicks & Arnold were bound to plaintiff to pay the debt (if the bank did not pay the certificate) in the same manner and to the same extent as if the certificate had not been Sent. It was proved that the credit of the bank had greatly sunk at the maturity of the certificate, became continually worse, .and by April, 1840, it had stopped payment; that a suit was brought, by concert between Hicks & Arnold and plaintiff, against the. bank, Hicks & Arnold; admitting their own liability,, and no satisfaction was ever obtained from the bank.
    The plaintiff’s counsel prayed the Judge to instruct the jury : —(See the substance of the prayer in the opinion of the court.)

      These instructions the Judge refused to give, as prayed, and, by the instructions actually given, he manifestly erred, by substantially repudiating proper instructions, and by leaving to the jury to decide questions of law which he ought’to have decided himself.
    The acceptance of the certificate by plaintiff, was not in law an extinguishment of the debt, unless there was an express agreement so to accept it; and the burden of proof, that the certificate was given and received as a satisfaction or extinguishment of the preceding debt,- was upon the defendant.
    A bill, or note, given for a preceding debt, is not deemed payment, unless so expressly agreed, or it has been negotiated, and is outstanding,against the defendant. Burden v. Halton, 4 Bing. 454; Rott v. Watson, Ibid. 273; Raymond v. Merchant, 3 Cam. 147; Owenson v. Morse, 7 T. R. 64; Hickly v. Hardy; 7 Taunt. 312; Mussen v. Price et al. 4 East, 147. See also Greenwood v. Curtis, 6 Mass. 358; Johnson v. Johnson, 11 Mass. 361; Murray v. Governeur, 2 Johns. Ca. 438; Johnson v. Weed, 9 Johns. 310.
    Nor is the receipt of a note as cash, evidence that it was, taken as an absolute payment. Tobey v. Barber, 5 Johns 68.
    . It is but a suspei feion of the right of action, until the maturity of the note. 1 Putnam v. Lewis, 8 Johns. 389.
    In the absence of proof that a draft or check was received in absolute payment, it is regarded but as a means whereby the creditor may obtain payment — as payment provisionally, until dishonored; and if dishonored, it is no payment. The People v. Howell, 4 Johns. 296; Cromwell v. Lovett, 1 Hall, N. Y. Rep. 56; Olcott v. Rathbone, 6 Wend. 490; Everett v. Collins, 2 Camp. 515; Puckford v. Maxwell, 6 T. R. 52.
    What is true of notes, checks, and bills, is true also of the certificate; and yet the Judge refused the instructions prayed to this effect.
    The Judge, after some general and immaterial statements of the duty of an agent, proceeds to leave to the jury to decide what was reasonable diligence on the part of the plaintiff in endeavoring to obtain payment of the certificate from the bank.
    But what diligence is reasonable, is a question of law, (the facts of the case being ascertained,) to be decided by the Judge, and not by the jury. 1 Stark. Part 3, sec. 27, page 414; Battle v. Little, 1 Dev. Rep. 387.
    Besides, the rule as to the kind of diligence necessary, on the part of the plaintiff, is erroneous.
    The. bank, at the maturity of the certificate, was failing; shortly after, stopped payment. Hicks & Arnold paid nothing •for the certificate, but took it on account of a debt which the bank could not pay. All the facts were fufly known to them, but not to the plaintiff. Under these circumstances, nothing but such gross and long-continued negligence, on the part of the plaintiff, as would amount to a fraud, would discharge Hicks & Arnold, considered as guarantors. Goring v. Edmonds, 6 Bing. 94, 19 E. C. L. 14.
    This case is to be tested, not by the rules applying, to negotiable instruments. If no loss was sustained for want of' notice or suit, want of notice or suit does not affect the plaintiff’s right. See Shewell v. Knox, 1 Dev. 412, and cases there cited.
    Again, the Judge informs the jury that the plaintiff was bound by the act of Hicks, his agent, “if ratified” by him; whereas, he should have informed the jury what acts- or declarations of plaintiff would amount to -a ratification, and left them to decide,, as their proper function, whether those acts or declarations had been proved.
    The Judge ought to have told the jury, as prayed by the plaintiff, that bringing suit on the certificate to the first court after it became due, &c., was reasonable diligence. But to leave a matter of law to the jury, is itself error. Panton v. Williams, in Error; 2 Adolph. & Ellis, N. S. 169; Beale v. Roberson, 8 Ired. 276.
    The Judge ought to have instructed the jury that the acknowledgment of Hicks & Arnold, after the certificate fell due, if made by them, was evidence that it was not taken as absolute payment, &c., as prayed by the plaintiff.
    The counsel for the defendant in error made the following points.
    1. Joseph T. Hicks was the agent of Downey, and even if he took the certificate of deposit in good faith, exercising the care which a prudent man should do in the management of his own affairs, he could not be held liable for the subsequent failure of the bank. He had reason to believe the bank was solvent; and as the certificate bore interest, it was considered better than specie- as a remittance.
    2. The proof on the record is sufficient to show, that John R. Hicks was the agent of Downey at the time of the settlement in 1839, but the subsequent reception of the certificate from Dr. John Hicks, by Downey, was an ample satisfaction of all he had done, even if he had no power to make the settlement in the first instance, and equivalent to an original authority. Story on Agency, & 539; Dunlap’s Pailey, 171, note O.; Lawrence v. Taylor, 5 Hill, 107, 113.
    3. It was the duty of Downey to have dissented from the árrangemeni, and refused the certificate of deposit at the time it was tendered to him; but at all events, it was gross negligence, and not a reasonable time, to wait three or four years without notifying J. T. Hickey.that he could not receive it as a payment. Pailey’s Arg. 172, note; 2 Kent, 127; Caines v. Bleeker, 12 J. R. 300.
    4. John Hicks proves that Downey took the certificate as absolute payment; and being thus accepted, was a good discharge of the debt; especially as it was in the name of Downey. Story on Contracts, § 998; 2 Greenleaf, Ev. § 523; Whitbeck v. Van Ness, 11 J. R. 409; 15 Ib. 241.
    Whether it was accepted in satisfaction, was a question for the jury. 15 S. & R. 162; 9 J. R. 310.
    5. The rulings of the court, it is submitted, were correct. It Will be seen that the' questions are not leading, if he apply to them the test which the rules of evidence establishes as a criterion. 1 Greenleaf s Ev. § 434.
    •. It will be admitted that several of the instructions, asked- for by'.plaintiff, did not apply to the proof in the record, especially the first. It is submitted that the instructions given covered every legal proposition asked for by the plaintiffs.
   Mr. Justice McLEAN

