text:
Godfrey v. Eames/Opinion of the Court

In this case the patenee filed his application in the Patent Office on the 31st of January, 1855, and from that time it was constantly before the office, until the patent was issued on the 2d of March, 1858, except that on the 24th of April, 1857, it was withdrawn and refiled on the same day with an amended specification. It was admitted and proved 'that the patentee, in the summer and fall of 1854, and since, publicly manufactured and sold boot-trees containing his alleged invention.' The sales and use as thus shown were less than two years before the first application was filed, and hence, according to the letter of the act of 1839, cannot affect the validity of the patent.

In answer to this, two propositions are relied upon by the plaintiff in error:

1. It is said the original and the renewed application are for patents for different things.

Both specifications are before us, and it is our duty to construe them.

The act of 1836 gives the applicant a right to change his specification after receiving the suggestions of the commissioner. Doubtless, this right exists and may be exercised independently of such suggestions, at any time before the commissioner has given his formal judgment upon the application; and the inventor may 'persist in his application for a patent, with or without any alteration of his specification.' A change in the specification as filed in the first instance, or the subsequent filing of a new one, whereby a patent is still sought for the substance of the invention as originally claimed, or a part of it, cannot in any wise affect the sufficiency of the original application or the legal consequences flowing from it. To produce that result the new or amended specification must be intended to serve as the basis of a patent for a distinct and different invention, and one not contemplated by the specification, as submitted at the outset.

We are satisfied that there was here such substantial identity in the two specifications as brings the case within the rule thus laid down. This objection cannot be sustained.

2. It is said that the withdrawal of the first application broke the continuity of the claim, and that the case stands as if the only application were the one of the 24th of April, 1857.

This question could not have arisen upon the same state of facts, under the act of 1836. According to that act, and the prior legislation of Congress, the public use or sale by the inventor of the thing invented, at any time before the application, was fatal to his claim for a patent. The act of 1839 relieved him from this consequence and introduced a new and more liberal policy. It gave him the right to apply for a patent at any time within two years after the use and sale of his invention, 'except on proof of the abandonment of such invention to the public.' The provision in the act of 1836, allowing the withdrawal of the application, was intended only to provide for the disposition in such cases of the duty which had been deposited, and to enable the applicant to resume a part of it upon the condition prescribed; it is silent as to everything beyond this, and we do not feel authorized to interpolate into the statute so important a qualification. The new provision in the act of 1839, is wholly independent of the act of 1836; by necessary implication it repeals the conflicting provision upon the same subject in the earlier act. It must be examined by its own light, and so construed as to give the fullest effect to the beneficent purpose of the legislature.

In our judgment, if a party choose to withdraw his application for a patent, and pay the forfeit, intending at the time of such withdrawal to file a new petition, and he accordingly do so, the two petitions are to be considered as parts of the same transaction, and both as constituting one continuous application, within the meaning of the law.

The question of the continuity of the application should have been submitted to the jury. In directing them to return a verdict for the defendant, we think the learned judge who tried the case in the court below, committed an error.

Mr. Justice CLIFFORD dissents.

JUDGMENT REVERSED AND VENIRE DE NOVO AWARDED.

title: Godfrey v. Eames/Opinion of the Court


text: Talk:Godfrey v. Eames/Opinion of the Court

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


text:
United States v. Johnson

 * United States v. Johnson (68 U.S. 326), (  17 L.Ed.     597 ), (   1 Wall.  326 )
 * United States v. Johnson (173 U.S. 363), ( 43 L.Ed.     731 ), (  19 S.Ct.  427 )
 * United States v. Johnson (221 U.S. 488), ( 55 L.Ed.     823 ), (  31 S.Ct.  627 )
 * United States v. Johnson (319 U.S. 302)
 * United States v. Johnson (319 U.S. 503), ( 87 L.Ed.    1546 ), (  63 S.Ct. 1233 )
 * United States v. Johnson (323 U.S. 273), ( 89 L.Ed.     236 ), (  65 S.Ct.  249 )
 * United States v. Johnson (327 U.S. 106), ( 90 L.Ed.     562 ), (  66 S.Ct.  464 )
 * United States v. Johnson (383 U.S. 169)
 * United States v. Johnson (390 U.S. 563), ( 20 L.Ed.2d   132 ), (  88 S.Ct. 1231 )

See also Johnson v. United States.

title: United States v. Johnson


text:
Johnson v. United States

 * Johnson v. United States (157 U.S. 320), ( 39 L.Ed.    717 ), (  15 S.Ct.  614 )
 * Johnson v. United States (160 U.S. 546), ( 40 L.Ed.    529 ), (  16 S.Ct.  377 )
 * Johnson v. United States (225 U.S. 405), ( ?? L.Ed.    ??? ), (  ?? S.Ct.  ??? )
 * Johnson v. United States (228 U.S. 457), ( ?? L.Ed.    ??? ), (  ?? S.Ct.  ??? )
 * Johnson v. United States (318 U.S. 189), ( ?? L.Ed.    ??? ), (  ?? S.Ct.  ??? )
 * Johnson v. United States (333 U.S. 10), (  ?? L.Ed.    ??? ), (  ?? S.Ct.  ??? )
 * Johnson v. United States (333 U.S. 46), (  ?? L.Ed.    ??? ), (  ?? S.Ct.  ??? )
 * Johnson v. United States (352 U.S. 565), ( ?? L.Ed.    ??? ), (  ?? S.Ct.  ??? )
 * Johnson v. United States (394 U.S. 952), ( ?? L.Ed.    ??? ), (  ?? S.Ct.  ??? )
 * Johnson v. United States (402 F.2d 778)
 * Johnson v. United States (401 U.S. 846), ( ?? L.Ed.    ??? ), (  ?? S.Ct.  ??? )
 * Johnson v. United States (520 U.S. ???), ( ?? L.Ed.    ??? ), (  ?? S.Ct.  ??? )
 * Johnson v. United States (529 U.S. ???), ( ?? L.Ed.    ??? ), (  ?? S.Ct.  ??? )
 * Johnson v. United States (535 U.S. ???), ( ?? L.Ed.    ??? ), (  ?? S.Ct.  ??? )
 * Johnson v. United States (536 U.S. ???), ( ?? L.Ed.    ??? ), (  ?? S.Ct.  ??? )
 * Johnson v. United States (537 U.S. ???), ( ?? L.Ed.    ??? ), (  ?? S.Ct.  ??? )
 * Johnson v. United States (538 U.S. ???), ( ?? L.Ed.    ??? ), (  ?? S.Ct.  ??? )
 * Johnson v. United States (539 U.S. ???), ( ?? L.Ed.    ??? ), (  ?? S.Ct.  ??? )
 * Johnson v. United States (540 U.S. ???), ( ?? L.Ed.    ??? ), (  ?? S.Ct.  ??? )
 * Johnson v. United States (541 U.S. ???), ( ?? L.Ed.    ??? ), (  ?? S.Ct.  ??? )
 * Johnson v. United States (542 U.S. ???), ( ?? L.Ed.    ??? ), (  ?? S.Ct.  ??? )
 * Johnson v. United States (543 U.S. ???), ( ?? L.Ed.    ??? ), (  ?? S.Ct.  ??? )
 * Johnson v. United States (544 U.S. ???), ( ?? L.Ed.    ??? ), (  ?? S.Ct.  ??? )

 * listing incomplete

 * See Similar:
 * United States v. Johnson (Disambiguation)

title: Johnson v. United States


text:
United States v. Johnson (68 U.S. 326)/Opinion of the Court

The title of Chaves is found among the archives. Its authenticity was not disputed before the commissioners or the District Court; but in this court the objection is first made that the handwriting of the public officers was proved, whereas the governor and secretary should have been called as the proper witnesses to authenticate their own acts.

In taking objections to these Mexican grants, it ought to be remembered that the case is not brought here on a writ of error with a bill of exceptions to the admission of every item of testimony offered and received below. Nor is it a part of the duty of counsel representing the government to urge microscopic objections against an honest claimant, and urge the forfeiture of his property for some oversight of the commissioners, in not requiring proof according to the strict rules of common law. When there is any just suspicion of fraud or forgery the defence should be made below, and the evidence to support the charge should appear on the record. If testimony of witnesses is alleged to be unworthy of belief, the record should show some reason to justify the court in rejecting it. The former opinions of this court may be referred to in questions of law, but cannot be quoted as evidence of the character of living witnesses.

On the 2d of June, 1845, Antonio Chaves petitioned the governor for the grant of a place called Pleyto, containing three leagues, a little more or a little less. The record does not show the usual reference for information. But the grant by Pio Pico, dated 18th July, 1845, recites that 'the necessary steps and investigations were previously taken and made in conformity with the requirements of laws and regulations.' On the 8th of May, 1846, 'this espediente was laid before the Departmental Assembly, and was ordered to be referred to the Committee on Vacant Lands.' The committee recommended 'that the present espediente be remitted to the authorities of that jurisdiction to be reported on, and to the person in charge of San Antonio, in order that he may say in what condition the town was at the time the grant was made, so that it may be valued, and that community be indemnified to avoid questions relative to the espediente, to the end that after these proceedings are concluded the respective approval may be given.' As this Assembly was soon after finally dissolved, nothing further appears to have been done. There is evidence that Chaves was in the occupancy of the land granted.

We have frequently decided that the want of approval by the Departmental Assembly will not affect the validity of the grant. In this case the approval is not denied, but the question suspended.

Although some of the grants purporting to be made by Pio Pico, in the spring of 1846, shortly before his expulsion, have been shown to have been executed after that time, there is no evidence in this case to justify the court in deciding that this grant is not authentic.

