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Talk:Dictionary of National Biography, 1885-1900/Baird, James

The scan of page 446 of the DNB volume 2 cuts off one or two characters on the right edge, but is otherwise of good quality. all of the cut-off characters have been interpolated. This was easy except for the dates. Where a date has been interpolated, a "[?]" has been added. -Arch dude (talk) 19:04, 25 September 2010 (UTC)


text: Talk:Attorney General v. Federal Street Meeting-House/Opinion of the Court

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


text: Devonshire Characters and Strange Events/Captain John Avery


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United States v. Wilson (66 U.S. 267)

Appeal from the District Court of the United States for the northern district of California.

This was a claim for a tract of land lying near to the mission of San Luis Obispo, containing 300,000 square varas, or about fifty acres of land, and called La Huerta de Romualdo. The claim was based on a grant to one Romualdo, an Indian, by Pio Pico, dated on the 10th of July, 1846. But there was evidence to show that the grantee and those claiming under him had been in possession from a period long anterior to the date of the grant, and that he was put in possession by the legal authorities of the country agreeably to the customs and usages which prevailed concerning the distribution of lots at the missions among the Indians, or 'children of the missions,' as they are called by the Church. The special circumstances connected with the grant of this tract to the Indian Romualdo were detailed in the testimony of Bonilla, the Alcalde of the district, who declared that he acted under the express order of the Governor (Alvarado,) that he placed the grantee in possession, and that he kept a record of his acts, which was lost.

Mr. Black, of Pennsylvania, for the United States. No confirmation can be had under the grant by Pico, because its execution and delivery before the conquest is not shown. Camberton, (21 How., 59;) Fuentes, (22 How., 443;) Pico, (22 How., 406;) Teschmaker, (22 How., 392;) Vallejo, (22 How., 416;) Bolton, (23 How., 341;) Osio, (23 How., 273;) Luco, (23 How., 515;) Pico, (23 How., 321;) Palmer, (24 How., 125;) Castro, (24 How., 346.) The claim must rest upon the testimony of Bonilla and the fact of possession, and it is submitted to the court to say whether that be sufficient. The title is good if it was made according to the laws, customs, and usages of Mexico. There certainly was a custom to distribute lands near the missions among the neophytes. If the history of the country as ascertained from the numerous records which this court has seen shows that the custom existed long enough and was sufficiently uniform to give it the force of law, and if this record proves that it was strictly observed in the present case, then, perhaps, there is no sound objection to the affirmance of the decree of confirmation. The honesty of the claim is not denied, and it has been, as this court knows, the constant policy of the United States not to interpose far-fetched or capricious objections against claims which seemed to be made in good faith for small quantities of land, especially where the claimant was in actual possession himself at the time of the revolution in the government.

No counsel appeared for the claimant.

Mr. Justice NELSON.

title: United States v. Wilson (66 U.S. 267)


text: Talk:United States v. Wilson (66 U.S. 267)


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United States v. Wilson (66 U.S. 267)/Opinion of the Court

This is an appeal from a decree of the District Court for the sourthern district of California.

The tract of land in dispute is situated at the mission of San Luis Obispo, called the Huerta de Romualdo, and is one thousand varas in length and three hundred in breadth, containing some fifty acres of land. Wilson, the claimant below, derived his claim from an Indian by the name of Romualdo, in 1846. In 1842, Governor Alvarado directed Bonilla, the Alcalde at the mission of Obispo, to distribute lands of the mission among the Indians residing there, in separate parcels, as might be deemed proper, proportioning the quantities according to the merits and abilities of each one, putting them into possession immediately.

The Alcalde, who is a witness on behalf of the claimants, states that, under this order of the Governor, he distributed lands contiguous to the mission, some two miles in length, and at other different points about a mile, where these Indians had their houses and gardens. The lands were given, as to quantity, with regard to the number in the family, the maximum generally being two hundred varas, and the minimum one hundred.

The Alcalde states that he did not set off to Romualdo the land the claimed at the time, as the tract was of greater extension than he gave the others; but that the Indian afterwards, in the same year, brought a special order from the Governor, which directed him to put Romualdo into the possession of the entire extension of the 'Huerta,' on which he lived. The Alcalde testifies to the genuineness of this special order. He gave the possession to the Indian accordingly. A record was kept of the distribution of these lands in a book in his office, as well as the orders from the Governor; but this book was lost, with all the archives of his office, in 1846, when the American troops passed through the mission. Romualdo had worked for the Governor, and his good conduct was recommended in the special order for the distribution of his Huerta to him. He was advanced in age, and had lived on this place for many years, and had under cultivation, according to opinion of the Alcalde, a fourth of the land.

There is a grant of Pio Pico to the Indian of the same piece of land, dated 10th July, 1846; but this was after the conquest of the country by this Government, and adds nothing to the strength or justice of the claim. The right stood before the commissioners principally upon this grant of Pio Pico, and it was rejected for the reason stated.

The further proof by Bonilla of the claim under Alvarado was given before the district judge. The only evidence of this source of claim before the commissioners was the certificate of Alvarado and of Bonilla, which was properly regarded as incompetent and inadmissible. The district judge confirmed the claim.

The title seems to be in conformity with the practice and usage of the Mexican Government, in setting apart small tracts connected with the huts or houses in which the Indians lived around the missions, and which were cultivated as gardens. In the present instance, the possession and cultivation were of considerable duration; and, according to the testimony of the Alcalde, the distribution and assignment of the Governor was intended to be permanent, as a home to the occupant. The claim appears to be an honest one, unaccompanied with suspicion; and, under the circumstances, we think was properly confirmed.

It comes within the principle of the case of The United States vs. De Haro's Heirs, (22 How., 293.)

As there is some question as to the extent of the claim, the petitioners setting up a right to a much larger tract than stated in the evidence in the case that belonged to Romualdo, and as the confirmation also is a confirmation to Wilson, the petitioner, we shall modify the decree of the court below, so as to confirm the claim as if presented in the name of the original claimant to him and his legal representatives; and, further, that the judge of the court below may direct a survey of the claim, if applied for by the Government.

With these modifications the decree below is affirmed.


text: Talk:United States v. Wilson (66 U.S. 267)/Opinion of the Court


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Pratt v. Fitzhugh

Error to the Circuit Court of the United States for the northern district of New York.

In May, 1857, the plaintiff in error, Pratt, filed his libel in the District Court of the United States for the northern district of New York against the propeller Kentucky, her boats, &c., to recover damages caused by a collision with a vessel owned by him on Lake Erie. The Kentucky was seized on the 27th of May, and on the same day a bond for her release was executed by the defendants, as sureties for the claimant of the Kentucky, which bond was duly approved and the Kentucky was discharged. A recovery was had by plaintiff, and a decree perfected in his favor in May, 1859, for $21,581 28 against the claimant of the Kentucky, and Fitzhugh, Littlejohn, and Miller, his sureties. In July, 1859, execution issued commanding the marshal of the district to make the amount of the decree out of the goods and chattels of the defendants, and failing in this, to arrest and keep them until the moneys were paid. Under this process the defendants were imprisoned, but were discharged after a hearing upon habeas corpus by the Circuit Court of the United States for the northern district of New York, on the ground that as the law of the State had abolished imprisonment for debt on contracts, the defendants could not be imprisoned under the acts of Congress of 28th February, 1839, and 14th June, 1841. This writ of error was then taken by Pratt, the plaintiff below, and the question argued in this court was, whether, under the acts of Congress, the defendants were liable to imprisonment.

Upon this question the arguments were elaborate and full, but they are not given here because nothing was decided by this court except the question of jurisdiction.

Mr. Rogers, of New York, for plaintiff in error.

Mr. Grant, of New York, for defendants in error.

Mr. Justice NELSON.

title: Pratt v. Fitzhugh


text: Talk:Pratt v. Fitzhugh

title: Talk:Pratt v. Fitzhugh


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Pratt v. Fitzhugh/Opinion of the Court

Pratt, the plaintiff in error, obtained a decree in admiralty against the propeller Kentucky for a collision on Lake Erie. The defendants had given a bond as sureties for the discharge of the vessel from the attachment when first seized, and a summary decree was entered against them, according to the rules and practice in the District Court. Execution was issued, commanding the marshal to make the decree out of the goods and chattels, &c., of the defendants; and in default thereof, to arrest and keep them in custody till the moneys were paid, &c. The defendants were arrested and imprisoned under this process. Afterwards a writ of habeas corpus was issued by the Circuit Court for the northern district of New York, and upon a return of the marshal, setting forth the above facts, as furnishing the authority for the imprisonment, an order was entered discharging them from imprisonment, holding that, as the State of New York had abolished imprisonment for debt on contracts, the defendants could not be imprisoned within the acts of Congress of the 28th February, 1839, and 14th June, 1841.

The case is before us on a writ of error. A motion has been made to dismiss the case for want of jurisdiction.

