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LIMITATION OF ACTIONS, AND STATUTE OF (Continued).
5. He must have a connected title from some one authorized to sell, and in this

case the officer was not so authorized. The deed was not, therefore, admissi-

ble in evidence. Ibid.
6. An agreement by a debtor to apply a certain portion of bis crops towards the

extinguishment of the debt in consideration of further indulgence, will take a
case out of the statute of limitations, and may be set up in avoidance of the

plea by way of estoppel upon the debtor. Reindon v. Toby, 493.
7. The defendant is not at liberty to complain that the construction of this instru-

ment was left to the jury, because it was so done at his own request, and be-
cause, if the court had construed it, the construction must have been unfavor-

able to the defendant. Ibid.
MANDAMUS.
Where the United States were the plaintiffs, and a verdict was rendered, according

to the practice in Pennsylvania, that they were indebted to the defendant, and
an application was made for a mandamus to compel the Secretary of the Treas-
ury to credit the defendant upon the books of the Treasury with the amount
of the verdict and to pay the same, the mandamus was properly refused by

the Circuit Court. Reeside v. Wulker, 272.
MORTGAGE.
1. Although the day when a mortgage was executed was not stated, yet where it

bore a date in its commencement, and its acknowledgment and date of record
were both given, and both of them preceded a sheriff's sale of the mortgaged
property, it was certain that the morigage was executed before the sale under

execution. Fowler v. Merrill, 375.
2. Although, when the mortgage was recorded, the laws of the State did not make

the mere recording convey the title when the personal property thus mort-
gaged remained in the possession of the mortgagor, yet they sanctioned the
mortgage unless it was made without good consideration, and opposed by a

bond fide subsequent purchaser, who had no notice of its existence. Ibid.
3. But the fact of recording the mortgage tended to give notice of its existence,

and in the present case the evidence shows that the purchasers at the sheriff's

sale had notice of the mortgage. Ibid.
4. Such purchasers must allege that their want of notice continued up to the time

of making actual payment; a wint of notice merely extending to the time of
making the purchase is not enough. Payment might have been refused, and

then they would not have been injured. Ibid.
5. Moreover, between the time when the mortgage was in fact recorded and the

time of the sheriff's sale, the State passed a law making such recorded mort-

gages valid. Ibid.
6. The increase or offspring of slaves belong to the owner of the mother. Ibid.
7. The decree of the Circuit Court being that the purchasers at the sheriff's sale

should either surrender the property to the prior mortgagee, or pay the value
thereof, such value was properly computed as it was at the time of rendering

the decree. Ibid.
8. The hire of the slaves was properly charged as commencing when the prior

mortgagee filed his bill for a foreclosure. Ibid.
NEUTRALS, RIGHTS OF.
1. A neutral leaving a belligerent country, in which he was domiciled at the com-

mencement of the war, is entitled to the rights of a neutral in his person and

property, as soon as he sails from the hostile port. United States v. Guillem, 47.
2. The property he takes with him is not liable to condemnation for a breach of

blockade by the vessel in which he embarks, when entering or departing from
the port, unless he knew of the intention of the vessel to break it in going out.

Ibid.
PATENT RIGHTS.
1. A patent granted for a "new and useful improvement in making door and

other knobs, of all kinds of clay used in pottery, and of porcelain,” by having
the “cavity in which the screw or shank is inserted by which they are fastened
largest at the bottom of its depth, in form of a dovetail, and a screw formed
therein hy pouring in metal in a fused state," was invalid. Hoichkiss v. Green-

wood, 248.
2. The invention claimed in the schedule was manufacturing knobs as above de:

PATENT RIGHTS (Continued).

scribed, of potter's clay, or any kind of clay used in pottery, and shaped and finished by moulding, turning, burning, and glazing; and also of porcelain.

Ibid. 3. The knob was not knew, nor the metallic shank and spindle, nor the dovetail

form of the cavity in the knob, nor the means by which the metallic shank

tras securely fastened therein. Knobs had also been used made of clay. Ibid. 4. The only thing new was the substitution of a knob made out of clay in that pe

culiar form for a knob of metal or wood. This mi, it have been a better or

cheaper article, but is not the subject of a patent. Ibid. 5. The test was, that, if no more ingenuity and skill was necessary to construct

the new knob than was possessed by an ordinary mechanic acquainted with the business, the patent was void; and this was a proper question for the jury.