DECREE AFFIRMED.


text:
United States v. Johnson (68 U.S. 326)

APPEAL from the District Court of the United States for the Southern District of California, the case being thus:

Johnson and others, the respondents, claimed title under the Mexican government, through one Chaves, to a tract of land called Pleyto, lying in the present county of Monterey, State of California, and containing about three leagues; which land he had petitioned for on the 2d of June, 1845. The deed to Chaves purported to be made on the 18th July, 1845, by Pio Pico, one of the Mexican governors of California; and it recited that 'the necessary steps and investigations were previously taken and made in conformity with the requirements of laws and regulations.' On the 8th May, 1846, the 'expediente' was laid before the Departmental Assembly, and was ordered to be referred to the Committee on Vacant Lands. The land asked for by Chaves having been once occupied by a community of priests, of the mission of St. Antonio, and being said to have a house upon it which they had built, the committee recommended that 'the expediente be remitted to the authorities of that jurisdiction to be reported on, and to the person in charge of San Antonio, in order that he may say in what condition that house was at the time the grant was made, so that it might be valued, and that community be indemnified, to avoid questions relative to the expediente, to the end that, after these proceedings are concluded, the respective approval may be given.' The Departmental Assembly, thus referring it, was soon afterwards dissolved, and nothing further done. The original grant made it a condition that Chaves should occupy the land, which there was evidence, though not wholly uncontradicted, that he did.

In some of the deeds through which the respondents claimed, the parties signing the deeds did not, apparently, sign them by the exact names with which, in the instruments, they were described. One deed, for example, purported to be made by Tomas Soberannes, and was signed Thomas G. Soberannes. Another purported, in the body of it, to be made by Tomas Guadaloup Soberannes; but said that the land was devised to the said Tomas Guadaloup Sanchez, under the name of Guadaloup Soberannes. It was signed T. Guadaloup Sanchez, and acknowledged T. Guadalupe Sobrannes; and so in other instances. Some of the witnesses to papers making part of the title were persons whose names had been before this court in former cases, and had been spoken of, in judicial opinions reported, as not worthy of confidence.

With these documents and this evidence, Johnson and the other claimants having presented their petition to the Board of Commissioners established by the act of March 3d, 1851, 'to ascertain and settle private land claims in the State of California,' and that board having confirmed it, the United States took the case by appeal into the District Court, which court having also confirmed it, the case came here, as already mentioned; the question being whether the petition for confirmation of the claim was rightly granted and affirmed.

The title of Chaves was found among the archives. The deed of Governor Pico was authenticated below by proof of his handwriting, and that of his secretary, who witnessed it.

Mr. Wills, for the United States, contended that this deed was not properly proved by proof of the handwriting of the officers attesting it; that the signatures might be genuine, but the dates might be prior to the true ones; that the governor himself and his secretary should have been called; that the parties signing other deeds were not the parties described in them. He referred to decisions in this court and to local land history in Mexico, to show doubtful character in some of the witnesses in the case, and in a general way to infer fraud in some parts of the transaction; several of the objections made not having been taken in the court below, and being first made here.

Mr. Justice GRIER delivered the opinion of the court:

title: United States v. Johnson (68 U.S. 326)


text:
Jones v. Green

APPEAL from the Supreme Court of the Territory of Nebraska, the case being thus:

In February, 1859, C. and J. Green and C. and I. Gill filed a bill in Chancery in the District Court of the Territory just mentioned, against one Jones and a certain Brown. It set forth that in March, 1858, the said Greens had obtained judgment in the District Court of the First Judicial District of Nebraska, against Brown, for $1155, and that in October of the same year, the other two complainants, G. and C. Gill, had obtained judgment against him in the same court for $450. It charged, that on the 15th of July, 1857, Brown was engaged in mercantile pursuits in the city of Omaha; that he was on that day utterly insolvent, and being about to suspend business and the payment of his debts, purchased certain real estate in the city just named; and in order to place it beyond the reach of his creditors, procured a conveyance to be made to the other defendant, Jones, who it was alleged now held the property upon a secret trust for him. The bill set forth also that executions had been issued and returned unsatisfied, and prayed that the premises might be sold and the proceeds applied to the payment of the judgments. The answer denied that executions had been issued and returned unsatisfied; and there was no sufficient proof that they had been.

The District Court rendered a decree in favor of the complainants, and the Supreme Court of the Territory affirmed it. On the argument of the appeal in this court,-which was by Messrs. Carlisle and Redick for the appellant, and by Mr. Woolworth contra,-several objections were made to the decree; but the only one considered by the court was, whether the bill would lie before the judgment creditors had attempted to collect their judgments by execution at law.

Mr. Justice FIELD delivered the opinion of the court:

title: Jones v. Green


text: Talk:Jones v. Green

title: Talk:Jones v. Green


text:
Jones v. Green/Opinion of the Court

In March, 1858, two of the complainants recovered judgment against Brown, in one of the District Courts of the Territory of Nebraska, for upwards of eleven hundred dollars. In October following, the other complainants also recovered judgment, in the same court, against Brown, for upwards of four hundred dollars. In February, 1859, the judgment creditors instituted the present suit, the object of which is to subject certain real property situated in the city of Omaha to the satisfaction of their respective judgments.

The bill charges that on the 15th of July, 1857, Brown was engaged in mercantile pursuits in that city; that he was on that day insolvent, and being about to suspend business and the payment of his debts, purchased the real property in question, and in order to place it beyond the reach of his creditors, procured a conveyance to be made to the defendant Jones, who now holds the property upon a secret trust for him. The bill prays that the premises may be sold and the proceeds applied to the payment of the judgments. The District Court rendered a decree in favor of the complainants; the Supreme Court of the Territory affirmed the decree, and the defendant Jones has appealed to this court.

Several objections to the decree were urged upon the court on the argument, which we do not deem it necessary to consider. The objection that the complainants have not shown any attempt to enforce their remedy at law is fatal to the relief prayed. A court of equity exercises its jurisdiction in favor of a judgment creditor only when the remedy afforded him at law is ineffectual to reach the property of the debtor, or the enforcement of the legal remedy is obstructed by some incumbrance upon the debtor's property, or some fraudulent transfer of it.

In the first case the court, when its aid is invoked, looks only to the execution, and the return of the officer to whom the execution was directed. The execution shows that the remedy afforded at law has been pursued, and of course, is the highest evidence of the fact. The return shows whether the remedy has proved effectual or not, and from the embarrassments which would attend any other rule, the return is held conclusive. The court will not entertain inquiries as to the diligence of the officer in endeavoring to find property upon which to levy. If the return be false, the law furnishes to the injured party ample remedy.

In the second case the equitable relief sought rests upon the fact that the execution has issued and a specific lien has been acquired upon the property of the debtor by its levy, but that the obstruction interposed prevents a sale of the property at a fair valuation. It is to remove the obstruction, and thus enable the creditor to obtain a full price for the property, that the suit is brought.

In this case the bill alleges that executions were issued upon the judgments of the complainants, and were returned unsatisfied, but the allegation was not admitted, and no proof on the subject was produced at the hearing. The case, therefore, stands as a suit in equity commenced for the satisfaction of judgments before any attempt had been made for their collection at law by the issue of execution thereon. That the suit cannot be maintained under these circumstances is clear both upon principle and authority.

The decree appealed from must therefore be reversed, and the court below directed to enter a decree for the defendant, dismissing the suit.

REMANDED WITH DIRECTIONS ACCORDINGLY.

title: Jones v. Green/Opinion of the Court


text: Talk:Jones v. Green/Opinion of the Court


text: Baker v. Gee

title: Baker v. Gee


text: Talk:Baker v. Gee

title: Talk:Baker v. Gee


text:
Baker v. Gee/Opinion of the Court

ERROR to the Circuit Court for the District of Missouri, the case being thus:

On the 10th June, 1852, Congress, by statute, granted to the State of Missouri, to aid in building railroads from Hannibal to St. Joseph, the right of way through the public lands, and every alternate section designated by even numbers for six sections in width on each side of said roads. The statute directed that 'a copy of the location of the roads, made under the direction of the legislature,' should be forwarded to the proper local land offices and General Land Office at Washington; and that the lands thus given should be disposed of by the State for the purposes contemplated, and for 'no other.'

On the 20th September of the same year, the legislature of Missouri, by an act passed to accept the bounty of Congress, required that the lands should be selected by the company, under the direction of the governor, and that a copy of the location of the road should be certified to the local land offices and the General Land Office, in conformity with the act of Congress.

One section of the act, the fifth, gave a pre-emption right, at a price specified to settlers in actual occupancy, and who had improved the land occupied, prior to the date of the gift, 10th June, 1852, by Congress; and to a certain extent, on any land embraced in the grant, provided certain conditions were complied with; among which was that the party claiming pre-emption should, 'within four months from the date of the location of the lands,' file, in the clerk's office of the Circuit Court of the county in which the land was situated, a notice to the corporation of the claim. Another section obliged the company, within one year after their road should have been located, to file a map or profile of it, and a map of the land obtained for the use of the road, in the office of the Secretary of State, and have record made of the lands lying in each county in the office for recording deeds. The act and all the grants contained in it were to cease and be void unless the acceptance of the company should within six months be filed in the office of the Secretary of State.

On the 23d November, 1857, a further act was passed, making it the duty of the land agents of the road to file, in the different counties through which their road passed, a descriptive list of their lands.

The location of the line and route of the road was made on the 8th March, 1853, and the acceptance of the company duly filed with the Secretary of State, on the 17th of the same month; but there was no proof of the time when the lands were actually located, nor any proof that descriptive lists were ever filed in the different counties until after the passage of the act of 1857.