delivered the opinion of the court.

This case -was brought before us by a writ of error to the Circuit' Court for the Southern District of Mississippi.

An action of assumpsit was commenced by the plaintiff, on a note for four hundred and fifty-six dollars, and a large sum for the hire of slaves.

The declaration contained ten counts, to which the defendant pleaded non -assumpsit, the statute of limitations, and payment, on all o. which- issues were joined. ’ The jury “ found for the defendant upon the issues joined as to the within note of four hundred and' fifty-six dollars, and' the within account.” This finding, it is contended, is imperfect, irresponsive to the issues, and does -not dispose of the whole matter submitted by the pleadings.

A verdict is bad if it varies from the issue in a substantial matter, or if it finds only a part of that which is in issue; and, though the court may give form to a general finding, so as to make it' harmonize with the issue, yet if it appears that the finding is different' from the issue, or is confined to a part only 'of the. matter in issue, no judgment can be rendered upon the verdict. Patterson v. United States, 2 Wheat. 221. The verdict rendered .was informal, but there was sufficient to authorize the court td enter it in form. The matter in controversy was the note stated and the hire of the negroes, the amount claimed for which, was stated in an account; and on both these the j ury found for the defendant, on the issues joined. We think this was sufficient.

Andrew Arnold, a copartner of the testator, was offered .as a witness, and being objected to on the ground of interest, a release was given in evidence, which, on its face,.appeared to be duly executed; on which the witness was sworn. Objection is made that the execution of the release was not .proved. The answer to this is, that there was no exception taken to the paper on that ground.

From the facts, it appears that Joseph T. Hicks, now represented by his executrix, was indebted to the plaintiff on thelOth January, 1839, on a settlement, nine thousand seven hundred and ninety-nine dollars and eighty nine cents, for the hire of negroes, which John R. Hicks, the friend of .D.owney, received in a certificate of deposit from the Mississippi Railroad Bank, situated at Natchez, payable on the 1st of November ensuing, for which he executed a receipt. He was not authorized to act as the agent of Downey, but he acted as his friend in the business. Being assured by his brother, Joseph' T. Hicks, and others, that the bank was good, (and as a reason for this opinion it was stated that wealthy men had an interest in the bank,) and as eight per cent, interest was paid for deposits, the certificate was preferred, believing, it would be satisfactory to the plaintiff! At the time of this transaction the bank was indebted to Joseph T. Hicks and Arnold, for labor on the railroad, a sum exceeding twenty thousand dollars. The mode of payment was by drawing a check on the bank for several claims, and then crediting on the books of the bank, as a. deposit, the sum due to each claimant.

