author: Mr. Justice CATRON

text:
    James C. Bell and Robert Grant, Plaintiffs in error, v. Matthias Bruen.
    ' A letter of guarantee, written in the United States, and addressed to a house in England, must he construed according to'the laws of that country.
    Extrinsic evidence'may be used to ascertain the true import of such an agreement, and its construction is matter of law for the court. - In bonds, with conditions for the performance of duties, preceded by recitals, the undertaking, although general in its terms, is limited by the recital. Commercial letters are not to be construed upon the same- principles as bonds, but ought to receive a fair and reasonable interpretation- according to the true, import of the terms; to what is fairly to be presumed to have been the •understanding.of the parties; and the presumption is tb be ascertained from the facts and circumstances accompanying the entire transaction.
    ' The court will not. express an opinion upon a-matter of defence which was not •brought to the consideration of the .court below.

      This case was . brought up by writ of error, from the Circuit ' Court for the district of New York. •
    The plaintiffs in this court, who were also plaintiffs below, were merchants and partners, trading under the name and firm of Bell and Grant,'and resided, in London.- .The action was brought to recover the value, of five several' sets of bills of exchange, amounting respectively to £385, £31S 12s. 6d., £1500, £140, and £3500,'which, it was alleged, were guarantied -by the defendant.
    At the trial of the case in the Circuit Court, the defendant pleaded non-.ássumpsil and the statute of limitations; but the questions arising under the latter plea were not argued, as the opinion of the court, upon the guarantee, was against the plaintiffs.
    The facts of the case, according to the évidence, were as follow:
    Prior to the year 1830, George W. and H. Bruen, two sons of the defendant, had been carrying on commercial business-under the partnership name of G. W. and H. Bruen, in the city of New York.- In that year they failed, and William H. Thorn succeeded to the business of the house; George W. Bruen, one of the firmer partners, being interested .in the business of the said Thorn.
    In the year 1831, George W. Bruen also. transacted business at New York, in the name of his father, the defendant. • There was no regular, established house in the name of the "defendant, although subsequently adventures, were conducted in his name. This' agency was carried on under two very extensive powers of attorney* which were duly, recorded, in New York, throughout the years 1831-2-3-4, and part of 1835, when the defendant was preparing to go to, Europe, and the powers of attorney were •revoked,
    Early in the year-1831, Thom had credits furnished to him by Bell .and Grant* upon houses in Trieste, Messina, Leghorn, and Marseilles. On the 23d February, 1831, he wrote to Bell and Grant, and- among other'things said, “ My-friends in Marseilles might secure many consignments for me, if I could put them in a situation to make the necessary advances, and I therefore.hope. • you will oblige mé by opening, the credit I ask for,, and,- if you require it, Mr. M. Bruen will give you his guarantee.' I- enclose a lettei for Messrs. Arphias and Co., which you will forward to them, should you [hink-proper to open the credit; otherwise,I do not wish you to send it, as it relates entirely to this credit, and the manner in which the advances are to be made; it is under-I stood, that no more than ¿02000 are to be drawn for at any one time, and that the credit is then to be considered at an end, until your ád/vánces are covered by remittances from me, when you will again renew it.’’ (
    On the 22d of March, 1831, Bell and Grant acknowledged the receipt of the above, by a letter from which .the following .is an extract: “/We.have received, since the above,.your letter of the £3d ult./ with an enclosure for’Messrs. Archias and Co., of Marseilles, which we' forward to them to-day, with a confirmation of the credit you give them upon us to the amount>of £2000, for the •_ purpose of making advances on consignments, and which we will accordingly thank jou to have -guarantied to us, as you. propose; by Mr. Matthias Bruen.”
    On the 23d April, 1831, Mr. Matthias Bruen, the defendant, wrote the following letter to Bell and Grant :
    “ New York, 23d April, 1831.
    “Deajr Sir, — Our mutual friend, Mr. Wm. H. Thorn, has in.formed me, that he has a credit for £2000, given by you in his favour with Messrs. Archias and Co., to give facilities to his business at Marseilles. In expressing my obligations to you for the continuation of your friendship to this gentleman, I take occasion to state, that you may consider this, as well as any and every other credit you may open in his favour, as being under my guarantee.”
    - On the- same day, the 23d of April, Thorn wrote to Bell and Grant a letter, from which the following is an extract: “ Enclosed you will find Mr. M. Bruen’s guarantee, and as you are now fully secured in any credit you may open for me, I hope you will consider on -the propriety of allowing me to make insurance here on any goods that may be shipped for my account.” On the 14th June, 1831, Bell and Grant acknowledged'the receipt of Bruen’s letter as follows:
    “ Matthias Bruen, Esq., New- York. — We axe in receipt of your favour of the 23d April, guarantying the credit opened on behalf of Mr. W. H. Thorn, with Messrs., Archias and Co., of. Marseilles, for £2000, for the purpose .of facilitating his business with that place, and moreover, desiring us to .consider, as. under your guarantee, also, all credits existing, or that we may hereafter open for said friend, of which we take due note. And we trust that Mr¿ Thorn, as well as your good self, will have every reason to be satisfied with the confidence which we feel, a pleasure in assigning to both of you.”
    It was given in. evidence that from 1831 to 1837, Thorn, by means of the credits opened for him at various places, received consignments from those places, upon which advances had been made, and sent remittances,.from time to time, tó Bell and Grant, in London.
    On the 3d of March, 1834, Thorn wrote,to Bell and Grant as follows: “ I have informed Messrs. R. Anderson' and Co. and Messrs. Archias and Co. that the. times ate. such as to render consignments no longer desirable, which I hope will reach them in time to prevent any further draft on you.”
    On the 7th of March, 1834, Bell ahd Grant wrote to Thorn, “ We beg your reference to the foregoing fcopy of our letter of yesterday, and have, only at present to. add thereto an extract of what we write to-day, (while communicating with them on other business,) to Messrs. Archias and Co., of Marseilles, recommending their refraining from pressing shipments to you on consignment, until the state of commercial matters in the United States shall make business more acceptable) than, under the. recent circumstances, we may presume it would be to you.

      “ We trust that the next accounts from your side will be less gloomy, and may enable us,-as We shall most readily do in -such case, to place business for you on its former footing.”
    On the 24th April,-1834, Thorn wrote to Bell and Grant: “ I have read what you have been pleased to write to Messrs. Archias & Co. on the subject of consignments under advances, which- . meets my warmest' approbation, as you will have "seen by my letter of March 3d,”
    On the 21st of October, 1834, B.eRand -Grant wrote to Thorn: “ Messrs. Archias & Co., of Marseilles, having inquired of us, under date 9th inst., whether you had opened a credit in their favour upon us, to make advances on shipments to your address, as you had' mentioned to them as your intention Of doing, and adding that they did so in consequence of -the prospect they then fiad of influencing a consignment to you; we. told them, by return of post, that, although we should be -ready at any time to cenfirm any such arrangement, and were yet without your authority to that effect, they might consider themselves at liberty to value upon us for your account to the extent of £2000 sterling, on handing us the customary shipping documents, (as we would, have been bony to see such -business pass your door for want of the facilities’in question,) expressing a hope at the same time that they would only grant such advances on- property, the sale of which, they felt assured by their latest advices, would be of ready sale in the New York market; all of which we trust 'will meet’ ’ your.-entire approbation. We should have extended the credit in question to- the former sum of £3000, but that for the present we.conceived you would bé better pleased with the lesser amount-, you have, however, only to let us know your wishes in this respect to. insure our conformity thereto.”
    On the-31st October, 1834, Thorn wrote to Bell and Grant: <C1 have to request that’ you will open the following cr -dits for my account:. To Messrs. R. Anderson and Co., Gibraltar, for the purpose nf making advances, per my account, £4000, to Messrs. Archias and Co. for the same purpose, £4000 ; to Messrs. Francia, Brothers and.Co., of Gibraltar, £2500.”
    On the 3d of December, 1834, Bell-and. Grant wrote to'Thorn: “ We have now the pleasure Of acknowledging the receipt of youf much esteemed favour of- the 31st' October, in compliance with which we have immediately increased the credits already opened for your account with Messrs. Robert Anderson and Co., of Gibraltar, and Messrs. Archias and Co., of Marseilles, to the sum of £4000 each, and .opened fresh ones of £2500, say two thousand five hundred pounds .in favour of Messrs. Francia, Brothers and Co., of Gibraltar, to enable them to grant advances on consignments to you from'thence and from-Malaga.
    “ And it is moreover understood, that so soon a» the credits in ■favour of the three first-named houses have been used and remitted for by you, we are to re-open- the same accordingly, which shall be attended to.”
    One of the bills upon which the suit was brought, was drawn under the above credit by R. Anderson and Cd. upon the plaintiffs, dated on the 16th December, 1836, for ¿6318 12s. 6d., at ninety days after date, which bill was paid by the plaintiffs.
    On.the 31st of March, 1836, Thorn wrote to Bell and Grant: “I have-sold'a large parcel of San Lucas wine, consigned to me by Messrs. La Cave and Echicopar, per Lurin, which may lead to further shipments; and as they will require a credit opened to enable them to make .advances, you will please authorizé them to draw on you, on the usual conditions, to the extent of ¿62500, say two thousand five hundred.pounds.” '
    Another of' the bills upon which the suit was brought, was drawn under this credit by La Cave and Echicopar upon the plaintiffs, dated on the 22d November 1836, for ¿6385 sterling, which was paid by the .plaintiffs at maturity.
    On the 15th of August, 1836, Them wrote to Bell and Grant: “I intend to send a vessel to Smyrna for an assorted cargo, and will thank you to open a credit to Messrs. G. Amac, Zipcey and Co., to that place, to the extent of 63500.”
    Two other of the bills upon which the suit was brought, were drawn upon the credit thus opened, by Amac, Zipcey and Co. Upon the plaintiffs, dated on the 7th of'January, 1837, one for ¿61590, and the other-for ¿6140, which were paid at maturity.
    In November, 1836, the defendant went to Europe, and did not return until the following August. During his absence he was in London, where he saw..the plaintiffs several times.
    On the 16th of February, 1837, G. F. Darby, the agent of the plaintiffs residing in New York, drew bills of exchange upon them to the amount of ¿64000 sterling, which bills he loaned to Thorn, upon collateral security arid the guarantee of G. W. Bruen.
    On the 8th of March, 1837, Thorn wrote to Bell and Grant: “As this remittance will very nearly balance my old account, I jhave prevailed on Mr. Darby to open me a credit similar to the last, and on the same conditions, for ¿63500, which-shall be punctually provided for on the 8th May next, if not sooner.”
    On the same day, four of the bills upon which the suit was brought were drawn upon the credit thus opened, which amounted, in the whole, to ¿63500, and were accepted and paid.when due by the plaintiffs. ■ These bills Were- guarantied by. George W. Bruen, the same person who had guarantied the loaned bills for £4000, and who, at this time, was in good credit, and could:'have raised £4000 on his notes.
    On the 10th of April, 1837, Thorn failed and was insolvent, and the means of his house exhausted.
    On the 26th of Novembér, 1839, Grant, then in. New York, wrote to the defendant, applying to him for the balance due to ; his London firm, and saying, “ Any further explanation you may require I am ready to give, but I must request your attention in .the mean-while to the above claim, which I make under your letter, of guarantee to Bell and Grant, for any credits they might open in favour of Mr. Thorn, and of which letter I sent you a copy, at your request, last February twelve-month.”
    In the trial of the caus.e in the court,below, the plaintiffs, proved by the evidence of one Schenck, that he .was for many years the cashier of Bell- and Grant, and greatlyfn their confidence ; that he was well acquainted with their daily mercantile operations; that, as well from his perusal, at the time, of the letters which Ayere received and written by them on the subject of their account and transactions with Thorn, as also from various conversations which he had with them, and the directions which he received with regard to the bills, he had nó douht whatever but that the credits given to the various houses who drew the. bills, were given by Bell and Grant in full reliance on the letter of guarantee which had been written to them by the defendant.
    .The evidence being closed in the court below, the counsel of the defendant prayed the court to instruct the jury, among other things, as matter of latv, that the letter of guarantee; of April 23, 1831, was void, as not expressing a consideration; that the said le ter of guarantee was confined to credits to be. opened to the house of Archias and Co., or other houses with whom Thorn might deal at Marseilles, and therefore could not cover the ad- ' vanees upon the bills of exchange given in evidence. And thereupon the judges did declare-their opinion and decideras matter of .law, that, by the true construction of :the said letter of guarantee, of April 23, 1831, the same only embraced credits which should be opened for account of William H. Thorn to the house of Archias .and Co., of Marseilles, and that the-evidence of the other matters in that behalf proved, did not give the said letter of guarantee a more enlarged application; and, therefore, that the jury ought to find-a verdict for the defendant.
    To this .instruction the plaintiffs’ counsel excepted.

