author: Mr. Chief Justice TANEY Mr. Justice WOODBURY

text:
    Thomas Henderson and Thomas Calloway, Plaintiffs in error, v. The State of Tennessee.
    If the defendant in an ejectment suit claims a right to the possession of land derived under a title which springs from a reservation in a treaty between the United States and an Indian tribe, and a State court decides against the validity of such title, this court has jurisdiction, under the twenty-fifth section of the Judiciary Act, . o review that decision.
    But if such defendant merely sets up the title of the reservee as an .outstanding title, and thus prevents a recovery by the plaintiff, without showing in himself a connection with the title of. the reservee, and then a State court decides against the defendant in the ejectment, this court has no jurisdiction to review that decision.
    In order to give jurisdiction to this court, the party must claim the right for himself, and not for a third person, in whose title he has no interest.
    In error to the Supreme Court of Tennessee.
    An action of ejectment was brought in the Circuit Court for Monroe County by the lessee of the State of Tennessee, against Richard Fen,for atract ofland at Toqua, with notice to R. Stapp, W.'F. Brown, John Beatty, and Solomon Aikin, as tenants in possession, indorsed, “ Den, Lessee' of the State, v. Fen, &c., to Henderson and' Calloway, issued 27th January, 1841.” The declaration and notice being returned by the sheriff as served on the tenants in possession, Stapp, Brown,' Beatty, Aikin, they appeared; and on the application of Thomas Henderson and Thomas H. Calloway, they were, “ by leave of the court, admitted to defend in the room and stead of the tenants sued,” entered into the common rule, and pleaded not guilty.
    The material facts of the case are, that the land in controversy was a school section, and that the School Commissioners had taken possession of and. held it until .a law was passed by the legislature. of Tennessee directing the school lands to be Sold.- About that time one John Lowry, professedly as attorney and agent of Toqua "Will, obtained possession of the land, and retained it until about 1836, when the School Commissioners regained the possession, and retained the same until 1837 or’ 1838. Then Thomas Henderson, one of the plaintiffs in error, got possession of the tract for the heirs of one Andrew Miller, under which title it has sincé been held,
    Andrew Miller, at the date of the Cherokee treaty of 1817, was the head of an Indian family, and resided in the Cherokee nation, east of the Mississippi; about the 1st of March, 1818, he settled and made improvements on the land in dispute; and on the 24th of May, 1818, registered his name in the office* of the Cherokee agent for a reservation in right of his wife, and designated, on the! books of said agent, this land as the location by him selected for reservation. From that time until he was killed (August, 1818), he,-with his wife and part of his family, resided on the land, claiming it as a-reservation, on which he said he intended to live and die. A few days after his death, his widow sent for John Black, and requested him to take possession of the land and hold it for her and her children. Black offered her $ 1,000 for her claim, which was refused. Black was placed in possession in the fall of 1818 by Mrs. Miller and George Hicks and James Chisolen,.two Cherokees who had taken charge of Miller’s estate. Two of Miller’s children lived with Black, were sent to school, and the expense paid out of the profits of the land. Black held possession-for the children of Miller,- who remained with him till put off by the School Commissioners in-the spring of 1822.- Afterwards, Thomas Henderson got possession for the children of Andrew Miller. The land was included in the cession made to the United States by the Cherokee treaty of 1819.

      The court instructed the jury, that “although the ancestor, Andrew Miller, registered his name for the place in dispute, and took possession thereof in the spring of 1818, and died upon the place in July or August of that year, and before the treaty of 1819, no title vested in him, and consequently none could vest or descend to his heirs.”
    Verdict for plaintiffs. On appeal to the Supreme Court of Tennessee, the judgment of the Circuit Court of Monroe was affirmed. Thereupon the case is brought before this court by writ of error, under the twenty-fifth section of the act of September 24,1789.
    The cause was argued by Mr. Bibb and Mr. Eaton, with whom was Mr. Green, for the plaintiffs in .error,-and Mr. Andrew Erving and Mr. Stanton, for the defendants in error.
    As the case was dismissed for want of jurisdiction, only so much of the arguments of counsel will be inserted as is applicable to the point on which the case turned.

      Mr. Bibb, for the plaintiffs in error.
    That part of the judge’s charge to the jury is relied on to defeat the jurisdiction, wherein he said, “ that it was admitted that the defendants had not any title in themselves, but relied solely on an outstanding title in the heirs of Andrew Miller.”
    This part of the judge’s charge to the jury is excepted to, and is as erroneous as the other member of -his charge in exposition of the treaties. There is no such admission in the record; no such admission was given in evidence; it is an unwarrantable assumption; it is repelled by what had been done of record, by the court, and by the parties, and is contrary to the testimony.
    Henderson and Calloway were not the tenants on whom the declaration was served, but were received and admitted by the-court to defend “ in the room and stead of the tenants sued.” According to the principles which govern the action of ejectment, it was necessary that Henderson and Calloway should' show that there was a privity between them and the tenants in possession, that there was a connection and -coincidence between the possession held by the tenants and the rights and interests of those admitted in their stead, so that there should be no collusive change pr shifting of the possession to the injury of a third party, who might thereby be put to an ejectment to recover the possession which his tenants had surrendered improperly; “because there is a great difference between-being plaintiff or defendant in ejectment.” Fairclaim on dem. of Fowler v. Shamtitle, 3 Burr. 1290, 1294, 1295, 1300, 1301, 1302.
    A mere stranger- to the possession shall not be admitted. Troublesome v. Estill, 1 Bibb, 128; Jackson v. McEvoy, 1 Caines, 151; Jackson v. Stiles, 10 Johns. 69.
    Under the term landlord, the courts include every one from whom the possession is derived, and who might sustain an injury by eviction; they will be admitted to defend. Crockett v. Lashbrook, 5 Monroe, 539.
    No person is admitted to defend in ejectment unless he be tenant, and is, or has been, in possession, or receives the rent; because it is an act of champerty for any person to interpose and cover the- possession with his title; and to make any person a defendant, who was not concerned in the possession of the tenement, was a mischief at common law. Runnington on Ejectment, p. 70.
    But, at common law, to admit a landlord to defend an ejectment is matter of right, for otherwise he might lose his possession by combination between the plaintiff and the tenant in possession. Fenwick v. Gravenor, 7 Mod. 70; Underhill v. Durham, 1 Salk. 256; Fairclaim on dem. of Fowler v. Shamtitle, 3 Burr. 1301; Adams on Ejectment, 229, 230.
    if a person should be admitted to defend, whose title is inconsistent with the possession of the tenant, the lessor of the plaintiff may apply to the court, or to a judge at chambers, and have the'rule discharged, with costs, Adams on Ejectment, p. 232.
    . The objection should have been made when Henderson and Calloway applied to be admitted to defend, if they had no title in themselves and were strangers-to the possession. The court admitted them; the lessor of the plaintiff, so far from denying their right to be admitted to defend, acquiesced, made an agreement with them that they should admit the land in the declaration described was “ a school section in Monroe County ”; and also an agreement that they should be admitted under the order made by the court, in room of the tenants in possession, upon giving security to abide the judgment, and pay all costs that should be awarded.
    The declaration was. indorsed for notice to Henderson and Calloway, showing that, at the institution of the action, they were known to the attorney of the lessor of the plaintiff as the landlords.
    The_ charge of the judge to the jury, after the said Calloway and Henderson had been so admitted to defend, 'and so dealt with, was illegal and erroneous, a surprise to the defendants, an injustice and wrong at a time which left no remedy but by an exception to the charge given to the jury, which remedy was' pursued.
    , The plaintiff in ejectment proved, that, in “ 1837 or 1838, Thomas Henderson got possession for the heirs of Andrew Miller, under which title it has since been held.” The charge of the judge to the jury was in contradiction to the act of the court in admitting Henderson and Calloway to' defend, instead of the tenants in possession; the plaintiff, and the court were estopped by their own acts, by the record, by the evidence, from assuming the position that Calloway and Henderson had no title in themselves, but. relied. solely on an outstanding title in the heirs of Andrew Miller. If such had been their predicament, they could not, without violating the éstablished principles of law relating to actions of ejectment, have been admitted by the court as defendants in the room, ánd stead of the tenants in possession.
    This ipse dixit of the judge in his charge to the jury, so excepted to, and so unwarranted, cannot be taken by this court as legal and veritable, so.as to defeat a revision of the final judgment of the Supreme Court under the twenty-fifth section of the Judiciary Act of the United States.
    ; A judge, by his charge to the jury, cannot make evidence, cannot create an admission for a party, so as to bind him contrary to the facts, contrary to the record, contrary to the law.. Williams v. Norris, 12 Wheat. 119. When such a charge is excepted to, it is a proper subject for revision and reversal, equally with any other error or mistake of fact or law committed by the'.judge.
    Putting this unwarranted dictum of the judge out of the. way, we come to the question of the jurisdiction of this court to reexamine the final decision of the Supreme Court of Tennessee in this action of ejectment.
    The twenty-fifth section of the act of Congress approved 24th September, 1789' (1 Stat. at Large, 85), provides, — - “ That.a final judgment or decree in the highest court of law or equity of a State in which a decision, in the suit could be had,. where is drawn in question the validity of a statute of, or an authority exercised under, any State, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of such their validity; or where is drawn in question the construction of any clause of the Constitution, or of a treaty or statute of, or commission held under, the United States, and the decision is against the title, right,- privilege, or exemption specially set up or claimed by either party under such clause of said Constitution, treaty, statute, or commission, — may be reexamined, and reversed or affirmed, in the Supreme Court of the United States, upon a writ of error,” &c. “ But no other error shall be assigned or regarded as a ground of reversal, in any such case as aforesaid, than such as appears on the face of the record, and immediately respects the before-mentioned questions of validity or construction of the said Constitution, treaties, statutes, commissions, or authorities in dispute.”
    In this ejectment the plaintiff claimed, under a law of the State, that the land was lawfully surveyed as of the public domain of the State, and that it was lawfully appropriated as a school section, according to the plan of the surveyor of the State for the Highwassee district; the defendants claimed under •the treaties of the United States of 1817 and 1819, with the Cherokee nation of Indians, authorizing reservations of 640 acres to the heads of Indian families who elected to become citizens of the. United States, and under a reservation duly taken by Andrew Miller, for himself and his family, in accordance with the. said treaties.
    Upon the face of the record in this case it appears, that “the principal question raised was, whether from the above facts Miller’s children had any interest in said land as a reservation by virtue of the registration and residence of their father at Toqua, the place in dispute ”; and it farther appears that the court instructed the jury, “ that although the ancestor, Andrew Miller,-registered his name for the place in dispute, and took possession • thereof in the spring of 1818, and died upon the place in Juiy or August of the same year, and before the treaty of 1819, no title vested in him, Andrew Miller, and conse- . quently none could vest or descend to his heirs.”
    The case, stripped of the fictions used in actions of ejectment, is substantially a question between the commissioners of the school fund of the State of Tennessee, claiming under a law of that State, and the admitted defendants, Calloway and Henderson, claiming and holding possession of the- land under the treaties of the United States; and the court gave a construction of the treaties adverser to the right, title, privilege, and possession claimed under those treaties. It is a conflict of State law and State authority with the rights claimed under the authority and treaties of the United States, and so appears plainly and palpably upon the face of the record.
    But to evade the jurisdiction of this court to reexamine and reverse or affirm the final decision of the Supreme Court of Tennessee, so plainly within the reason and exigencies of the twenty-fifth section of the Judiciary Act, in a case so palpably requiring the exercise of the jurisdiction of the Supreme Court of the United States, to give the true construction of these treaties of 1817 and 1819, and to maintain the supremacy of the laws of the United States, it is here argued, that Henderson and Calloway are not in a predicament to prosecute this writ of error.
    Do not the treaties protect a possessory right held under them equally with the'rights in fee simple ? Is a defendant in a possessory action bound to show that he is tenant in fee ? Shall a defendant in a possessory action, against whom the plaintiff has obtained an erroneous judgment, be barred of a writ of error, because on the trial he did not deduce to himself a title in fee?
    That the erroneous dictum, the unfounded assumption, the gratuitous ipse dixit, of the judge, in his charge to the jury, is no bar, cannot alter the fact or the law, need not be farther argued.
    The action of ejectment is a possessory action, invented by the courts to try possessory titles, unembarrassed by the difficulties attendant upon real actions. The declaration is a fiction, the plaintiff’s name is fictitious, the defendant’s name is fictitious, the lease is a fiction, the casual ejector’s name is fictitious ; yet all these fictions have been regulated and moulded by courts and by legislation into a system, governed by known and established principles, well adapted to the purposes of substantial justice. The distinction between a real action founded upon a right of property, and a possessory action founded upon a right of possession, is well established, and the ejectment is confined to cases in which the claimant has a right to the possession. When the claimant has only a right of property, or a right of action remaining to him, his entry upon the land would be illegal, not sufficient to enable him to make a real valid lease, and he could not maintain an ejectment, for principles remain, although the forms of proceeding are changed.
    Blackstone, in his Commentaries (book 2, ch. 30, pp. 195 to 199), tells us of four several degrees requisite to form a complete title to lands'; — 1st. The lowest and most imperfect degree of title consists in the mere naked possession of the estate, without any apparent right, or shadow of right, to continue that possession; which is, however, prima facie evidence of a legal title in the possessor, and it may, by length of time (and negligence of him who hath the right), ripen into a perfect indefeasible title. '2d. The next step to a good and perfect title is the right of possession. 3d. The mere right of property, jus proprietatis, without either possession or even the right of possession, where the estate of the owner is divested and “ put to a right.” 4th. A complete title,' “jus duplicaium,” or “ droit droit,” where there is “ juris et seisince conjunctio.”