In February ensuing, when- John R. Hicks returned to North Carolina, where he and the plaintiff resided, he handed over to Downey the cerdficate of deposit, who received it, saying he would have preferred the gold and silver; but said nothing further in repudiation or confirmation of the act of Hicks. In a letter dated the 3d of March, 1839, from J. T. Hicks and Arnold, to the bank, they say, “ We have ever entertained the kindest' feeling towards your institution, and every disposition of indulgence to the utmost of our ability. The time has now arrived when ruin awaits us, from a total inability to use. your post-notes to meet our engagements; ” and they proposed to take some money and negroes fox the money due them from the bank, or to take the whole in negroes, if the money could not be paid.

For a short time after the date of the certificate of deposit, the bank continued to pay small notes in specie, but evidence was-given conducing to show it was unable to meet its engagements, and that in a short time it failed. Suit was brought by Downey against the bank on the certificate of deposit, in the spring.of 1840; and also for other sums, due him from Hicks & Arnold, by arrangements with them. But nothing could' be .recovered from the bank.

Evidence was offered with the view of showing that Downey considered the certificate of deposit as good! and that he said he could not complain' of Hicks, in receiving the certificate, as he-had received a similar one on his own account.

Evidence was also given to show that on the eleventh of March, 1840, Joseph T. Hicks and Arnold, admitted the certifi-. cate of deposit was' -given "as collateral security, and that they considered themselves Bound to pay the debt due the plaintiff, including the certificate of deposit, and other demands. Evidence was also given to explain this conversation as referring exclusively to other demands, not including the certificate of deposit.

. The testimony being closed, the plaintiff prayed the court to instruct the jury, 1.- That the acceptance by the plaintiff of the certificate of deposit for a precedent debt due him by Hicks or Hicks & Arnold, was no payment or extinguishment of such debt, unless-there was an express agreement to accept it as such payment; and to take the risk,of the solvency of the bank.

2. That the certificate of a bank due at a future day, like the note of any third person, if given for a preexisting debt, is not payment and discharge thereof, unless specially agreed to be so. taken; and if- a receipt in full be given, it is still a question of fact for the jury to decide whether there was such an agreement or not; and that unless the certificate be, afterwards paid by the bank, it is primé facie no satisfaction of the preexisting debt.

3. That if the jury believe, from the evidence, that' Hicks & Arnold or Hicks, after the maturity of the certificate, admitted their liability,to make it good, such admission is evidence that the certificate was not taken as payment absolutely, but as conditional payment only, and that they had notice of all the facts necessary to hold them responsible.

.The court charged the jury that, “ an agent is bound to' act in accordance with his authority, to make his acts binding on his principal. If the agent exceeds his authority, his principal is not bound by his act, so exceedinghis authority, unless the principal afterwards ratify, his acts. If a principal, after he is informed what his agent -has done, ratify his acts, hd is bound by the acts of his agents, although the agent may not have had any authority to. do the act'so ratified-.at the time it was done. An act done as an agent by one,having no authority, it is obligatory on his principal; if, in a reasonable time after, he is fully informed of what has been done, he does not object thereto, he is presumed to ratify the acts, and is bound thereby.”

.That, “ if Downey.received the certificate, conditioned' that' he would receive the money in discharge of the debt, if the 'bank should pay it, then Downey was bound to use reasonable diligence to collect the money due on the certificate. Reasonable diligence consists in such exertions as a prudent man would use in his own ease in the collection of the certificate; and if Downey failed to use such diligence to collect the money, the defendants are not liable, and the jury should find for the defendant.”