      Lord and Sergeant, for the plaintiffs in error.

      Choate, for the.appellees.

      Lord, for the plaintiffs,
    said that the consideration was sufficient, as the defendant’s son was- a partner in the house whose prosperity was to be increased. • 9 Cranch, 348; 6 Binney, 201; 15 Peters, 314.
    In the guarantee there is no limitation of time or amount, as to the credit with Archias and Co. W.hy-limit it to others and' not to them ? The defendant relied upon his supervision over the house, and his being able to revoke the credit whenever he might apprehend danger.
    ■ Such guarantees are not the subject of technical criticism; they are not the work of lawyers, but merchants in the course of business, and are not to be judged by the strict wiles of the common law. Being of a continuing character, they involve the highest expression of confidence.
    The doctrine of construction never arises until some ambiguity exists. Bruen, the son, had the entire confidence of his father, as the powers ef attorney show. If the words, “ ány and every, &c.” do not mean- what we say, they mean nothing. “ Any” means “some”— every” takes in all, and'what does “other” mean? 3 Camp. 220
    What-was the construction that Bell and Grant placed upon it? Their letter shows,-and if defendant thought it was not the correct one, he ought so to have informed them.
    As to the legal construction, 12 East; 227, says, words must betaken as strongly against the party giving the guarantee, as the case will admit. See also, 2 Meriv. 280; 6 Binn, 244; 12 Wheat. 517; 7 Peters, 113; 10 Peters, 492.; 16 Peters, 528, 536 ; 12 East, 237; 2 Campb. 413; 1 Metcalf, 225; 12 East, 227; 6 Bingh. 244; 6 Meeson and Wilsby, (Exchequer,) 605; 3 Campb. 220; 2 Campb. 39.
    The court erred in determining the question,- absolutely; as a question of law, and declaring that the other circumstances did not allow of an extended view of the guarantee. If these circumstances were admitted, their effect was for the jury.

      Choate, for defendant,
    made the following points:
    1. That the defendant’s letter of April 21,1831, was a contract, preceded by a recital, and that the engagement extends no. further than the recital.
    2. The recital introduces in direct terms, or by reference, the entire arrangement made between plaintiffs and Thorn, by the letters of the 23d of February, 1831, and March 22, 1831'; and the words “this credit,” in the defendant’s letter of 23d April, 1831, mean the first £2000; and the words “and any and every other credit,” mean the subsequent credits, to be opened under the same arrangement.
    3. The court will adopt the'construction which, under all the circumstances of the case, ascribes the most reasonable, probable, and natural conduct to the parties, and this requires the adoption of the defendant’s construction.
    4. The plaintiffs never relied upon this guarantee for the credits, the subject of this suit.
    5. They gave no such notice to the defendant, of the opening of the credits, which are the subject of this suit, as is required.to charge the defendant.
    6. They did not, within a reasonable time after the grant of the credits, and after the bills were paid, demand payment of the defendant, or give him notice that they looked to him.
    7. The'original arrangement made between the plaintiffs and Thorn, in March, 1831, was subsequently, in the spring of 1834, abandoned and deserted; and in' the autumn following, a new and inconsistent one, enlarging the credits to be given, and diminishing the security,'was made, rendering notice to the defendant necessary, but to which no notice could have given legal effect to charge the defendant for subsequent credits.
    8. The apparent diversity of terms between the recital and the engagement in the defendant’s letter, raises a doubt upon the face of the guarantee as to its true extent; and upon that doubt, thus raised, the construction will be in favour of the surety.

      Mr. Choate then discussed the two constructions to be placed
    ■ upon the letter. There is no proof that Bruen, the son, was a partner.ip the house. Record only says, “interested and conversant.” He might have had a contingent salary. If he was a partner, there is no proof that defendant knew it.
    In March, 1834, the arrangement was abandoned, and in the following October, the plaintiffs and Thorn made a new one.
    In October, 1836 and 1837, plaintiffs made another arrangement with Thorn,' opening credits for $50,000. In April, 1837, Thorn failed, and in June, 1837, Bell became embarrassed; and yet the defendant was not notified until 1839.
    As to the letter of 23d April, its language must be lighted by the recital and the circumstances. Sheph. 86. Courts habitually so limit instruments. l Domat, 248; 3 Ch. Cases, 101; Sheph. 76; Bac. Abr. title “Fait;” 9 Mass. Rep. 235; Theobald on Surety, 66 ; 1 Law Lib. 39..
    Condition, when larger than the recital, is limited by it. Fell on Guarantees, 116; 1 Williams’s Saunders, 415, note; Aleyn, 10; 1 Strange, 227;. 2 Saunders, 412, a leading case; 6 East, 507; 2 Smith, 655; 2 New Rep. 175, referred to in Fell, 125; 2 Barn. and Ald. 431; 2 Maule and Sel. 363; 4 Taunt. 593.
    Reason of the rule is, that it is supposed to reach the true meaning of the parties, as it is more likely that men will use language improperly than act foolishly. Hobart, 304; Sheph. Touch. 86.
    So in the civil law; the court looks to probability. 1 Domat, 248. So in 16 Peters, 534, reference is had to the circumstances of the case. 12. Wheat. 518; 2 Pick. 235; 17 Wend. Rep. 425; 1 Metcalf, 25 ; 8 Taunt. Rep. 208.
    Reason is stronger in the case of a surety. He is a favourite of courts, and his contract is stricti juris. Where the terms are clear, they are not to be extended; where they are-doubtful, the court will adopt the narrower sense, provided it be reasonable and probable. Pothier on. Oblig. p. 2, c. 6, s. 4) Code Napoleon, tit. 14, c. l, arts. 2011, 2015, p. 401; 7 Cranch, 90, never repealed; 7 Peters, 122, does not conflict.with it, but adopts it. .1 Mason, 336, that the language should-be strong to make a continuing guarantee; in case, of doubt, constructional favour of surety; 16 Peters, 537; Ludlow v. Simonds, 2 Caines's Cases in Error, 1; 10 Johns. Rep. 311, 325; 8 Wend. 516; 17 Wend. 422 ; 2 Pick. 224. .
    The law in England is so now. In the cases cited on the other side, there is a plain meaning against the surety.' 1 Starkie, 192 ; 8 Taunt. 224; 3 Barn, and Ald. 594, 595; Nicholson and Paget, 52; 6 Mearn, (Exchequer Reports,) 613; 1 T. R. 287; 2 T. R. 370; 3 East, 484; 8 Moore, 588, 582; 1 Perry and Davidson, 249; 10 Ad. and Ellis, 30.
    This letter is a contract preceded by a recital of the circumstances. A recital is a prefatory statement to make the meaning plain. The purpose of the credit is stated, and the writer must have referred to the renewed credit. 2 Bos. and Pul. 238. There is only one case carrying the engagement beyond the recital, and that is 2 Campbell, N. P. Rep. 39. But that was different from the present case, the engagement there being for anything “due on- any other account,” and inconsistent with the recital; but here it is not. No one asked defendant for an unlimited, guarantee. Conduct of plaintiffs not likely to excite suspicion, because they merely echoed defendant’s own letter.
    The plaintiffs ought to have-notified defendant when they opened new credits. 5 Peters, 624; 12 Peters, 213; 4 Greenl. 525; 22 Pick. R., 223 ; 17 Johns. 140. Notice of default, at all events, is indispensable. 14 Pick. 353; 18 Pick. 536; 8 Pick, 423; 22 Pick. 223; 3 Wheat. 144; 9 Serg. and Rawle, 202.
    The court below was right in deciding the question as- a point of law. 1 Peters, 182; 5 Cranch, 190; Paine’s C. C. R. 545; 20 Pick. 156.