In this state of the law and facts, one Gee having entered, in 1849, upon such part of one of the sections as the act of Missouri opened to pre-emption, and complied with the several conditions,-such as occupancy, &c., prior to the gift by Congress, he instituted, on the 3d of January, 1854, the proper proceedings to establish his right to purchase the land. He was denied, however, the right, on the ground that he had not made his claim in due season.

In the meantime one Baker purchased the land from the railroad company, and, setting up a title under that purchase, brought the present suit, ejectment, against Gee, to recover the land which the latter claimed by right of pre-emption,-a sort of title which in Missouri is recognized as sufficient to maintain or defend suit in ejectment,-the ground of Baker's claim being that Gee was obliged to show that he gave the notice required by the fifth section of the Missouri act of September 20, 1852, within four months of the location of the road; such location, as Baker contended, having been a location of the lands also; the whole region there having long been surveyed and subdivided by the United States; the sections designated by even numbers already laid down on the public maps; and the location of all the lands granted being made so soon as the railroad itself-which location was the rule and exponent of this also-was definitively fixed and marked on maps by the State. When this was done nothing additional, it was argued, could by intendment be necessary to give precision to the site of the lands, or to render their location more certain or more easy of ascertainment. The court below, however, was not of the opinion, and ruled 'that the location of the land in question by the Hannibal and St. Joseph Railroad Company was not complete, as regarded this defendant, until the said company caused a map thereof to be recorded in the office for recording deeds in which the said land is situated.' Verdict and judgment were accordingly given in favor of the pre-emptor. On error here the correctness of the ruling just mentioned was one point in question; a second point raised and argued being the power of the State of Missouri, under the act of Congress, which gave the lands for railroad purposes and for 'no other,' to open any part of it to pre-emption purchasers.

Mr. Gant for the purchaser Baker; and Mr. Krum for the preemptor Gee.

Mr. Justice DAVIS, after stating the case, delivered the opinion of the court: The practical question involved in this case is one of easy solution. It is this: 'When did the right of pre-emption, under the fifth section of the act of September 20th, cease?' Manifestly, after four months from the location of the lands. It is argued that Gee's right was at an end if he did not prove his claim within four months from the location of the road. But such a construction would render valueless a wise provision which the legislature of Missouri, in the exercise of an enlightened liberality, had conferred on a deserving class of people. It is not probable that a man whose necessities compelled him to claim the benefits of a pre-emption law, living in an interior county, away from the local land offices, would be correctly informed even of the location of the route of a railroad, and he certainly could not know what lands would belong to the company, unless he knew the exact line the road had taken. And the legislature, in order to render the provision for an actual settler a privilege, and not a delusion, directed the company, within one year after the line of the road was fixed, to have a map of their lands recorded in the different counties through which their road passed.

It is said that, owing to the accuracy of the government surveys, whenever the location of one of these land-grant roads is settled, it is an easy matter to ascertain the lands that would belong to it.

If the location of the road was always on section lines, it would not be difficult to select the even sections within six miles of each side of the road. But a railroad rarely runs on straight lines. It makes short curves very often, and frequently runs diagonally across sections. It is well known that the General Land Office has encountered great difficulties in making correct selections of the lands which the bounty of Congress has bestowed on the States to aid in works of internal improvement. The selection is not merely mechanical, but requires skill and familiarity with land plats and surveys. On inquiry of the Commissioner of the General Land Office, we learn that in this very case, the descriptive lists of the lands to which the road was entitled, were not approved and signed by the Secretary of the Interior until February 10th, 1854, which was more than a month after Gee filed his claim and accompanying proofs. And to make it more evident that it is not an easy task to make an accurate description of the lands really granted, we learn further that additional lists were afterwards certified to the State, in aid of said railroad, from time to time, and as late as the 15th of November, 1859.

It is contended that the legislature of Missouri had no power to grant the privileges of pre-emption. If this was a contest between the United States and the State of Missouri, the question of power would be a proper subject for examination. But the United States are not complaining, and no other party has a right to complain. If the act of the legislature imposed burdens, it nevertheless conferred great privileges, and if any right to object existed, it was waived when the company filed their acceptance with the Secretary of State.

It follows that the court below committed no error in holding 'that the location of the land in question by the Hannibal and St. Joseph Railroad Company was not complete, as regards this defendant, until said company caused a map thereof to be recorded in the office for recording deeds in the county in which said land is situated.'

JUDGMENT AFFIRMED WITH COSTS.

title: Baker v. Gee/Opinion of the Court


text: Talk:Baker v. Gee/Opinion of the Court

title: Talk:Baker v. Gee/Opinion of the Court


text:
Lee v. Watson

LEE and Leavit brought assumpsit in the Circuit Court for the Kentucky District, against Watson, declaring on a promissory note for $610, with a count for $1000 money due for goods sold; $1000 money had and received; $1000 money due on account stated, &c. What damages exactly were claimed in the narr. as originally filed, did not clearly appear, but they were obviously less than $2000. Demurrer was put in to one part of the declaration and non assumpsit pleaded to the residue, and the court having sustained the demurrer, the record proceeded thus:

'On motion of the plaintiffs, and by consent of the defendants, leave is given plaintiffs to amend their declaration by striking out the amount of damages claimed in this cause, and insert $2100, which is done accordingly, and the declaration so amended.'

A jury having been summoned to try the issue raised by the plea of non assumpsit to the money counts, a verdict was found by them for the defendants; whereupon the plaintiff having taken a bill of exceptions on the trial, applied for and obtained a writ of error to this court, under that section of the Judiciary Act which provides that final judgments in a Circuit Court, when the matter in dispute exceeds the sum of $2000, may be re-examined here; the judge, however, who had heard the case and who allowed the writ, making this indorsement upon it:

'It was not without hesitation that the bill of exceptions was allowed, and this writ of error is now sanctioned. The writ and original declaration showed that the amount in controversy did not exceed $1000; the evidence offered on the trial by the plaintiffs showed that it did not exceed $700; and if the increase of the damages by the amendment of the declaration was intended for the sole purpose of giving the Supreme Court jurisdiction, the question is whether it ought to be allowed such effect. I however concluded that the counsel may proceed, because in this mode the question will be most conveniently presented where it will be at once and finally determined.'

The question in this court now was whether the writ could be sustained; a matter which was argued by Messrs. Lee and Fisher for the plaintiffs in error, and by Mr. Fendall contra.

Mr. Justice FIELD delivered the opinion of the court:

title: Lee v. Watson


text: Talk:Lee v. Watson

title: Talk:Lee v. Watson


text:
Lee v. Watson/Opinion of the Court

It appears from the certificate of the presiding judge of the court below, indorsed on the writ of error, that the writ and original declaration in the case showed that the amount in controversy did not exceed one thousand dollars, and that the evidence offered by the plaintiffs at the trial showed that it did not exceed seven hundred dollars; and that in the progress of the cause an amendment was made in the amount of damages claimed, for the purpose of bringing the case within the appellate jurisdiction of this court. It is hardly necessary to add that upon the facts thus stated-and the correctness of the certificate is not questioned-the court will not entertain jurisdiction of the case.

To authorize a re-examination of a final judgment of the Circuit Court, the matter in dispute must, with some exceptions, exceed the sum or value of two thousand dollars. By matter in dispute is meant the subject of litigation-the matter for which the suit is brought-and upon which issue is joined, and in relation to which jurors are called and witnesses examined. In an action upon a money demand, where the general issue is pleaded, the matter in dispute is the debt claimed, and its amount, as stated in the body of the declaration, and not merely the damages alleged, or the prayer for judgment at its conclusion, must be considered in determining the question whether this court can take jurisdiction on a writ of error sued out by the plaintiff. It certainly would not be pretended that this court would hear a case where the plaintiff counted solely upon a promissory note of two hundred dollars, simply because he concluded his declaration with an averment that he had sustained damages from its non-payment of over two thousand, and prayed judgment for the latter sum. Reference must be had both to the debt claimed and to the damages alleged, or the prayer for judgment. The damages or prayer for judgment must be regarded, inasmuch as the plaintiff may seek a recovery for less than the sum to which he appears entitled by the allegations in the body of the declaration.

Taking in the present case the certificate of the judge below as correct, the amount in controversy-that is, the debt alleged in the original declaration-did not exceed one thousand dollars; the jurisdiction is not therefore acquired by this court from the amendment in the amount of the damages claimed. The writ of error is

DISMISSED.

title: Lee v. Watson/Opinion of the Court


text: Talk:Lee v. Watson/Opinion of the Court

title: Talk:Lee v. Watson/Opinion of the Court


text:
Bloomer v. Millinger

BLOOMER, the appellant here, filed a bill in equity in the Circuit Court for the Western District of Pennsylvania. He set forth in it that he was owner of the exclusive right to make and use, and vend to others to be used, within the county of Alleghany, in Pennsylvania, the patented planing machine of Woodworth; that subsequently to the 27th December, 1849, and about the 1st January, 1850, the respondent, Millinger, had put in operation in that county, three of these machines, and was continuing to use them without any lawful authority. The prayer was for an account, and for an injunction against the use of these three machines.

The case, as appearing by the bill and answer, was thus:

On the 27th December, 1828, letters patent were granted to Woodworth for an improved planing machine for fourteen years, that is to say, up to 27th December, 1842.

On the 16th November, 1842 (Woodworth himself being dead, but his estate being represented by an administrator), an extension of the patent was granted by the Commissioner or Board of Commissioner of Patents, for the term of seven years from the expiration of the original patent; that is to say, from the 27th December, 1842, to the 27th of December, 1849.