In ordinary transactions, a check on a specie-paying bank, payable on demand, is payment. And, if the holder of the check; present it to the bank, and direct the amount to be placed to 'his credit as a deposit, and the bank should fail, the loss would be the depositor’s. The deposit was at his option and for his benefit. But the transaction of Downey and Hicks was not of this character. Doctor Hicks, who acted for Downey, was not authorized to make the arrangement; -he acted, in his own language, “ without authority, as the friend of the plaintiff;” There was no money, in fact, deposited in the bank. It was indebted to J. T. Hicks and Arnold, who were in partnership, in a large sum; and, to pay Downey, Hicks drew a check for the amount, which "was charged to his account in bank, and a certificate of deposit for the same amount was given to Downey. This arrangement was strongly recommended by the debtor, Hicks, to his broiher, the friend of Downey. Eight p'er cent, was allowed on the certificate of deposit, which was payable in ten months.

A note of the debtor himself, or of althird party, is never considered as a payment of a precedent debt, unless there be a special agreement to that-effect. Had Downey receiyed the certificate of deposit himself, it could not have been considered a payment unless it was so agreed. The transaction, in fact, was only a dealing with credits. No money was drawn from the bank, or deposited in it. By the certificate, the credit' of the bank was given in addition to the credit of the original debtor.Such a transaction, without a special agreement to receivé the certificate in payment, would make it a collateral security .only. A receipt for the amount, executed at the time, would not affect the question. ■ In this view, it was error in the court not to give the' first and second instructions asked by the plaintiff, unless the charge given substantially embraced the" points stated.

In the charge given it is nowhere slated that, tó make the certificate of deposit a payment, there must be ari agreement to that effect. The jury are informed that, where an agent exceeds his authority, or 'acts without authority, the principal is not bound, unless he ratify such. acts. But the juiy are not informed what amounts- to a ratificátion. They are told, where acts are done, c" which the principal is informed if he does not in. a reasonable .time object thereto, he is presumed to ratify the acts, and is° bound thereby.

This, in all probability, misled the jury. Doctor Hicks, in receiving the certificate of deposit,, did not pretend that he was authorized to receive it — much less that he was authorized to receive it as payment. The receipt of the certificate, under such circumstances, by Downey, without any express agreement on the subject, could not operate as payment. In this respect, therefore, unless such an agreement was shown and connected with this part of the charge, it was erroneous.

The jury were instructed that, if the certificate was received on condition the deposit, if paid by the bank, should be appli- id as payment, Downey was bound to use reasonable diligence. But the jury were not informed what that kind of diligence was, except, “ that it consisted in such exertions as. a prudent man would use in his own ease in the collection of the certificate.” Where a. note is received as. collateral security, and this certificate of deposit is only the obligation of the bank, and does not; in principle, in this respect, differ from a note, the holder is not bound to active diligence. If the note have an indorser, and it matures • in his hands, he may be bound to take such steps as shall.charge the indorser as a bank is bound, where a note is sent to it for collection. But he is not bound to bring suit. He is only chargeable with a negligence, which shall operate to the injury of the owner of the paper;

As, in less than three months from the date of the certificate of deposit by the-' showing of the defendant, the post-notes of the "bank answered him no valuable purpose in satisfying the demands-against him, there is no ground to allege that the de-, fen tant suffered by any want of diligence in the plaintiff. The ba/ k was insolvent, if not when the certificate was given, before it became due. The above instruction was erroneous.

We think the court erred, also, in refusing to give the third instruction, as prayed by the plaintiff. If the evidence showed, after' the ■ maturity of the certificate, that Hicks & Arnold, or ■Hicks, admitted their liability to make it good, the- jury should have been told.by the court, that if they believed such an admission was made, it conduced to prove that the certificate was not taken in payment.

For the above reasons, the judgment of the Circuit Court is reversed, and the cause is remanded for further proceedings.

Mr. Jüstice DANIEL and Mr. Justice GRIER dissented.

Mr. Justice DANIEL,

(Mr. Justice GRIER concurring.)

It is my opinion, that the judgment of the Circuit Court,, in this case, should be affirmed, upon the questions raised in the argument, 1st, upon the sufficiency of the finding by the jury, as being responsive-to all.the issues, or otherwise; — 2dly, as to the admissibility in evidence of the release to Arnold, in the absence of the subscribing witness to that release, there is an entire concurrence amongst the Judges. But with the views announced as those of the court with respect to the authority and the1 acts of Doctor Hicks, as the agent of Downey, and as to the consequences deducible from those acts, I am.constrained to disagree.