      Sergeant, for plaintiffs,
    in reply, said that he had not had time, since yesterday, to look at all the authorities cited on both sides, there being about one hundred and fifty. This court have settled the law, in 13 Peters, 89, as to the exclusion or admission of parol evidence of circumstances. In Moran v. Bullitt, 16 Peters, they decided that when there is a valuable consideration, an endorser, though often a mere surety, is governed by the law merchant, and not the common-law rules as to sureties.
    1. The written guarantee by itself.
    2. As explained by évidence.
    1. By itself. ■ Every letter is written to some one; but does not bind until accepted by the other party. Then the two letters constitute one contract. . If the acceptance varies from.the offer, the offering party ought to say so. It is a law of correspondence to speakthe truth plainly; and hence,'if there be ambiguity, the construction must be against the writer.-. It may be an intentional trap. The case in 16 Peters turned upon this.' Bell and Grant answered the letter, saying what- they thought of. it; but the charge of the court below was given upon only one of these tw.o letters.
    In 2 Campbell, 39, the recital in a bond did not- limit the engagement, because it was a commercial transaction. In 1831, Bruen came forward voluntarily. Bell did hot ask him nor inquire his motives. ' A guarantee, always implies that the thing would not be done without it. If Bruen intended whát we say, he would have used the- very words he did. There is no ambiguity, and why construe it in ? All the cases excépt that in Campbell were bonds with collateral conditions. Lord Ellenborough treats them all as bonds given in. appointments to office. These are common law’instruments, and the recital is put in on purpose to explain. But not so with commercial contracts. There is no recital in a letter of conversation. In the bond cases there is a contradiction, but there is none here.
    The jury could have inferred Bruen the-son’s partnership in Thorn’s house. He was interested in “ the business.” What business ? . Bruen, from bankruptcy, had become worth J4000 in seven years. The defendant therefore wished to sustain his som
    The question of notice ought to have gone to the jury.. Douglas v. Reynolds, 7 Peters, is decisive that notice is a question of fact.
    Thorn failed on 10th April, 1837, this disoenses with • notice of .the default: 12 Peters, 213.
   Mr. Justice CATRON

delivered the opinion-of the-court.

The original action was founded upon a guarantee given by Matthias Bruen to Bell and Grant, in favour of Wm. H. Thorn, by the following letter:

New York, 23d April, 1831.

Messrs. Bell anb Gran*, London. — Dear Sirs : — Our mutual friend,. Mr. Wm. H. Thorn, has informed me that he has a credit for ¡£2000,given by you in his favour with Messrs. Archias and Co., to give facilities to his business at Marseilles. In expressing my obligations to you for the continuation of your friendship to this gentleman, I take occasion to state, that you may consider this, as well as any and every other credit you may open in his favour, as being under my guarantee.

I am, dear sirs, your friend and servant, M. Bruen.

To this letter the following answer was- given by Bell and Grant:

London, 14th June, 1831.

Matthias Bruen, Esq., Neto York. — We are in the receipt of your favour of the 23d .April, guarantying the credit opened on behalf -of Mr. lVm. H. Thorn with Messrs. Archias and Co., of "Marseilles, for- ¿£2000, for the purpose of facilitating' his business with that place; and, moreover, desiring us to consider as under your guarantee, also, all credits existing, or that we may 'hereafter open for said friend, of which we take due note. And we trust, that Mr. Thorn, as well as your good self, will have every reason to be satisfied with the confidence which we feel a pleasure "in assigning to both of you,”

The declaration contains four counts:

1. That the plaintiffs, "on the 31st of March, 1836, were requested by Thorn to open a credit in his favour, authorizing the firm ,of La Cave and Echicopar, of Cadiz, to draw on the plaintiffs to the extent of ¡£2500. That on the 22d November, 1836, La' C. and E. drew for ¿£385: which was advanced on the 12th February, 1837, by the plaintiffs, according to Thorn’s request.-

2. That on the 10th of October, 1834, at the request of Thorn a credit was opened in his favour, authorizing R. Anderson and .Co., of Gibraltar, to.d^awfor ¿£4000. On the 16th December; 1834, Anderson and Co. drew for ¿£318 12s. 6¿i.: which plaintiffs paid, 19th March, 1837.

3. That on the 15th of August, 1836, the plaintiffs .opened a credit in favour of Thorn, authorizing Amac,-Zipcey"and.Co., of {Smyrna, to draw for ¿£3500. Of this sum, the house at Smyrna dréw ¿£1640: which plaintiffs paid, 8th April, 1837.-

4. That-on the 8th Márch, 1837, plaintiffs opened a credit to Thorn, himself, for £3500, for which amount he drew bills; and which were paid, 17th June, 1837.

Much other correspondence and evidence was -given to the jury, that need not at present be referred to; but which appears in the statement of the case made out by the reporter, and presented to us.

The evidence being closed, the defendant. prayed the Circuit Court to instruct the jury, as matter of law, that the letter of, guarantee, of April 23d, 1831,'was confined to credits to be opened to the house of Archias and Co., or other houses with whom Thorn might deal at Marseillesand therefore the plaintiffs could not recover from the defendant, the advances made upon the bills of exchange given in evidence: being for the sums paid, as stated in the four counts of the declaration.

Thereupon the court did decide, as matter of law, that by the true construction of the said letter of guarantee, of April 23d, 1831, the* same only embraced credits which should be opened for account of Wm. H. Thorn to the house of Archias and Co., of Marseilles; and that the evidence of the other matters in this behalf proved, did not give the said letter of guarantee a more enlarged,application. And therefore, that the jury ought to find a verdict for the defendant.”

The jury found accordingly: and it is this instruction of the . court alone, that we are called upon to examine, and revise. Does the letter o.f guarantee extend to, and cover' the debts of Wm. H. Thorn sued for ? is the question. It was an engagement to be executed in England, and must be construed and have, effect,- according to the laws of that country. Bank of the United . States v. Daniel, 12 Peters, 54,.55. But it is necessary to remark that the law governing the agreement is the same in this country and in England: had' it been made between merchants of different states of this Union, and intended to be executed at home, the same rules of construction would be adopted; and the same adjudications would apply.

It is insisted for the plaintiffs, that the Circuit Court erred in determining the question absolutely as a question of law, upon the construction of the letter: that it also erred in declaring the other circumstances did not allow of an application'' of the guarantee to the transactions in question: such other circumstances, being admitted, their effect on the extent and application of the guarantee was for the jury; and by deciding on their effect as matter of law, they were withdrawn from the jury.

The letter of Bruen was an agreement to pay the debt of another on his making default: by the statute of frauds, (29 Chs. 2,) such agreement must be in writing, and signed by the party to be charged: it cannot be added,,to,.b^ verbal evidence; nor by-'written either, if not signed by the guarantor, unless the written evidence is, by a. reference in the letter, adopted #s part of it.

But as the statute does not prescribe the form of a binding agreement, it is sufficient that the natural.parts of it appear either expressed, or clearly to be implied: and,-correspondence and other evidence may be used to ascertain the true import and application of the agreement; by the aid of which extrinsic evidence, the proper construction may be made. Such is the doctrine of this court, as will be seen by reference to the cases of Drummond v. Prestman,.12 Wheat.; Douglass v. Reynolds, 7 Peters; Lee v. Dick, 10 Peters.

In the present instance, t.he question having arisen, and con-' struction been called for, the matters referred to in the letter of the defendant, were considered ; (as circumstances attending the transaction,) to aid the court in arriving, at-a proper understanding of the engagement: so soon as it was understood, its con- • struction belonged to the court, and was, “ matter óf law,” within the ger al rule applicable to all written-instruments. It rested with themourt to,decide, whether the guarantee extended to, and covered the credits set forth in the declaration: and was the common case of asking the court to instruct the jury, that- the plaintiff had not proved enough to entitle him to recover, admitting all his evidence to be triie. In England, the same end is attained, by moving for a nonsuit.

For the defendant it is contended: That the letter of April 21, 1831, is a contract, preceded by a recital, and that the' engagement extends-.no further than the recital.

The recital introduces in direct terms,'or by reference, the entire arrangement made between plaintiffs and Thorn, by the letters of the 23d of February, 1831, and March 22, 1831; and the words." this credit,” in the defendant’s letter of 23d April, 1831, mean the first ¿62000; and the words “and any-and every other credit,” mean the subsequent credits, to be opened under the same arrangement.

The general rúle is well settled in controversies arising on the construction _ of bonds, with conditions for the performance of duties, preceded by recitals; that where the undertaking is general, it shall be restrained, and its obligatory force limited within the recitals. The leading case, is Arlington v. Merricke, 2 Saund. R. 403. It has been followed by many others: Liverpool Waterwork Co. v. Harpley, (6 East, 507;) Wardens, &c. v. Bostock, (2 Bos. and P. 175;) Leadley v. Evans, (2 Bingh. R. 32;) Pepin v. Cooper, (2 Barn, and A. 431,) are some of the principal cases affirming the rule.

Where a mercantile guarantee, is preceded by a recital, definite in its terms; and to which the general words obviously refer, the same rule applies, of limiting the liability, within the terms of the ré'cital, in restraint of the general words.. We find the courts constantly referring to the cases arising on bonds with conditions, for the rule of construction,- and applying it to commercial guarantees ; the most approved text writers on this subject do the same: does the engagement before us fall within the rule ? It recites:

. “ Our mutual friend, William H. Thorn, has informed me that he has a credit for two thousand pounds, given by you in his favour with Messrs. Archias and Co., to give facilities to his business at Marseilles.” The agreement is: “I take occasion to state, that you may consider this, as well as any and every other credit you may open in his favour, as being under my guarantee.”

We are of opinion that the engagement should be construed as ' if it read — “'You may consider this, credit with Archias and Co., as being- under my guarantee: as well as, any and every Other credit, ,yoú may open in favour of William H. Thorn with any and every other person, as also being under my guarantee.” And that therefore, the first branch of the. undertaking has reference to the recital; and that the latter part, is independent of it. To hold otherwise, would reject the general words — “as well as any and every other credit” — as unmeaning and useless: the agreement having' the same effect,' by the construction claimed for the defendant,, if these words were struck out, as if they are • left in it.