On the 2d June, 1843, the administrator of Woodworth, by deed (called, in the argument, Exhibit A), reciting 'the extension of said letters patent for the term of seven years from and after the expiration of said patent,' sold and conveyed to one William Lippincott, his heirs and assigns, the right to construct and use, and vend to others to construct and use, 'during the said extension,' the patented machine, within the county of Alleghany, in the State of Pennsylvania; covenanting that such right should be exclusive throughout the limits specified, during the 'term aforesaid.'

On the 26th February, 1845, Congress, by act, granted an extension of the patent for the term of seven years from the expiration of the extension granted by the commissioner; and on the 14th of March following, the administrator sold and conveyed his interest in the 'letters patent and the franchises thereby granted and secured,' for 'the said term of seven years created and extended by Congress,' to one Wilson; a second deed-not specially important in the case, but to the same effect exactly, that is to say, for the term of seven years created and extended by the said act of Congress-being made July 9, 1845, and after the patent had been surrendered for a defective specification.

Wilson was thus invested with the interest under the second or Congressional extension, but with nothing more.

In this state of things, William Lippincott, still holding his right under the deed of 2d June, 1843 (called Exhibit A), for Alleghany County, under the extension granted by the commissioner, conveyed it, on the 10th April, 1846, to James Lippincott and one Millinger, the present defendant; and by a second instrument (called Exhibit B), dated three days afterwards (13th April, 1846), the administrator, reciting that in consequence of the surrender and renewal of the patent, doubts had arisen as to rights given by instruments executed prior to the reissue, licensed and empowered this same Lippincott and Millinger 'to construct and use exclusively the patented machine in the county of Alleghany,. . . and also within said territory to license and empower any other person or persons to construct and use machines for the term of time for which the patent was extended by the Board of Commissioners hereinbefore referred to; being for the term of seven years and no longer from and after the expiration of the original term of fourteen years.' The deed declared that the administrator intended thereby 'to confirm. . . all right, title, and interest to construct and use, and the right to license others to construct and use said machines,' which had been granted by the indenture of 2d June, 1843 (Exhibit A), and concludes thus: 'No other, or greater, or other, or further grant or conveyance is hereby made, &c., than was granted by the indenture aforesaid, and upon the same terms and conditions.'

Lippincott and Millinger were thus vested with the right for Alleghany County under the commissioner's extension, in such way as given by the deeds already mentioned.

On the 24th June, 1847, the administrator granted to Bloomer (the complainant) his 'full consent, permission, and license to construct and use, and vend to others to construct and use,' the patented invention 'during the two extensions,' within that part of Pennsylvania, west of the Alleghany Mountains, 'excepting Alleghany County, for the first extension;' this 'first extension' being that which had been previously granted to Lippincott and Millinger, the respondent in this suit. And on the 2d September, 1847, this same Lippincott and Millinger, by indorsement upon the administrator's deed of 13th April, 1846, conveying it to them, conveyed to him, Bloomer aforesaid, whatever rights in the patent they held; Bloomer, however, stipulating that he would in no way interfere with certain machines mentioned in the transfer as belonging, &c., one to A., and one to B., &c., 'nor interfere in any manner with the use of the three machines now erected, and in operation and use by the said Millinger; but the right, title, and use of the machines of the persons hereinbefore named, shall remain and be in them or their assigns for and during the time limited by the written instruments.'

In addition to this deed indorsed-from Lippincott and Millinger to Bloomer, of 2d September, 1847-these same parties, Lippincott and Millinger, executed on the 10th January, 1848, still another deed to Bloomer, by which they assigned to him 'all their right, title, and interest in and to the said planing patents. . . within said county of Alleghany, as fully as the same is vested in us by force of the several hereinbefore recited conveyances, and giving to the said Bloomer and his assigns full power and authority to construct and use, and vend to others to construct and use, said patent as aforesaid, within said county. . . for and during the full end and term of time unexpired and yet to come of said extension of said patent, to wit, until the 27th day of December, 1849.'

And on the same day, Bloomer, the complainant, executed a deed, giving to Millinger, the respondent, 'his full consent, and permission, and license to construct and use, and vend to others to construct and use, during the first extension herein set forth, to wit, from the 27th day of December, 1842, until the 27th day of December, 1849, the right to use the said renewed patent, and to vend to others to use three planing machines upon the principle, plan, and description of the said renewed patent and amended specifications, within the county of Alleghany.' How far Millinger had accepted this deed was not so plain.

In addition to the defence, as already indicated, from the pleadings, Millinger, the respondent, by his answer, averred and offered to prove that when the reassignment of 10th January, 1848, from Lippincott and himself to Bloomer, was executed, Bloomer agreed that he would execute to Millinger 'a deed of assignment of the right to the said extension, so far as regarded the three machines,' and 'the said deed of assignment from the said Bloomer' Millinger's answer went on to say-'was to be executed by the two parties, and was to be so worded as that respondent should have all the rights and privileges, and was to stand precisely in the position as to the rights, enjoyments, and privileges, as respected the patent right to said three machines, as if the assignment from respondent and Lippincott had never been made, and so as to place the respondent in the same situation as he would have stood under the assignment of the 2d of June, 1843, or by any other agreement between the parties, and to all the benefit of any renewals to which respondent would have been entitled under the assignment of said extension by the Commissioner of Patents, on the 2d of June, 1843, or any other agreement between the parties;' that the plaintiff, in fulfilment of the verbal agreement, did execute a deed, left it at the place of business of the respondent, and that he refused to accept or sign the same, because it did not carry out the alleged agreement.

Some parol evidence was taken on behalf of the respondent, to substantiate these allegations. But the complainant's general right, and the use of the three machines by the respondent, Millinger, after the expiration of the term of extension granted by the commissioner, was not denied.

The court below dismissed the bill; and on appeal here, two principal questions-in substance these-were made:

1. Whether, under the deeds of June 23d, 1843 (Exhibit A), conveying to the assignor of Millinger, in such strict terms, a right to the extension of the patent for but seven years, and the deeds of 10th and 13th April, 1846 (Exhibit B), by which this right was conveyed, in such like terms, to Millinger-taken in connection with Bloomer's stipulation of 13th April, 1846, and his deed of 10th January, 1848, that Millinger should use his three machines during the said term for which the patent had been extended by the commissioner-Millinger could use his machines after the expiration of that term, and during the new term for which an extension had been granted by Congress.

2. If he could not do so under the deeds as set forth in the pleadings, he could introduce parol evidence to show what he alleged in his answer and offered to prove, as to the license intended to have been executed by Bloomer on the 10th January, 1848.

Messrs. Seward, Norton, and Blatchford, for the appellant, Bloomer:

1. The intent with which the agreement was made is but a convertible term for its legal operation, and that legal operation is to be affixed by the law to the language used by the parties, irrespective of the intent with which they used such language. The inquiry never arises upon the evidence-'what did the parties intend to do?'-if the written agreement which they made is susceptible of legal interpretation. The conclusion is, that they intended just what the law interpreting their agreement says that they have done. If this rule be so, it excludes from the consideration of the court the parol evidence introduced by the respondent, and leaves for the adjudication of the court, the single question of law, viz.: 'Has the respondent, under these instruments, either by their proper interpretation or by operation of general law, the right to continue to use, during the extension of the patent by Congress, the three machines which he constructed and was lawfully in use of during the extension by the commissioners?'

2. The fact that the subject of the contract is a right in or an interest under a patent, does not take the case out of the law applicable to the law of contracts generally. The owner of a patent may make any agreement with regard to its enjoyment that he may make in regard to any other species of property. It is competent, therefore, for the owner of a patent right to carve out of his entire monopoly such fractional interest therein, either as to absolute right, or as to territorial extent, or as to duration of right, as he may see fit.

Applying this principle, it appears that the respondent never acquired, by voluntary grant from any of the owners of either the original or extended patent, any right to continue to use the thing patented during the extension of the patent by Congress. If there be language which can define the intent of the grantor to be, that he parts with a right under his patent for a specified number of years only, that language will be found in both of the instruments under which the respondent was rightfully in use of his three machines during the first extension of the patent. In Exhibit A, the first instrument (that of 2d June, 1843), by the administrator to William Lippincott, the respondent's assignor, the grant was of a 'right and license to construct, use, and vend to others to construct and use, during the said extension of the aforesaid patent,' that extension being the one granted by the commissioners, and which expired on the 27th of December, 1849.

In the confirmatory instrument to the respondent, of the 13th of April, 1846 (known as Exhibit B), which was intended to convey the right under the amended specification attached to the reissued patent, the language is, 'doth license and empower. . . for the term of time for which the patent was extended by the Board of Commissioners hereinbefore referred to, being for the term of seven years, and no longer, from the expiration of the original term of fourteen years.'

Probably Bloomer v. McQuewan, decided by this court, will be relied on to support an opposite view. But we submit-first, that that case is inapplicable, and second, that it is not, under the circumstance of its decision, a binding authority.

I. The act of Congress places the case in the position in which it would have been had the patent been orginally granted for twenty-eight years. If it had been so granted, what right would the respondent have acquired by virtue of Exhibits A and B, executed respectively in 1843 and 1846? Clearly, the beneficial enjoyment of the patent for the period therein specified, expiring on the 27th of December, 1849, and nothing other or beyond. If he acquired any other or further right, he must have acquired it by virtue of some general law, and not by virtue of the contract, or of the act extending the patent. The respondent did not know, in 1843, when the first license was granted, that the patent would be extended by act of Congress, but he knew that it might be. He did know, in 1846, when the second license was executed, that the patent had been extended; and he accepted an instrument on that date, which expressed, by the use of proper language, the intention of the grantor to terminate the right granted, on the 27th day of December, 1849.