      As the action of ejectment is a possessory action, founded on a right to the possession, and can be maintained by a right to the possession even for a term of years, so it.ean be defended by one having the actual possession. A tenant, under an unexpired lease frdm his landlord, may successfully defend an action of ejectment against him by his landlord.
    In the action' of ejectment, the right of possession only is tried, not the ultimate mere right of property; and the plaintiffs must Show a right of entry. Taylor v. Hord, 1 Burr. 119; Troublesome v. Estill, 1 Bibb, 128 ;. Adams on Ejectm. 10, 33, 247 ; Runnington on Ejectm. 21, 42.
    The., party in possession is presumed to be the owner until the contrary is proved.’ The possession of the defendant gives Mm a right against every person vyho cannot show a good right to possession, — a good right to change the possession. Roe on dem. Haldane v. Harvey, 4 Burr. 2487, 2488 ; 2 Black. Comm. ch. 13, p. 196.
    The lessor of the plaintiff and the tenants in possession, or persons admitted to defénd in place of the tenants in possession, “are parties,-and the only parties, to an ejectment.” Aslin v. Parkin, 2 Burr. 667, 668.
    The possession of the tenants sued, and the possession of the defendants, Calloway and Henderson, admitted in place and stead of the tenants, is connected with, and knit to, the title of Miller’s children, growing out of the treaties of the United States with the Cherokee nation of Indians;; so the plaintiff himself proved by his own witnesses. ’ The record states, that “ the principal question raised was, whether, from the above facts, Miller’s children- had any interest in said land, as a reservation, by virtue of the registration and residence of their father at Toqua, the place in dispute ”; and the court gave instruction to the jury containing a construction of the treaties adverse to the right, title, and interest of Miller’s children, and of the defendants in possession under the title growing out of the treaty.
    To the opinion of the court, in admitting Henderson and Calloway- as defendants “ in the roorq and stead of the tenants sued,” “ to defend -in the room of the tenants in -possession,” the plaintiff took no bill of exception ; he acquiesced and assented of record. It cannot now be alleged that the evidence adduced by Calloway and Henderson, of their being landlords to the tenants in possession, was insufficient to admit them to defend in the room and stead of the tenants upon whom the declaration was served..
    That question cannot now be raised in this-court. It is not now an open question. Henderson and 'Calloway are the defendants, against whom tffe plaintiff has taken his judgment for the possession and for- the costs of suit. They had the right to appeal, and did appeal, to the Supreme Court of Tennessee ; they have the right, under the twenty-fifth section of the Judiciary Act, to have the construction of the treaties, as given in the Circuit Court of Monroe County, and as affirmed by the Supreme Court of Tennessee, reexamined and reversed or affirmed by the Supreme Court of the United States.
    The Supreme Court of Tennessee, in affirming the judgment of the Circuit Court of Monroe County, affirmed the construction of the treaties as set forth in the bill of exceptions.
    The following eases, decided upon the jurisdiction of this court, under the twenty-fifth section of the ¡Judiciary Act, will suffice to sustain the jurisdiction in this case. Craig v. The State of Missouri, 4 Peters, 229; Worcester v. The State of Georgia, 6 Peters, 515, 582, 583, 597 Crowell v. Randell, 10 Peters, 391 to 399.
    In this case of Crowell v. Randell, fourteen previous decisions of this court upon this twenty-fifth section are reviewed, and the doctrine reaffirmed, “ that it is not necessary that the' question should appear on the record to have been raised, and the decision made, in direct and positive terms, ‘ ipsissimis verbis,’ but it is sufficient if it appears by clear, and necessary intendment, that the question must have been raised, and must have-been decided, in order to have induced the judgment.”
    The case of' Owings v. Norwood’s Lessee, 5 Cranch, 344, has been relied on as being adverse to the jurisdiction of this court, in the case under consideration. Norwood’s lessee claimed under a grant from the State of Maryland, dated in June, 1800, founded upon a confiscation of the land called Brown’s Adventure; Ov/ngs, to defeat the actipn of Norwood’s lessee, attempted to set up, as an outstanding title, a patent of the year 1695, to Thomas Brown, who conveyed to John Gadsby, who conveyed to Aaron Rawlins, in 1703, who mortgaged in fee to Jonathan Searth, by deed of 1706, with a proviso to be void upon payment of £ 800, with interest, on the 13th of May, 1709. This mortgage to Searth, Owings Set up to show a title outstanding against Norwood’s lessee, contending that the mortgage to Searth was protected by the treaty of 1794, between the United States and Great Britain, from' confiscation,-and was still a security for the money to the representatives of Searth, who were proved to be still living;in England. But the Court of Appeals of Maryland decided, that, at the expiration of the time for payment limited in the deed to Searth, a complete legal estate vested in the mortgagee, Searth, liable to confiscation; and was confiscated by. virtue of- the act of Maryland of -October .session, 1780, ch; 45, and vested in the State; and that the British treaty did not affect the plaintiff’s title.

      Upon the writ of error to the Supreme Court of the United States, the court decided that the case of Scarth’s representatives was not protected by the treaty, and that the right set up by the plaintiff in error did not grow out of the treaty. And most certainly that right, so set up by Owings, originated more than fourscore years before the treaty. Surely that case has no similitude to this. The explanation of Chief Justice Marshall (5 Cranch, 348) maintains the jurisdiction of this court in the case now under consideration. A right in fee simple, growing out of a treaty, is protected in whole, and in all its parts and interests, which are holden or possessed, subordinate to the estate in fee; and the Judiciary Act will.come in aid of the protection, when the lowest grade of such interest shall be drawn in question in the State courts, either directly or ‘‘ incidentally.” Such is the true effect of the decision in Owings v. Norwood’s Lessee; such is the true construction of the. Constitution and the twenty-fifth section of the Judiciary Act.