The general words, ibis insisted, related to the Character of the ' credit opened with Archias and' Co., because it was an open and continuing credit, for ¿62000. That this iappears by the letters of Thom to Bell and Grant, and to Archias and Co.; which are sufficiently referred to in the • recital of the letter to make them part thereof, and-to. extend it to the continuing credit with Archias and Co.

That-thé two letters of Thorn were sufficiently referred-to, and could, he read to establish the nature of the credit; and that it was open, we have no doubt; but their adoption was just as certain without the general words, as with them. The special reference to. the recital, adopting it as explained- by the letters, leaves the general words still without meaning unless the guarantee extends beyond the credit opened with Archias and. Co.

To make a proper .application of the general words, it bécomes necessary to lay down a definite rule of construction applicable to them; as the authorities are in conflict, and. to say the least, in 'considerable, confusion, on the subject. The arguments are in. direct conflict.

For the plaintiffs in error, (Bell and Grant,) it is contended : “That the guarantee by letters is to.be taken,in case of doubt, or ambiguity, on. its face or otherwise, in the broadest sense, which, its language allows, and in which it has been acted on by the parties.” Drummond v. Prestman, (12 Wheat.;). Douglass v. Reynolds, (7 Peters;) Dick v. Lee, (10 Peters;). Mauran v. Bullas, (16 Peters ;) Mason v. Pritchard, (12 East;) Merle v. Wells, (2 Campb. R. 413;) Bent v. Hartshorne, (1 Metcalfe R.;) Hafgreave v. Smee, (6 Bingh. R.; 10 Eng. Com. Law Rep. 69;) Mayer v. Isaac, (6 Mees, and Wels. Exch. R.;) and Bastow v. Bennet, (3 Campb. R.) are relied on, to support the construction claimed as the true one. .'On part, of the défsndánt, (Bruen,) it is insisted, “ That the apparent diversity of terms, between the recital and the engagement in the defendant’s letter, raises a doubt upon the face of the guarantee as to its true extent; and upon the doubt, thus raised, the construction will be in favour of the surety.

■ The' following authorities.are relied on to Sustain the construction here- claimed: Pothier on Obligations, part 2, sec. 34; Code Napoleon, art. 2011, 2015; Russell v. Clarke, 7 Cranch; 1 Mason, 336; 2 Caines’s Cases in Error, 29, 49; 10 Johns. R. 180, 325; 8 Wend. R. 516; 7 Wend. 422; 2 Pick. R. 234; 16 Peters, 537; 1 Stark. R. 192; 8 Taunt. 224; 3 B. and A. 594, 595; 1 Crompt. and Mees. 52, 54; 3 Wilson, 530; 1 Term R. 287; 2 So. 370; 3 East, 484; 4 Taunt. 673; 8 Moore, 588; 1 Perry and D. 249; 10 Adolph. and Ellis, 30.

The adjudged cases referred to, giving a construction to bonds with conditions, and contracts made directly between, debtor and creditor, afford little aid in arriving at the true understanding of a commercial guarantee. Bonds, &c., are entered into with caution, and often after taking legal advice 5. they contain the entire ’contract, beyond which the courts rarely look for circumstances to' aid, in their construction. And if there he sureties bound by them, and the meaning, is doubtful, the construction is restricted, ■ and made most favourable to the sureties. Such is the -result off the authorities cited for the defendant.

• On the other hand: letters of guarantee are (usually) written by merchants; rarely with caption, and scarcely ever with precision; they refer in most cases; as. in thé present, to various circumstances, and extensive commercial dealings, in the ■ briefest, and most casual uianner, without any regard to.form; leaving .much to inference; and;their meaning open to ascertainment.from extrinsic circumstances, and fa'cts, accompanying the transaction : without referring to which, they could rarely be properly understood by merchants, or by courts of justice. .The attempt, therefore, to bring them to a standard of construction, founded on principles, neither known, or regarded, by the writers, could not do otherwise than produce confusion. Süch has been the consequence,'of the attempt to subject this description of .commercial engagement to' the same rules'of interpretation applicable -to) bonds,, and similar precise contracts. ' Of- the fallacy of which attempt," .the. investigation of "this cause has furnished a striking, and- ' instructive instance. These are considerations applicable to both •of the arguments.

The.construction.contended for as the true one on part of the plaintiffs, is, That , the letter of. the defendant must be tajeen in •tiie broadest sense which its language allows.; thereby, to widen-its application. To assert this as a general principle, would so often, and so surely, violate the intention of the guarantor, that it' is, rejected. We think the court should adop't the construction •which, under all the circumstances of. the case, ascribes the most reasonable, probable, and,natural conduct "to the parties. In. thé language'of this court, in Douglass v. Reynolds, 7 Peters, 122, “ Every instrument of this sort ought to receive a fair and reasonable .interpretation according to the .true impbrt of its- terms. It being an engagement for the debt of another, there is certainly no reason for giving it an expanded signification, or liberal construction beyond the fair import of the terms.” Or, it is, “ to be construed according to what is' fairly to be presumed, to have been the understanding of the parties, without any strict technical nicety;” as declared in Dick v. Lee, 10 Peters, 493. The presumption is of course to be ascertained, from the facts, grid circumstances accompanying- -the entire transaction. We hold these to be the proper rules of interpretation, applicable to the letter before us.

The general words not being restricted by the recital, they ■fairly import that Matthias Bruen was bound to Bell and Grant for the credits they opened in favour of William H. Thorn with Archias and' Co.: and for the credits also, they opened in favour of Thorn, with any and every other person; covering those set forth in the three first counts ■ in the. declaration : and we think that the Circuit Court erred, by instructing the jury, to the contrary.

Whether the guarantee covered the credit extended to Thorn himself, directly, it is not.thought.necessary to inquire; as no argument was founded- on such an assumption; Thorn, who was introduced as a witness in the Circuit Court by the plaintiffs, on his cross-examination declared, that the ¿fi3SOO, mentioned in the last count in th'é declaration, “ had no relation whatever to the guarantee of the defendant:” it being under the guarantee of a .different person.

It was insisted also: That when Thorn failed, and the dealings' between him and the plaintiffs ceased, they were bound to notify the guarantor,.of the existence of the debts due them by Thorn, 'and for which Bruen was held liable, in a reasonable time after the dealings .ceased: that Thorn, failed. April 10th, 1837; 'and the notice was not given until December 31st, 1.838’; the debts sued for in the three first counts of - the declaration’ being-then, due :■ therefore the notice was. too late, and the defendant discharged. ■

The record shows that-this ground of defence was not brought to- the consideration.of the ..Circuit Court.: we do not therefore feel ourselves at liberty to express any opinion upon the question.

Again it is insisted : The original arrangement made between the plaintiffs and Thorn, in March,' 1831, was subsequently, in. " the spring Of 1834, abandoned and deserted; and in the autumn ■.following,, a new and inconsistent one, enlarging the credits to be given, and diminishing the security, was made, rendering notice 'to the defendant- necessary, but to which no notice could have given legal effect to charge the defendant for subsequent credits.'

. To this, and all other questions raised here, on. which the court below was not called to express any opinion, we can only give the same answer, given to'the next preceding, supposed "ground of defehee. .

It is. ordered, that the judgment of the .Circuit Court be reversed, and the cause remanded for another trial thereof.

ORDER.

This cause came oft to be heard on the transcript of the record from the Circuit Court of the-United States for the -soüthérn 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' reversed, with costs; arid that this, cause be and the samé is hereby remanded to the said Circuit Court, with directions to award a venire facias de novo.


source: Caselaw Access Project

license: Public Domain

text:
    Elizabeth R. Cartwright, Plaintiff in error, v. Alexander T. Howe, George F. Richards, and William Richards, Defendants.
   This cause came on to'be heard on the transcript of the record from the Circuit Court of the United States for the District of Columbia, holden in and for the comity of. Washington, and it having been stated by Mr. Bradley, of counsel for the defendant in error, that the matters in-controversy had been agreed and settled between the parties, to which Mr. R. J. Brent, of counsel for'the. plaintiff in error, assented;'.it-, is thereupon now here ordered, and adjudged by this court that this cause bé-and the same is hereby dismissed, with costs..


author: Mr. Justice DANIEL

text:
    Isaac S. Bowman and George W. S. Bowman, — — Brinker and Mary, his wife, formerly Mary Bowman, and Rebecca Bowman, by said Isaac S. and George W. S. Bowman, their next friend, the said Mary and Rebecca being infants under twenty-one years of age, and Albert T. Burnley, Appellants, v. Athanasius Wathen, and the Mayor and Common Council of the City of Jeffersonville.
    The doctrine laid down- by Lord Camden, in the case of Smith v. Clay, 3 Brown's-Oh. Rep. in note,-examined and confirmed,-vis., “That a court'Of equity, which never is active in-relief against conscience' or'public convenience has'always refused its aid to stale demands, where the party has slept upon, his rights for a great length of time. Nothing can call forth this court into activity but. conscience, good faith, and .reasonable diligence.- -Where these áre wanting,' the court is passive and does .nothing; laches and áeglect are always discountenanced; and-therefore; from,the beginning of-this jurisdiction, there was always á limitation of suit in this court”.
    - Also the doctrine laid down by Lord Redesdale, in Hovénden v. Lord Annesley, 2 Sch.-and Lef.’636, “that every new right of action, in equity, that acerues to a party, whatever it may he,-must be. acted upon at thp utmost--within-twenty years.”
    And though the claimant may háve been embarrassed by the frauds of- others, ■ ' or distressed, it-is not sufficient to take the case out of .the rule.
    The doctrine has also been ruled by this court, and should now-be regarded as ■ the settled law.
    -In this case, the complainants- have so long slept upon tfteir rights that this court must remain’passive, and can do nothing; and this is equally true, ■ whether they knew of an adverse possession, or through negligence and a-failure to look after their interests, permitted .the title- of another to grow into full maturity.
    This was an appeal from the Circuit Court of the United-States for the district of Indiana, sitting as a court of equity.
    The facts are fully stated in the opinion of the court, and also the authorities referred to in the argument. It is unnecessary to -repeat either."