Ibid. 6. The decision of this court in the case of Hogg et al. v. Emerson, 6 Howard, 437,

reviewed and affirmed. llogg et al. v. Emerson, 587. 7. The specification of Emerson's patent " for certain improvements in the steam

engine and in the mode of propelling therewith either vessels on the water or carriages on the land,” constituted a part of the patent, and must be construcd with it. Anterior to 1836, the law did not imperatively require that the spe. cification be made a part of the patent, but the inventor had a right to advise the Commissioner of Patents to make the specification a part of the patent,

and it was peculiarly proper that he should comply with the request. Huid. 8. This court again decides, that the patent is sufficiently clear and certain, and

does not cover more ground than one 1. nt may cover. Only one is neces

sary for two kindred and auxiliary inventions. lbid. 9. The drawings which accompany the specification may be referred to for illas

tration. Within what time drawings ought to have been replaced, after the destruction of the Patent-Office by fire, so as to avoid the imputation of neg. ligence or of a design to mislead the public, was a question which was prop

erly left to the jury. Ibid. 10. The principles stated, within whose operation a jury can properly act in assessing

the maker of a patented machine. Ibid. PLEAS AND PLEADINGS. 1. Where an action was brought by the United States upon the official bond of a

receiver of public money, a plea that the United States had accepted another bond from the receiver was bad. The new bond could be no satisfaction for the damages that had accrued for the breach of the condition of the old one.

United States v. Girault 22. 2. Pleas, also, were bad, alleging that the receiver had made returns to the Treas.

ury Department, admitting that he had received money which the pleas as: serted that he never had received. They were bad, because they addressed themselves entirely to the evidence, which, it was supposed, the United States

would bring forward upon the trial. Ibid. 3. Besides, these pleas were bad, because the surcties in the bond were bound to

protect the United States from the commission of the very fraud which they

attempted to set up as a defence. Ibid, 4. The case of the United States v. Boyd, 5 Howard, 29, examined. Ibid. 5. Another plea tuking issue upon the breach should not have been demurred to.

The demurrer being general as to all the pleas, and had as to this one, judg.

ment was properly given against the plaintiffs in the court below. Ibid. 6. By the laws of Mississippi, where a joint action is brought upon a bond or note,

the case must be finally disposed of in the court below, with respect to all the parties upon the record, before it is carried up to the appellate court, otherwise

it is error. Ibid. 7. Where this error occurs, the practice of this court is to dismiss the case for want

of jurisdiction, and remand it to the court below to be proceeded in and finally

disposed of. Ibid. 8. Where a creditor brought an action against an executrix in the Circuit Court

of the United States for Louisiana, and the petition only averred that the petitioner was shown to be a creditor by the accounts in the State court which had jurisdiction over the estates of deceased persons, and then proceeded to charge the executrix with a devastavit, and exceptions were taken to the peti. tion as insufficient, these exceptions must be sustained. McGill v. Armour, 112. PLEAS AND PLEADINGS (Continued). 9. The petition should have gone on to allege further proceedings in the State

court analogous to a judgment at common law, as a foundation of a claim for a judgment against the executriz de bonis propriis, suggesting a devastavit

Ibid. 10. The laws of Louisiana provide for compelling the executrix to file a tableau of

distribution, which is a necessary and preliminary step towards holding the executrix.personally responsible. The petition, not having averred this, was

defective, and the exceptions must be sustained. Ibid. 11. Under what circumstances an assignee of a judgment, defending himself in

chancery, need not notice an allegation in the bill that a release of the judg

ment was improperly entered upon the record. Stockton v. Ford, 232. 12. The bankruptcy of the plaintiff prior to the time when he took the notes paya.