The case is brought up under the 22d section of the judiciary act, which confines the writ of error to cases 'where the matter in dispute exceeds the sum or value of two thousand dollars, exclusive of costs.' This has always been held to mean a property value, and without the fact of value being shown on the record, or by evidence aliunde, the court has no jurisdiction to hear or re-examine the case. The cases of Weston vs. The City Council of South Carolina, (2 Peters, 449,) and Holmes vs. Jennison, (14 ib., 540,) referred to, were brought up from State courts under the 25th section of the judiciary act, in which case no value is required. We do not doubt but that the order discharging the defendants was a final one, and that the only objection to the jurisdiction is the one above stated.

Judgment dismissing the cause for want of jurisdiction.

title: Pratt v. Fitzhugh/Opinion of the Court


text: Talk:Pratt v. Fitzhugh/Opinion of the Court


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Page:Dictionary of National Biography volume 58.djvu/253

 Vere Over and above which, all lands he could conquer from the Irish which had never belonged to the crown or English lords were to be held by himself and his heirs free of rent or service. The right to use his own great and privy seal seems to have been implied in the grant of 1 Dec., and he was subsequently (3 Jan. 1386) allowed to quarter with his own arms the three golden crowns on a field azure, usually attributed to St. Edmund the king (one of Richard's patron saints), but in this case intended to serve as the arms of Ireland (Chartulary of St. Mary's Abbey, ii. p. xx; ; Gent. Mag. 1845, i. 603; Trans. Royal Irish Academy, vol. xix.). His banners displayed these arms in place of those of England. All writs ran in his name. The ‘time of the Marquis of Dublin’ was afterwards carefully distinguished from ‘the time of the king’ (Chartulary of St. Mary's Abbey, i. 13).

The prospect of a separation between Richard and his favourite no doubt did something to mitigate the jealousy excited by Oxford's exaltation. But though ships were ordered on 28 March for his passage to Ireland, he eventually contented himself with sending Sir John Stanley as his deputy (Fœdera, vii. 506;, p. 254). This must have helped to precipitate the crisis of October, when Richard was called upon by parliament to dismiss his chancellor, Michael de la Pole, earl of Suffolk [q. v.] He was at first determined not to yield, and emphasised his obduracy by cancelling Oxford's patent as Marquis of Dublin and creating him (13 Oct.) Duke of Ireland, with even fuller powers in that country and the adjacent islands, reserving only his liege homage (, p. 300). The estates of James, lord Audley (d. 1 April 1386), in Somerset, Devonshire, and Cornwall, the reversion of which had been purchased by Edward III as part of the endowment of his new Cistercian abbey of St. Mary de Graces near the Tower, were granted to him to hold until he had completely subdued Ireland (, i. 194; Rot. Parl. iii. 180;, p. 255). Murmurs were heard that the next step would be to make him its king, and it was darkly whispered that Richard's infatuation had a disgraceful origin (, ii. 148). But his enemies still rested their hopes on his going to Ireland, and are said to have obtained a promise that he should start before Easter (ib. ii. 150). But Easter passed, and he still lingered. In the summer Richard accompanied him into Wales, ostensibly to see him off, but really to concert measures for undoing the work of the last parliament, which had virtually taken the government out of his hands. Oxford is said to have been made justice of Chester and got a grant of Flint Castle (, p. 94). The duke returned with the king to Nottingham, where, in August, their plan of action was finally settled (cf. Rot. Parl. iii. 232–6). Richard now assigned him the royal castle at Berkhampstead as a residence (, i. 194). Such was his influence with the king that ‘if he had said black was white, Richard would not have contradicted him’ (, xii. 239). Meanwhile Oxford had given new offence to Gloucester by repudiating his niece for one of the queen's women, whose name is variously given as La Lancegrove ((, xii. 261) and Launcecrona (, ii. 160). Froissart speaks of her as ‘une damoiselle assez belle et plaisante,’ while most of the English writers say she was ugly and low-born, the daughter of a Bohemian saddler. M. Kervyn (note to (, xxii. 40) connects her with the noble family of Landskron and a certain Peter de Landskron, who is said to have come into England with Michael de la Pole in 1377; but this conflicts with the general consensus of the chroniclers that she was a Bohemian (, p. 101). The identification (Chronique de la Traison, p. 165 n.) with the ‘Landgravine of Lucembergh,’ who is known to have come in the queen's train, must be rejected. The ‘Landgravine of Lucembergh’ was the wife of Landgraf Johann of Leuchtenberg, and left England in 1382 (Fœdera, vii. 342). Oxford obtained a divorce from Philippa at Rome, by means, it was alleged, of false witnesses, and married the Bohemian (, p. 95). The queen is said to have vainly protested, and his own mother took up the cause of the injured wife (ib.; but cf. (, xii. 239, 262).

The coup de main, planned by the king's entourage during the summer progress of 1387, was forestalled. Oxford and he returned to London on 10 Nov. to find Gloucester and the Earls of Arundel and Warwick on their guard and arming. Richard was forced to grant them an audience, in which they laid a formal charge of treason against Oxford and his other advisers. He promised that they should be tried in the forthcoming parliament, but immediately after smuggled Oxford away to Chester disguised as an archer (, ii. 241, 250). With the help of Thomas Molyneux, the constable of Chester, the duke raised some four or five thousand men in Cheshire, Lancashire, and North Wales, and marched southwards towards London. The lords appellant advancing to Northampton closed


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Moffitt v. Garr

Error to the Circuit Court of the United States for the southern district of Ohio.

The plaintiff in error, who was also plaintiff below, filed a declaration in case against defendants in error, for the infringement of letters patent of the United States, granted to him November 30, 1852, for an improvement in grain separators. This declaration was filed March 22d, 1859. On the 25th of October following, one of the defendants filed the following plea: 'And now comes the said John M. Garr and says that the said John R. Moffitt ought not further to maintain this action against him; because, he says, that since the commencement thereof and before the 17th day of May, 1859, to wit, on the ___ day of _____, the said John R. Moffitt surrendered to the United States the patent before that time issued to him, and for the alleged infringement of which this suit is brought, and this he is ready to verify. Wherefore,' etc. To this plea the plaintiff demurred, and the court overruled the demurrer. Judgment for defendant. The plaintiff took this writ of error.

Mr. Lee and Mr. Fisher, of Ohio, for plaintiff in error There may be a surrender of letters patent which is not made for the purpose of reissue under the 13th section of the act of July 4, 1836. The plea does not aver that the plaintiff's patent was surrendered under, or by virtue of, the 13th section of the patent act; nor does it aver that it was surrendered for the purpose of obtaining a reissue; or that it was surrendered because of a defective or insufficient description or specification; or because the claim was too broad; or because the patent was from any cause void or voidable; nor even that the patent was cancelled.

The question of the right of a patentee to surrender his patent, before the act of 1836, and independently of any statute authorizing him to do so, was fully considered in the discussion of the case of Grant vs. Raymond, (6 Peters, 218;) but neither the court, nor either of the distinguished counsel, seemed to doubt, for a moment, that he possessed such power. Batten vs. Taggart, (17 How., 74.) If the right to make such a surrender exists independently of any statute, the making of the surrender does not imply or involve any statutory or other defect in the patent. And where a patent has been so surrendered or abandoned, an action may still be maintained for infringements committed before the surrender or abandonment. If the patentee surrenders his patent as the end of six years, it is the same as if it had been originally granted to him for six years, and that, for violations of his exclusive privileges committed during those six years, his remedy is as complete as if the patent had stood to the end of his term. It would seem as if this proposition did not admit of doubt or argument. If the surrender of the patent vacates it from the first, then the patentee has been a trespasser from the beginning. He may have been the first and original inventor of a useful improvement; his patent may have been regularly issued; it may have been tested and declared valid in the courts of last resort; and his right to enjoy his monopoly to the end of the full term may have been indisputable. Yet, if he surrenders the latter half of that monopoly to the people, he renders the first half void. He ought to be compelled to refund every penny he had received as patentee, whether peaceably or by the judgment of a competent tribunal. This would be monstrous. But, if he has any rights under the first half of the grant, he is entitled to full rights. If he is entitled to keep the pay received from those who have used and paid, he is also entitled to demand and recover his pay from those who have used and not paid. He might have brought and maintained such an action before the surrender. Why not as well afterward, when suits may be brought any time within six years after the expiration of a patent for infringements committed before? The right of the patentee, we insist, is not divisible. That portion of it which is in possession is no more legal than that which remains in action.

The application of these principles to the present case is obvious.

The plea avers a simple surrender of the patent, made two months after an action had been actually brought to recover damages for a previous infringement. It does not aver cancellation or reissue. The court, by overruling the demurrer, held such a plea to be a bar to such an action. We think the error obvious, upon the principles above set forth.

But if this surrender were, in fact, made under the authority of the 13th section of the act of July 4, 1836, and only by virtue of that section, then we maintain: A surrender of a patent for correction and reissue, by virtue of the statute, does not render the patent void ab initio. If the patentee still chooses to risk a suit upon the original patent, he may recover upon it for infringements committed before it was surrendered. In support of this proposition we submit the considerations just urged. If the patent is vacated from its issue, then every exercise of exclusive ownership has been illegal. If not, then infringers ought, at least, to be compelled to pay that whicn honest men have been willing to give the patentee.