      Crittenden and Test, for the appellants.

      Berrien and Legaré, attorney-general,- for the appellees.
   Mr. Justice DANIEL

delivered the opinion of the court.

This is an appeal from a deo'ree of the Circuit Court of the, United States.for the seventh circuit and.district of Indiana. The complainants in the Circuit-Court, the appellants here, filed their bill in-the year 1840. It is alleged and shown, that with the exception of ..Albert T, Burnley, who is a citizen of Kentucky, the complainants are citizens of Virginia, and heirs and devisees of Isaac Bowman, deceased, who wa;s an officer in the Virginia regiment, known as the Illinois regiment. That in the division and allotment of the lands appropriated by the state of Virginia for compensating the officers and soldiers of this regiment, a tract of land of five hundred acres on, the Ohio river, within the county of Clarke, in the then territory and now state of Indiana, was, in 1786, allotted and conveyed to said Isaac Bowman, for his services in the. regiment above mentioned. ' That Bowman, being seised in fee of this land, afterwards', in March, 1802, by a power ofoattorney under- his hand and seal, constituted one John Gwathney, his attorney in fact, with full authority to lay off a town on the same, beginning at the lower part thereof on the river, and to contain one-hundred and fifty acres of land. That by this instrument Gwathney was authorized to lay off the town in any manner he might prefer; to convey the title to the land forming the site thereof to proper .trustees; .to sell the lots on whatever credit he might think proper, and to do every other act which might be necessary for carrying into effect the powers with which the said agent was vested.' That Gwathney proceeded to layoff the one hundred and fifty acres of land, to divide them into lots and streets for a town to be palled Jeffersonville; reserving two acres for a public square, .and certain lots for. the benefit of his. principal; designating also a portion of land on the margin of the river as a-common. That he likewise caused a'map or plan of the town to be made arid recorded. This plan is made an exhibit in the cause. That, having laid off the town, Gwath■ney, on the 23d of June, 1802, by indenture, and for the consideration of five shillings therein expressed, conveyed to Marston G. Clarke and others, as;'trustees of Jeffersonville, the one hundred and fifty acres of land in conformity with the plan adopted; reserving, to himself, as attorney.for Bowman, the exclusive right of applying the money to arise from sales of' the lots; .the right also to have and use for and on behalf of Bowman,- “ whatever right he may now hold as proprietor, to'the establishment of one or more ferries.”1 It does not appear that Bowman was ever on the land after its allotment to him; he continued to reside in Virginia, where he died in the year 1826, having previo uslymiade and published his last will, whereby he devised,-among,other property, the ferry-right mentioned in the deed .from.Gwathriey to • the trustees of the town of Jeffersonville.,- That the devisees.of Bowman, to whom were assigned his lands in Indiana and Kentucky,.on the 11th of May, 1839,.by deed, arid for the considera- •' tión therein expressed of $20,000, conveyed these lands, together with ¡the ferry-rights above mentioned tó the complainant, Burnley, and have united with him'in the institution of this suit.

As early as the 12th of October* 1802, little moré than three months'after-the conveyance from G-wathney to the trusteés'.of. Jeffersonville, a'license was.granted by the.territorial government of Indiana tó' Mafstori G. Clarke, one of the persotis named as trustees of the town, to keep a ferry, across the Ohio river from--the town above mentioned. On the 2d day of July, 1807, a • sirnilar license was granted by. the‘same government' tó one Joseph Bowman. In the month of December, 1822* one George White, having* previously purchased the interest of Clarke, and of others claiming under: Clarke, the legislature of the state of Indiana' passed an act confirming to him the right to keep a ferry from Jeffersonville to the opposite shore of the Ohio.

These acts of the territorial and state governments were public and notorious; were parts of the recorded history of the country; the rights théy purported to convey were such as could not be secretly enjoyed, and they appear-to have been uninterruptedly exercised by the grantees. The three'several ferries granted have been united, and have been transferred by purchase to the-defendant, Wathen, conjointly with others^ who are non-residents of the state of Indiana; -and these purchasers, deriving title from the original grantee^ have, from the commencement of their interest, exercised an ownership separately from, and independently of, either Bowman or the complainants, and exempt from, any asser-. tion of title by any of them, until the.institution of this suit; showing an use and enjoyment of this ferry, for. the space of thirty-eight years'from the date of the grant to Clarke, and of twenty years from the confirmation by the legislature of the license to White..

The complainants, alleging that the Mayor and Common Couri- . cil of Jeffersonville, as successors of the original trustees of the town of Jeffersonville, hold the equitable estate in the ferry for the benefit of the heirs and devisees of Bowman, made the corporation joint defendants with Wathen to their bill; and prayed that the latter- might be enjoined from using the ferry; that he might render an account of the profits thereof, and that general, relief might be decreed them.

The answer of the defendant, Wathen, repels the claim of the complainants to the ferry, as having any foundation on the alleged reservation in the deed from Gwathney, or on any exception out of the estate passed to the grantees by that deed; relies upon the validity of the grants' made by the territorial and state governments ; upon the íong and uninterrupted use and enjoyment of the ferry under those grants, and .upon the position of the defend- • ants as a purchaser without notice.

The corporation of Jeffersonville-deny that they were created a corporation by the deed from Gwathney, or that they are the successors of the trustees appointed by that deed; and they claim their corporate character and powers from the authority of the legislature alone; they deny any riparian or ferry privileges-as -belonging to the complainants in virtue of the deed from Gwathney, and disclaim any part in the controversy between the complainants and Wathen..

Upon the hearing, the Circuit Court dismissed the bill with •costs.

In the examination of this cause by the Circuit Court, and in its discussion here, an extensive-range of inquiry has been opened, embracing questions upon the operation of that clause in the.deed from Gwathney to the trustees of 'Jeffersonville, which relates to the ferry-rights claimed-, as forming either a reservation or an exception according to the principles of the common law, and as affected, therefore, by the presence or absence of words of perpetuity : also upon the connection of these rights with, and their dependence upon, riparian ownership, and upon the necessity for their separation from the sovereign or eminent domain, to permit of their exercise by private persons. These are topics, however, which this court regard as beside the real, merits of .the present controversy, or as, superseded by the true principles upon which it ought to be settled. The real question involved touches neither the definition-of ferry privileges. nor the modes of their enjoyment; but relates exclusively to the propriety of interfering, at the instance of the complainants below, with those rights as they now are and.have been enjoyed by the defendants, and of trans-. ferring such rights .and enjoyment to the complainants themselves. The complainants are invoking the aid of a court of equity: if they have perfect rights, proper for the cognisance of a different forum, they can have no standing here; if, on the contrary, they require the interposition of this court, they must stand or fall .upon the settled principles which govern it's action. The frequency and explicitness with which those principles have-been announced by this and other tribunals, would seem to dispense with ■ any necessity for their repetition, and to impart somewhat the ’ appearance of triteness to their recapitulation. They have been imbodied by Lord Camden, with .a succinctness, and at the same •time with a comprehensiveness, compressing within a’ feWsentences almost a system of equity jurisprudence, when he declared, in Smith v. Clay, 3 Brown’s Chancery Reports, in note, “ that a court of equity, which never is. active in relief against conscience or public convenience, has always, refused its aid to stale demands, where the party has slept upon his rights for a great length of time. Nothing can call forth this court into activity but com science,-good-faith, and reasonable diligence. Where. these are wanting, the court is passive and does nothing; laches and neglect are always discountenanced, and, therefore, from the beginning of this jurisdiction, there was always a limitation of suit in - this court.” In a case very often referred to, Hovenden v. Lord Annesley, 2 Sch. and Lef., Lord Redesdale (page 636) lays it down as what he calls the common law of courts of equity, “that every new right, of action in equity that accrues to a party, whatever it may be; must be acted upon, at the ^utmost, within twenty years.” Hércy v. Dinwoody, 4 Bro. Ch. Rep. 257, was a case wherein the statute of limitations could not diréctlyapply, for there, had. been a decree for an account that had not been proceeded in with effect; it was a case, therefore, in-which'the court-proceeded according to its discretion, and not by any analo- . gy with the statute of limitations; Lord Alvanley, in deciding this case, puts it upon the ground of public policy, and would not permit the account to be carried on, because the party who would -. otherwise have been entitled to it, had been guilty of such laches asio render it impossible to settle the account accurately. In the' case already mentioned of Hovenden «. Lord Annesley,. Lord Redesdale strikingly illustrates the force and inflexibility of the principle on which he had been insisting, when he adverts to and disallows the circumstances .adduced arid relied on to modify the operation of . that principle. After declaring that lapse of time, independently of the statute, would conclude the party in default, he proceeds to remark, that “it never can be a-sound discretion in the court to give relief to a person who- has slept upon his rights for such a lapse of time; for though it is said, arid truly, that the plaintiffs in this suit and those under vrhom they claim were persons-embarrassed by the frauds of others,, yet the court cannot act upon such circumstances. If it -did, there would be an end of all limitation of actions in the cases of distressed persons;’for if relief might be given, after twenty years on the 'ground of distress, so might it after thirty, forty, or fifty; there •.would bé no limitation whatever, and property would be thrown into -confusion.” So Sir William Grant, in the case of Beckford and others v. Wade, 17 Ves. 87, declares that “courts of equity by their own’rules, independently of any statutes of limitation, give , great .effect to length of- time, and they refer frequently to the statutes of limitation, for rio other purpose than as furnishing a convenient measure for the length Of time that, ought to operate . as a bar in equity of any particular demand.”

This doctrine of an equitable bar by lapse of time, so distinctly announced by the chancellors of England arid Ireland, has been ruled with equal force by this tribunal in the cases of Prevost v. Gratz, 6 Wheat. 481; of Hughes v. Edwards, 9 Wheat. 489; of Miller’s, heirs' v. McIntyre, 6 Peters, 61; and of Piatt v. Vattier et al., 9 Peters, 405. It should now be regarded as settled-law iri this court.