ble to himself was no legal defence to the action. He was one of the persons authorized to settle up the insolvent estate, and whether or not he accounted to his creditors for the proceeds was no question between him and the maker

of the notes. Randon v. Toby, 493. 13. The plea that the notes were given for African negroes imported into Texas

after 1833 was no legal defence. The creditor had no canection with the person who introduced the negrocs contrary to law. If the negroes had been declared to be free, the consideration of the noies would have failed; but the debtor still held them as slaves, and therefore received the full consideration

for his notes. Ibid. PRACTICE. 1. By the laws of Mississippi, where a joint action is brought upon a bond or note,

ihe case must be finally disposed of in the court below, with respect to all the parties upon the record, before it is carried up to the appellate court, other

wise it is error. United States v. Girault, 22. 2. Where this error occurs, the practice of this court is to dismiss the case for want

of jurisdiction, and remand it to the court below to be proceeded in and finally

disposed of. Ibid. 3. Although a bill of exceptions is imperfectly drawn, yet if this court can ascer

tain the substance of the facts, and the questions on which the judge instructed

the jury are apparent, it will proceed to decide the case. United States v. Mor4. Where a case is brought up by an appeal from a judgment on the common law side of the Circuit Court, instead of by a writ of error, it must be dismissed.

Ramsey, 185. 5. Where a judgment was rendered on the 25th of October, 1843, and a writ of

error allowed on the 19th of October, 18-18, but not issued and filed until the 4th of November following, more than five years had elapsed after rendering the judgment, and the writ of crror may be dismissed on motion. Brooks v.

Norris, 204. 6. It is the filing of the writ which removes the record from the inferior to the ap

pellate court; and thr day on which the writ may have been issued by the clerk, or the day on which it is tested, are not material in deciding the ques

tion. Ibid. 7. By the English practice, this error must be taken advantage of by plea; but ac

cording to the practice of this court, a party may avail himself, by motion, of

any defect which appears upon the record itself. Ibid. 8. According to the practice in Pennsylvania, where, a defendant pleads set-off, the

jury are allowed to find in their verdict the amount that the plaintiff is indebted to the defendant, and according to their mode of keeping records this result is entered by way of note; c. g. "new trial refused and judgment on the

verdict.” Reeside v. Walker, 272. 9. Although this may be a good record in the courts of Pennsylvania, it does not

follow that it is so in the courts of the United States. Ibid. 10. Where the United States are plaintiffs, they are not bound by such a verdict.

Ibid. 11. A motion on the part of the defendants in error for a rule upon the plaintiff in

error to file a copy of the record, overruled. Boyd v. Scott, 292. 12. A bill by the State of Florida against the State of Georgia ordered to be filed,

and process of subpæna directed to be issued against the State of Georgia. Florida v. Georgia, 293.

gan, 154.

Bevins v.

528.

PRACTICE (Continued). 13. A writ of error abated where the death of the plaintiff in error was suggested,

and leave granted to make proper parties at December term, 1846, represent

atives not yet having been made. Phillips v. Preston, 294. 14. Where a case was dismissed by this court for want of a citation, and the plain

tiff in error sued out another writ, and applied to this court for a supersedeas to stay execution in the court below, the application cannot be granted. Ho

gan v. Ross, 294. 15. This court is not authorized to grant a supersedens unless the writ of error

has been sued out within ten days after the rendition of the judgment, and in conformity with the provisions of the twenty-third section of the act of 1789.

Ibid. 16. The cases of Stockton and Moore v. Bishop (2 Howard, 74) and Hardeman r.

Anderson (4 Howard, 640) explained. Ibid. 17. In some of the States it is the practice, after the evidence for the plaintiff is

closed, for the defendant to pray the court to instruct the jury that ihere is no evidence upon which they can find a verdict for the plaintiff. This is equire alent to a demurrer to the evidence, and such an instruction ought to be given whenever the evidence is not legally sufficient to serve as a foundation of a

verdict for the plaintiff. Parks v. Ross, 362. 18. Where the writ, pleadings, and contract spoke only of Frederic D. Conrad, and

the judgment went against Daniel Frederic Conrad, the defendant, it was too late after verdict and judgment to assign the variation as error. Conrad .

Griffey, 480. 19. A day assigned for the argument, at the next term, of a cause upon the original

docket of this court. Pennsylvania v. Wheeling and Belmont Bridge Company, 20. The fifty-fourth rule of this court, requiring an appearance to be entered on or

before the second day of the term next succecding that at which the case is docketed, does not include an adjourned term; but applies only to regular

terms. Larman v. Tisdale's Heirs, 586. 21. In Texas, the common law has been adopted, but the forms and rules of plead

ing in common law cases have not; and although the forms of proceedings and practice in the State courts have been adopted in the District Court of the United States, yet such adoption must not be understood as confounding the principles of law and equity; nor as authorizing legal and equitable claims