This court has, as it seems to us, expressly refused to affirm the English doctrine, that a surrender and reissue vacated the original patent. Shaw vs. Cooper, (7 Pet., 314;) Grant vs. Raymond, (6 Pet., 220.) See also Ames vs. Howard, (1 Sumner, 488;) Stanley vs. Whipple, (2 McLean, 37;) Woodworth vs. Stone, (3 Story, 753, 754;) Woodworth vs. Hall, (1 Wood & Minot, 257;) Eastman vs. Bodfish, (1 Story, 529.)

But, again: It is urged, and as the main objection, that, by the very act of surrender, under the statute, the patentee admits that his original patent is void, and, therefore, he is estopped from asserting its validity in a suit for its infringement.

To this we answer, that he makes no such admission, even by the act of statutory surrender.

The 13th section provides, 'that whenever any patent which has heretofore been granted, or which shall hereafter be granted, shall be inoperative or invalid by reason of a defective or insufficient description or specification, or by reason of the patentee claiming in his specification more than he had or shall have a right to claim as new, if the error, &c.'

A patent, then, may be reissued, if it be-1st, inoperative; or, 2d, invalid. Looking to what follows, the word 'inoperative' manifestly refers to the defective specification, and the word 'invalid' to the claim of 'too much,' which, under the act of 1836, rendered the patent absolutely void.

A patent 'inoperative' because of a 'defective or insufficient' specification is not necessarily void. The specification may not describe the invention as clearly as might be desired, or so comprehensively as to cover a particular evasion of the patent, or it may fall short of describing the whole of the invention, illustrated by the model and drawings. In such case, this court (Batten vs. Taggart, 17 How., 84) held that the patentee had a right 'to restrict or enlarge his claim, so as to give it validity and to effectuate his invention.'But an enlargement of the claims is a claim for something more; and if such a claim be valid, the original claim must be valid also, for 'the greater includes the less.'

The history of the litigation upon patents shows that many patents have been surrendered and reissued after they had been the subject of fierce controversy, and had repeatedly been declared valid by the courts of the United States. The validity of the famous Woodworth patent had been established in Massachusetts and Ohio. See Brooks vs. Bickwell, (3 McLean, 250;) Washburn vs. Gould, (3 Story, 122;) Woodworth vs. Sherman, (3 Story, 171.) And yet the patent was afterwards reissued. Woodworth vs. Stone, (3 Story, 751;) Woodworth vs. Edwards, (3 Wood & Minot, 136 et seq.)

So also with the Howe Sewing Machine patent.

The plea having averred surrender only, but not cancellation, the court could not know judicially but that the original patent was still in existence. The acts of surrender and cancellation are distinct, and are so recognised by the court in the case of Batten vs. Taggart, (17 How., 80.)

Mr. Stanbery, of Ohio, for defendant in error. I will consider, in their order, the grounds for reversal relied on by the plaintiff.

1. 'That there may be a surrender of letters patent, which is not made for the purpose of reissue, under the 13th section of the act of July 1, 1836.'

It does not seem of any moment to consider whether there may not be a surrender, under that 13th section, without a reissue; for if such surrender is allowable, as the plaintiff alleges, still it is a surrender under that section; and the question remains, as to the effect of the surrender.

The plaintiff argues, that there may be a surrender independently of the statute, and that such a surrender would not nenessarily imply that the patent was invalid. In support of this position, Grant vs. Raymond (6 Peters, 218) is cited.

No such question arose in that case, for the surrender in that case was in virtue of the statute then in force. The real question was as to the new patent issued after the surrender; for the statute then in force only provided for a surrender, and did not expressly authorize the reissue.

I find it difficult to understand what the plaintiff means by a surrender of a patent, independent of the statute. A patentee may, herhaps, (though it is by no means clear,) destroy his patent by cancellation. That is his own act; but he cannot surrender his patent to himself. The act implies a party capable of receiving the surrender.

Now, what is alleged in our plea is a surrender to the United States-that is, to the party from which the grant emanated. This sort of surrender is authorized by law, and it is the only sort of surrender contemplated by the statute. We have, therefore, under this plea, nothing to do with any other surrender than that authorized by the statute.

It is further claimed by the plaintiff, that 'a surrender, under the 13th section, does not render the patent void ab initio. If the patentee chooses to risk a suit upon the original patent, he may recover upon it for infringements committed before it was surrendered.'

I do not consider it necessary to go into the inquiry whether, for all purposes and in all aspects, the original patent, after its surrender, is to be considered as void from its inception. We are only concerned, in this case, as to the operation or effect of the original patent as a cause of action, or a continuing cause of action after the surrender. We do not aver that, at the commencement of the suit, the plaintiff's patent was void; but we merely say, that, after the suit was brought; the plaintiff surrendered his patent. This the plaintiff admits. What, then, is the effect of a surrender upon an action pending at the time of the surrender?

The surrender is to be allowed when the patent 'shall be inoperative or invalid by reason of a defective or insufficient description or specification, or by reason of the patentee claiming in his specification, as his own invention, more than he had, or shall have, a right to claim as new.'

These are the conditions on which alone, according to the statute, the surrender is authorized. When, therefore, the patentee avails himself of this permission, he must be taken to admit that his patent is inoperative or invalid, at least until there is some averment to the contrary.

But further, the act of surrender extinguishes the right of action so far as the old patent is concerned, for there is no reservation of any right, either for prior or subsequent infringements, or for actions pending, to be asserted upon the old patent after the surrender. The only right saved is under a reissue, and in virtue of the new patent, and this new right is confined by the express terms of the statute to 'actions hereafter commenced for causes subsequently accruing.' In the case at bar, the plaintiff counts upon a cause of action which accrued prior to the surrender; but the only rights which survive the surrender, survive alone by virtue of the new patent. Consequently, if the new patent does not sustain the pending action, the old one cannot have that effect.

In the case of Woodworth vs. Stone, (3 Story's Rep., 749,) a question arose upon the effect of a surrender and reissue pendente lite. The case was upon a bill for an injunction. Judge Story held that the case might proceed, notwithstanding the surrender or reissue, to prevent future and threatened infringements, and carefully distinguishes such a suit from an action at law, which only regards the past.

I do not find that the precise question now under consideration has been decided by this court. In Stimpson vs. Westchester R. R., (4 How., 402), the court say: 'The charge of infringement in the declaration is laid some years after the new patent, so that the question does not arise whether an action could be sustained for a violation of the right prior to the corrected patent.'

The case from which the above quotation was made arose under the 3d section of the act of 1832, which first provided for a reissue. It will be found that it did not contain the provision contained in the 13th section of the act of 1836, confining the new patent to 'causes subsequently accruing,' and it would seem that this provision was added to settle any question which might arise upon the act of 1832.

In the case of Batten vs. Taylor, (17 How., 74,) the court came very near to a decision of this question, for it is said: 'The plaintiff, by a surrender of that patent and the procurement of the patent of 1849 with the amended specifications, abandoned the first patent, and relied wholly on the one reissued.'

Mr. Curtis, in his Treatise on Patents, (sec. 255,) seems to take it for granted, that, after the surrender, the infringement must be subsequent.

See also Ames vs. Howard, (1 Sumner, 482, 488.)

The counsel for the plaintiff cite the case of Eastman vs. Bodfish, (1 Story, 529.) That case has no relation to a surrender. It was a suit upon an extended patent, and simply decides that, as the time laid for the infringement fell within the time of extension, the plaintiff could not rely upon an infringement prior to the extension, but must be confined to the time laid in the declaration. Nor does the case decide that if the time had been laid prior to the extension the plaintiff might have recovered. However that may be, a patent extended is quite another thing from a patent surrendered.

I find only one case in the English books which has any relation to the case at bar-Perry vs. Skinner, (Webster's Patent Reports, 350.) That case was upon a disclaimer, under a statute which made the amended specification part of the original patent; and the reporter adds this note at the close of the case:

'The result of the above decision would appear to be that the party entitled to letters patent in the title or specification, of which any disclaimer or memorandum of alteration has been enrolled, has no remedy at law in respect of an infringement prior to the date of the enrolment of such disclaimer or memorandum of alteration, but from the date of such enrolment the patentee acquires a new title.'

If this is the consequence of a disclaimer, which becomes part of the old patent, how can there be a doubt that the same consequence results from a surrender and reissue? If the disclaimer works a new title by implication, the surrender and reissue do the same thing expressly.

In England the surrender of a patent works a total extinction of the grant for all purposes. I do not claim such an effect from our statutory surrender, except as to infringements prior to the surrender.

It is very certain that, from the date of the surrender and reissue, there is only one patent in esse, for there cannot be two patents for the same invention existing at the same time. Whatever rights survive the surrender must be asserted under the reissued patent, which, for some purposes, has relation to the original grant. The idea suggested by the plaintiff's counsel, that, after the original patent has been surrendered, that patent may be used as the foundation for an action, or introduced in proof as a valid title, seems to me wholly inadmissible.