      Mr. Ewing, contra.

    This court cannot obtain jurisdiction by mere consent of parties. It was the policy of the law to commit to this court certain specified cases ai’ising in the. State courts. If the case is within the Judiciary Act, jurisdiction follows. If not, no matter what the parties may have agreed, or what they may be'estopped from denying, or what the court below may have permitted, or what it may' be estopped from denying, this court has no jurisdiction of the matter. It might be true, then, as.it has been urged, that, after we had admitted the plaintiffs in error to defend in the court below, we might be estopped from denying that they had title in themselves, and did not rely solely on an outstanding title in the heirs of Andrew Miller; and yet neither the admission nor the estoppel would confer jurisdiction on this court. This court will take notice of its own jurisdiction. And no matter at what stage of the proceedings a want of jurisdiction may appear, or in what manner it may appear, the court will act upon it, notwithstanding any technical or other admissions oí the parties to the record.
    By the statute of Tennessee, children cannot be concluded unless they are brought before the court. Now here you would conclude the children of Miller, though the facts do not show any privity between the plaintiffs in error and the heirs of Miller. Henderson and Calloway set up an outstanding title in the heirs of Miller, under the treaty, and attempt thus to give jurisdiction to this court. And if this court entertain the case, it determines the rights of the heirs of Miller under the treaty, although they are not before the court. And if the rights of the heirs of Miller should ever hereafter be brought before this court for adjudication, it would be held that, by the present decision, their rights are determined. 5 Cranch, 344.

      Mr. Stanton, on the same side.
    Is there any proper proof of any such privity between the plaintiffs in error and the heirs of Miller, as would enable the former to -set up the title of Miller’s heirs as their own, and thus bring it within the treaty ? The bill of exceptions upon its face shows that it was put in by consent, and was undoubtedly drawn up by the attorney, and signed by the judge, as is the practice in Tennessee. The facts were not set down precisely in order as they were proven.
    The argument on the other side would lead us to the conclusion that it is the duty of this court “ ampliare jurisdictionem.” We maintain precisely the reverse; and in this case especially, that the mere fact of the defendants below setting up an outstanding title, out of themselves, without a claim in themselves under the treaty, cannot confer j urisdiction. The true construction of the statute is, that the persons intended to be benefited must have a direct interest under the statute or treaty, and specially set up that interest in the State court. Otherwise, the true holders of the title would h&ve their rights adjudicated, when they were not parties to the suit. 5 Cranch, 344; 12 Wheat. 117.
    Inasmuch as the plaintiffs in error are only entitled to come into this court, under the Tudiciary Act, by virtue of the outstanding title in the heirs of Andrew Miller, they are entirely precluded from the forum for want of privity with those heirs.

      Mr. Eaton, in reply and conclusion.
    Under the twenty-fifth section of the Judiciary Act, the only question is, not one of meum and twwm, but whether the. construction of a treaty or law of the United States is involved. The eighth article of the treaty of 1817 gave a life estate to the head of a family, dower to the widow, and remainder in fee to the children. Andrew Miller was the. head of an Indian family, and was registered as such. The land claimed, it is true, was not within that ceded by the treaty of 1817, but by that, of 1819. But we claim that the true construction of those treaties is, that the latter was but the continuation' of the former. And it is this construction of those treaties' which gives us a standing in this court. It is not a mere outstanding title which we set up. The bill of exceptions!'expressly states, that “ Thomas Henderson (one of the-plaintiffs in error) got possession for the heirs of Andrew Miller, under which title it has since been held.” We hold under that title, then. And it is our title under the heirs of Andrew Miller, and their title under the treaties of 1817 and 1819, which is in fact one and the same title, that is involved. The children of Miller were actually on the land enjoying the rents until put off by the School Commissioners. The statutes of the State of Tennessee override the treaties of the United States.
   Mr. Chief Justice TANEY

delivered the opinion of the court.

The first question to be decided in this case is, whether the ' court has jurisdiction.

The case is brought before us by a writ of error to the Supreme Court of the State of Tennessee. It appears by the record, that the decision turned upon the title of Andrew Miller to the lands in question, under the treaties of 1817 and 1819, with the Cherokee nation. Andrew Miller was the head of an Indian family when the first treaty was made, and it was insisted at the trial that the title to this land was in his heirs, by virtue of the reservations contained in these treaties. The decision was against the validity of this title, and the question is, whether the plaintiffs in error claimed under it. If they did not, this court has no power to revise the judgment of the State court.

It was an action of ejectment. The plaintiffs in error were permitted by the court to appear as defendants. They were not the tenants in possession when the suit was brought. The process was served on other persons named in the proceedings, and the record does not show in what character, or upon what ground, the plaintiffs in error were permitted to appear and defend the suit.

Andrew Miller died in 1818, and the land in dispute was held for his children until 1822, when the State took possession of it, claiming title. The widow of Miller removed to the Cherokee nation,' in their new settlement on the west of the Mississippi, soon after his death, and the children followed her when the State took possession' of the land ; and they have all remained there ever since. . The right to this property appears to have been continually in dispute since the treaties above mentioned, and after the removal of Miller’s children the possession changed hands several times before this suit was brought.

The bill of exceptions states, that Henderson, one of the plaintiffs in error, got possession for the hens of Andrew Miller in 1837 or 1838, under which title it was held down to the commencement-of this suit. But it is not stated that he or Calloway had any authority from the heirs of Andrew Miller. On the contrary, it is expressly, stated that they set up no title in themselves, but relied for their defence on an outstanding title in the heirs of Andrew Miller.

Now, in the language of ejectment law, an outstanding title means a title in a third person, under which the tenant in possession does not claim. And as no one has a right to enter upon the land and eject the tenant but the person holding the legal title, if the tenant can show that the title was in a third person it defeats the action, although the tenant sets up no title in himself. This was the defence in the case before the court. If they had been in possession undér the heirs of Miller, as tenants holding under their authority, then the title of the heirs would have been the title of the tenants, and they could have defended their possession, by showing title in themselves derived from the heirs. For although the landlord may appear and defend on account of his own interest, yet his appearance is not necessary for the protection of the tenant. The tenant may show the title of the landlord, and his own right derived from him. And if the plaintiffs in error had made this defence, they would evidently have claimed a right to the possession under a treaty of the United States; and as the decision was against the right, this court would have jurisdiction, and-might reverse the judgment if they deemed it erroneous. But they claimed no right to the possession under this title. They set it up as a title in a third person, not to show a right in themselves, but that the lessor of the plaintiff had none, and therefore had no right to enter upon them. They might have been mere trespassers or intruders, without any authority- from the legal owner, and yet this defence would have been a good one, if the outstanding title was superior to that produced by the lessor of the -plaintiff.

The .right to make this defence is not derived from the treaties, nor from any authority exercised under the general, government. It is given by the laws of the State, which provide that the defendant in ejectment may set up titlé in a stranger in bar of the action. It is true, the titlé set up in this case was claimed under a treaty. But to give jurisdiction to this court, the party must claim the right for himself, and not for a third person in whose title he has no interest. The case in 5 Cranch, 344, Owings v. Norwood’s Lessee, is in point. And the same doctrine was reaffirmed in Montgomery v. Hernandez, 12 Wheat. 129 ; Fulton v. McAffee, 16 Peters, 149; and Udell v. Davidson, 7 Howard, 769.

The heirs of Miller- appear to have no interest in this suit, nor can their rights be-affected by the decision. The judgment in this case is no obstacle to the assertion of their title in another suit, brought by themselves or any person claiming a legal title under them. And in such a suit this court would have jurisdiction upon a writ, of error, whether the judgment was in a Circuit Court of the United States or in a State court.

But this writ of error- must be dismissed for want of- jurisdiction.

Mr. Justice WOODBURY

dissented from the opinion delivered by the court.

My view of the present case is, that this tribunal has jurisdiction over it, and, also, that the judgment below ought to be reversed.

In order to enable us to exercise jurisdiction in this class of causes, it need only appear, that in the State court some right or title set up under a treaty with the United States was drawn in question and overruled. The title set up below by the defendants seems very clearly to have been one of this character. The record states that .“it was proved by sundry witnesses that Andrew Miller was the head Of an Indian family ; resided in the Cherokee nation east of the .Mississippi at the date of^the treaty of 1817, between the United States and the Cherokee nation ; that from the spring of 1818 till his death in July or August of the same year, he resided on the land in dispute, claiming the same as a reservation, where he said he intended to live and die; and that the land in dispute was not ceded by the treaty of 1817, but was by that of 1819.” Now, on such facts it is averred and admitted that the court instructed the jury, “ that although the ancestor, Andrew Miller, registered his name for the place in dispute, and took possession thereof in the spring of 1818, and died upon the place in July or August of the same year, and before the treaty of 1819, no title vested in him, Andrew Miller, and consequently none could vest or descend to his heirs.”

It is difficult to conceive how it is possible to say, that a title under a treaty was not thus set up or drawn in question, and was not overruled by the State court, so as to give to this court jurisdiction to revise any error committed. Such a title seems to have been the only one interposed against a recovery, and was the only one decided on below, and was there explicitly overruled.