The respondent never occupied, during the first term of the patent, the position of the defendant in Bloomer v. McQuewan,-that is, he was not an 'assignee,' or 'grantee,' during the original term of the patent, of the right to use the thing patented.

By the Patent Act of 1836 (§ 18), it is provided, that the benefit of the renewal by the commissioner shall extend 'to assignees and grantees of the right to use the thing patented, to the extent of their respective interests therein.' In Wilson v. Rousseau, it was the opinion of a majority of this court that, without this provision, 'all rights of assignees or grantees, whether in a share of the patent, or to a specific portion of the territory held under it, terminate at the end of the fourteen years, and become reinvested in the patentee by the new grant.' And, in construing this very act of 1845, Nelson, J., said in one case: 'If the extension for the second term had been absolute, that is, if there had been no reservation in the general act of 1836 in favor of assignees, as there is not in the special act of 1845, the court would not have entertained a doubt that the exclusive right to the invention during the second term would have been vested in the administrator.' So, also, in another case, where the assignments were similar to Exhibits A and B, he held that the defendant had no right to continue to use the machines under the extension by act of Congress. This view has been confirmed in other circuits.

II. But it is submitted that Bloomer v. McQuewan should be re-examined. The opinion of the court in that case was pronounced by the present chief justice, and was concurred in by Justices Catron, Daniel, and Grier. Justices Nelson and McLean dissented. Justices Wayne and Curtis did not sit. So that the decision was really that of less than half of the court, there having been one vacancy by the death of Justice McKinley. Justice McLean, at the close of his dissenting opinion, says: 'Sustained by the authority of seven justices of this court, and by an argument of the Supreme Court above cited, which I think is unanswerable, I shall deem it to be my duty to bring the same question now decided, when it arises in my circuit, for the consideration and decision of a full bench.' It cannot be presumptuous to ask the court to give to the question a new investigation, in order that it may be submitted 'for the consideration and decision of a full bench.'

The counsel then examined the decision on principle and authority.

Mr. Justice CLIFFORD, after stating the case, delivered the opinion of the court:

title: Bloomer v. Millinger


text: Talk:Bloomer v. Millinger

title: Talk:Bloomer v. Millinger


text:
Bloomer v. Millinger/Opinion of the Court

Counsel of the complainant concede that the machines were constructed and put in operation by the consent and license of the assignees of the patentees, and that the respondent had the full right to continue to use and operate the same throughout the entire period of the extension granted by the Commissioner of Patents. But they deny that he had any right to continue to use or operate them under the second extension, which was granted by the act of Congress. All of those machines were constructed and put in operation before the act of Congress was passed, and of course under an authority founded upon the patent as it existed at the time the authority was conferred. Regarding the transaction in that point of view, the argument is, that the respondent could not lawfully continue to use and operate the machines under the extension granted by Congress, inasmuch as such a use of the invention was not in the contemplation of the parties when the respondent was authorized to construct them and put them in operation.

Two principal defences were set up by the respondent in the court below.

First, he insisted that inasmuch as he constructed the machines and put them in operation under the authority of the patentee or his assigns, with the right to continue to use and operate them during the entire term of the patent as it was then granted, he cannot now be deprived of the right to use the property which he was thus induced to purchase, and which he in that manner lawfully acquired.

Secondly, he insisted that the complainant, at the time the respondent transferred to him the right he acquired under the assignment to him of the 10th of April, 1846, agreed that he, the complainant, would execute to him, the respondent, a deed of assignment of the right to the extension in question, so far as respects the three machines now in controversy; and he insisted that parol proofs were admissible and sufficient to establish the fact of such an agreement. On the other hand, the complainant denies that any such agreement was ever made, and he also insists that parol proofs are not admissible to establish such a theory.

Confessedly, the latter question is one of difficulty, under the circumstances, but it is wholly unnecessary to decide it in this case, as the respondent was and is clearly entitled to judgment upon the other ground. He constructed his machines, or caused them to be constructed, under the authority of the patentee or his assigns, and consequently must be regarded in the same light as a grantee or assignee under those who had the legal control of the patent. Builders of machines under such circumstances, have the same rights as grantees or assignees.

When the respondent had purchased the right to construct the machines and operate them during the lifetime of the patent as then existing, and had actually constructed the machines under such authority, and put them in operation, he had then acquired full dominion over the property of the machines, and an absolute and unrestricted right to use and operate them until they were worn out.

Patentees acquire the exclusive right to make and use, and vend to others to be used, their patented inventions for the period of time specified in the patent, but when they have made and vended to others to be used one or more of the things patented, to that extent they have parted with their exclusive right. They are entitled to but one royalty for a patented machine, and consequently when a patentee has himself constructed the machine and sold it, or authorized another to construct and sell it, or to construct and use and operate it, and the consideration has been paid to him for the right, he has then to that extent parted with his monopoly, and ceased to have any interest whatever in the machine so sold or so authorized to be constructed and operated. Where such circumstances appear, the owner of the machine, whether he built it or purchased it, if he has also acquired the right to use and operate it during the lifetime of the patent, may continue to use it until it is worn out, in spite of any and every extension subsequently obtained by the patentee or his assigns.

Provision is made by the eighteenth section of the act of the 4th of July, 1836, for the extension of patents beyond the time of their limitation. By the latter clause of that section the benefit of such renewal is expressly extended to assignees and grantees, of the right to use the thing patented, to the extent of their respective interests therein. 5 ''Stat. at Large'', 125. Under that provision it has repeatedly been held by this court that a party who had purchased and was using a patented machine, during the original term for which the patent was granted, had a right to continue to use the same during the extension. Wilson v. Rousseau, 4 How., 646. Founded as that rule is upon the distinction between the grant of the right to make and vend the machine, and the grant of the right to use it, the justice of the case will always be obvious, if that distinction is kept in view and the rule itself is properly applied.

Purchasers of the exclusive privilege of making or vending the patented machine in a specified place, hold a portion of the franchise which the patent confers, and of course the interest which they acquire terminates at the time limited for its continuance by the law which created it, unless it is expressly stipulated to the contrary. But the purchaser of the implement or machine, for the purpose of using it in the ordinary pursuits of life, stands on different ground. Such certainly were the views of this court in the case of Bloomer v. McQuewan, 14 How., 549, where the whole subject was very fully considered. Attention is drawn to the fact that there was considerable diversity of opinion among the judges in disposing of that case, but the circumstance is entitled to no weight in this case, because the court has since unanimously affirmed the same rule. Chaffee v. The Boston Belting Co., 22 How., 223. In the case last mentioned the court say, that when the patented machine rightfully passes from the patentee to the purchaser, or from any other person by him authorized to convey it, the machine is no longer within the limits of the monopoly. By a valid sale and purchase the patented machine becomes the private individual property of the purchaser, and is no longer specially protected by the laws of the United States, but by the laws of the State in which it is situated. Hence it is obvious, say the court, that if a person legally acquires a title to that which is the subject of letters patent, he may continue to use it until it is worn out, or he may repair it or improve upon it as he pleases, in the same manner as if dealing with property of any other kind. ''Webbs. Pat. Cases, 413, note p.''

Considering that the question has been several times decided by this court, we do not think it necessary to pursue the investigation. The decree of the Circuit Court is therefore.

AFFIRMED WITH COSTS.


text: Talk:Bloomer v. Millinger/Opinion of the Court


text:
United States v. Auguisola

THIS was an appeal by the United States from a decree of the District Court for the Southern District of California, confirming to one Auguisola a tract of land in California.

After the cession of California to the United States, Auguisola, who deraigned title from two persons (Lopez and Arrellanes) exhibiting a grant that purported to be from the Mexican governor, Micheltorena, laid his claim before the board of commissioners, which the act of Congress of March 3, 1851, appointed to examine and decide on all claims to lands in California purporting to be derived from Mexican grants. He here produced from the archives of the Surveyor-General of California a petition from the grantees; the petition being accompanied by a map of the land desired; the reports of the different officers to whom the matter was referred for examination, and the concession of Governor Micheltorena, dated March 17, 1843, in which this governor declares that the petitioner is 'proprietad del terreno blanado,' or 'owner of the land' in question. He produced, moreover, a formal grant of the governor, dated contemporaneously with the order of concession, and a record of possession delivered by the proper alcade in 1847. None of the parties, however, whose names appeared as grantors or actors in the various evidences of title, were called in the court below as witnesses, proof of all the fundamental documents having been made by a witness, who swore to the genuineness of the various signatures. Neither was the work known as 'Jimeno's Index'-a list of Mexican grants between the years 1829 and 1845-introduced as part of the plaintiff's evidence of title, though the present grant purported, by memorandum at its foot, 'to be registered in the proper book.' The grant was produced from his private possession. Supposing the papers, however, to be all genuine-a matter about which no question was raised before the commissioners-the case was properly enough made out in respect of occupancy, improvement, cultivation, stocking with cattle, and other matters which were required by the Mexican laws; the only difficulty being that the boundaries of the land, as set forth in the papers and on the map, were so undefined that they could not be ascertained nor surveyed; and that the piece of land claimed had never been segregated from the national domain. Auguisola's claim was accordingly rejected by the commissioners. From this decision he appealed to the District Court; and having shown, by new evidence, more definite boundaries than he had shown before, the decree of the commissioners was reversed, and his claim established. To this judgment of the District Court the United States filed thirteen exceptions; being reasons, all of them, to show why the claim of Auguisola was a bad one. They were based on an alleged invalidity of the grant, on an asserted illegality of the juridical possession; on the situation of the land as respected the sea-coast; on the fact that it had been occupied by missions and could not be colonized; that it was incapable of identification; that one deed was on unstamped paper; that the Departmental Assembly had not approved the grant; that the land had not been properly occupied and improved, and some other reasons of a similar kind. Not one of the reasons, however, assigned fraud of any kind; of which, indeed, so far as the record showed, there was no suggestion anywhere below.

