ERROR to the Marion Court of Common Pleas. GOOKINS, J.-This cause originated before a justice of the peace, where Wilson, the plaintiff below, had judgment, from which Merrill appealed. Trial by the Court, finding for the plaintiff, motion for a new trial overruled, and judgment.

The record contains all the evidence, from which it appears that a subscription had been taken for the purpose of building a house for Mrs. Olive, a widow, whose husband had been killed on the Madison and Indianapolis railroad; that Merrill was the active man in collecting the subscription, and in disbursing it in the erection of the house. On the 15th of May, 1848, he sent the following order to the plaintiff, who had a saw-mill on the railroad, near Edinburgh, in Johnson county: "A. Wilson: Please furnish for Mrs. Olive six oak posts;" and on the 20th of May, the lumber not having arrived, he wrote to the plaintiff as follows: "Mr. Wilson: If you possibly can, please send up the bill of lumber for the widow on Monday, as I wish to have her house commenced immediately. You may add, if you please, what will make two sills thirty feet each, and two end sills fifteen feet each; also, two plates thirty feet long. May 20. Yours, S. Merrill." The lumber soon after arrived, and was applied to the use for which it was ordered. It came loaded on a car, with other lumber of Wilson, on which freight was charged; but no freight was paid on that which was designed for Mrs. Olive's house.

The plaintiff in error insists that this evidence shows that the lumber was ordered for Mrs. Olive, and not for himself; but we do not think so. It is true the first order requests Wilson to furnish a portion of the lumber "for Mrs. Olive." It is very commonly the case that an order for goods shows that they are designed for some other person than the drawer. An agent must disclose his agency to the person with whom he deals, otherwise he will be held liable as a principal. Possibly it may be inferred from the language of the orders, that Wilson had some knowledge of the benevolent object in which Merrill was

May Term, engaged, but there is nothing to justify the inference that 1855. he was expected to furnish the lumber as a gratuity, nor MCKERNAN that he gave credit to any other person than Merrill for it. The fact that the lumber was carried free of charge shows that the railroad company contributed to the object, but does not strengthen the defence.

V.

HITE.

The judgment, however, must be reversed. The plaintiff offered no proof of the value of the lumber.

Per Curiam.-The judgment is reversed with costs. Cause remanded, &c.

J. L. Ketcham, for the plaintiff.

Tuesday,
June 12.

McKERNAN v. HITE and Another.

To render the assignment of a patent valid, under the act of congress approved
July 4, 1836, it is not essential that it shall have been recorded.

APPEAL from the Grant Court of Common Pleas. GOOKINS, J. McKernan, as the assignee of Parker, brought an action before a justice of the peace, against Hite and Inman, on a promissory note. On appeal to the Common Pleas there was a trial and judgment for the defendant.

The defence set up was, that the note was given to compromise a claim set up against the makers, for the infringement of a patent right which Parker, the payee, alleged he held as assignee; and that his deed of assignment had not been recorded.

It was proved on the trial that the person who took the note from the makers, represented himself to be Parker's agent; and that he threatened to sue them for an infringement of the patent; and that the note was given to settle the controversy. The deed of assignment to Parker was proved; but there was no evidence that it had been recorded.

V.

HITE.

It was held by this Court in Higgins v. Strong, 4 Blackf. May Term, 182, that under the 4th section of the act of congress of 1855. February 21, 1793, the recording of the assignment of a MCKERNAN patent, in the office of the secretary of state, was essential to the validity of the assignee's title. See also Mullikin v. Latchem, 7 Blackf. 136. The language of that statute is as follows: "And the said assignee, having recorded the said assignment in the office of the secretary of state, shall thereafter stand in the place of the original inventor, both as to right and responsibility, and so the assignee of assigns, to any degree." 1 U. S. Statutes at Large, 322, sec. 4.

That act is repealed by an act approved July 4, 1836, the 11th section of which is as follows: "Every patent shall be assignable in law, either as to the whole interest, or any undivided part thereof, by an instrument in writing; which assignment, and also every grant and conveyance of the exclusive right, under any patent, to make and use, and to grant to others to make and use, the thing patented, within and throughout any specified part or portion of the United States, shall be recorded in the patent office, within three months from the execution thereof." Statutes at Large, 121.