The sole argument offered here to obviate this conclusion does not appear to have been there presented or relied on. It is, that, though Miller’s title was there set up and overruled, it was not set up as existing in the tenants, or as the title under which they entered or claimed.

But the Judiciary Act, in order to give to this court jurisdietion under the twenty-fifth section, does not in terms require that such title should have been entirely vested in the tenants. It seems sufficient if it was drawn in question, or was set up, and could legally be set up, in defence, and was overruled. (1 Stat. at Large, 85.)

What is drawn in question in any case depends on the'facts and the- law applicable to that particular case. Here the title of Miller’s heirs under the treaty, I have already shown, was certainly drawn in question, and as certainly was overruled by the judge.

But it is argued, that the defendant must have had a right under the United States to make the defence, or we have no jurisdiction. That, however, is begging the question on the merits. It seems quite sufficient to have him set up such a right and to have it overruled.

Here, too, the court below seemed to concede, that Henderson possessed such a right under Miller’s heirs; but decided against him, on the ground that the right of Miller himself was defective.

Again, the question of right is not the guide, but the question of claim, and the claim being overruled. Nor need the claim be to the whole estate or interest. In such an' action as-this, the persons in possession may have, in themselves, no title in fee, nor for life, nor even for years. It is sufficient if a mere-tenancy at will, for or in behalf of those possessing a larger estate, is claimed.

So it may be only a naked possession, if the legal estate is-shown to be in other persons than the plaintiff, the latter not being authorized to disturb the possession of the tenant, unless he has the legal estate. 4 Burr. 2484; 9 Wheaton, 515; Greenleaf’s Lessee v. Birth, 6 Peters, 302.

Here, however, the defendants appear to have gone further,, and to have made a claim in privity with the heirs, or set up a right under Miller and the treaty, though not to the whole interest. In a just view of the record, therefore, they seem to have brought themselves within what is now required, even by the opinion of this court. Because, though the original-defendants claimed no title in themselves, unless it was a tenancy at will under- Henderson and Calloway, .and hence, probablythe latter .were requested to defend, and did defend, yet it clearly appears on the record, that the latter set up rights for the heirs of Miller, and relied in defence on the title of those heirs, and the court did not overrule the propriety of such a mode of defence, but the title itself of Miller’s heirs set up under the Cherokee treaties.

' The title under the treaty was nor only thus? set up and overruled, but it was set up by Henderson and Calloway, claiming rights under it in privity under the heirs of Miller.

The widow of Miller, as early as 1818, is proved to have put Black in actual possession of the land, “to hold it for her and the heirs of Andrew Miller.” And he, with two of the children, remained in possession and cultivated the land till 1822. No question can exist, that, if Black was the defendant here, he could rightfully protect himself under the Miller title. But it is said that Henderson and Calloway were never, like him, put into possession by the widow or the heirs, and never held it for them with any privity by lease or otherwise. We think differently. Another portion of the record says expressly, after Black had been expelled by the plaintiffs, and the plaintiffs by others, between 1822 and 1837 or 1838, that “ Thomas Henderson got possession for the heirs of Andrew Miller, under which title it has since been held.”

During the three or four years which ensued before this action was instituted, it would therefore appear, not only that the present defendants were in possession, in person or by others, “ for the heirs,” which is the very expression used as to Black’s possession, but would naturally mean in one case, no less than the other, with the privity or request of the heirs, and as agents for them. But to remove .all doubt as to this in respect to Henderson, who entered for the heirs of Miller, the record adds, that under the Miller “ title it has since been held.”

.. Giving a fair construction to all the words in the record, and to all the other facts stated, .it is difficult to misunderstand this language. The widow and heirs regarded the, reservation as valuable. She refused to sell their rights in it for $ 1,000 offered by Black. It was not abandoned as unworthy of attention ; but Black was first put into possession with privity as agent or tenant to them. And after he was expelled, Henderson, as another agent, seems not only to have regained the possession for the heirs, but to have held it by their title since, and probably as their agent or tenant, with like privity. The' notice to Henderson, likewise, to take on himself the defence in this case, and his admission by the court to defend, confirm this view.' A. third person, disconnected entirely with the title or right of possession, Would not usually be admitted. 10 Johns. 69 ; 1 Caines, 151; Fairclaim v. Shamtitle, 3 Burr. 1299, 1301. He was doubtless admitted, then, from his connection with Miller’s title. Lord Holt says (Comb. 209), “No person is admitted to defend in ejectment unless he be tenant, and Í3 or hath been in possession or receives the rent.” Bac. Abr. Ejectment, B. 2. Runnington on Ejectment, 192, 199, 201, 209.

It is urged further in objection, that Miller’s heirs are not parties here.. Neither is the owner of the fee a party in ejectment in any case where a lessee or agent under him malíes a sub-lease and is admitted to defend for his sub-lessee.

Looking to the whole record, then,.these considerations seem to dispose of the question of jurisdiction in favor of the original defendants. But the plaintiffs below rely on some' detached expressions in the record from which to infer a different result. Such as the judge speaking of “ an outstanding title ” in Miller’s heirs. Probably, as already explained from the whole case, the judge meant, by the words “ outstanding title,” one which did not exist in the plaintiffs, and one which, though represented by, had not been conveyed to, the defendants by any formal deed. Under- that aspect, all is natural, and our jurisdiction is unimpaired. Such a case would be entirely unlike that of Owings v. Norwood’s Lessee, 5 Cranch, 344. But if he meant by outstanding title one which existed elsewhere, but which the defendants did not set up, nor mean to avail themselves of as a defence by their connection with it, he departs in all essentials from the rest of the record, and all the proof in it, that Henderson enteréd for the heirs of Miller, held it two or three years under their title, and set it up as his defence.

My dissent rests on this view of the case, though it is by no means certain, that, if a naked outstanding title were shown merely to defeat the plaintiff', and not held under nor relied on through any privity in defence, and it was examined by the court below, when set up to defeat the action, we should not exercise jurisdiction to revise the decision, if a treaty connected with that title is there overruled ; because the treaty is a part of the defence there, as much as in other cases. It is relied on-for exemption in the action as much as in other cases. The title under a treaty is called in question 'and decided against as fully as in other cases. The dangers from' such a defence being overruled by a State court are as serious as in other cases.

So a judgment of a State court is reversable here at all only when in collision with defences offered under authority from the United States. And here the State court not only overruled an authority so set up, but did it in favor .of their own State and of their own citizens,- and against the valid ty e- a claim in behalf o.f an Indian widow and Indian orphans. On general principles, therefore, and with entire respect for the courts of Tennessee, it would seem proper, that, if any case should be open to revision by another tribunal, it ought to be one of this character.

As it would be of no use to sustain jurisdiction here, unless in favor of the validity of the title overruled, I would add a few words as to the merits being with the Miller title. It must be conceded, that the title of Miller’s heirs ought to be upheld against the plaintiffs, if it became perfected before his death ; or if it was so perfected afterwards as to operate or relate back to a time before his death.

The judge below rested his ruling entirely on the position that Miller, dying before the treaty of 1819, though after that of 1817, had acquired no title to the land claimed. But he had fulfilled all the requisites of the treaty of 1817, not afterwards varied by that of 1819.. He entered on the .lands under the treaty of 1817, which extended to territory afterwards, as well as then, ceded. He improved them under it. He was the head of an Indian family. He registered them under it. See Treaty, art. 8. (7 Stat. at Large, 159). He resided on them under'it. And the only remaining requisite, the census, which had been provided for by the first treaty, was dispensed with by the treaty of 1819 (7 Stat. at Large, 195)'. Though his death, then, had intervened, his rights had commenced under the treaty of 1817, and become perfected by it and by that of 1819, ceding the territory and dispensing with the census. All, then, should relate back to the period of his entry and registration.

It is very familiar law to have proceedings operate back to their commencement, and references need not be' extended beyond the common cases of amendments in writs, records, and returns, as well, as titles to land confirmed or ratified where before partly completed. Com. Dig. Confirmation; Vin. Abr. Relation; 4 Kent’s Com. 450, note ; Clary’s Heirs v. Marshall’s Heirs, 5 B. Monroe, 266; Landes v. Brant, post, 348; 12 Johns. 141; 3 Cowen, 75; 12 Missouri, 145.

As this court, in the -opinion just delivered, has not gone into the ponsideration of the validity of the title of Miller’s heirs, I forbear further remarks upon it until brought before us in some other action and form, more acceptable to. a majority of the members of this tribunal.

Justices McLEAN, WAYNE, and McKINLEY concurred with Mr. Justice WOODBURY.

Order.

This cause came on to be heard on the transcript of the record from the Supreme Court of the' State, of Tennessee, and was. argued by counsel. On consideration, whereof, it is how here-ordered and adjudged by this court, that this cause be, and .thé same is hereby, dismissed .for the want of jurisdiction.


source: Caselaw Access Project

author: Mr. Justice DANIEL

license: Public Domain

text:
    James Stimpson, Plaintiff in error, v. The Baltimore and Susquehanna Railroad Company.
    Stimpson’s patent “ for an improvement for the purpose of carrying railroads through the streets óf towns, or in other situations where it may be desirable that the wheels, of ordinary carriages should not be subjected to injury or obstruction,” decided to be a combination or application of moans already ¿nown and in use, and not to be original as to the invention or discovery of those means.
    That the mode given by him for the application of thoso means, and the objects proposed thereby, differ materially from the apparatus used by the Baltimore and Susquehanna Railroad Company for turning the corners of streets. The latter, therefore, no infringement of Stimpson’s patent.
    The practice of bringing cases up to this court upon an agreed state of facts has been sanctioned, and is now pronounced to be correct.
    Error to the Circuit Court of the United States for the Dis- ' trict of Maryland.
    The plaintiff in error brought an action in the court below, for an alleged infringement of his patent right by the defendant in error.
    The cause was not tried by a jury, but was submitted to the court upon the statement of facts hereinafter inserted. Judgment for the defendant, upon which the plaintiff sued out this writ of error.