to be blended together in one suit. Bennett v. Bulteruorth, 669. 22. The Constitution of the United States bas recognized the distinction between

law and equity, and it must be observed in the federal courts, although there

is no distinction between them by the laws of Texas. Ibid. 23. Where a petition was filed claiming certain negroes to whom the defendant set

up a title as being his own property, and the jury brought in a verdict awarding a sum of money to the plaintiff, which was released, and then the court gave judgment that the plaintiff should recover the negroes, these proceedings

were irregular, and the judgment must be reversed. lbid. 24. They cannot be assimilated to proceedings in chancery, or treated as such by

this court. There is nothing like a bill or answer as prescribed by the rules of this court, nor any statement of the evidence upon which the judgment

could be revised. Ibid. 25. The case must, therefore, be considered as a case at law, the rules of which re

quire that the verdict must find the matter in issue between the parties, and

the judgment must follow the verdict. Ibid. 26. Here neither was the case, and the crror being patent upon the records, the

judgment is open to revision in this court without any motion in arrest of

judgment being made or exception taken in the court below. Ibid. PRESUMPTIVE EVIDENCE.

See EVIDENCE. PRIZE

Sec NEUTRALS, Rights Op. SLAVES. 1. The increase or offspring of slaves belong to the owner of the mother. Fowler

v. Merrill, 375 2. The hire of slaves was properly charged as commencing when the prior mort

gagce filcd his bill for a foreclosure. Ibid.

TREASURY-NOTES. 2. Where a collector received trcasury.notes in payınent for duties, which were

cancelled by him, but afterwards stolen or lost, altered, and then received by him again in payment for other duties, he is responsible to the government

for the amount thereof. United States v. Morgan, 154. 2. So, also, he is responsible, to a certain extent, where treasury-notes were received

by him in payment for duties, cancelled, but lost or purloined (without his knowledge or consent) before being placed in the post-office to be returned to

the Department. Ibid. 3. And this is so, whether the notes be considered as money or only evidences of

debt by the Treasury Department. Ibid. 4. But the extent, above mentioned, to which his responsibility goes, is to be meas

ured by a jury, who are to form their judgment from the danger of the notes getting into circulation again, the delay and inconvenience in obtaining the proper vouchers to settle accounts, the want of evidence at the Department that the notes had been redeemed, or from any other direct consequence of the

breach of the collector's bond. Ibic.. WILLS. 1. Where a will contained the following expressions : " my estate to be equally

divided amongst my children,” and also, my lands and slaves to be equally divided amongst my children"; and had in it also the following clause : " to each of my daughters a small tract of land," — the last clause must be rejected as void and inoperative, and cannot be used for the purpose of showing such an ambiguity as would let in extrinsic testimony to explain the inten

tions of the testator. Weatherhead's Lessee v. Baskerville, 330. 2. When such testimony is introdnced, it must be of facts unconnected with any

general declaration or wishes expressed by a testator for the disposition of his property. In the present case, the testimony offered purported to express

those wishes, and was therefore inadınissible. Ibid. 3. Where the Circuit Court instructed the jury that they might consider the acts

of one of the daughters and her husband, in acquiescing in a partition, and in receiving“ a small tract of land," as a recognition of the true construction of the will to be, that the daughters were not entitled to an equal share, the acts of partition being accompanied by long adverso possession, say thirty or forty years, this instruction was erroneous. The daughter was a minor when she married, and continued covert until within a short time before she brought the suit. No presumption, arising from her acts, could therefore be made against

her. Ibid. 4. And a recognition by her, when frced from coverture, of a sale which she had

Juade in conjunction with her husband, amounted to no more than a ratifica

tion of that particular sale. Ibid. 5. So, also, an instruction was erroncous, that the jury might presume from the

evidence that there had been a legal partition of the testator's land in respect to his daughters, by order of a court, when the executor assigned to them certain parts of it. By the laws of the State where the lands were, such a

partition was a judicial act, and became a record. Ibid. 6. The doctrine of presumption as to records, or proving their existence aliunde,

explained. Ibid. 7. In the present case, the proof is that thu partition was not made by the order

of a court. Ibid. WRITS OF ERROR. Where a case is brought up by an appeal from a judgment on the common law

side of the Circuit Court, instead of by a writ of error, it must be dismissed. Bevins v. Rumsey, 185.

END OF VOLUME XI.

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