Can the pretensions of these complainants bear examination by the standard which this rule ordains? The town of Jeffersonville was established, by the. agent óf the original proprietor of the site on which, it stands, in June, 1802. The. first ferry was granted by the territorial government in October, 1802; a period almost coeval with the creatioinof the town itself. This gratit (like :every other for a similar purpose mentioned in the record) was. made in no union or connection of interests with the original proprietor of the lahds, but in a wholly separate and distinct interest. It is proved that-the agent.of the original proprietor resided in the immediate neighbourhood. ' He may be presumed, from -his agency in laying off and selling the lots, to have been familiar with the localities of the place and .with the interests ■and pursuits'of the occupants. He is shown to have had know-. ledge of the existence of a ferry at the place, ahd to have availed ' himself of its accommodation like other passengers. • The use of this separate and independent ferry-right has existed from the first grant to the- institution of this suit, for a period of thirty-eight years, without an intimation, during this interval, of a right in the complainants or in those from whom they deduce, title. Throughout all this1 time, the holders of-this ferry, with a feeling of .security which circumstances were well calculated to .inspire, have bestowed their care and their means upon an enterprise to which they were prompted, no doubt, by considerations of profit, but one not the less useful or laudable, nor less entitled to protection for that reason: an Undertaking highly.pjomotive of public advantage. Can these defendants, under circumstances such as are here enumerated, and consistently with the principles of this court, be now arrested in this enterprise ? and this at the instance of persons .who may in some sense be regarded as having prompted them to it, if nof by express invitation or by the connivance of their agent, yet by their own long abandonment of whatever* interest in the subject they may once have possessed? . Such a proceeding would not accord with the maxims of a court “ which is never active to give relief against conscience or public, convenience,” or tó a party who has slept upon his rights;” a court which “ nothing can call forth into activity but conscience, good faith, and reasonable diligence.” In this instance the complainants have slept, long slept upon their rights; by their want o'f reasonable diligence, others have been induced to embark in an undertaking against which these complainants had power to warn them; with respect to these parties, therefore, this court must remain passive, and can do nothing.

It was insisted in the argumeht for the complainants, that Bowman, the ancestor, having remained in Virginia until his death in. 1S26, never had knowledge of an intrusion upon his ferry-rights; and that without such knowledge, no presumption on. the score either of neglect or acquiescence could be allowed against him. In the first place, with regard to the fact of ignorance'here assumed, this cannot be admitted; because it is proved that Gwathney, the agent, resided in the immediate neighbourhood: that, from his agency in laying off and selling the lot's, he was necessarily connected with the affairs of the town; and it is shown, beyond question, that he. had knowledge of the existence of the ferry, and had actually used it at an' early period after its establishment, though, the precise time when, is not ascertained. Let it.be conceded, however, that Bowman and his family omitted to inform themselves of the right set up to this ferry by others; it is not perceived how such a concession would strengthen the claim of the complainants, or impair the1 title of the defendant, as accruing from lapse of time. The defendant; or his grantors, did not enter under Bowman; nor. in subordination to any title of his; they have always claimed under grants from a wholly different authority, and adversely to Bowman .and to every One eise. If Bowman-, by negligence,'or by a failure to look after and protect his own interests,, permit the title of another to grow into, full maturity, he thereby recognises the force of the principle of the bar by lapse of time; which creates á title as complete in equity as would be .imparted by an express conveyancé. This conclusion follows by regular deduction from all the authorities upon this doctrine of lapse of time, and is established. by the express language of this court in the case of Boon v. Chiles, 10 Peters, 223, where, in speaking of one whose acts may make him a trustee by implication, it holds this language: “ His posséssion enables him to have at least the same protection as that of a direct trustee, who, to the plaintiff’s knowledge, disavows the trust, and holds adversely; as to whom the timé runs from the disavowal; because his possession from thenceforth is.adverse. : The possession of the land is notice of a claim to it by the possessor, (Sugd. Vend. 753,) if not held by a contract or purchase; it is from its inception adverse to all the world, and in twenty years bars- the owner in law and in equity.” In conformity with this doctrine is the decision ir Buchannon and others v. Upshaw, made during the present term.of this court.

We 'consider the pretensions of the complainants below, the. appellants here, to be, upon every correct view, within th.e operation of the equitable bar, by lapse of time: we hold, therefore, thdt the Circuit Court properly dismissed their bill, and we acCord- ■ ingly affirm the decree of that court.

order. ■

■ This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the district of Indiana, and was argued by counsel. * On consideration whereof, it is now here ordered and- decreed by this court, that the decree of the said Circuit Court in this cause be and the- same is hereby affirmed, with costs.


text:
    Thomas E. Ellis, Jonathan M. Hill, Daniel Roper, and T. B. Bethea, Plaintiffs in error, v. Thomas Jones, Administrator of Montraville D. Taylor, deceased.
    The. law of the state of Alabama, passea m 1821, c. 26, s. 5, which authonz.cs securities to require of the creditor forthwith to put the bond, &c. in suit,. against the principal, and absolves, the security unless the creditor commences suit arid1 uses- due diligence to. collect the. debt, from thg principal, does not include a case where the parties (principal and security) unite in a joint and several sealed bill.
    This .case was brought up by writ of error'from the Circuit Court of ."the United States for the southern district of Alabama.
    On the 16th of January, 1837, the plaintiffs in error executed the following bill.
    $5000 Wilcox C. ÍT., Ala., January, 16, 1837
    Twelve- months-after date, we of either of us promise to pay Montraville D. Taylor, or bearer, the sum of five thousand dollars, value received of him, ds witness our hands and seals.
    Thomas E. Ellis, [l. s.]
    Jonathan M..Hill, [l. s.]
    ’ D; Roper, [l. s.]
    T. B. Bethea, . [l.-s.]
    At- some time after the date and ’delivery of the above bill, Taylor, the . obligee, died intestate, and Thomas Jones, a citizen of the state of North Carolina, became his administrator.

      ■ In, November, 1839, Jones brought suit against all the obligors in the Circuit Court of the United States for the southern district of Alabama. The defendants were returned “ not found;” but the suit being'renewéd to March term, ÍS40, they were all served ■ with process except Hill, who was never reached.
    Bethea and Roper severed in their pleas from Ellis. The latter pleaded usury, and that he- had only received $4000 for the bill. Bethea and Roper pleaded that they were only sureties, but their plea not being sustained, a jury was empaiinelled, wh'o found a verdict against the whole three, for $4000. As far as Ellis was concerned, there was no appeal, and the only question before .this court was upon the validity of .the-pleas of Bethea and Roper.
    In order to understand these pleas, it is necessary to refer, to the laws of Alabama.
    The act. of 1821, c. 26, s. 5, (found in Aikin’s Digest, 2d ed., title « Securities,” s. 6,. p: 385,) is as follows:
    “When any.person or persons shall become bound as security- or" securities, by. bond, bill, or note, for the payment of- money or any other article, and shall apprehend that his or their principal or principals is or are likely to become insolvent, or to migrate .from this.state without 'previously discharging any such bond, bill, or note, it shall be lawful for such security or securities in every such case, (provided an action shall have accrued on such bond, bill,'or note,) to require, by notice in-writing, of his or their creditor or creditors, forthwith-to put the bond, bill, or note,, by which he or they may be bound ,as security or' securities, as aforesaid, in suit; and unless the creditor or creditors so required to put such bond; bill, or note in suit, shall in a reasonable time Commence an action on such bond-, bill, or note, and proceed with" .due diligence in the'ordinary course of law, to recover judgment for, .and by execution to make, the amount due by such bond,' bill, or note, the creditor or creditors, so failing to‘ comply with the requisition of such security or securities, shall thereby forfeit the right which he -or they otherwise would have had, to demand and receive of such'security or securities, the amount which may be due by such bond, bill, or note.”
    Bethea and. Roper filed two pleas; the. first of which alleged that they .were'sureties’; that Éllis-alone received the consideration for the bill; that-'the intestáté knew this ; that until the — - day of--, 1839, Ellis was solvent, in' good credit, and. had property sufficient to pay the debt; that on the-day. of Julyy 1838, in the lifetime of the intestate, they gave notice that he was required to institute-suit against Ellis; that by reasonable diligence, he could have collected the debt from the principal; that the intestate did not and would not prosecute his demand within a reasonable time thereafter, but did not sue until the commencement of this suit; and that Ellis had become insolvent.
    Thé second plea stated the same, in substance, with the addition that the notice, given to the intestate requiring him to sue, was in writing:
    To these pleas a replication was put in, averring, that in the single bill sealed with the seals off the defendants, Bethea and Roper, did, jointly and severally with the said Ellis, promise to pay; and thereby admitted themselves as principals.in the said note; and that they ought not to;be permitted to aver-that they ■are sureties and not principals, nor that they had no interest, in the consideration thereof, because of the' admission and promise in the bill aforesaid.
    ■ To this rpplication there was a demurrer, and a joinder in demurrer.
    The judgment of the court was, that the replication was sufficient in law, and that the demurrer should be overruled; from which -judgment. Bethea and Roper brought the case up, by writ of error..
    R. Johnson, for the plaintiffs in error.

      Jones, for the appellee.

      Johnson’s point was, that the law of Alabama authorizes such a defence as was made by the plea, without regard to the form which the obligation sued upon may assume, when, in fact, the relation of principal and-security exists; Or, at least, so allows it, if such fact is known to the creditor'.
    It is averred in the pleadings, that the intestate knew that they .were sureties, and that they gave notice to the administrator to proceed against the principal, which notice, was given in writing. In 1 Stewart, 11, the plea was the same as in this case; replication that the notice was not in writing; on' demurrer, decided in favour of the defendant. 4 Porter, 232, is supposed to overrule the above, but it is. shown ,not to do so by 9 Poster, 334.
    The statute is a cumulative, remedy, and it is' therefore only necessary to aver the facts neglect and insolvency. The law is the Same in New York. See 13 Johns. 174.
    As to the second plea: The statute (Aikin’s Dig. of Laws of Alabama) requires three things.
    1. There shall be a note, &c., for the payment of money.