Mr. Wills, for the United States:

1. The grant, if genuine, is not legally proved: i, because the evidence offered to authenticate it is secondary; and ii, because no legal basis was laid for its introduction. The parties whose names appear in the documentary evidences of title as grantor, or witnesses, were not called as witnesses. Nor was any legal ground laid for the omission. The only evidence offered to authenticate the paper title is the testimony of a witness, who swears to the genuineness of all the signatures to all the papers, from the grant down to the record of judicial possession.

But this is not sufficient without calling the parties or accounting for their absence: i, because it is a departure from the established order of proof; and ii, because the signatures may be genuine, and yet the papers be forgeries, because antedated.

2. The grant is fraudulent and void. The first suspicious circumstance against it is the fact before referred to, viz., the failure to call or to account for the absence, as witnesses, of the original parties to the grant and accompanying papers. If fraudulent, it is an ingenious device, whereby forgery may be committed without perjury. In the absence of proof to the contrary, the legal presumption is, that all these parties were living and accessible. The fact that the governor, secretary, and others are not called as witnesses in support of the authenticity and validity of grants, when accessible, is a circumstance entitled to weight against a grant.1

The second suspicious circumstance against it is, that this grant is not mentioned in Jimeno's Index, nor is it shown to be registered in any other contemporary record. Registry is required by the regulations of 1828. Evidence of the registration of a grant must be produced, or its absence accounted for. Jimeno's Index embraces all grants made from and including the year 1830, to December 24, 1844. As the grant purports to have been made March 17, 1843, and to be 'registered in the proper book,' if it had been made at that date, it must have appeared in that Index, or in some other contemporary record, in common with all other genuine grants of that date. But no such record is produced. Its absence, therefore, from those records, furnishes presumption that the grant is a forgery.

Mr. Justice FIELD delivered the opinion of the court:

title: United States v. Auguisola


text: Talk:United States v. Auguisola

title: Talk:United States v. Auguisola


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

The respondent deraigns his title from Lopez and Arellanes, the alleged grantees of the Mexican governor, Micheltorena. In support of his claim before the board of commissioners, created under the act of 1851, he produced from the archives in the custody of the Surveyor-General of California the petition of the grantees for the land, the reports of the different public officers to whom the same was referred for information as to the property and the petitioners, the sketch or map accompanying the petition, and the concession of the governor, made on the 17th of March, 1843, declaring the petitioners 'owners of the land' in question. He also produced a formal grant of the governor, bearing the same date with the order of concession, and a record of juridical possession delivered by the alcalde of the vicinage in 1847. No question was raised before the commissioners as to the genuineness of the several documents produced, and with proof of the signatures attached to the above grant and record, and that the grantees had constructed a house upon the premises immediately after receiving the grant; that the house was occupied by one of the grantees until the sale to the claimant, and has been occupied by the claimant ever since, and that the land has been cultivated and used for the pasturage of cattle since its first occupation, the case was submitted. The board rejected the claim, not from any conclusion that the papers produced were not genuine, but solely upon the ground that the boundaries of the land granted were vague and indefinite, and that the land had not been segregated from the public domain. The case being removed by appeal to the District Court, the attorney of the United States, in answer to the claimant's petition for a review of the decision of the commissioners, set forth thirteen grounds for holding the claim invalid. Two of them related to the alleged invalidity of the transfer from the grantees to the claimant; two to the illegality of the juridical possession of the alcalde in 1847, and the remaining grounds were substantially these: that the land was situated within ten leagues of the sea-coast; that it was occupied by the missions of the territory, and therefore could not be colonized; that the grant had not the conditions required by the colonization law of 1824, or the regulations of 1828; that it did not give in itself, or with the aid of the map produced, any description by which the land could be identified; that it was not executed upon lawfully stamped paper; that it had not been approved by the Departmental Assembly, and that the grantees had not complied with the conditions annexed by constructing a house within a year, and inhabiting it and cultivating the land, and soliciting the proper judge for juridical possession. No objection was made that the title-papers produced were not genuine, or not executed at the time they purport to have been executed, and the additional evidence taken in the District Court was intended to show the location and boundaries of the land, and thus remove the objection to the confirmation given by the commissioners. The District Court reversed the decision of the board, and adjudged the claim of the respondent to be valid, and confirmed it to the extent of three square leagues. From this decree the United States have appealed, and in this court for the first time take the grounds, 1st, that the grant produced, even if genuine, was not legally proved; and, 2d, that the grant is fraudulent and void.

The first objection arises from the fact that the governor who signed, and the Secretary of State who attested the grant, were not called to prove it or their absence accounted for, and that the instrument was admitted upon proof of their signatures. The usual preliminary proceedings to the issue of a Mexican grant in colonization having been produced from the archives, there was no presumption against the genuineness of the grant in question, requiring the strict proof of its execution mentioned in the cases of The United States v. Teschmaker, and Fuentes v. The United States. Under these circumstances, the objection should have been urged before the commissioners or the District Court, and notice thus given to the claimant to procure further proof by calling the parties, or to show good reason for not calling them. Where no suspicion from the absence of the usual preliminary documentary evidence arises, as to the genuineness of the instrument produced, the general rule is, that objections to the sufficiency of the proof of its execution must be urged in the first instance before the inferior tribunal. In the present case, it is possible that the governor and secretary were without the jurisdiction of the court at the time the grant was produced, or the objection to the proof may not have been urged by the attorney of the government, who was present when it was given, because satisfied himself from other sources that the signatures were genuine, and that the grant was executed at the time it purports to have been executed, or because of his knowledge that the objection could have been readily obviated by testimony within the reach of the claimant.

The objection that the grant is fraudulent and void rests mainly upon the allegation of counsel, that it is not mentioned in the list of expedientes known as 'Jimeno's Index.' We say upon the allegation of counsel, for Jimeno's Index is not in evidence, nor was any proof offered of its contents; and, under the circumstances of this case, if the fact were as alleged, it would not be entitled to much weight.

To the objections urged by the appellants, and to all objections of a similar kind, the observations of Mr. Justice Grier, in the case of The United States v. Johnson, decided at the present term, are applicable. 'In taking objections to these Mexican grants,' says the learned justice, 'it ought to be remembered, that the case is not brought here on a writ of error with a bill of exceptions to the admission of every item of testimony offered and received below. Nor is it a part of the duty of counsel representing the government, to urge microscopic objections against an honest claimant, and urge the forfeiture of his property for some oversight of the commissioners in not requiring proof according to the strict rules of the common law. When there is any just suspicion of fraud or forgery, the defence should be made below, and the evidence to support the charge should appear on the record. If testimony of witnesses is alleged to be unworthy of belief, the record should show some reason to justify the court in rejecting it. The former opinions of this court may be referred to, on questions of law, but cannot be quoted as evidence of the character of living witnesses.'

To these observations we will only add, that the United States have never sought by their legislation to evade the obligation devolved upon them by the treaty of Guadalupe Hidalgo to protect the rights of property of the inhabitants of the ceded territory, or to discharge it in a narrow and illiberal manner. They have directed their tribunals, in passing upon the rights of the inhabitants, to be governed by the stipulations of the treaty, the law of nations, the laws, usages, and customs of the former government, the principles of equity, and the decisions of the Supreme Court, so far as they are applicable. They have not desired the tribunals to conduct their investigations as if the rights of the inhabitants to the property which they claim depended upon the nicest observance of every legal formality. They have desired to act as a great nation, not seeking, in extending their authority over the ceded country, to enforce forfeitures, but to afford protection and security to all just rights which could have been claimed from the government they superseded.

DECREE AFFIRMED.


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


text:
Schuchardt v. Allens

THIS was an action on the case for false warranty, and for deceit in the sale of one hundred casks of Dutch madder; and was brought in the Circuit Court for the Southern District of New York. The declaration contained seven counts.

The first three were for false warranty (without any scienter),

1st. That it was a prime article.

2d. That it was pure and unadulterated.

3d. That it was good, merchantable Dutch madder.

The last three counts were for deceitful representations (with scienter) of the same facts. The fourth count, after stating that the plaintiffs were calico printers, and required and were accustomed to use Dutch madder, avers that the defendants, knowing this and that the madder was for use, 'by falsely and fraudulently representing it to be fit and proper for use in their business,' sold the same, whereas it was not such, and so the defendants 'deceived the plaintiffs.'

The defendants pleaded Not Guilty to the whole declaration.

The facts were these: The madder was owned by merchants in Amsterdam, who consigned it to the defendants in New York for sale upon commission. The vessel containing the madder arrived at New York on the 6th April, 1856, previous to which the defendants had received, by a Liverpool steamer, a sample put up in the usual way in a small clear glass bottle, with a ground glass stopper, covered with bladder, and marked 1 to 100, according to the number of casks. The sample was handed to R. H. Green & Sons, who were regular brokers in drugs, &c., in New York, to be sold.