The plaintiff also claims that the plea is bad, because it does not aver a cancellation of the surrendered patent, and cites 17 How., 80. The case warrants no such conclusion. There is nothing in the statute about cancellation, and this word, whenever used by this court, is used as an equivalent term for surrender. In England no surrender can be made without a record, and perhaps a cancellation; but there a surrender works a total relinquishment of the grant, and as the Crown cannot receive such a relinquishment without a record, this ceremony is necessary. Hindmarsh on Patents, 246.

In conclusion, I beg to call the attention of the court to the following facts shown by the record: The original patent was granted to the plaintiff on the 30th November, 1852. This patent was surrendered on the 23d March, 1858, as is alleged in the declaration, 'in consequence of an insufficient and defective description and specification of said invention; and such proceedings were then had, that, on said 23d day of March, 1858, a new patent was granted to said plaintiff on an amended description and specification, previously filed in the Patent Office, for the same invention and improvement, and in accordance with said amended description and specification, which said new letters patent bear date March 23, 1858;' and then profert is made 'of said reissued letters patent.'

The infringement is next alleged to have been made or committed 'after the making of said letters patent, after the reissue thereof,' to wit, 'on the 25th day of March, 1858, and on divers other days and times between that day and the commencement of this suit.' There is no question that these averments confine the plaintiffs to infringements after the reissue under the new patent. The plea then alleges 'a surrender was made after the commencement of the suit of the patent before that time issued to him, and for the alleged infringement of which this action is brought.' Now, it is perfectly clear that the original patent cannot be resorted to as a foundation for suit for infringements after its surrender, and during the life of the reissued patent. So, too, it is equally clear that infringements during the time of the new patent cannot after its surrender survive such surrender; for all rights of action under the reissued patent are totally gone, and whatever rights survive, as to duration of the term, &c., have relation only to the first patent.

Mr. Justice NELSON.

title: Moffitt v. Garr


text: Talk:Moffitt v. Garr

title: Talk:Moffitt v. Garr


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Moffitt v. Garr/Opinion of the Court

The suit was brought by Moffitt against the defendants, for the infringement of a patent for an 'improvement in grain separators.'

The defendants plead to the declaration, that since the commencement of the suit, the plaintiff had surrendered his patent to the United States, for the alleged infringement of which the action was brought. To which the plaintiff put in a general demurrer. The court overruled the demurrer, and sustained the plea, and gave judgment accordingly.

The 13th section of the act of Congress of July 4, 1836, provides, 'that if a patent shall be inoperative, &c., it shall be lawful for the Commissioner, upon the surrender to him of such patent,' 'to cause a new patent to be issued, &c., and the patent so reissued' 'shall have the same effect and operation in law on the trial of all actions hereafter commenced, for causes subsequently accruing, as though the same had been originally filed in the connected form,' &c.

Now, the point in the case is, whether or not the patentee may maintain a suit on the surrendered patent instituted before the surrender, if he has not availed himself of the whole of the provision, and taken out a reissue of his patent with an amended specification. The construction given to this section, so far as we know, and the practice under it, in case of a surrender and reissue, are that the pending suits fall with the surrender. A surrender of the patent to the Commissioner within the sense of the provision, means an act which, in judgment of law, extinguishes the patent. It is a legal cancellation of it, and hence can no more be the foundation for the assertion of a right after the surrender, than could an act of Congress which has been repealed. It has frequently been determined that suits pending, which rest upon an act of Congress, fall with the repeal of it. The reissue of the patent has no connection with or bearing upon antecedent suits; it has as to subsequent suits. The antecedent suits depend upon the patent existing at the time they were commenced, and unless it exists, and is in force at the time of trial and judgment, the suits fail.

It is a mistake to suppose, that, upon this construction, moneys recovered on judgments in suits, or voluntary payment under the first patent upon the surrender, might be recovered back. The title to these moneys does not depend upon the patent, but upon the voluntary payment or the judgment of the court.

We are satisfied the judgment of the court below is right, and should be affirmed.

title: Moffitt v. Garr/Opinion of the Court


text: Talk:Moffitt v. Garr/Opinion of the Court


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United States v. Vallejo (66 U.S. 283)

Appeal from the District Court of the United States for the district of California.

This was a claim for a tract of land in Sonoma county, California, two leagues and a half in length by a quarter of a league in width, and called Agua Caliente. M. G. Vallejo filed his petition before the Land Commission claiming the tract above described under a deed from Lazaro Pina, to whom it had been granted in 1840 by Governor Alvarado. Before any testimony was taken in the case the attorneys of Vallejo withdrew from it and the Commission rejected the claim for lack of any proof, either of the original grant or of the alleged conveyance to Vallejo. Vallejo appealed to the District Court, and introduced a complete espediente from the archives showing that the grant had been made to Pina in 1840, and the journal of the Departmental Assembly, which proved that the title had been confirmed in 1845. The original grant was not produced, but was alleged to have been lost. But while the decree of concession to Pina was dated July 13, 1840, the deed conveying the land to Vallejo under the same title bore date December 4th, 1839. This circumstance was not explained. In 1859 the District Court confirmed the title to Vallejo, reserviving, however, the rights of the heirs and assigns of Pina, so that the confirmation might inure to the benefit of any parties who could show a better title than Vallejo, 'derived from the original grantee by deed, devise, descent, or otherwise.' From this decree the United States appealed.

Mr. Black, of Pennsylvania, for the United States. The title-papers in this case are clearly genuine. There is no doubt that Pina petitioned for land; that Alvarado granted it; that the title was properly recorded and afterwards approved by the Departmental Assembly. If Pina were the claimant before the court instead of Vallejo, the United States would not oppose his claim. But the conveyance to Vallejo is dated more than six months before the land was granted. In October, 1839, Pina had petitioned Vallejo, as Commandant General, to grant him the tract in question, and Vallejo had given him a provisional concession, to last until he should have time to get a title from the Government. On the 4th of the following December Pina conveyed the land to Vallejo, and on the 13th of July of the next year his grant issued. This conveyance was a fraud upon the Mexican Government. Pina had no right to sell to another an expectant grant, for which he was asking in his own name and for his own benefit. Vallejo had already received from the Government as many leagues as the law allowed to be united in one hand. The colonization law did not contemplate that parties who had received the full measure of the Government bounty should swell their possessions by getting grants in the names of other persons. Pina, by making such a deed as this, forfeited his claim on the Government. He assigned it to Vallejo, who could not press it in his own name. When the grant issued it vested no right in Pina, for he had abandoned his claim; neither did it inure to the benefit of Vallejo, who had lost his capacity to take. It was, therefore, void.

Mr. Reverdy Johnson, of Maryland, for the appellee. The facts of this case being admitted, as well as sufficiently proved otherwise, there is no ground for appeal. On the part of the claimant, it is denied that the Mexican colonization laws forbade a party to sell out his right to land for which he had a pending petition, and it is wholly against the principles of justice, as administered in our courts, to say that a title which has been made to one person shall not inure to the benefit of another by whom it has been bought and paid for. At all events, the United States have no title, and, therefore, no right to interfere between the grantee and his alienee.

Mr. Justice WAYNE.

title: United States v. Vallejo (66 U.S. 283)


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United States v. Vallejo (66 U.S. 283)/Opinion of the Court

This claim is founded upon a grant from Governor Alvarado to Lazaro Pina of the date of July 13, 1840. The original grant was not produced, and is supposed to have been lost during the war between the United States and Mexico, in which the grantee was killed. The espediente is numbered by Jimeno and noted in his index. It exists complete among the archives. The journal of the Departmental Assembly shows that the grant was approved October 8, 1845. Pina, the grantee, occupied the land for several years. The error of date in the conveyance from Pina to Vallejo cannot raise a suspicion against the regularity of the grant. It is the opinion of this court that the original claim is a good and valid claim, and that the same should be, and hereby is confirmed.

Decree of the District Court affirmed.


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Ohio and Mississippi Railroad Company v. Wheeler

On a certificate of division of opinion between the judges of the Circuit Court of the United States for the district of Indiana.

This was assumpsit brought in the Circuit Court of the United States for the district of Indiana, against Wheeler, a citizen of that State, to recover the amount due on his subscription to the stock of the Ohio and Mississippi Railroad Company. The declaration described the plaintiffs as 'The President and Directors of the Ohio and Mississippi Railroad Company, a corporation created by the laws of the States of Indiana and Ohio, and having its principal place of business in Cincinnati, in the State of Ohio, a citizen of the State of Ohio.'