      2. That notice Shall be given.to the holder;
    3. That there must'be a neglect on his part.
    It is admitted here that the pleas contain all these averments, but the replication' says that the.; obligation.being' joint and several, all were principals; and the question is, whether, the instrument being under seal, the fact of suretiship can be inquired into. Is the statute applicable to .cases where the fact of suretK : ship does not appear on the face of -the instrument ?
    General rule is, that parol evidence is not admissible to vary written contract; but there are. exceptions, one of -which is,
    . -where two’ parties are bound, but. one is only surety. 2 Stark. ed. of 1834, p. 773, title “Surety.” This being the law, the act did not intend to shut it out, for it meant to» benefit the suréty, and not- the creditor. The first, second, and third sections all shotv.this. By the act of 1811, c. 1, s. 2, (same Digest, 164,) parol evidence must be admitted, or the sheriff , could not comply with the act. See also act of 1827, c. 27. The cases sustain this. 1 Stewart; 13 Johns. (above cited;) 5 Porter, 443; and 3 Stewart, 9, 160.
    Jones, for appellee,
    maintained, that the .replication, though but' á re-avermént of what sufficiently, appears in the declaration and on. the face, of the cause of actio.n itself,'was a good answer to the pl.ea, and-was properly sustained on demurrer: that the plea itself was bad on general demurrer, and he was, for that reason, entitled to judgment on the demurrer.
    Case in 13 Johnson stands on special, ground; the holder of the note had promised to sue the principal. King v. Baldwin, 2 Johns. Ch. Rep. 552 — 554, lays down the rule with great clearness, that if the creditor gives time to principal by a positive act, it dis-' charges th,e surety. ’But it must be by a positive act. See 10 Peters, 257; 3 Wheat. 520; 7 Peters, 126. Plea defective, because does not say. for how long a time the creditor neglected to sue principal; what is reasonable time is a question of law, and the time must be stated.
    Law. says where a person is bound as surety: but this case .is not so; he is bound as principal. Starkie refers to the case of co-obligórs, and not that of obligee against obligor. The case in 9 Porter is where one was bound expressly as-surety. Statute is a penal one.

      Johnson, in reply.
    13 Johnson only re-affirms 7 Johnson, which carried out the English doctrine. 13 Johnson, cited' with approbation in Sprigg v. Bank of Mount Pleasant; 10 Peters, 266. Statute not penal, but remedial. In 1811 began to protect surety, but did not carry it far enough. They substituted a legal presumption of mischief for actual proof, by making notice conclusive. Nothing in the act to require suretiship to be apparent on the face of the instrument.. It is admitted that after surety has paid the debt, he may enter, up judgment against the principal: did legislature then-intend surety to be sued before he should have any relief? In Alabama, all contracts nre several as well as joint, and therefore all would be shut out. .
    Not an open question, 3 Stewart, 9, 160; in 1830 where a -bill of surety was dismissed, because he had a defence at law by giving notice to the creditor and did not avail himself of it. 9 Porter says statute is a cumulative remedy.

      Jones refers the Court to United States v. Bradley, 5 Peters, 264
    The court being equally divided, the judgment of the court below was affirmed.
   ORDER.

This cause came on to be heard oh the transcript of the record from-the Circuit Court of the United States for the southern district of Alabama, 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 damages at the rate of six per centum per annum.


author: Mr. Justice BALDWIN.

text:
    William T. McClurg, John C. Parry, and Enoch J. Higby, Partners, doing business under the firm of McClurg, Parry, and Higby, Assignees of James Harley, Plaintiffs in error, v. Lawrence Kingsland, Isaac Lightner and James Cuddy, Partners, doing business under the firm of Kingsland, Lightner, and Cuddy, Defendants.
    If a person employed in the' manufactory of another, while receiving wages, ' makes experiments at the expense and in the manufactory of his employer; has his .wages increased in consequence of the useful result of the experiments; makes the article invented and permits his employer to usé it, no compensation for its use being paid or demanded; and then obtains a patent,
    . .these, facts will justify the presumption of a license to use. the invention. .-Such an Unmolested and notorious use of the invention prior to the application for a patent, will .bring the ease within the provisions of the 7th section of the. act of 1839, c. 88.
    The assignees-of a patent-right take it subject to the legal consequences of the \ . previous acts of the patentee.
    The 14th. and 15th'seetions of the act of 1836, c- 357, prescribe the rules which must govern on the trial of actions .for .the violation of patent-rights; and these - sections are operative, so far as they are. applicable, notwithstanding the . patent may have been granted before the passage of the ,act of 1836
    The wprds, “ any newly invented machine, manufacture, dr composition of mat- - tér,” in the 7th séction of the act of 1839, have the same meaning as “invention,’'’dr “thing patented.”
    This case was brought up by writ of error from the Circuit Court of the United States for the western district of Pennsylvania.
    The facts are sufficiently stated in the opinion of the court.
    .The.bill of exceptions which.was taken on the trial below was as follows; .
    And the plaintiff thereupon excepted to certain parts of the instruction's so given by the court to the jury,, which instructions so excepted to are hereinafter' set forth, to wit:
    «It has, however; been urged by the plaintiff’s counsel that the right to the continued1 use is restricted to the ‘ specific machine, manufacture, or-eómposition of matter so made-or purchased,’ so that a defendant is protected no farther than in the case of the invention . (for which this patent was granted) prior to the application, and is liable, to damages if-he makes -any rolls by-Harley’s .plan afterwards.

      “ We, therefore, feel bound to take the words, ‘ newly invented machine,’ in the act of-. 1839, manufacture, or .composition of matter and such invention, to mean the invention patented, and the words ‘specific machine,'’ to refer to the thing originally invented, whereof the exclusive right is procured by patent, but not to any. newly discovered improvement to an existing patent.
    “ The use of the patent must be of the same specific improvement originally invented,-as was before the application used by any person who had purchased or constructed the machinery on which he operated to produce the effect described in the specification; but when such-person, confines the future case to the specific mode, method, manner, and process of producing the described effect, it te - by the words and true meaning Of the law, without liability to the inventor or other person interested in the invention, so construed; and by thus protecting the person who has engaged the use of an invention before the application for a' patent, the great object of the patent laws, as declared in the' 4th section of the act of 1837, will be consummated; that is, to' project the rights of the public and ‘of patentees in patented inventions and improvements.’ 4 Story, 2547. A different construction would make it necessary to carry into all the former laws the same literal exposition of the various terms used to express the same thing, and thereby changing the law according to every change of phraseology, make it a labyrinth of inextricable confusion.
    “ Our opinion, therefore, is, that the defendants have a right to the continued' use of the improvement patented to Harley; the facts of the case, which are not controverted, have- equal 'effect with a license, and the evidence brings the defendant under the protection of the act of 1839, by the unmolested notorious use of the invention before the application for a patent. Nothing has been shown on the part of the plaintiffs to counteract the effect of this prior use; as assignees of Harley, they stand in his place as to right ahd responsibility; they took the patent, subject to the legal consequences of his previous acts, and connecting these with the want of an assertion of á right, to the use by the defendants of the invention patented, till this suit was brought in ' September, 1835, protects them from liability.

      “In pur opinion, your verdict1 ought to be for the defendants. Verdict accordingly, and judgment for defendants.”

      Dunlap, on .behalf of the plaintiffs in error,
    contended that the court below had erred in charging the jury.
    1. That the facts justified the presumption of a license or grant to use the invention, and that defendants were protected thereby, independent of any act of Congress.

      2. That the words, “specific machine,” in the 4th section of the act of 1839, referred to the invention its,elf, and that the authority to use it before the patent carried the right to continue to make and usé it after the patent had issued.
   Mr. Justice BALDWIN.

delivered the opinion of the court.

Phis cas.e comes here on a writ of error to the Circuit Court -for' the western district of Pennsylvania, in an action brought by the plaintiffs, assignees of James Harley, against the. defendants, for the' infringement of a patent granted to Harley for ¡an improvement in the . lode of casting chilled rollers and other metallic cylinders and cones, in. which judgment .was rendered for the defendants. On the trial it appeared in evidence that it had long been a desideratum to find out some mode by which iron rollers or cylinders,, could be so cast that when the metal was introduced into the mould it should cause a swyrl or rotatory motion, by which the flog or dross would be thrown into the céntre, instead of the surface of the cylinder. By the old mode, the metal .was conveyed from the furnace-to the mould through a gate, or pipe, placed in a horizontal or perpendicular direction. The mode alleged to have been invented by Harley is thus described in the specification annexed to the patent :• “ The tube or tubes,or passages called gates, through which the metal, to be conveyed into the moulds shall not enter the mould perpendicularly at the bottom, but slanting, or. in a direction approaching to a tangent of the cylinder, or if' the gates enter the moulds horizontally or nearly so, shall not enter in the. direction of the axis of i' ie cylinder, but in a tangent form, or inclining towards a tangent of the cylinder.”-

■ This- was the thing patented, consisting solely in changing the direction of the tube, which conveyed the metal to the mould, from a horizontal or perpendicular position to an angular one-; it produced the desired effect and was highly useful.

The novelty of the invention was much contested at the trial, but as the case turned on - other points, that becamé an immaterial question; -as the case comes before us; on exceptions to the charge of the court, which assumed that Harley was the original and true inventor of the improvement, and put the case to the jury on the following facts, which were in full proof, in nowise contradicted, and admitted to. be true.

' That-Harley was employed by the defendants at their foundry in-Pittsburgh, receiving wages from them by the week; while so employed, he claimed to have.invented the improvement .patented, and after several unsuccessful' experiments made a. successful one in October, 1834; the experiments were made in the defendants’ foundry,- and wholly at their expense, while Harley was receiving his wages, which-were increased oh account of the useful result. Harley continued .in their employment on wages until January or. February,. 1835, during all which, time he made rollers-for them; he often spoke about procuring a,patent, and prepared more than one set of papers for the purpose; made his application the 17th February, 1835, for a patent; it was granted-on the 3d of . March, assigned to the plaintiffs on the 16th of March, pursuant to an agreement made in January.