Mr. Green gave the following account: 'I received from a young man in the employ of defendants a small bottle of madder, marked 1 to 100, said to represent one hundred casks of Dutch madder, with the injunction that it must not be opened. He left it with me. I asked him subsequently why he would not have it opened, and he replied, that it was the only sample bottle which they had, and that it would deteriorate by being opened; which is the fact. The vessel with the madder was here. They were urgent to have it taken from the wharf, and as I was about going eastward, I said I would try and sell it, but still I was told not to have it opened. It was very handsome to look at. I went to Providence, and called on the Allens. Mr. Allen is one of our best calico printers, and has always been in the habit of using the best madder. Young Allen went with me to the works; he wanted to see his overseer. We met his overseer, and the bottle was submitted to him; he thought it was handsome, and the conclusion was, they agreed to take it. The price was named. He inquired concerning the quality. I told him I knew nothing of it, except that it came from one of our best houses; the standing of the house was the best guaranty. The conversation carried the idea that it was very handsome madder. . . . The price named was 11 1/4 cents per pound for one hundred casks, without knowing the amount contained in them. He said he would take it, and I said he should have it. The price was fixed by the defendants. The sample bottle was in the usual form of such samples. It is usual to have one for every cask, but here there was but one. I brought the bottle back with me from Providence. Subsequently, I was applied to for the sample bottle, and sent it on; I have never seen it since. There was no objection to my giving the sample bottle to the plaintiffs after the sale; it then belonged to them. I promised to bring back the bottle from Providence. I did so, and afterwards sent it back to Providence.' [This bottle, it appeared, had been lost by the Allens.]

The overseer testified as follows: 'I saw the sample bottle in question in Mr. Green's hands, and was told not to open it. It was very fair to look at, and I said so at the time, but I told them that I could not tell anything about it unless the bottle could be opened. I was asked about it, and I said it looked very well; it could not be judged of by any one without opening the sample bottle. It is the custom to open and examine the sample bottles. There was no sand in the bottle apparent to the eye; I saw none in it. No one could have discovered adulteration from looking at the madder in the bottle. . . .. No wise man will buy madder without looking at it; this is the first I ever knew of a purchase being made where it was not examined. The madder in the bottle is always taken out, rubbed and examined. I have had an experience of forty-five years in the business. On the occasion of this purchase I told them that it was impossible to tell what the quality of the madder was, unless I examined it; I could only say that it looked very well.'

Without other examination, and without any knowledge of the quality of the sample, except as it appeared to the eye, and as inferred from 'the standing of the house,' the plaintiffs agreed to purchase the lot at 11 1/4 cents a pound. Accordingly, upon his return to New York, April 17th, Mr. Green made an entry of sale in his sales book, and sent a copy to the defendants. The madder was afterwards weighed, a bill made out by the defendants, and, on the 28th of April, forwarded to the plaintiffs. This bill contained a memorandum notice, in small type, in one corner, reading thus: 'No claims for deficiencies or imperfections allowed unless made within seven days from receipt of goods.' It appeared from the testimony of foreign witnesses that the madder in the flask was of the same quality as that in the casks. About three weeks after the madder was received by the plaintiffs at their print works, they began to use it, when they found it not equal to what they had been accustomed to use. It was 'full of sand;' 'they were obliged to shovel the sand out of the vats twice a day;' the quantity of sand 'varied from two and a half ounces to four ounces in the pound;' 'this variation took place in the same cask;' sand was found 'in streaks' in it; it was 'streaked through and through with sand;' it 'was palpable as soon as it was opened;' 'the streaks were both lengthwise and crosswise;' 'they were strata.'

It should be here mentioned that, as was here proved, there are different qualities of madder, such as mull, little ombro, ombro, and crops, but they are all known by the common term of Dutch madder, and also that all madder has in it more or less sand and other impurities. Even the first quality has in it from two to eight per cent.; but this madder 'was out of all proportion, out of all character;' thirty to forty per cent. of impurity, fifteen to sixteen per cent. being sand.

The testimony being closed, the counsel for the defendants requested the court to instruct the jury as follows:

'1. The gist of the plaintiffs' action is an alleged false warranty and deceit, on the part of the defendants, in the sale of the madder in question; and to entitle them to recover against the defendants, they must establish, to the satisfaction of the jury, such alleged false warranty and deceit.

'2. That, in this form of action, the plaintiff cannot recover without evidence to establish a scienter on the part of the defendants.

'3. That the broker had no authority or power to warrant that the bulk should correspond with the madder contained in the bottle, and thus bind the defendants. But even if he had such power, still he did not so warrant the same.

'4. That there was not such a sale by sample as in law amounts to a warranty that the bulk should correspond with the sample.

'5. That if there was any warranty, it was at most an implied one, under which the defendants are not liable for any adulteration of the bulk of the madder, unless the plaintiff have, by competent evidence, established fraud on the part of the defendant in respect thereto.

'6. If there was a warranty of any kind, still the terms stated in the bill rendered limited the defendants' liability thereon to seven days, and as no demand for damages was made by the plaintiff within that time, they are not entitled to recover in this action.'

The court refused to give any one of the instructions asked for, and the counsel for the defendants thereupon excepted.

During the trial, the broker was asked by the plaintiffs' counsel what kind of madder he had been in the habit of selling the plaintiffs, to which the defendants' counsel objected. The court overruled the objection, and counsel for the defendants excepted. The witness, however, said nothing responsive to the question, until cross-examined by the defendants' counsel; and no objection appeared in the record to the testimony which he gave.

The jury rendered a verdict for the plaintiffs for $7333, being a deduction of thirty per cent. from the price paid for the madder, which reduced the same to 7 7/8 cents per pound. Thereupon the defendants took a bill of exceptions.

Messrs. Owen and Stoughton, for the plaintiff in error:

1. The question about the kind of madder the broker was in the habit of selling to the plaintiffs was improperly allowed; for the defendants had never sold any madder before the lot in question, and there is no evidence that they knew to what kind the plaintiffs had been accustomed.

2. As respects the exceptions:

The exceptions to the first and second instructions are not so strong as the others. We press them least.

The third is well founded.

The broker was not authorized to warrant that the madder to be sold was equal to that contained in the bottle exhibited, and of this the purchasers had notice at the time the article was offered to them. Madder, it appeared, is of several qualities; all contains sand, earthy matter, and other impurities; and in the best, these are found to the extent of from two to eight per cent. The presence or quantity of these impurities, the overseer testified, could not be ascertained from an inspection of the sample in the bottle without opening it, and he so told his employers. Thus we have notice to the buyers that the best and poorest of madder contains these impurities; and knowledge, also, that no one could tell by the inspection of the sample bottle whether it contained the best or poorest. The buyers also had notice that the sellers declined to permit the bottle to be opened, so as to allow of such an inspection as would enable them to ascertain from the sample what the bulk of the madder was to be; and from all this, it follows that the broker was not authorized, by means of the sample, to make any representation whatever of the quality of the article offered. Under these circumstances, if the buyers wished to protect themselves by a warranty, they were bound so to have informed the broker, that his principals might have exercised their own discretion on the subject, giving or withholding it as they should deem proper.

No warranty was in fact made. The mere exhibition of the sample does not amount to a warranty that the bulk sold is like it. Representations must be superadded. In the present case there was no exhibition of a sample. To exhibit a sample, is so to show it that it is to be regarded as a representative of the bulk to be sold. The buyer examines the sample, as he would the bulk, if present; and in place of inspecting the whole, examines the part exhibited to show what the whole is. But in this case the sellers expressly declined to permit the madder in the bottle to be so examined that its quality could be determined, and, therefore,-as it was known to the buyers that whether it contained the best or poorest could not be ascertained without opening,-there was no measure of excellence known by either party to which a warranty could be applied, and, therefore, no agreement upon the subject.

The fourth exception as well as the third is disposed of by these remarks.

If it be urged that a warranty may be implied from the fact that the party buying had no opportunity to inspect the bulk, and, therefore, might rely upon an implied warranty that it should be as good as the sample appeared to be from looking at it, the answer is, that the buyers were told by their experienced overseer, and were bound themselves to know, that the appearance to the eye would not disclose any of the impurities known by all dealers in the article to exist in madder, even of the best quality. Hence, appearance to the eye cannot be separated from knowledge by the other senses; and, therefore, when the eye looked, the mind gave notice that imperfections existed which the eye could not discover. Whilst, therefore, to the eye, the madder looked fair, yet the ordinary dealer knew that it contained sand and other impurities; and that although fair to look upon, it might be of the poorest quality to be found in the market. Moreover, the law presumes every dealer in articles brought to market acquainted with the circumstances usually attendant upon such articles.

If it should be held that a warranty existed, at the most it was but a warranty that the bulk should correspond with the actual quality of the sample produced; and this being so, it follows that there is a fatal variance between the contract as set forth and that proven. As the sample may, from the proof, have been of any quality-from the poorest to the best-the warranty could have been only, that the bulk ranged in quality between those degrees; and therefore, the delivery of any madder, merchantable within this range, would have satisfied the warranty.

Thus, it is clear, that if a warranty of any kind was made, the plaintiffs were not entitled to recover; for there was no evidence to show what was the actual quality or value of the sample exhibited. The only evidence is the opinion of the overseer, that it was impossible to say anything about its quality. There is, therefore, no proof that the madder sold was not equal to the sample. Indeed, the rule of damages was assumed to be the difference, not between the value of the sample and bulk, but between the bulk and the very best quality of madder known. And this rule was adopted, not in view of the fact that the sellers had withheld or concealed the sample. It was forwarded by Mr. Green to the buyers, at their request, and after they had ascertained the character of the bulk by using from it. They had the means of showing whether it was of like quality or not; the burden of this proof was upon them. 'The party who extinguishes the light, and precludes the other party from the means of ascertaining the truth, ought to bear the loss.'