      Statement of Facts.

    It is agreed that the privilege of the invention set forth or referred to in the declaration was intended to be secured to the plaintiff by letters patent, dated the 23d August, 1831; that said patent, for defectiveness of specification, was surrendered, and another instead thereof issued on 26th September, 1835; and -that this last was, for like reason, surrendered, and another issued in place of it, bearing date the 27th day of August, A. D. 1840; and that said patent right was duly extended for the term of seven years from the 23d day of August, A. D. 1845, the period of the expiration of the term of said original letters patent. The invention is described in the specification in the words following, to wit: —

      Specification.

    “ The schedule referred to in these letters patent, and making part of the same.
    “ To all whom it may concern :
    Be it known, that I, James Stimpson, of the city of Baltimore, in the State of Maryland, have invented a new and useful improvement fin the mode of forming and using cast or wrought iron plates or rails for railroad carriage-wheels to run upon; more especially for those to be used on the streets of cities, on wharves, and elsewhere; and I do hereby declare, that, the following is a full and exact description of my said inventions or improvements.
    “ For the purpose of carrying railroads through the streets of towns or cities, and in other situations where circumstances may render it desirable that the wheels of ordinary carriages should not be subjected to injury or obstruction, I so construct or form the rails, that the flanches of the wheels of railroad cars or carriages may be received and run within narrow grooves or channels, formed in or by said rails, said grooves not being sufficiently wide to admit the rims of the wheels of gigs or other ordinary carriages having wheels of the narrowest kind. These plates or rails may be varied in form, according to circumstances.’

      “ In the accompanying drawing, figure 1 represents a railroad track; supposed to be formed.in a street, a part of it being shown as straight and a part as curved. The other figures give sectional views of various forms in which I make my railway bars or plates, which are usually of cast-iron, and are laid down and secured upon rails of wood. Figure 2 is a section of the form of cast-iron rail plate which I most commonly use where the track is slightly curved; and figure 3, a plate nearly the same with figure 2, which I use where the track is nearly or quite straight. In these plates I make a groove or channel, as at a, which is to receive the flanch of the wheel. This channel should be about, an inch and a half wide at the top, and about an inch and a quarter at bottom ; it is sufficiently deep to admit the flanch of the wheel to run in it without touching its bottom, ff he lower corners of the intérior of this channel I make rounding or curved, in order that any dirt or other foreign matter collected therein may be the more readily forced out by the action of the flanches. The cheek or jam, which is on the inside of the channel, should be about three fpurths of an inch wider at top, and as high, or nearly so, as the face c of the plate upon which. the tread of the wheel is to run. These plates I cast hollow at d, to save weight. They should be about two inches and a quarter deep, six inches and a half wide at the bottom, and about six inches and a quarter at the top ; the taper at their sides, when 'thus formed, aiding in confining them in place by the wedging of the stones and earth of the pavement against them; they may be cast three or four feet in length ; their ends should be bevelled, say at an angle of forty-five degrees; or they may be formed with a tenon and mortise., They have spike-holes through them, in order to fasten them down to the rails of wood or of stone upon which they are placed!

      “ Figure 3 is the same with figure 2, excepting that it has a slight chamfer or rounding off of the angle of the face, as shown at e, to admit the cone or curye on the tread of the wheel where it joins the flanch to run free, so. that the general tread of the wheel may bear on the face c of the plate, which face I prefer to make a little crowning.
    “ Where the road is perfectly straight, as at A, on the track, this chamfered edge plate is to be preferred; but where it is slightly curved,- as at B, on the track, I use on the outside of the curve the rails shown in figure 2, which are not chamfered, as the conical or larger part of the tread of the wheel close to the flanch will then bear upon the edge e, and this being larger than the tread, will cause the wheels to roll round such curved parts of the road ^vith little or no slipping:
    “ Where it is necessary to turn a curve of shorter radius than that which could be readily effected by the aid of the conical part of the wheel, as at C, on the track, I then resort to the plan, secured to me by letters patent, for ‘ turning short curve's on railroads,’ which letters patent bear the same date, having been granted on the same day with the letters patent of which this instrument makes a part, for railroad plates to be used on the streets of cities, &c.; that is to say, I apply ‘the flanches of the wheels on one side of. the railroad carriages, and the tread, of the wheels-on the other side, to turn curves on railways.’ In this case, a railroad plate may be made, like that shown, in figure 4, to form the channel for the wheel on the larger or outer curve. In this case, the groove or channel is not to be equal in depth to the rise or projection of the flanch, só that the flanch alone bears on the rail on this outer side, and takes the whole weight of the load, thus freeing the tread of the wheel on that side from the face of the plate, for the distance necessary to turn the curve; for a full exemplification of which plan, I refer to said letters patent for turning short curves.’ Such curves, however, will rarely if ever occur, excepting in the turning of the corners of streets; and to this particular mode I make no claim in the present patent. When the wheels' arrive at the straight Dart of a track, after having run upon a curved part, the rails shown in figure 3 are used, or others of a like nature.

      “ It is to be -understood that the object had in view in varying the form of the rails by chamfering, as in figure 3, or by omitting the chamfer, as in figure 2, is to attain the same end, namely, the running with little friction or dragging around curves in the streets, which is attained, on the ordinary railroad tracks out of cities, by allowing the cars to vibrate from side to side, so that the varying diameter on the conical parts of the treads of the wheels may cause them to adapt themselves to curvatures on the road. The narrow channel used by me, and so essential in cities, does not admit of this lateral vibration, but, by the devices above described, a similar result is attained.

      “ In most cases for passing-along streets, and more especially when the iron rails are imbedded in rails or sills of stone, I prefer so to construct the-said iron rails as that the whéels shall run altogether on the flanches. In this case, I use iron plates, such as are represented in figure 4. These plates may be made two inches and three quarters wide at top, and three inches at the bottom; the channel or groove may be about five eighths of an inch in depth, and an inch and a quarter wide at the top, and an inch at the bottom; the corners, at the bottom of the groove, being curved as in figures 2 and 3. The thickness below the bottom of the groove or channel may be three fourths of an inch; the plates would then be one inch and three eighths in depth. These shallow-channelled plates present several advantages, among which are, that they will offer less resistance than others to the motion of the cars ; they are much lighter than others, they will not require any cleaning out, the flanches effecting this perfectly, which may not always be the case in deeper channels. These shallow channels may be made narrower than the deeper ones, the-flanches being much thinner at their outer edges than they are near to the treads of the wheels. The wheels will, undoubtedly, be as safely guided in the shallow as in the deeper -channels, and the rails will be equally durable with those of greater weight. When rails of this description are sunk into a channel in a rail of stone or wood, the base being wider than their upper sides, the pressure of sand into the seams on each side of the iron, caused by the running of common carriage wheels over them, will effectually confine the iron plates between the jambs of the stone or wood. Figure 6 shows a rail plate resembling figure 4, but having a channel the whole depth of the fianeh.
    “ Should it be preferred to use the ordinary flat wrought-iron rails, they may be laid double, at such a distance apart as to form the proper channel for the flanch between them; ff, 'figure 5, are sections of two such iron plates, and are shown as used at D on -the track. Wi'Ought plates may also be formed in the manner represented in figure 7. This plate is rolled so as to have a channel, a, in it, which may be one inch and a quarter wide at top, one inch at bottom, and five eighths of an inch deep. The plate, g g, on each side of the channel, may be two inches wide; the whole plate may be of uniform thickness, and furnished with spike-holes alternately on each side of the channels ; these are supposed to be used at E on the track. Where it is necessary to cross a water-gutter in the street, I use a cast-iron plate or plates to cross said gutter, the flanch channels being in such plate or plates. The whole surface between the channels is cast rough, to. prevent the slipping of the feet of horses. The aforesaid cast-iron plate is best cast in one piece, as it will be stronger than if divided; although of the same thickness, it must, of course, be of a width sufficient for the particular gutter to which it is to-be applied, and-it should be strengthened by having ribs cast on its.lower side; these should be about an inch and a quarter deep, exclusive of the thickness of the plate. In some cases I cover the gutters the whole width ' of the street with such cast iron plates, and extend them to some distance beyond the curbings. I thus make a great improvement in streets for the ordinary purposes of-travel. Such a plate is shown in figure 8, a a being the grooved channels cast therein, and h h the upper face of the plate, cast rough or checkered.
    “ Having thus fully described the nature of my improvements, and pointed out various modes in which the same may be carried into effect, w;hat I claim as constituting my invention, and desire to secure by letters patent, is the employment of plates or rails, either of cast or of wrought -iron, constructed and operating upon the principle or in the manner herein described; having narrow grooves on each side of the track for the flanches of car-wheels to run in, by which they are adapted to the unobstructed passing over them of the various kinds of common carriages, and to the running of the wheels on slight curves without dragging. I also claim, in combination with .such grooved rails or tracks, the employment of - plates of cast-iron for the covering'and crossing of gutters, such plates being con-' structed as described, and having the necessary flanch-channels cast in them. And I do hereby declare, that I do not intend to confine myself to the precise forma-and dimensions herein given, these being designed merely to exemplify, in a clear manner, the nature, object, and mode of carrying into effect of my said invention.
    Jambs Stimpson.
    “ Witnesses, — J. M. Stimpson,
    S. E. Stimpson.
    “ Whereas, upon the petition of James Stimpson for an extension of the within patent, granted to the said Stimpson on the' 25th day of August, 1831, the Board of Commissioners, under the eighteenth section of act of Congress approved the 4th day of July,1836, entitled ‘An Act to promote the progress of the useful arts, and to'repeal all. acts and parts of acts heretofore made for that purpose,’ did, on the 21st day of August, 1845, certify that- said patent ought to be extended : Now, therefore, I, Edmund Burke, Commissioner of Patents, by virtue of the power vested in me by said eighteenth section, do renew and extend said patent, and certify that the same is hereby extended for the term of seven years from and after the expiration of the first term, viz. the 23d day of August, 1845; which certificate of the said Board of Commissioners, together with this certificate of the Commissioner of Patents, having been duly entered of record in the Patent-Office, the said patent now has the same effect in law as though the same had been originally granted for the term of twenty-one years.
    “ In testimony whereof, I have caused -the seal of the Patent-Office to be hereunto affixed, this 21st day of August, [seal.] 1845.
    “ Edmund Burke, Commissioner of Patents.”
    It is admitted, that, for the invention of the plaintiff referred to in the above-mentioned specification as being for “ turning short corners,” a patent, dated 23d August, 1831, duly issued to him, which, for defect in specification, was surrendered; and that another, in place of it, issued to him, dated the 26th of September, 1835, and that said patent was duly extended for the term of seven years from the 23d of August, 1845, when the term of said original patent ended.
    It is admitted that the invention-for “turning short corners,” as described in the specification in the patent of the 26th of September, 1835, was as follows, to wit: —