The defendant pleaded to the jurisdiction as follows:

'And the said Henry D. Wheeler, in his own proper person, comes and defends, & c., and says that this court ought not to have or take further cognizance of the action aforesaid; because, he says, that at the time of the commencement of this suit, and ever since, he was and has been a citizen of the State of Indiana, and is now such citizen; that the plaintiff, before and at the time of the commencement of this action, was, and ever since has been, and now is, a citizen of the same State of Indiana, in this, to wit: that then, and during all that time, and now, the plaintiff was, has been, and is a body politic and corporate, created, organized, and existing in the same State, under and by virtue of an act of the General Assembly of the State of Indiana, entitled 'An act to incorporate the Ohio and Mississippi Railroad Company,' approved February 14th, 1848, and an act of said General Assembly, entitled 'An act to amend an act to incorporate the Ohio and Mississippi Railroad Company,' approved January 15th, 1849; and that under and by virtue of said acts, the railroad therein mentioned, so far as the same was by said acts contemplated to be situate in the State of Indiana, was long before the commencement of this suit, to wit, on the first day of January, 1856, built and completed, and has been ever since that time, and now is, used and operated in said district by the plaintiff. And this the said defendant is ready to verify. Wherefore he prays judgment, whether this court can or will take further cognizance of the action aforesaid.'

This plea was sworn to. The plaintiff filed a general demurrer; and the defendant joined in demurrer.

'And thereupon the judges of the court were opposed in opinion on the following question presented by the said pleadings: Has this court, on the facts presented by said pleadings, jurisdiction of this case?'

This was, of course, the only question before the Supreme Court.

Mr. Vinton, of Washington city, for plaintiff. The defendant's plea to the jurisdiction of the court does not deny the averment in the declaration, that the company was created a corporation by the laws of Ohio as well as of Indiana; nor does it deny the averment, that it has its principal place of business in Cincinnati, Ohio, and that it is a citizen of Ohio, and that the subscription was made payable at the office of the company in Cincinnati; but the plea, in substance, alleges that, because that part of the road which passes through Indiana was constructed under and by virtue of the laws of Indiana, and ever since its completion the same has been, and still is, used and operated by said company in said State, under the charter of that State, that, therefore, the company is a citizen of the State of Indiana, and, as such, cannot sue the defendant in that State in the Circuit Court of the United States.

There are, as is well known, in the United States a considerable number of important railroads, which, like the one now in question, run through two or more, or parts of two or more States, by virtue and under the authority of the laws of those States.

If such corporations have a right to sue at all in the courts of the United States, it must be because they are, in contemplation of law, citizens of some one or of all such States. It would be claiming very much for these corporations to insist that they can sue or be sued as a citizen of each of these States. The right of such a corporation to sue as a citizen of a State must, without doubt, be limited to some one of the States through which the road passes.

And this gives rise to the question: What, in such case, is the criterion by which the citizenship of such a corporation shall be determined?

It will be difficult to fix upon any other criterion in such case except the locality of its principal place of business. The place where it has its principal business office; where its stockholders hold their meetings; where the board of directors have their sessions; where the records of the company are kept; and where the governing power acts and issues its orders-there, if any where, is the habitat, the residence, the citizenship of such a corporation.

This proposition would seem to be fairly inferable from the doctrine laid down by this court in the cases of Covington Drawbridge Company vs. Shepherd et al., (20 How., 231;) Louisville, Cincinnati & Charleston Railroad Company vs. Letson, (2 How., 497;) and Marshall vs. The Baltimore & Ohio Railroad Company, (16 How., 325.)

Upon the strength of these decisions we claim, that as it is admitted by the pleadings in this case that the plaintiff is a corporation, created such by the laws of Ohio, and has its principal place of business at Cincinnati, in that State, the defendant is estopped by that admission from denying that the corporation is a citizen of Ohio, and that this estoppel is founded upon a principle of public convenience.

The case of Marshall vs. The Baltimore & Ohio Railroad Company seems to be precisely in point. There, Marshall, a citizen of Virginia, sued the Baltimore & Ohio Railroad Company in the Circuit Court of the United States for the district of Maryland. The Baltimore and Ohio road runs through parts of the States of Maryland and Virginia, and, like the present case, that company has its principal business office in one of those States, to wit, at Baltimore, in Maryland, and it uses and operates that part of the road which lies in Virginia precisely as the Ohio & Mississippi Railroad Company uses and operates that part of its road which is in Indiana. And by looking into the laws of Virginia it will be seen that the grant to that company by that State is not merely a grant of a right of way, but is a grant of corporate powers, and that the company is made subject to all the provisions of the general railroad laws of Virginia, so far as the same are properly applicable to that road. Among these laws of Virginia are the act passed March 8th, 1827, sess. acts of 1826-7, p. 77; March 11th, 1837, sess. acts of 1836-7, p. 101; and March 6th, 1847, sess. acts of 1846-7, p. 86. (See 6th sec. of this act.)

In the early decisions of this court, a strict construction was given to that clause of the Constitution which confers jurisdiction upon the courts of the United States, by reason of the citizenship of the parties; but the late cases, and especially those named above, have proceeded upon the ground, that this clause was intended to grant a benefici al privilege to the citizens of the United States, and ought, therefore, to be liberally construed.

Mr. Porter, of Indiana, for defendant. The averment that the plaintiff is 'a corporation created by the laws of the States of Indiana and Ohio,' is repugnant as amounting to the allegation of a legal impossibility. As between two States there can be no joint legislation creating one and the same corporation-or, indeed, in passing any law. Each State in its legislation must act independently and separately; and its enactments are only binding within its own jurisdiciton. If two States pass a similar law on the same subject, the two are not one joint law, such as would create a corporation. They might, indeed, perhaps create two distinct corporations having the same name and like powers; but they could not make the two to be the same artificial person. Nor could the States by subsequent acts unite the two corporations so as to give them one identity. Such appears to have been the doctrine of Mr. Justice Story, in Farnum vs. The Blackstone Canal Co., (1 Sumn., 47.)

The declaration says that the plaintiff was created by the laws of Indiana and Ohio, and yet claims that it is an Ohio corporation. Could the Indiana Legislature contribute anything towards the creation of a corporation 'dwelling' in Ohio?

If such action concerning a corporation should be had by two States, can it be said that the corporation was created by both the States? Rather, should we not say that the State whose law first took effect created the corporation; and that the other State had, at most, recognised its existence, not created it?But as no joint legislation of two States can create one identical corporation, this corporation, if created at all, must, within the constitutional sense, have its citizenship, as well as its creation, in one of these States only; and the declaration leaves it uncertain of which State. We contend that by a public statute of Indiana, as we will hereafter more fully show, Indiana alone created it, and Indiana alone is its dwelling-place. It cannot be contended that the plaintiff is a citizen both of Indiana and Ohio for the purposes of jurisdiction. No natural person can be a citizen of more than one place at the same time. 'The supposition that a man can have two domicils would lead to the absurdest consequences.' Abington vs. North Bridgewater, (23 Pick., 170, 177;) Story on the Conflict of Laws, sec. 45, a. Now, shall we go so far as to give an artificial person, for the purposes of jurisdiction, a privilege which no natural person in the United States can have? If, as the declaration avers, this corporation was created at all by the laws of Indiana, it is, for the purposes of jurisdiction, a citizen of Indiana, as much as if no other State had legislated concerning it; and it therefore cannot sue a citizen of Indiana in the Federal courts of that State. If the ground assumed in the declaration be tenable, the plaintiff might also sue in the Federal courts in Ohio, and aver that it was created by the laws of Ohio and Indiana.

We have said that the averment, 'the principal place of business of the plaintiff is in Ohio,' cannot save the jurisdiction, and is mere surplusage. That it may help the jurisdiction seems to be hinted in the case of the Lafayette Insurance Co. vs. French, (18 How., 404.) We submit, however, that the hint is but an obiter dictum. But be this as it may, the contrary has been often ruled in this court. Thus in Marshall vs. The Baltimore & Ohio Railroad Co., (16 How., 325,) the averment was that the company was a 'body corporate, by an act of the General Assembly of Maryland;' and it was held sufficient. And in The Covington Drawbridge Co. vs. Shepherd, (20 How., 227,) the same doctrine is held. So, in The Philadelphia, Wilmington & Baltimore R. R. Co. vs. Quigley, (21 How., 202,) it was held, that to aver the company to be 'a body corporate in the State of Maryland, by a law of the General Assembly of Maryland,' was sufficient. So in Covington Drawbridge Co. vs. Shepherd, (21 How., 113,) the averment that the defendant 'is a corporation and citizen of Indiana,' was held good. These cases, in 20 and 21 How., must be considered as overruling the dictum above referred to in 18 How., and as settling the rule that the averment of the place of business is unnecessary, and therefore surplusage.

Nor can the averment that the plaintiff is 'a citizen of the State of Ohio,' help the declaration. This averment, says Mr. Justice Curtis, 'can have no sensible meaning attached to it. (18 How., 405.)


text: Talk:Ohio and Mississippi Railroad Company v. Wheeler


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Ohio and Mississippi Railroad Company v. Wheeler/Opinion of the Court

We conclude, therefore, that the declaration is on its face bad, as not showing the jurisdiction; and that for this cause, whatever may be thought of our plea, the point in question should be decided in our favor.