And here I must remark, that, according to my apprehension of the evidence upon the record, as to the authority vested in Doctor Hicks, as agent, and his acts under that authority, and with respect to the conduct of Downey, as principal, in confirmation of those acts,' — that evidence has not been accurately stated. It is said by the court, that Doctor Hicks did not act as the agent, but merely as. the friend of Downey'. There seems to be some difficulty, and even confusion, in this attempt to discriminate between these two characters'. True it is, that the agent, however confided in, does not always prove the best friend of his principal; but it is equally true, that the principal would rarely select, as his agent, one whom he regarded in any other light than that of a friend. But the record, according to my apprehension of the evidence, discloses the most ample and explicit authority to Doctor Hicks, to settle the claims of Downey upon the firm of Hicks & Arnold, and exhibits instructions equally clear to Doctor Hicks, to transmit to Downey the amount which this agent, upon the settlement made by him, should ascertain to be owing from Hicks & Arnold to Downey. The record discloses these further facts : 1. The settlement made by Doctor Hicks, with Hicks & Arnold; 2. The drawing of a check by these persons in favor of Doctor Hicks, the agent, upon the bank at Natchez, for the amount ascertained to be due to Downey; 3. The presentation of that check by the agent, at the bank at Natchez ; 4. The proffer by the bank, of payment in specie of the amqunt of the check; and the express agreement of the agent with the bank, to commute that check and proffer of immediate payment in money for a certificate of deposit, or post-note, payable at a deferred period, bearing an interest of 8.per centum. Bo much, then, for the acts of the agent in virtue of the authority originally vested in him; and if there could -arise á' doubt as to their validity, that doubt could apply only to .the transmutation of the demand for the money into a certificate of deposit, or deferred payment, bearing interest. But, supposing there had been- room for doubt in this respect, on the ground that the agent had transcended his power, that doubt must be entirely dispelled when the conduct of the principal is considered. Upon being informed, by the agent, of the measure he had taken,' and upon having the certificate transmitted to him, the principal said, in reply, that although he would have preferred a payment down in money, yet as the agent had acted for himself hé had done for his principal, he could not find fault with the arrangement. He expressed no apprehensions as to the prudence or safety of the arrangement, but ratified it expressly; and in fact the proof is clear, that at the time,--and. for some months' after, the'bank was paying specie ; and that its certificates, like the one in question, commanded a premium in the market.- In this mode was the entire proceedings of the agent explicitly ratified. . " '

If this apprehension of the testimony be correct, then it is difficult to conceive how the jury cohld have been misled by the instructions which were given them by the court. Indeed this court,, so far as those instructions covered the relation of principal and agent,.have not questioned the correctness of those instructions. But it is said, that the court erred in the opinion it expressed upon the subject of the diligence requisite in the application for payment of the certificate of deposit. Let it be conceded, that this opinion of the court upon the subject of reasonable diligence was not the law; still it should not; affect the decision in thi§ case, because that opinion liad no connection with the true character of the case, which depended upon a phase of the evidence to. which that instruction had no application, and- could not influence. If the agent of Downey was authorized to' settle, and had settled with the debtors of Downey, and the latter had accepted from |iis debtors what he acknowledged was payment, at this point, the transaction closed; and unless the-parties making-payment could be affected by showing fraud or bad faith, the whole matter was terminated by the agreement between the parties. Downey had an indisputable right to receive ípayment in any medium he might choose, and it is not in the power of a court to control his first choice and give him the right to a second, or to visit, upon those who'have applied .their means to his satisfaction, and by so doing prevented them being available to themselves to any other possible purpose, the mischiefs resulting from his choice;

But it is said by 'the court, that Hicks & Arnold, subsequently to the failure of the bank, admitted their liability to Downey for,this demand. Here, again, I conceive that the evidence in this cause has been greatly misapprehended, and that a correct understanding of the testimony will show that the admission which has been brought to bear upon this transaction, related to a posterior .and wholly different liability of the same parties — to a transaction in which Hicks and Arnold had deposited a certificate of deposit of this bank as collateral security for a debt from Arnold, and that security turning out not to be available, they held themselves bound to satisfy the demand it was designed to secure. This subsequent transaction had no connection whatever with that in which the check in question' was given, and on which payment in money was proffered,-but for which the certificate of deposit was, by express agreement of the agent, ratified by his principal, taken in full satisfaction.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Southern District of Mississippi, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged, by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, reversed with costs, and that this cause be, and the same is hereby, remanded to the said Circuit Court, with directions to award a venire facias-de novo.