      Specification.-

    “ The schedule referred to in these letters patent, and making part of the same, containing a description, in the words of the said James Stimpson himself, of his improvement in the mode of turning short curves on railroads, for which letters patent were granted, dated the 23d day of August, 1831, which letters patent are hereby cancelled on account of a defective specification.
    “ To all to whom these presents shall' come :
    “ Be it known that I, James Stimpson, of the city and county of Baltimore and State of Maryland, have invented a new and useful improvement in the mode of turning short curves upon railroads with railroad carriages, particularly those round the corners of streets, wharves, &-c., and that the following is a full and exact description of said invention or'improvement a. invented or improved by me, viz.: —

      « I use or apply the common peripheries- of the flanches of the -wheels for the aforesaid purpose in the following manner.
    “ I lay a flat fail, which, however, may be grooved, if preferred, at the commencement of the curvature, and in a position to be centrally under the flanches of the wheels upon the outer track of the circle; so that no other part of the wheels which run upon the outer circle- of the track rails shall touch or bear upon the rails but the peripheries of the flanches, they bearing the whole weight of the load and carriage, while the opposite wheels .which run upon the inner track of the circle, are to be run and bear upon their treads in the usual way, and their flanches run freely in a groove or channel, which treads are ordinarily about three inches in diameter less than the peripheries of the flanches. Were the bearing surfaces of the wheels which are in contact with the rails while thus turning the curve to b¿ connected by straight lines from every point, there would thus be formed the frustums of two cones (if there be four wheels and two axles to the carriage), or if but one axle and two wheels, then but. one cone; which frustums, or the wheels representing their extremities, will, if the wheels are thirty inches in diameter, and are coupled about three feet, six inches apart, turn a curve of about sixty feet radius of the inner track rail. The difference in diameter between the flanches and treads being as before stated, and .the tracks of the usual width, the wheels coupled as stated would turn a curve of a somewhat smaller radius if the axles were not confined to the carriage, and in a parallel position with each other; but this being generally deemed necessary, the wheels run upon lines of tangents, and those upon the inner track, being as wide apart in the coupling as the outer ones, keep constantly inclining the carriage outwards, and thus' cause the carriage to tend to run upon a larger circle than the difference in diameter of the treads and flanches would otherwise give; but the depth of the flanches and the couplings may' be so varied as to turn any other radius of a circle desired. "What I claim as my invention or improvement is the application of the flanches of the wheels bn one side of railroad carriages, and of the heads of the wheels on the other side, to turn cur ves upon railways, particularly such as turning the corners of streets, wharves, &c., in cities, and elsewhere, operating upon the principle herein set forth.
    James Stimpson.
    “ Witnesses, — James H. Stimpson,
    Geo. C. Penniman.

      “ Whereas, upon the petition of James Stimpson for an extension of the within patent granted' to the said Stimpson on the. 23d day of August, 1831, the Board of Commissioners under the eighteenth section of act of Congress approved the 4th day of July, 1836, entitled ‘ An Act to promote the progress of the .useful arts, and to repeal all acts and parts of acts heretofore made for that purpose,’ did, on the 21st day of August, 1845, certify that said patent ought to be extended:
    “ Now, therefore, I, Edmund Burke, Commissioner of Patents, by virtue of the power vested in me by said eighteenth section, do renew and extend said patent, and certify that the same is hereby extended for the term of seven years from and after the expiration of the first term, namely, the 23d day of August, 1845 ; which certificate of the said Board of Commissioners, together with this certificate of the Commissioner of Patents, having been duly entered of record in the Patent-Office, the said patent now has the same effect in law as though the same had been originally granted for the term of twenty-one years.
    “ In testimony whereof, I have caused the seal of the Patent-Office to be hereunto affixed, this 21st day of August, [seal.] 1845.
    “ Edmund Burke, Commissioner of Patents.”

    It is further admitted,.that, before and since the period of said extension of the first above-mentioned patent, the defendant, a corporation created by the General Assembly of Maryland for the business of, and engaged in, the transportation of passengers and goods by railways belonging to it, did, upon its railway, and as part thereof, in the city of Baltimore,, and at the corner of two streets, to be turned in the course of said transportation, construct, and has ever since kept.up and used, a curve furnished and fitted as follows, to wit: On the inner side of the curve is placed a double iron rail cast in one piece, with the interval between large enough to allow the admission of the flanch of the wheel, the rail on the outer side being the usual one throughout the curve, without difference of any kind, except that it is curved; and it is admitted that the passage of the cars round the curve is throughout, and always has been, upon the treads of the wheels ; and these rail? were intended and used for the purpose of enabling the cars to turn the curves of the streets above mentioned.
    Upon this statement of facts, it is submitted to the court to determine whether the defendant, under a just construction of said patent declared upon, has been guilty of any violation thereof. And it is agreed, that if the court shall, in the premises, be of opinion in favor of the plaintiff, judgment shall thereupon be rendered for the plaintiff for the damages laid in the declaration; to .be released on payment of such sum as shall be found for actual damages by a jury, to be impanelled by consent for that purpose, subject to be increased by the court, according to the act of Congress in such case made and provided.
    The court to render an absolute judgment for the defendant if of opinion in the premises with the defendant; and either party having the right to sue out a writ of error from the judgment of the-court.
    It is further agreed, that the railway above mentioned used by the defendant is not sunk into the ground, so as to make the top of the rail on a level with the surface, but projects above the surface the height of the rail; and that the court shall have the power to draw all inferences from the facts herein stated which could be drawn by a jury.
    Charles F. Mayer, Plaintiff’s Attorney.

    J. M. Campbell, Defendant’s Attorney.

    The ease was argued by Mr. Mayer, íor the plaintiff in error, and by Mr. Campbell, for the deféndant in error.

      Mr. Mayer.

    By referring to the defendant’s brief, it is perceived that the right of this court to take cognizance of this cause is disputed. It is true, that the determination of the suit in the court below was upon' a statement of facts, and under an agreement that the court might draw inferences from the facts as a jury might. The statement'was for the purpose of bringing to the attention of the court what the invention of the plaintiff was, and in order that they might compare the contrivance of the defendant with it. The very agreement provides a reserved right of review. The mere circumstance, then, that the court were to draw inferences from the facts as a jury might do, does not make the judgment below irreversibly final, and nullify the agreemént for assuring to either party the benefit of an appellate review.
    But if the court should be of opinion that by the agreement they cannot consider the ease, they will not therefore affirm the judgment below by dismissing it, but will send it back as in a case of mistrial.
    The case of Prentice v. Zane, 8 Howard, 470, was disposed of in a manner not meeting the unanimous approbation of this court; and it will not be followed if éven by discrimination any distinction can be táken between this or any other case and that. But that was the case of a special verdict, in which the jury found, not the facts, but the testimony, and the counsel, not willing to hazard the mistakes of another blundering jury, submitted the case upon that testimony and the few facts which were found; and this court thought that it would convert them into .a jury to require them to find the facts from testimony presented to them. But if the court below could not within its powers find' facts, this court will not presume that it did so; but, on the contrary, that it did not do so. A court does, however, in a metaphysical sense, in every case make inferences from facts; and it directs a jury to infer from facts. But here there is no room for inference. The facts are all agreed.
    But is it true, as is assumed by the other side, that the court can in no case deal inferentially with facts ? There is such a thing as a demurrer to evidence, which assumes all the facts asserted on the other side to be true, and the court infers from those facts as a jury would do. The facts are all admitted by the demurrer, and the court deals with those facts. An appellate court does the same. The facts must, however, be admitted, for there can be no such thing as a demurrer to evidence where the testimony is contradictory. 3 Pet. 36, 96; 4 Cranch, 219; 7 Cranch, 565; 11 Wheat. 171, 320. Now in the last case the court decided that it was not a proper case for demurrer. The question referred to the court was not one of law, but of fact; that is, the facts were, not admitted, from which the court were to make proper inferences, but they were to deduce from the testimony what the facts were. It is not, then, strictly true, that, in the demarcation of the line that separates the court and jury, it is not the province, of the court to deal with facts inferentially. And why do you adopt the analogy to a special verdict rather than to á demurrer to evidence, when you come to assign a place to a “ case stated ” in the technical vocabulary ? The court must loot: to the facts to determine whether the invention in the one case is the invention in the other case; but that is not finding facts. It is mere construction, which the judicial mind is always employed in making.
    As'to the merits. Has the defendant infringed our patent? Now what is the principle of our invention, not as ga+hered from a single expression judged by a meagre and carping criticism, but as taken from the whole context? The courts say that you are to look at the thing to be done, the object to be accomplished, and then to the agency by which it is accomplished. 1 Sumner, 482. The operative principle of our patent is the groove, by which the cars are kept in place, and it makes no difference whether you run them upon the flanch