Even though this court, on a demurrer to the plea to the jurisdiction, will not look into the declaration, still the decision must be for the defendant, because the plea on its face is good as showing that, so far as concerns jurisdiction, both the plaintiff and defendant are citizens of Indiana.

This plea says that this corporation was created by an act of the Legislature of Indiana, of February 14, 1848. That act is found in the Special Laws of Indiana of 1848, p. 619. By the first section of that act it is provided that it 'shall take effect and be in force from and after its passage, and shall be taken to be a public act, and construed liberally for the objects therein set forth, and the regular organization of the corporation under the same shall be presumed and considered as proven in all courts of justice.'

From this section of the plaintiff's charter the following conclusions seem inevitable:

First. That this act is a public act, of which all courts must, ex officio, take notice. Bac. Ab. Tit. Statutes, F; 5 Blackf. R., 170.

Second. That the corporation in question was created by this statute on the 14th day of February, 1848, and thereby became from that time an Indiana corporation.

Third. That the 'regular organization of the corporation,' under said Indiana charter, must, ex officio, 'be presumed and considered as proven' in this court. This court has, in a much weaker case, ex officio, taken notice of an Indiana charter, merely because the Indiana constitution makes all the statutes of that State public acts. Covington Drawbridge Company vs. Shepherd, (20 How., 231.) Indeed, it seems that since the court must officially note this fact, it is probable that in raising our objection to the jurisdiction, no plea at all was necessary; in other words, perhaps on the very face of the declaration the court is bound officially to take notice that this is an Indiana corporation, and that therefore the declaration is bad, as not showing jurisdiction; and so this court has expressly decided in Covington, &c., Co. vs. Shepherd, (20 How., 227, 231.)

We believe that it is not pretended by the plaintiff that any act of Ohio referring specially to this corporation was ever passed till after said Indiana act took effect. We suppose, indeed, that all the acts of Ohio concerning this corporation were private acts, and that, not being pleaded, they cannot be noticed by this court. It seems that acts creating private corporations, as this is, are private statutes, unless the Legislature makes them public. 5 Blackf., 78; Gould's Pl., 56.

But even if the court will officially notice the Ohio statutes recognising this corporation, it cannot aid the jurisdiction; for it is clear that, these statutes having all been passed after the Indiana charter took effect, they did not create the corporation.

We shall here notice all the Ohio acts of which we have any knowledge which have recognised the plaintiff as a corporation.

The first of these Ohio acts is that of March 15, 1849. Certainly it creates no corporation, but merely recognises the existence of the plaintiff as a corporation created in the State of Indiana. It only says that 'the Legislature of Indiana, on the 14th day of February, 1848, passed an act incorporating the Ohio and Mississippi Railroad Company,' and 'that the corporate powers granted to said company by the act of Indiana incorporating the same be recognised.' Here is evidence in the Ohio law itself that this is an Indiana corporation.

The only other Ohio act on the subject which we have found is an act passed January 24, 1851. It authorizes an extension of the road, by the corporation already existing, to the city of Cincinnati. It is true that the third section of this act undertakes declare that the intention of the first section of the act of March 15, 1849, 'was to recognise, confirm, and adopt the charter of the said Ohio and Mississippi Railroad Company as enacted by the Legislature of the State of Indiana.' But so far as the present controversy is concerned, there are two objections to this declaratory act:

First. The Ohio Legislature has no power to pass a declaratory act. To declare 'the intention' of a prior law is a judicial act; and the judicial power of Ohio has always, by her constitution, been vested in her courts. Her General Assembly has only legislative power; it may make laws, but cannot afterwards construe them. 'It seems to be settled, as the sense of the courts of justice in this country, that the Legislature cannot pass any declaratory law.' 1 Kent's Com., 456, note b, and authorities there cited.

Second. This Ohio act does not pretend to create a corporation. It only 'recognises, confirms, and adopts the charter of said company as enacted by the Legislature of the State of Indiana.' But the point is not, where has the corporation been recognised, but where was it created? It has never been pretended that, touching the question of the jurisdiction of the Federal courts, a corporation is a citizen of any State except that which created it. Indeed, this court has said, in the case of the Bank of Augusta vs. Earle, that a corporation 'must dwell in the place of its creation, and cannot migrate to another sovereignty.' 13 Pet., 588. And in Runyan vs. Lessee of Coster this court again said: 'A corporation can have no legal existence out of the sovereignty by which it was ereated.' 14 Pet., 129.

No matter what is stated in the pleadings, the court must judicially take notice that by the last section of the plaintiff's Indiana charter, the plaintiff is an Indiana corporation, and, therefore, cannot sue a citizen of that State in the Federal courts thereof.

Mr. Chief Justice TANEY.

This action was brought in the Circuit Court of the United States for the district of Indiana, to recover $2,400, with ten per cent. damages, which the plaintiffs alleged to be due for fifty shares of the capital stock of the company, subscribed by the defendant.

The declaration state that the plaintiffs are 'a corporation, created by the laws of the States of Indiana and Ohio, having its principal place of business in Cincinnati, in the State of Ohio; that the corporation is a citizen of the State of Ohio, and Henry D. Wheeler, the defendant, is a citizen of the State of Indiana.'

The defendant pleaded to the jurisdiction of the court, averring that he was a citizen of the State of Indiana, and that the plaintiffs were a body politic and corporate, created, organized, and existing in the same State, under and by virtue of an act of Assembly of the State.

The plaintiffs demurred to this plea; and the judges being opposed in opinion upon the question whether their court had jurisdiction, ordered their division of opinion to be certified to this court.

A brief reference to cases heretofore decided will show how the question must be answered. And, as the subject was fully considered and discussed in the cases to which we are about to refer, it is unnecessary to state here the principles and rules of law which have heretofore governed the decisions of the court, and must decide the question now before us.

In case of the Bank of Augusta vs. Earle, (13 Pet., 512,) the court held, that the artificial person or legal entity known to the common law as a corporation can have no legal existence out of the bounds of the sovereignty by which it is created; that it exists only in contemplation of law, and by force of law; and where that law ceases to operate, the corporation can have no existence. It must dwell in the place of its creation.

It had been decided, in the case of The Bank vs. Deviary, (5 Cr., 61,) long before the case of the Bank of Augusta vs. Earle came before the court, that a corporation is not a citizen, within the meaning of the Constitution of the United States, and cannot maintain a suit in a court of the United States against the citizen of a different State from that by which it was chartered, unless the persons who compose the corporate body are all citizens of that State. But, if that be the case, they may sue by their corporate name, averring the citizenship of all of the members; and such a suit would be regarded as the joint suit of the individual persons, united together in the corporate body, and acting under the name conferred upon them, for the more convenient transaction of business, and consequently entitled to maintain a suit in the courts of the United States against a citizen of another State.

This question, as to the character of a corporation, and the jurisdiction of the courts of the United States, in cases wherein they were sued, or brought suit in their corporate name, was again brought before the court in the case of The Louisville, Cincinnati and Charleston Railroad Company vs. Letson, reported in 2 How., 497; and the court in that case, upon full consideration, decided, that where a corporation is created by the laws of a State, the legal presumption is, that its members are citizens of the State in which alone the corporate body has a legal existence; and that a suit by or against a corporation, in its corporate name, must be presumed to be a suit by or against citizens of the State which created the corporate body; and that no averment or evidence to the contrary is admissible, for the purposes of withdrawing the suit from the jurisdiction of a court of the United States.

The question, however, was felt by this court to be one of great difficulty and delicacy; and it was again argued and maturely considered in the case of Marshall vs. The Baltimore and Ohio Railroad Company, (16 How., 314,) as will appear by the report, and the decision in the case of The Louisville, Cincinnati and Charleston Railroad Company vs. Letson reaffirmed.

And again, in the case of The Covington Drawbridge Company vs. Shepherd and others, (20 How., 232,) the same question of jurisdiction was presented, and the rule laid down in the two last-mentioned cases fully maintained. After these successive decisions, the law upon this subject must be regarded as settled; and a suit by or against a corporation in its corporate name, as a suit by or against citizens of the State which created it.

It follows from these decisions, that this suit in the corporate name is, in contemplation of law, the suit of the individual persons who compose it, and must, therefore, be regarded and treated as a suit in which citizens of Ohio and Indiana are joined as plaintiffs in an action against a citizen of the lastmentioned State. Such an action cannot be maintained in a court of the United States, where jurisdiction of the case depends altogether on the citizenship of the parties. And, in such a suit, it can make no difference whether the plaintiffs sue in their own proper names, or by the corporate name and style by which they are described.

The averments in the declaration would seem to imply that the plaintiffs claim to have been created a corporate body, and to have been endued with the capacities and faculties it possesses by the co-operating legislation of the two States, and to be one and the same legal being in both States.

If this were the case, it would not affect the question of jurisdiction in this suit. But such a corporation can have no legal existence upon the principles of the common law, or under the decision of this court in the case of the Bank of Augusta vs. Earle, before referred to.