It is manifest from the rule of damages adopted, that the court below considered the warranty to have been established, and did not confine themselves to enforcing the principle that the bulk should in fact correspond with the sample exhibited.

As respects the fifth exception, the law is, that, if there be no warranty, the party seeking to recover must aver and prove that the seller knew of the defect insisted on; must accordingly, establish fraud. This is old law, as old as Chandelor v. Lopus, reported by Croke, temp. 1 James I, and made familiar to all in this day by Smith in the Leading Cases. 'The defendant,' says the syllabus in that case, 'sold to the plaintiff a stone, which he affirmed to be a Bezoar stone, but which proved not to be so. No action lies against him, unless he either knew that it was not a Bezoar stone or warranted it to be a Bezoar stone.' 'For every one,' says the report, 'in selling his wares will affirm that his wares are good.' Mr. Green, however, did not even do this. His conduct was very careful and upright.

As respects the sixth request for instructions: If the purchasers had not, in judgment of law, an opportunity to inspect the bulk at the time the contract was made at Providence, yet they had opportunity, and it was practicable to do so, while it was in New York before its delivery. At all events, they should have made such examination promptly after it was received at their print works, and within the time specified in the notice, and communicated the result to the defendants. Their neglect to do this operated to discharge the implied warranty, or, in other words, it estops the plaintiffs from insisting that the bulk did not so correspond.

Mr. Strong, on the other side.

Mr. Justice SWAYNE delivered the opinion of the court:

title: Schuchardt v. Allens


text: Talk:Schuchardt v. Allens

title: Talk:Schuchardt v. Allens


text:
Schuchardt v. Allens/Opinion of the Court

1. As respects the question objected to and overruled. Until cross-examined by the defendants' counsel, the witness said nothing responsive to the question objected to. No objection appears in the record to the testimony which he gave. This is a sufficient answer to the exception. But if the testimony which the question sought to elicit had been given, its admission would not have been an error. The fourth count averred that the plaintiffs 'carried on the business of calico printers, and as such required for their use and were accustomed to use the best Dutch madder, and that the defendants, by falsely representing the madder in question to be fit for use in that business, and well knowing that it was bought by them for use in their business, sold it to the plaintiffs, whereas,' &c. An answer to the question would have been directly applicable to this count. It would have tended to prove the kind of madder used by the plaintiffs. It was not necessary that it should be sufficient for that purpose. If such were its tendency-if it were 'a link in the chain of proof,' it was within the sphere of competency, while its effect was for the consideration of the jury.

2. The testimony being closed, the counsel for the defendants asked the court to instruct the jury as follows: (His Honor here stated the requests as given, ante, pp. 359-60.)

The exceptions to the first two instructions asked were properly abandoned at the argument in this court. They affirm propositions which are not legal truths.

The ancient remedy for a false warranty was an action on the case sounding in tort. Stuart v. Wilkins (1 Douglas, 18); Williamson v. Allison (2 East, 447). The remedy by assumpsit is comparatively of modern introduction. In Williamson v. Allison, Lord Ellenborough said it had 'not prevailed generally above forty years.' In Stuart v. Wilkins, Lord Mansfield regarded it as a novelty, and hesitated to give it the sanction of his authority. It is now well settled, both in English and American jurisprudence, that either mode of procedure may be adopted. Whether the declaration be in assumpsit or tort it need not aver a scienter. And if the averment be made it need not be proved.

One of the considerations which led to the practice of declaring in assumpsit was that the money counts might be added to the special counts upon the warranty. If the declaration be in tort, counts for deceit may be added to the special counts, and a recovery may be had for the false warranty or for the deceit, according to the proof. Either will sustain the action.

The third instruction affirms that the broker by whom the madder was sold had no power to give any warranty.

Authority, without restriction, to an agent to sell, carries with it authority to warrant.

The sixth instruction refers to the memorandum upon the bill of the madder transmitted by the broker who made the sale, from New York, on the 28th of April, 1856, to the plaintiffs at Providence, Rhode Island. The sale was entered on the broker's books on the 17th of that month. It was made previously to one of the defendants. The broker says in his testimony, 'The price named was 11 1/4 cts. per pound for 100 casks, without knowing the amount contained in them; he said he would take it, and I said he should have it. The price was fixed by the defendants.' The contract between the parties thus became complete, and nothing done subsequently by the defendants or their agent could affect the rights of the plaintiffs.

The fourth and fifth instructions sought in effect to take the case from the jury. A Circuit Court has 'no authority to order a peremptory nonsuit against the will of the plaintiff.' Where there is no dispute about facts, and the law arising upon them is conclusive against the right of the plaintiff to recover, it is proper for the court so to instruct the jury. If the evidence be not sufficient to warrant a recovery, it is the duty of the court to instruct the jury accordingly. 'This is equivalent to a demurrer to the evidence, and such an instruction ought to be given whenever the evidence is not legally sufficient to serve as the foundation of a verdict for the plaintiff.' This practice 'has in many of the States superseded the ancient practice of a demurrer to evidence. It answers the same purpose and should be tested by the same rules. A demurrer to evidence admits not only the facts stated therein, but also every conclusion which a jury might fairly or reasonably infer therefrom.'

Where the evidence, or only part of it, if believed by the jury, is decisive of the case, it is proper for the court to instruct the jury to that effect.

In order to determine whether the court erred in refusing to give the fourth and fifth instructions, it will therefore be necessary to consider the state of the evidence before the jury.

At the time of the sale the agent produced a sample bottle. There was but one for the one hundred casks of madder. It was usual to have one for each cask. The broker was instructed by his principals not to allow the bottle to be opened, because the contact of the atmosphere would injure the appearance of the sample which it contained, and he acted accordingly. The arrival of the sample preceded the arrival of the casks from abroad. The sale was to be made and was in fact made by that sample. The agent says in his testimony, 'The sample was very handsome to look at.' 'The conversation carried the idea that it was very handsome madder.' There was no sand in the bottle. The sale was made at Providence, Rhode Island. The casks were at that time in New York, and it seems from the evidence still on shipboard. The plaintiffs had no opportunity to examine their contents. The transaction was a large one. The vendees had no means of forming a judgment of the quality of the madder in the casks but from the appearance of that in the bottle, which they were not allowed to open. From these facts we think the jury were well warranted in drawing the inference that it was the understanding of the vendees that they were buying under a warranty that the quality of the madder in the casks was equal to that of the sample in the bottle, and that the agent of the vendors intended to be understood as giving such a warranty. It is hardly credible in the presence of such facts that the understanding and intention of the parties could have been otherwise.

But it is not necessary that the state of the evidence should have been such as necessarily to lead to this conclusion. It is enough that there was evidence upon the subject proper to be left to the consideration of the jury. If the jury erred, the remedy was by a motion for a new trial, and not by a writ of error. This part of the case was argued as if such a motion were before us. The rules of law which would be applicable in that event are very different from those which apply as the case is presented. A motion for a new trial in the courts of the United States is addressed to the sound discretion of the tribunal which tried the case, and to grant or refuse it cannot be made the subject of exception. Here the question is, whether the court erred in refusing to take the case from the jury. Upon that subject we concur in the opinion of the learned judge who tried the cause. If a motion for a new trial were before us we should overrule it. In our opinion right and justice have been done. The judgment below is

AFFIRMED WITH COSTS.


text: Talk:Schuchardt v. Allens/Opinion of the Court


text:
Hardy v. Johnson

WRIT of error to the Circuit Court of the United States for the Northern District of California; the action having been ejectment, by Johnson against Hardy and wife, to recover a parcel of land in the city of Oakland, California. Johnson, in his complaint, as a declaration is there called, alleged a seizin in fee and a right to the possession of the entire demanded premises. The jury, however, by special verdict, found that the plaintiff was seized of a fractional part only; to wit, of an undivided twentieth interest. The defendants showed no title in any part; and the court gave judgment in Johnson's favor for the entire premises, 'in subordination to the rights of his co-tenants.'

On the trial the defendants offered in evidence a deed, conveying the interest of some of the co-tenants, executed after issue joined; an issue amounting in fact to the general issue. The deed was admitted (the question of its admissibility under the pleadings being reserved), and the jury based one of its findings upon it. The court, however, finally held the evidence not competent, and, in entering judgment on the verdict, excluded the finding made upon its basis.

The questions in this court were:

1. Whether judgment could properly be given, as it was in favor of the plaintiff for the entire premises, in subordination to the rights of his co-tenants?

2. Whether the deed was rightly excluded?

Mr. Train, for the plaintiffs in error, relied, as respected the first point, on the familiar principles that the plaintiff must recover, if at all, on the strength of his own title, and not on the weakness of the defendant's; and that a recovery must be had secundum allegata, or not at all: arguing, from the last position, that even though the special verdict found the plaintiff entitled to an undivided twentieth, he could not have judgment therefor, except by amending the declaration or complaint. On the second point, he contended that the title of the defendants acquired after issue was admissible; citing Stockdale v. Young, a decision in South Carolina, in which it was held that, 'in trespass to try title, the acquisition of title by defendant, since the last continuance, could not operate to prevent the recovery of damages to which the plaintiff might be entitled, and therefore that it was unnecessary to plead it puis darrein continuance; but that it might be given in evidence under the general issue.'

Messrs. Hepburn and Hill, contra, relied, for the first point, on Stark v. Barrett; and, for the second, on Yount v. Howell, California decisions, both.

Mr. Justice FIELD delivered the opinion of the court:

title: Hardy v. Johnson


text: Talk:Hardy v. Johnson

title: Talk:Hardy v. Johnson