      or upon the tread. Now the defendant claims to have constructed a railway by the laying of two pieces of rail with an -interval between them, which answers to our groove. And reliance is placed upon the using of one rail only for a groove, the other rail being fiat. This, however, only.gives the defendant a less beneficial use of our invention. It is but a mere colorable variance from the arrangements of the invention, whilst the principle, the characteristic merit, is adopted, whether on one or both sides of the railway, and whether the whe§l shall move on the flanch or the tread. The case from 3 Wash. C. C.- It. applies with force, where you take part of an invention, or accomplish less than the patentee proposes.

      Mr. Mayer cited 2 Mason, 115; 4 Eng. Com. Law Rep. 357; 6 ib. 512 (4 B. & A. 550): 4 Wash. C. C. R. 68, 703; 2 Brock. 298.

      Mr. Campbell, contra.

    The first question is whether this court can exercise jurisdiction in this case. Can this court go out of its province as a court of law, and deal with other than questions of law.? The court below had the power to find other facts by inference than those stated, and can this court, in the absence of any statement by the court below as to such further facts, determine what additional facts, if any, were or were not before the Circuit Court? The counsel on the other side says that the court can examine questions of fact, and draw inferences from facts, and that it has been done in case of demurrers to evidence. The case of Prentice v. Zane may stand, however, with the previous decisions. In demurrers to evidence, the only question is one of law upon the facts admitted. And Judge Buller Jong ago decided, that there was no difference in principle between a demurrer to evidence and a special verdict.. In either case the facts are found, and the court is called upon to determine the law. But in this case the court is to determine a mere question of fact. It'is to deduce, from á comparison of the plaintiff’s claim with the defendant’s claim, the fact whether the one conflicts with the other. This case, then, presents no analogy- to that of a demurrer to evidence where all the facts are admitted.
    ' As to the merits. The reason that ordinary railway tracks-are an obstruction to common travelling-carriages is, that it is necessary that the rails should be raised above the surface of the ground, because railroad wheels are constructed differently from ordinary wheels in having two circumferences of different diameters, the smaller circumference being intended to rest on the rail (and called the tread), and the larger circumference running on the side of the rail. Now the whole difference between the plaintiff's invention and the common railway track is, that the one is sunk beneath the surface of the ground, and the o,ther not; the groove in his case answering the purpose of the elevation of the rails in the ordinary railway. Now he does not claim the groove alone, and it is no part of his invention ; but the combination of the groove with the sunken rails. The object which he accomplishes is, the advantage of the present form of railroad wheels without the usual obstruction to common vehicles.
    The plaintiff’s invention is a combination of the usual rail with a groove on each side of the road for the flanch of the wheel to travel in, so laid as not to rise above the surface. He has patented grooves on both sides of the road in con-, nection with the sunken rail. He has patented grooves in combination, and not a single groove. Now the defendant uses a rail with one groove only, that is, with a groove on one side of the road only, and the rails, instead of being sunk into the ground even with the surface, rise above the surface the height of the rail. The defendant’s railway does not purport to do away, and does not in' fact do away, the obstruction which it is j;he object of the plaintiff’s invention to remove. The combination is not the same, and the result is different. How, then,' can it be said that the ope is an infringement of the other?
    Now it is settled in the ease of Proutyu. Ruggles, 16 Pet. 336, that, where three things are patented in combination, it is no infringement to use two of them in combination to produce the same result.

      Mr. Mayer, in conclusion.
    What we say is, that the using of one groove is a mere evasion, a mere colorable claim to invention. If the only object of our invention was the mere sinking of the railway in order to remove an obstacle from ordinary vehicles, why, we should have patented only the sinking of the railway! But it is not’so. We claim the sinking of the road in connection with thé grooves for the reception of the flanches, in order to accomplish the safety of the cars, and their being kept in their course, especially at turns and corners. It is too narrow a view, which is taken by the other side, to consider the sinking of the rails as the whole of the invention, merely because it describes that as one of its advantages. We maintain that Mr..Stimpson has patented the grooves, because he could not effect the objects of street travel Avithout grooves. It is true, he describes his railway as peculiarly advantageous in the streets of towns and cities; still he does not confine it to that. The patent provides for the'ttiming of a curve or corner, and this is as much .a .part of the claim as the sinking of the rail. The arrangement ’ by which this is attained, with entire safety to the car and without impeding the speed, is singularly beautiful.
    But it is said that this is a combination, and if any of the parts are left out, the combination is not used. There is no claim here for a combination as such. We know what a groove is, and what a flanch is. Now perhaps the effect, namely, the groove' operating to restrain and confine the flanch and thereby secure the safety of the car, may be produced as well by one groove as two. Still, the principle of the thing is the same. But this is not a combination. A combination is the union of distinct mechanical principles, not a mere duplication of the same principle. The case of Prouty v. Buggies was that of !a plough. The whole of the parts were patented as a combination; and by so doing the patentee informed the world that any thing short of the union of all these parts is not his invention. The jogging part of the plough was considered by the court a material part of the plaintiff's invention. And the . defendant, having arrived at the same result without the jogging, had not taken the plaintiff’s combination. But suppose there had been three joggings instead of one, and the defendant had taken two, would not that have been an infringement ? The mere quantum of effect, whether greater or less, is not the point.
    In regard to the jurisdiction, the court in 11 Wheaton says, that, when the facts are found, the court will make inferences from them precisely as a jury would do. But in the case of Prentice v. Zane the facts were not found. The testimony was given, and the court 'was left to find out the facts from the testimony. - Now here you have all the facts. You have the plaintiff’s claim, the sum, substance, and gist of his invention. You have also the sum and substance of that which we consider an infringement. The one can be .placed beside the other, and it is but a matter of simple comparison to determine whether the one is identical with the other in any of its material parts.
   Mr. Justice DANIEL

delivered the opinion of the court.

This case comes before, us upon a writ of error to the .Circuit Court of the United States for the District of Maryland.

The plaintiff in error instituted in the Circuit Court his action on the case to recover of the defendant damages for an alleged infringement of a patent granted to the plaintiff on the 23d of August, 1831, and subsequently, under- the authority of the United States, renewed and extended to him for an additional space of seven years from the expiration of the first grant.

On the trial of this suit upon the plea of not guilty, the parties by agreement submitted their cause to the court upon a case stated. • The court, on the case thus made and submitted, gave judgment in favor of the defendant; and to test the correctness of this judgment is the purpose of the investigation now before us.

The invention or improvement claimed by the plaintiff in error, and by Mm alleged to have been pirated by the defendant, is thus described in the schedule and specification filed with and made a part of the letters patent: — “ A new and useful improvement in the mode of forming and using cast or wrought iron plates or rails for railroad carriage-wheels to' run upon, more especially for those to be used on the streets of cities, on wharves, and elsewhere; and I do hereby declare, that the following is a full and exact description of my said inventions or improvements.

For the purpose of carrying railroads through the streets of towns or cities, or in other situations where circumstances may render it desirable that the.wheels of ordinary carnages should not be subjected to injury or obstruction, I so construct or form the rails, that the flanches of the wheels of railroad cars or carriages may be received and run within narrow grooves or channels, formed in or by said rails, said grooves not being sufficiently wide to admit the rims of the wheels of gigs or other ordinary carriages having wheels of the narrowest kind.”

A Ter some remarks descriptive of the shape and dimensions of the plates or rails, and of the grooves to be used, the specification thus proceeds: — “ Should it be preferred to use the ordinary flat wrought-iron rails, they may be laid double, at such-distance apart as to form the proper channel for the fianch between them. Wrought plates may also be formed in the mahner represented in figure 7. This plate is rolled so as to have a channel in it, which may be one inch and ,a quarter wide at top, one inch at bottom, and five eighths of an inch deep. Where it is necessary to cross a water-gutter in the street, I use a cast fron plate or plates to cross said gutter, the fianch channels being in such plate or plates. The whole surface between the channels is cast rough, to prevent the slipping of the feet of horses. The aforesaid cast-iron plate is best cast in one piece, as it will be stronger than if divided; although of the same thickness, it must of coúrse be of a width sufficient for the particular gutter to which it is to be applied ; and it should ba strengthened by ribs cast on the lower side. In some cases I cover the gutters the whole width of the street with such cast-iron plates, and extend them to some distance beyond the curbings. I thus make a great improvement in streets for the ordinary purposes of travel.” Such being substantially, and indeed literally, as far as it is set forth, the descriptive part of the plaintiff’s specification, his claim, or the substance and effect of his alleged invention and improvement, is given in these words: — “ What I claim as constituting my invention, and desire to secure by letters patent, is the employment of plates or rails, either of cast or of wrought iron, constructed and operating upon the principle or in the manner herein described ; having narrow grooves on each side of the track for' the flanehes of car-wheels to run in, by which they are adapted to the unobstructed passing over them of the various kinds of common carriages, and to the running of the wheels on slight curves without dragging. I also claim, in combination with such grooved rails or tracks, the employment of plates of .cast-iron for the covering and crossing of .gutters, such plates being constructed as described, and having the necessary flanchtchannels cast in them.”