It is true, that a corporation by the name and style of the plaintiffs appears to have been chartered by the States of Indiana and Ohio, clothed with the same capacities and powers, and intended to accomplish the same objects, and it is spoken of in the laws of the States as one corporate body, exercising the same powers and fulfilling the same duties in both States. Yet it has no legal existence in either State, except by the law of the State. And neither State could confer on it a corporate existence in the other, nor add to or diminish the powers to be there exercised. It may, indeed, be composed of and represent, under the corporate name, the same natural persons. But the legal entity or person, which exists by force of law, can have no existence beyond the limits of the State or sovereignty which brings it into life and endues it with its faculties and powers. The President and Directors of the Ohio and Mississippi Railroad Company is, therefore, a distinct and separate corporate body in Indiana from the corporate body of the same name in Ohio, and they cannot be joined in a suit as one and the same plaintiff, nor maintain a suit in that character against a citizen of Ohio or Indiana in a Circuit Court of the United States.

These questions, however, have been so fully examined in the cases above referred to, that further discussion can hardly be necessary in deciding the case before us. And we shall certify to the Circuit Court, that it has no jurisdiction of the case on the facts presented by the pleadings.


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United States v. Neleigh

The appellee in this case claimed under the title of Jos e Castro, which was rejected by the Supreme Court at December term, 1860, (24 How., 347.) Neleigh and one McKenzie purchased from Castro in 1849 six of the eleven leagues covered by his title, 'to be selected whenever the same shall be located by the proper authority.' McKenzie died soon after the purchase, and Neleigh, by a conveyance from his widow, under a power in his will, became possessed of his interest in the land. He presented his petition to the Land Commission in September, 1852, asking a confirmation of title to his six leagues, and in March, 1853, Castro petitioned in his own name for a confirmation of the remaining five. The reasons for the rejection of Castro's title, which reached the Supreme Court first, are set forth very fully in the opinion of the court delivered in that case by Mr. Ch. J. Taney. Neleigh's claim, after an adverse judgment in the Land Commission, was confirmed by the District Court in October, 1859. From this decree the United States appealed.

No new title-papers were offered. The claim rested in this case, as in that of Castro, upon the naked grant produced from the custody of the claimant. But much additional parol testimony was taken, by which it was sought to distinguish the new case from the old. Four new witnesses, including Pico and Moreno, whose signatures were appended to the grant, were called to prove its genuineness. Some additional evidence of occupation was offered, and the testimony of Col. Fremont introduced to show that he had lost a portion of the archives in the mountains of San Juan-among them papers relating to a title to Gen. Castro. A witness was called to show that there was but one Gen. Castro in California in 1846, thereby connecting the lost papers with the title of the present claimant. On the part of the United States no evidence was added to that offered in the case of Jos e Castro.

Mr. Shunk, of Pennsylvania, for the United States. There is no espediente, note, or other record of this grant in the Mexican archives, and the case rests upon a naked paper produced from the pocket of the claimant in 1849. This objection is fatal. But there is positive historice evidence besides, which proves the paper offered as a title to be fraudulent and antedated. It claims to have issued on the 4th of April, 1846. It is a historic fact, that at that date Pio Pico and Jos e Castro were at open war. The journals of the Departmental Assembly show that they were. Moreno in his testimony in this very case admits the fact, and adds to it the statement that in the spring of 1846 Pico set out with an armed force to drive Castro from the country. Castro asserts in his deposition that during the administration of Pico he recognised no power in California superior to his own, save that of the Supreme Government. He testified his contempt for Pico by seizing the custom-house at Monterey, and withholding from him the public revenues. Yet we are asked to believe that Pico made a grant to this vexatious rebel of eleven square leagues of land just on the eve of a military expedition intended to drive him beyond the bounds of the Department. Such a grant at such a time, considering the angry relations of the parties, is simply incredible.

But the paper produced as a title is fraudulent on its face. Pico styles himself, at its commencement, 'Constitutional Governor of the Department of the Californias.' He bore no such title at the date of this grant, nor did he lay claim to it. The journals of the Assembly show that he did not receive his appointment as Constitutional Governor until the 15th of April, 1846, and was not inaugurated until the 18th. The first grant made by him, in which he assumed his new title, was that to Pedro Sansevaine, dated April 21st, 1846. In every title issued between the time that he became Governor by virtue of his position as First Vocal of the Assembly in February, 1845, and the date of his inauguration as Constitutional Governor in April, 1846, he styles himself 'First Vocal of the Departmental Assembly and Governor ad interim of the Department of the Californias.' Castro's grant is the only exception to this rule. To accept is as genuine we must believe that Pico, without any conceivable reason, and in this solitary instance, assumed a title to which he had no claim, and recited an appointment which he had not received. But it is easy to conceive, if we adopt the theory that this is an ante-dated paper, that Pico, years after the conquest, in concocting an ante-dates grant, should forget which of his two titles he was in the habit of using at the time of the false date, and stumble on the wrong one. We have his own word for it in this case, that he had forgotten when he became Constitutional Governor. We have, besides this, the admission of Moreno, that he did not sign the grant until May, although it pretends to have issued in April. It is, therefore, a paper entirely unsupported by archive evidence, contradicted by history and the public records, fraudulent on its face, and ante-dated by the admission of the officers who made it.

The only occupation proved in this case is a military occupation in 1844, two years before the date of the pretended grant, and which lasted but a few months, and a settlement made in 1849, after the discovery of gold had made the land a tempting prize for speculation and fraud.

There is nothing to distinguish Neleigh's case from that of Jos e Castro, except that the fraud only suspected by the court in the one case is made absolutely plain in the other.

Mr. Reverdy Johnson, of Maryland, and Mr. Gillet, of Washington, for the appellee. The absence of the espediente and other record evidence in this case is accounted for by the testimony of Colonel Fremont. Papers relating to a title to General Castro were lost among the mountains. We cannot be expected to produce records the loss of which we have plainly and directly proved. Moreover, the grant recites that all the necessary steps required by law as preliminaries to a grant have been taken. Recitals in a grant by a public officer are prima facie evidence of the fact recited when they relate to the subjectmatter of the grant. Fremont's Case, (17 How., 558;) Reading's Case, (18 How., pp. 8, 9;) Peralta's Case, (19 How., 343;) Doe vs. Wilson, (23 How., 457.) The recording of titles granted being the duty of the officer after the grant was made, if omitted by him cannot defeat the title of the grantee, nor create a suspicion against it. If the neglect of the Governor to remit the papers of a grantee to the Assembly for confirmation could not defeat or affect the rights of a grantee, as has been held by this court, Reading's Case, (18 How., p. 7,) certainly a similar neglect to record or preserve papers could not defeat or affect him. When a grant is once made, it can only be defeated by the act or omission of the grantee, and no default of a public officer can change his rights or subject them to a doubt. The grantee was entitled to receive the grant and retain it, and this is evidence in favor of his title until overthrown by proof by those questioning it. The grant itself is not secondary but original evidence, and the best within the power of the party to produce. It has always been held that the production and proof of what purported to be an original grant made by an authorized official was sufficient, and no additional record evidence from the archives was held to be necessary, but whoever sought to defeat the effect of this prima facie evidence must do so by competent legal proof. Moreover, this case conforms to the propositions laid down in Castro's Case, (24 How., 347,) in relation to the introduction of secondary evidence. The record shows that at a former time there was a grant recorded in the usual manner in the Secretary's office; that some of the books and papers have been lost and destroyed; that there was actual possession within reasonable time, and a survey by the owner, and that this actual possession was as early as Fremont's, was delayed for the same reason, and the want of a plat and judicial action in making a survey excused in the same way. The case differs widely from that of Castro both in the amount of the testimony and the matters to which it relates. The court cannot reject this claim without repudiating a long line of decisions which have come to be regarded as the law of the land.

Mr. Black, of Pennsylvania, in reply. The title, properly so called, and the written documents connected with it, are in precisely the same condition now that they were in when this court examined them before in the case of The United States vs. Castro. It is a naked grant, without an espediente found among the archives, and without record evidence of any kind to show that it ever was issued or even applied for. This court has decided in certainly not less than twenty-five cases that such a title cannot have its approval. With the exception of the one judge whose commission is dated during the present term, every member of the court has committed himself and his brethren in his own language against the confirmation of such claims. If the ingenious arguments of the claimant's counsel, that recitals are evidence, that records are lost, that grantees must not be affected by the omissions of public officers, were new, we might reply to them at length, but they have been made and answered and overruled a score of times already, and the process need not be repeated again.

The decision in Castro's case is conclusive on the court as a judicial precedent from which there can be no departure with safety. It is also technically binding as a determination of the same question between the same parties or their privies.

But, passing that, what is the value of the additional evidence found upon this record? Does Moreno add anything even to the moral strength of the case? He is notoriously unworthy of belief. Pico's testimony is on the face of it false. Colonel Fremont is, of course, incapable of making a wilful misstatement; but what does he say? That he lost papers in the mountains, and one of them, he thinks, had reference to a title of General Castro's. But whether it was a title for eleven leagues or one league, for land on the San Joaquin or the Sacramento, in Upper or in Lower California, he does not pretend to know; nor does he say whether the paper he saw was a petition, an informe, or a grant; whether it was signed by Figueroa, by Alvarado, Micheltoreno, or Pico, or by anybody at all. It is preposterous to make a title out of such evidence as this, even if parol evidence were, under any circumstances, admissible.