5 U. S.

We are not aware that any construction has been put upon this section by the Supreme Court of the United States; but the Circuit Court has in several cases held that recording was not essential to the validity of the assignee's title. Pitts v. Whitman, 2 Story's R. 609.— Boyd v. McAlpin, 3 McLean 427.-Case v. Redfield, 4 id. 526. By the former act the assignment was not operative for any purpose, until recorded. By the latter, it would be valid for three months at least, without recording; and we know of no principle upon which a legal title, once vested, would, as between the immediate parties, be divested by an omission to put the deed upon record. In Boyd v. McAlpin the doctrine of notice of an unrecorded conveyance was said not to apply, and that a subsequent assignee who first had his assignment of the same right recorded, would have priority, whether he had notice of the previous assignment or not. If that rule prevails, it will

SHORT

V.

SCOTT.

May Term, relieve the subject of much difficulty which would other1855. wise result from the vending of patent rights throughout so large a territory as the United States. No doubt there are great facilities for imposition in the sale of these rights; and the subject ought to be so guarded as that the people may generally avail themselves of inventions and improvements which are really valuable, and at the same time be protected, as far as may be, from fraud and imposition. We do not see that the subject is susceptible of any greater degree of certainty than would be furnished by reference to the records of the patent office, where the prior record would show the prior right, to which the purchaser might always refer before buying. Upon general principles, as we have said, the assignment, without recording, would transfer the right; and we do not see any sufficient reason for not applying the principle here.

The Court erred in holding the assignment void without evidence that it had been recorded, and the judgment must be reversed.

Per Curiam.-The judgment is reversed. Cause remanded, with instructions to the Court of Common Pleas to grant a new trial, with costs to abide the event of the suit. D. Kilgore and J. Brownlee, for the appellant. J. M. Wallace, for the appellees.

Tuesday,

June 12.

SHORT V. SCOTT.

Where the verdict is supported by the weight of evidence, it is immaterial what instructions the Court gave to the jury.

In trespass before a justice of the peace, under the R. S. 1843, the damages laid in the conclusion of the declaration constitute the amount of the plaintiff's claim, in determining the justice's jurisdiction.

ERROR to the Whitley Circuit Court.

STUART, J.-Scott sued Short in trespass, before a magistrate. Trial by the justice, and judgment for the defen

dant. Scott appealed to the Circuit Court, where there was a trial by jury, and a verdict and judgment for Scott for 25 dollars. Motion for a new trial, made at the proper time, overruled, and the evidence made part of the record by bill of exceptions.

From this evidence we are satisfied with the verdict. Hence, the verdict being right on the weight of evidence, the law of the case as given by the Court to the jury is wholly immaterial. Muirhead v. Snyder, 4 Ind. 486.— Rogers v. Maxwell, id. 243.

But there is another question in the case not free from difficulty. It relates to the jurisdiction. The cause of action contains three counts. The first is for killing a dog of the value of 45 dollars. The second is for killing a deer of the value of 5 dollars. The third is for killing a certain other dog of the value of 45 dollars, concluding with alia enormia against the peace of the state, and to the damage of the plaintiff of 50 dollars. The jurisdiction of justices, under the law then in force, was limited thus: In actions of tort, wherein the damages demanded, or the value of the property claimed did not exceed 50 dollars. R. S. 1843, p. 862.

And the question is, did this cause of action show a want of jurisdiction in the justice?

In Bainum v. Small, 4 Ind. R. 49, the very same question was presented. There were, in that case, two counts in the cause of action, and each count concluded to the damage of the plaintiff 50 dollars. The Court held that the sum demanded being 100 dollars, ousted the jurisdiction.

Markin v. Jornigan, 3 Ind. 548, was an action of replevin. The cause of action consisted of two counts. The value of the property was laid in each count at 40 dollars. At the close of each count, damages were claimed to the amount of 20 dollars, making the entire damages laid 40 dollars, a sum within the jurisdiction of the justice. But the Court held that the value of the property claimed in the declaration was 80 dollars; and that, consequently, the Court below had no jurisdiction.

May Term, 1855.

SHORT

V.

SCOTT.