It is manifest from the description of the.plaintiff, as given both in his specification and claim, that the improvement he alleges to have been made by him, whether important or otherwise, consists essentially, if not formally, in a combination. His grooves for the admission of the flanehes of car-wheels, whether east in. iron plates or produced by the juxtaposition of two flat iron rails, and the rails themselves, were all of them long previously known, and long familiar in use; and it was by an application or combination of these familiar means or agents that he was to. accomplish the result proposed, namely, the unobstructed passage of carriages over railroad tracks when laid in streets or cities. The only idea or design in the plaintiff’s description which wears the semblance of originality,- is that of sinking or depressing these known agents or materials in combination to a level with the surface over which the-passage of ordinary carriages was to take place. Still, these agents or materials were the same well-known grooves, the same car-wheels and flanehes, a-nd the same flat rails, which were to constitute the means of the plaintiff’s operations. And the object of these operations, the essential improvement claimed, it should be constantly borné in mind, is the preventing of an inequality in the surface of streets, forining an obstruction to ordinary carriages, by reducing the railroad track to the same plane with the surface of the streets themselves.

The acts of the defendant complained of as being an infringement of the plaintiff’s patent are thus set out in the case agreed by the parties, viz.: — That, before and since? the period of said extension of the first above-mentioned patent, the defendant, \ corporation created by the General Assembly of Maryland for the business of, and engaged in, the transportation of passengers and goods by railways belonging to it, did, upon its railway, and as part thereof, in the city of Baltimore, and at the corner of two streets to be turned in the course of said transportation, .construct, and has ever since kept up and used, a curve furnished and fitted as follows, to wit: On the inner side of the curve is placed a double iron rail cast in one piece, and with the interval between large enough to allow the admission of the flanch of the wheel, the rail on the outer side being the usual one throughout the curve, without difference. of' any kind, except that it is curved; and it is admitted .that the passage of the cars round the curve is throughout, arid always has been, upon the treads of the wheels and these rails were intended and used for the purpose 'of enablirig the cars to turn the curves of the streets above mentioned.” The mechanism thus described as used by the defendant is, like that contained in the specification annexed to the patent of the plaintiff, evidently a combination, or an application of means or agencies previously known. If that mechanism can have any claim to originality, it must be in the modus or plan of that application, not in the invention 'of the several parts' of the mechanism.

It remains, then, by a cornparison of these two combinations, to ascertain whether they are the same, either in form, or in the manner of their operation, or in the results they were designed to accomplish.

The combination claimed by the plaintiff as' his improvemént consists, of the use of grooves on both sides of a railroad track, and either cast in iron plates, or made by the parallel position of double lines of flat rails, in which grooves the flanches only of car-wheels are to run, and which are likewise to be too narrow to admit the wheels of carriages having the most slender rims or felloes; and the whole of this combination of mechanism is to be depressed to a plane exactly corresponding with that of the street in which it may be introduced; as, without this arrangement, it is obvious that the unobstructed passage of ordinary carriages (the great object in view) could never be attained. The machinery of the defendant, co.mplained'of as an infringement of the plaintiff’s patent, consists of a double flat rail of cast iron placed on the inner side of a curve or corner intended to be passed, and an ordinary flat rail bn the exterior line of the same curve to be passed; and the whole of this machinery is constructed on the same plane with the general track of the road, elevated to whatever point that track may be raised, and without regard to the convenience of ordinary carriages making transverse passages through the streets; such facilities to ordinary carriages being no part of the end proposed by the defendant. From this comparison of the combinations in use by the plaintiff arid the defendant respectively, and upon a just construction of the plaintiff’s patent, the court, so fa* from regarding them as identical either in mode, in design, or in result, is in all their characteristics constrained to view them as wholly dissimilar, and as not conflicting with each other. The combination, therefore, used by the defendant, cannot, be regarded as an infringement of the plaintiff’s patent. This conclusion is in strictest accordance with the ruling of the late Justice Story at circuit in the case of Prouty v. Ruggles, afterwards confirmed by this court, as will be seen in 16 Peters, 341. In the ease just cited, the law is thus propounded by the Chief Justice: “ The patent is for a combination, and the improvement consists in arranging different portions of. the plough, and combining them together in the manner stated in the specification, for the. purpose of producing a certain effect. None of the parts referred to are new, and none are claimed as new; nor is any portion of the combination less than the whole claimed as new, or stated to produce any given result. The end in view is proposed to be accomplished by the union of all, arranged and combined together in the manner described; and this combination, composed of all the parts mentioned in the specification, and arranged with reference to each other, and to other parts of-the plough in the manner therein described, is stated to be the improvement; and is the thing patented. The use of any two of these parts only,,or of two combined with a third, which is substantially different in form of in the manner of its arrangement and connection with the others, is therefore not the thing patented. It is not the same combination, if it substantially differs from it in -any of its parts.” The same doctrine is ruled in the case of Carver v. Hyde, 16 Peters, 513.

A preliminary question was raised in .the argument of this cause, which, as it is connected with the practice in this court and in the courts inferior to this, and has an important bearing on the convenience both of the courts and the bar, is deserving of consideration. The question alluded to is this: Whether, as this case is not brought up either upon express or specific exceptions to the rulings of the Circuit Court, nor upon any decision of that court upon a special verdict found by the jury, but comes before us upon an agreed statement between the parties, this court can in this form take cognizance thereof? And it is insisted for the defendant in error, that, under such circumstances, the writ of error could not be prosecuted. The objection thus urged is not one of the first impression in this court; it has been urged, upon, and considered by, them on a former occasion, and must be regarded as having been put to rest.

This objection to. the jurisdiction of the appellate court upon a case agreed between the parties- in the court below, had its origin, no doubt, in the practice in the English courts, by which we are told that the appellate tribunal will not take cognizance of such a case, as it will upon one standing on exceptions, or ón a special verdict.

This refusal, however, so to take cognizance, will, upon examination, be found to grow out of the peculiar modes of proceeding in the English courts, as is shown by Mr. Justice Blackstone in the third volume of his Commentaries, p. 377, in his chapter on the trial by jury, in which we find the following account of the proceedings in those courts. “ Another method,” says this writer, “ of finding a species of special verdict is, '-when the jury find a verdict generally for the plaintiif, but - subject, nevertheless, to the opinion of the court above, .on a special cáse stated by the' counsel on both sides," with regard to the matter of law, which has this advantage over a special verdict, that it is attended with much less expense, arid obtains a. speedier decision; the poslea being stayed in the hands of the officer of nisi prius -till the question is determined, and the verdict is then entered for the plaintiff or the defendant, "as the case may happen. But as nothing appears on the record but •the general verdietj the parties are precluded hereby from the benefit of a writ of error, if dissatisfied with the judgment of the court or judge upon the point of law, which makes it a thing to be wished, that a method could be devised of either lessening the expense of special verdicts, or else of entering the cause at length upon the poslea.” So, too, Mr. Stephen, in his Treatise on Pleading, p. 92, speaking of the practice in England of taking verdicts- subject to a special case,.remarks, “that a special case is not like a special verdict entered on record, and consequently a writ of error cannot be. brought on this decision.” The objection now urged, and the authorities bearirig -.upon it, Were pressed mn the attention of this court, and co'n.sidered by them, in the case of the United States against Eliason, reported in 16 Peters, 291. In that ease this court.said: “ It is manifest that the reason why, according to the practice in the English courts, a writ of error will riot be allowed after a case agreed, is this, ánd this only, thát in those courts the agreed case never appears upon, or is made a part of, the record, and therefore there is no ground of error set forth, upon whiefa an appellate and revising tribunal can act. In the language of Justice Blackstone, nothing appears upon the record but the general verdict, whereby the parties are precluded from the benefit of a writ of error.” This court goes on further to remark, that, “ by a note to p. 92 of Mr. Stephen’s Treatise, it is said to have been enacted by- the 3d and 4th of William the Fourth, ch. 42, that, where the parties on .issue joined can agree on a statement of facts, they may, by order of a judge, draw up such statement in the form of a special case for the judgment of the court, without proceeding to trial. By the settled practice anterior to this statutory provision, it was in the power of the parties to agree upon a statement of the case; it would seem reasonable and probable, therefore, that the power given to the judge (as an exercise of his judicial functions), to regulate the statement, was designed to impart a greater solemnity and permanency to the preparation of the proceeding, and to place it in an attitude for the action of somé revising power. But should a want, of familiarity with the details of English practice induce the hazard of misapprehension of its rules, or of the reasons in which they have their origin, the decisions of our own courts, and the longrestablisbed practice of our own country, are regarded as having put the point under consideration entirely at rest.” The court then, after adverting to several decisions deemed applicable to the point, came to the following conclusion: “ This court, therefore, has no hesitancy in declaring that the point of practice raised by the defendant’s counsel presents no objection to the regularity in the mode of bringing this case before it.” Regarding, the above conclusion as promotive both of justice and convenience, we give it our entire concurrence; and upon the character, therefore, of the particular cause before us, as disclosed in the case agreed by the parties, we decide that the judgment of the Circuit Court be, and the same is hereby, affirmed.

Order.

This causé came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Maryland, 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.