But there are three facts in this case which were not shown to the court by the record in Castro's case, and which do prove most incontestably that the grant is a mere fabrication. These facts are: 1. That at the pretended date of the grant, Castro was in rebellion against the authority of Pico. 2. That it is attested by a person, as Secretary, who at that time was not Secretary. 3. That it purports to be made by Pico as Constitutional Governor at a time when he had not assumed the duties or the title of that office.

Each one of these facts considered separately would make it extremely improbable that a grant was made to Castro on the 4th of April, 1846. Men in office do not bestow such favors or any favors at all upon their enemies and the enemies of the Government they represent. Pico and Castro were not then in communication. No petitions passed between them. Castro refused to acknowledge Pico as Governor, and he was known to Pico only as an insolent disturber of the public peace, and a robber of the public money. They addressed one another only in the language which could be uttered from the mouths of their muskets. To find a paper signed or countersigned by an officer who, upon investigation, appears not to have been in office at the time, would anywhere be regarded as about the strongest evidence of forgery that could be produced. When you see that the Governor who makes the grant is described as holding an office which he did not hold at the time, and speaking in a style totally different from that used in all cotemporaneous documents, you are forced to the conclusion that the paper was not made when it bears date.

But it is a rule of circumstantial evidence, which the good sense of every reasonable man approves, that the force of independent criminating facts does not depend so much on their weight as on their number. If you have two, consider them separately, and they may not weigh a feather; but unite them together, and they press upon the accused with the weight of a mill-stone. Two or three such facts as these, each independent of the other, could not exist by chance in the case of an honest grant. In a charge of murder it is suspicious to find the knife of the accused party lying near the body of the victim. It is demonstration if the purse of the deceased be found in possession of the same person. If, in addition to this, the party who owned the knife, and had the purse, was seen with bloody hands running away from the place of the murder about the time it was committed, who could stand up to defend him?

The want of evidence in this case makes it had enough for the claimant-bad enough to insure the rejection of the claim. But when you see that it is also demonstrated to be a fraud by circumstantial evidence so irresistibly strong as that which appears on this record, there is no room left for doubt, nor no grounds for an argument.

Mr. Justice GRIER.

title: United States v. Neleigh


text: Talk:United States v. Neleigh

title: Talk:United States v. Neleigh


text:
United States v. Neleigh/Opinion of the Court

Neleigh filed his claim before the board of Land Commissioners on the 3d of September, 1852. It was for six leagues of land in Mariposa county, being part of eleven leagues said to have been granted to Lieut. Col. Jos e Castro by Pio Pico, late Governor, on the 4th of April, 1846. The deed from Castro, dated 8th of June, 1849, purported to convey to Bernard McKenzie and Robert Neleigh six of the eleven leagues, 'to be taken where the grantees might select.' McKenzie's interest was, afterwards, vested in his co-tenant by a conveyance from his administratrix. The commissioners confirmed the claim. But as the grant to Castro had never been surveyed or located, and, like that to Fremont was vague and uncertain as to its boundary, it might be located on either or both sides of the San Joaquin river. Their decree, therefore, did not ascertain what land was confirmed, but ordered that it be 'selected by the said petitioner from the said eleven leagues when the same shall be located by the proper authority.' This decision of the board was affirmed by the District Court in October, 1859.

In the meantime, Jos e Castro, in March, 1853, filed his claim for the eleven leagues, 'for the benefit of himself and those claiming under him.' That case came before this court at last term, and may be found reported in 24 Howard, 347. It was rejected by this court, for the reason there given, and which need not be repeated. Nor need we inquire of what use the affirmation of the decree of the District Court would be to Neleigh of a right to select six leagues out of eleven, which, by judgment of this court, never can be surveyed or located. For the purposes of the present case, also, we will assume, that as Neleigh was not a party on record in the former case, he is not concluded by the judgment given in it, and inquire whether he has furnished any new evidence, which, if it had been found in the record of the Castro case, would have led us to a different conclusion. Now, it must be kept in remembrance that the grant to Castro was not rejected, because it was not signed by the persons whose names are affixed to it. It is a historical fact, and proved by satisfactory evidence, more than once, that, after that country passed into the possession of the United States, the late Governor was very liberal in executing grants to any person who desired them, and for any quantity of land. It was easy to prove his signatures, and Pio Pico himself, when called as a witness, could never recollect anything about the date, which was the only material question in the inquiry as to its validity. Of the last two secretaries who attested these grants, one has been found capable, not only of writing false grants, but of supporting them by his oath. Of the other, we have been compelled to say, that he was following in the footsteps of his predecessor.

It is well known that espedientes and records of the grants made in Pico's time were carefully put away by him in boxes, which came into the possession of Col. Fremont, and were delivered to the public officers. These espedientes are all found safe among the records, but the 'toma de razon,' or short record of them, has disappeared. Hence, when a grant is produced for the first time from the pocket of the claimant, and is attempted to be established by proof of the signatures of the Governor and Secretary, the want of an espediente or archive evidence is expected to be excused by the proof that some papers were lost and torn when they were carried away on mules by Col. Fremont, or used 'as cartridge paper,' according to Pio Pico's theory. The enormous frauds which have been attempted to be perpetrated, depending on this theory of the destruction of records, have compelled us to reject it altogether as fabulous. These archives have been collected, and are found in a very tolerable state of preservation. Hence, the propositions laid down in the Castro case, and others preceding it, were an absolute necessity to save the Government from utter spoliation of its territory.

It would be superfluous to repeat the principles laid down in the Castro case. It is sufficient to say, that the additional testimony in this case does not relieve it from its deficiencies there stated. The testimony of Colonel Fremont of having seen some paper concerning a grant to Castro, does not prove the existence of this grant, which was not the only property claimed by Castro in California. The testimony of the late Governor adds nothing to the evidence. He, as usual, acknowledges the genuineness of his signature, which was not disputed; but as to the important question, whether it was made before or after his expulsion by the Americans, he is entirely silent. He could not remember historical facts connected with his administration; that at the date of this grant he was at bitter feud with Castro, who had seized upon the custom-house at Monterey, and set the Governor at defiance, and that the Governor was preparing troops, at this time, to compel his submission. The declaration of the witness, that he should nevertheless as soon make a grant to Castro as to any other, is no doubt true, if it refers to the true date of the transaction, after they had both been superseded and deposed by the Americans. Nor does it add anything to the value of this testimony, that the witness explains that, by want of recollection, he means his unwillingness to state the truth.

Moreno, who is always a more willing witness, and who labors under no want of memory or imagination, is brought to supply this want of record proof, and accounts for his signature to the grant being dated when he was not Secretary. He swears that he signed it after its date, in the beginning of May, but whether it was May, 1846, 1847, or 1848, he does not state directly, but leaves it to inference that he meant 1846.

But if we were in any doubt as to the credibility of the testimony of this witness, there are other facts established which demonstrate, that if he had stated explicitly that he signed this grant, and recorded it in May, 1846, the assertion would have been untrue.

On the 4th of April, 1846, the date of this grant, it is a fact not only that Moreno was not Secretary, but that Pio Pico was not Governor. He first presented his appointment as Governor, to the Assembly, on the 15th of April, 1846, and was inaugurated on the 18th. The first grant made by him, in which he is styled Governor, is that to Pedro Sansevaine, dated the 21st of April. In all his previous grants he is styled 'First Vocal and Governor ad interim.' This deed was evidently written so long after, that this fact had escaped the recollection of the parties signing it. In the beginning of May, 1846, it was becoming apparent to all concerned that the power of the Governor and the Assembly would soon pass away. Pio Pico, therefore, prudently gathered up the grants of land which had not been previously laid before the Departmental Assembly for their approval. He accordingly, on the 3d of June, 1846, sent in to them no less than forty-five espedientes. One of these was made in 1839. The others were all dated in 1845 and 1846; the last three on the 2d and 3d of May, 1846. Fortunately, we have the minutes of the Assembly, by which it appears that these forty-five espedientes were reported and confirmed on the 8th of June, 1846. This grant to Castro does not appear among them, and is left to the uncertain testimony of Moreno to establish its existence; and we are asked to presume that it alone was kept back from the Assembly, and that while all the other genuine grants confirmed by them are found among the archives in good order, this alone was converted into 'cartridge paper.' All these presumptions must be made on the faith of these witnesses, whose testimony we have heretofore declared could not be received to contradict or supply record evidence.

In the former case, this grant to Castro was rejected for the negative reason that there was not the evidence required to prove it genuine. The testimony in the present case has proved it positively spurious.

Let the decree of the District Court be reversed.


text: Talk:United States v. Neleigh/Opinion of the Court