While Harley continued in the defendants’ employment, he proposed that they should take out a patent and purchase his right, which they declined; he made' no demand on them for any compensation fdr using his improvement; nor gave them' any notice not to use it, till, on some misunderstanding on another subject, he ga'Ve them such notice, about the time of his leaving their foundry, and after making the agreement with the plaintiffs, who owned a foundry in Pittsburgh, for an assignment to them of his right. ' The defendants continuing to make rollers on Harley’s plan,, the present action was brought in October, 18-35, without any previous-notice by them. The court left it to the jury to decide what the facts of the case were; but if they were as testi-. . lied, charged that they would fully justify the presumption of a license, a special privilege, or grant to the defendants -to use the invention; that the facts amounted to “-a consent and allowance of such use-,” and show such -a consideration-as would support ' an express.license or grant, or call- for the presumption of 'one to meet the justice of the case, by exempting .them from liability; having-equal effect with a license, and giving the defendants a right to the continued use of the invention. The court- also charged the jury, that the facts of the case, which were not controverted, brought it within the provisions of the 7th section of the act of 1839, by the unmolested, notorious use of- the invention, before the application'for a-patent by Harley, and that nothing had been shown by the plaintiffs to counteract the effect off this prior use. That as assignees of Harley; the plaintiffs-- stand in his place, as to right and responsibility; they took the assignment of the patent, subject to the legal consequences of his previous acts, and-connecting these with the absence of an assertion of a right adverse to the defendants use till this suit was brought, protected the defendants from liability for any damages therefor.

The exceptions to the charge were confined to these two points, which constitute the only subject for our consideration. Whether these exceptions are well taken or not, must depend on the law as it stood at the emanation of the patent, together with such changes as have been since made; for though they may be -retrospective in their operation, that is not a sound objection to their validity; the powers of Congress to legislate upon the subject of patents is'plenary by the terms of the Constitution, and as there aré no restraints on its exercise, there can be no limitation oí their right to modify them, at their pleasure, so that they do not take away the rights of property in existing patents.

When the patent to Harley was granted, and this suit brought, the acts of 1793 and 1800 were the tests of its validity, but the 21st section of the act of 1836 repealed all existing laws on the subject, of patents, with a proviso, that all suits brought before may be prosecuted in the same manner as if that act- had not been passed, “ excepting and saving the application to any such action, of the provision of the 14th and 15th sections of this act, so far as they may be applicable thereto.5’ This repeal, however, can have no effect to impair the right of property then existing in a patentee, or his assignee, according to the well-established principles of this court in 8 Wheat. 493; the patent must therefore stand as if the acts of 1793 and 1800 remained in force; in other respects the -14th and 15lh sections of the act of 1836 prescribe the rules which must govern'on the trial^of actions' for the violation of patented rights, whether granted before or •after its passage.

In Pennock v. Dialogue, this court held,-in 1829, “That if an inventor makes, his discovery public, looks on, and permits others freely to use it, without objection or assertion- of. claim to the invention, „of which the public .’might take notice; he abandons the inchoate right' to 'the exclusive use of the invention, to which a patent would have entitled him, had it been applied for, before such use, and that 'it makés no difference in the principle, that the article so publicly used, and afterwards patented, was made by a particular individual who did so by the private permission óf the inventor.” 2 Peters, 14,15; S. P. Grant v. Raymond, 6 Peters, 248, 249; Shaw v. Cooper, 7 Peters, 313 — 323.

On this construction of the acts of ,1793 and 1800, Harley’s patent would have been void, on the evidence in this case. Such seems to have been the sense of Congress, as expressed,in,the act of 1832, which authorized the issuing a new patent, when', an original one was invalid by accident, inadvertence,-or mistake, arid without "any fraudulent intent, by reason óf the terms of the 3d section of the act of 1793 not having been complied, with, “Provided,however, that such new patent so granted shall.in all respects be liable to the same matters of objection and defence as any original patent, granted under the said first-mentioned act. That no public usé or privilege of the invention so patented, derived from or after the grant of the original patent, either under any special license of the inventor, or without the corisent of the patentee that there shall be free public use thereof, shall.in any manner prejudice the right of recovery for any use or violation of his invention after the' grant of such new patent, as aforesaid.” 4 Story, 2301.

This act is an affirmance of the principles laid down by this court in the three cases before referred to,- and as the exception to. the proviso is limited to an use of the invention under a spe-' cial license of the inventor after the grant of the original patent, it leaves the use .priorfo the application for such patent clearly obnoxious to the principle established in 2 Peters, 14,.15, whereby the patent would become void.

The same conclusion follows froin the 15th section of the act of 1836, which declares, that if the thing patented had been in public use, or on sale, with the consent and allowance of the pátentee, before the application for a patent,” judgment shall be rendered for the defendant with costs. 4 Story, 2511. The case before us is one' of this description: the defendants use the invention of Harley for four months before his application for a patent; this use was public, and not only with his express consent and allowance, but he himself made the rollers on the plan he invented during those months, from the time when he had ascertained the utility of his invention.

It would, therefore, be no strained,-if not the fair construction of this act, if under such and the other circumstances in evidence in the cause, the court had charged the jury, that if they believed the- witnesses, the patent subsequently obtained was void. The Circuit Court, however, did not go so far: they held that the defendants might, continue to use the inventibn, without saying that the public might use it, without liability to the plaintiffs, in which we think there was no error in their direction to the jury; that they might presume a license or grant from Harley, or on the legal effect of the uncontroverted evidence as to the right of recovery, by the plaintiffs, or on the construction of the acts of 1793, 1800, - 1832, and 1836. ,

The remaining exception is to the charge of the court below, on the effect of the' 7th section of the act of 1839, which is in these words: “ That every person or. corporation who has, or shall have purchased or constructed any newly-invented machine, manufacture, or composition of matter, prior to the application by the.inventor or discoverer of a patent, shall-be held to possess the right to useand vend to others to be used, the specific machine, manufacture, or composition of matter, so ’ made or purchased, without liability therefore to the. inventor, or. any other person interested in such invention; and no-patent'shall be held invalid by reason of such purchase, sale,-or use prior to the application ■for a patent as aforesaid, except on proof pf abandonment- of such invention to the public, or that such purchase, sale, or prior use has been for more than two years prior W such application for a patent.” Pamphlet Laws, 1839, 74, 75. '

The object of this provision is evidently twofold ;■ first, to protect tlie person who has used the thing patented, by having purchased, constructed, or made the machine, &c., to which the invention is applied, from any liability to the patentee or his assignee'. Second, to protect the rights, granted to the patentee, against any infringement by any other persons. This relieved him from the. effects of former laws and their constructions by this court, unless-in case of an abandonment of the invention, or a continued prior use'for more than two years before the application for a patent, while it puts the person who has.had such prior use on the same footing as if he had a special .license from the inventor to Use his invention; which, if given before the application for a patent, would justify the continued use after it issued without liability.

At the trial below, and here, the plaintiff’s counsel have contended, that this act cannot apply to the present case, iuasmuchas the protection it affords to the .person who had the prior use, is confined to the specific' machine, &c<, and does not extend to such use of the invention, or- thing patented, if it does not consist of a-machine, &c., as contradistinguished from the new mode or manner in which an old machine or its parts operates, so as to produce the desired effect; but we think that the law does not admit of such construction, whether we look at its words or its manifest objects, when taken in connection with former laws, and the decisions of this court in analogous cases.

The words “such invention” must be referred-baclc to the preceding part of the sentence, in order to ascertain the subject-matter, to which it relates, which is none other than the newly-invented machine, manufacture, or' composition of matter constituting the thing patented; otherwise these words become senseless when the invention is-uot strictly of a machine, &c. Now, in-'the present case, we find the invention consists solely in the angular direction given to the tube through which the me.tal is conducted into the cylinder in which the roller is.cast. Every part of the machinery is old, the roller itself is no part-of the invention, and cannot be the machine, manufacture, or composition of matter contemplated by Congress, nor ban the word ‘f specific’-’ -have any practical effect unless it is applied to the thing patented,-whatever it may be, without making a distinction between a machine, &c.', and the mode of producing a useful, result by the mere direction ' given to one of the parts of ah old machine. Such a construction ■' is not justified by the language of the law, and would défeat both of its objects. ■ If it does. not embrace the- ease before us, the consequence would be that the use of the invention, under the circhinstances in' evidence, would, according to the decision in 2 Peters, 14,15, invalidate the patent; for if the act operates to save the avoidance of the patent; it must, of consequence, protect the -person who uses the invention before the application •for a patent. Both objects must be effected, or both must fail, as both parts of the act refer to .the same thing, and the same . state of things, as affecting the person using the newly-invented machine, or the thing patented, as well- as the' inventor.. Had the words “ invention,” or “ tiling patented,” been used instead of machine, Sic., there- could have been no room for doubt of the' application of the act to the present, case; and by referring to the phraseology of the.different acts of Congress denoting the.invention. it is apparent that, though there-is a difference in the words' used, there is none as to their meaning or reference to the same thing. Thus we find in the 14th section of the act- of 1S36, relating to suits for using “the thing whereof the exclusive right is secured by ally patent,” in the 15th, “his'invention, his discovery, the thing patented,” “ that which was in fact invented or discovered,” “ the invention or discovery for which the patent issued,” “ that of which he was the first inventor.” In the 1st section of the' actof 1837;“any patent for arty invention, disco very,or improve-, naunt,” “inventions and discoveries;” in the.2d section, s‘the invention.;” in the 3d, “invention or discovery;” in-the 4th, “patented inventions and improvements;” in the 5th, “the thing as originally invented.” 4 Story, 2510, 2511, 2546.

We, therefore, feel bound to take the words “newly-invented machine, manufacture, or. composition of matter” arid “such invention,” in the act of 1839, to mean the “invention pátented,” and the words “specific machine,” to refer to.“the‘thing as originally invented,” whereof the right, is secured by patent; hut not to any newly-invented improvement on a thing once patented. The use of the invention before an application for á patent must be the specific improvement then invented and used d>y the person who had purchased, constructed,-or used the machine-to which the invention is applied: so construed, the objects of the act of 1839 are, accomplished; a different construction would make it- necessary to carry into all former laws the same literal exposition of the various term's used to express the same -thiug, and thereby changing the law according to ¿very change of pie re phraseology, make it a labyrinth of inextricable confusion.

We are, therefore, of opinion that there is no error in the charge of the court below, and that its judgment be affirmed.

order.

■ This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the western district of Pennsylvania-, and was'argued by counsel. On consideration whereof, it is ndw 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.