be upon the stocks, and although she had never reached the water, or might, by some casualty, never touch that element. This was simply a question of property arising out of the extent of power in an agent to dispose of it—a common every-day question of law. It is admitted that, the jurisdiction now asserted for the first time in this court-viz.: the jurisdiction in petitory suits-did not belong to the admiralty in England, or was not exercised by them for several hundred years at least; and that a recent statute in the present reign had been enacted expressly to confer that jurisdiction. It has also been said, that the jurisdiction thus recently authorized, had, in the olden time, existed in the admiralty, and had been restrained or forbidden only by the jealousy of the common lawyers. This appears to me to be an argument not founded upon the judicial history of the country, and one which is neither logical nor tenable. A reference to others of the highest and most venerable authorities, which might be added to that of Lord Hale already cited, demolishes entirely the foundation on which this argument is based. The argument is in itself illogical and illusory; for had this jurisdiction been even legitimate in the admiralty, it might doubtless have been vindicated and maintained in despite of an illegal and unfounded jealousy of the common lawyers. It never could have been forced to yield to so baseless an opposition. No authority so potent as that of an express statute could have been required, to create what not only already had being, but which was established and venerable from justice and from lapse of time. If the inhibition had been the mere creature of jealousy or prejudice, a returning sense of right and a conviction of public advantage, would, in this, as in other instances falling within the power of the courts, have corrected previous errors. The very fact of the enactment of a statute, such as that referred to, is strong evidence to show that the jurisdiction it confers had no previous, or rather no rightful, existence. watch and prevent its dangerous encroachments, and in all sincerity can, in contemplating the favor extended to those encroachments exclaim, hinc illa lachrymæ." For the jurisdiction here claimed for the admiralty, we are referred to the treatise of Mr. Arthur Brown, professor of civil law in Ireland. I have no recollection of having before seen or heard the doctrines of this professor recognized as authority; and with respect to his theories, it may justly be remarked, that if these are to be adopted as law, there is no excess of extravagance to be found in the exploded notions of Sir Leoline Jenkins, or anywhere else, which will not find an apology, nay, a full justification, in the book of this civil law doctor. If the theories of this professor are to be regarded as binding, his disciples may look forward, at no distant day, to an announcement from this bench, as there has been formerly from that of one of the circuits, of the doctrine, that a policy of insurance (a mere wager laid upon the safety of a vessel) is strictly and essentially a maritime contract, because, forsooth, the vessel had to navigate the ocean. It seems somewhat singular, however, that Mr. Brown should be appealed to in support of the authority now claimed for the admiralty, when in truth his book again and again ad· mits that such jurisdiction had been utterly repudiated in England as a sheer unsurpation, and may appropriately be styled a jeremiad over the lost authority and splendor of a system which he would exalt to the control of every other branch of jurisprudence. I object, in all cases, to the decision of questions not strictly in point, or which have not been regularly discussed, and not only mature.. ly but necessarily considered. If there is any one source of embarrassment more prolific than all others, it is this very practice. I cannot perceive the necessity nor the propriety of deciding matters in advance. The effect of such a practice is either the difficulty of getting clear of irregular and inapposite conclusions, or the sanction of them with the view of maintaining consistency whether right or wrong. A great portion of the admiralty jurisdiction now permitted in this country, may be traced to a dictum in argument in the case of The General Smith, 4 Wheat., p. 444, in the assertion of a doctrine which, if now for the first time discussed and examined, might not command the sanction of this tribunal. But it is said that no jealousy, like that once felt in England against the admiralty, exists in this country; and therefore, the inveterate powers ascribed to it formerly in England, are free and unfettered for its exercise in this country. This course of argument naturally suggests with me the following inquiries: What fetters or limitations are recognized as placed upon the admiralty jurisdiction in the United States? Freed from the checks and restraints imposed upon such a jurisdiction in that country, from which the system was transferred to us, what are the checks imposed upon it here? Are there any such checks? Does it, either in theory or in practice, recognize any such-how or where are they defined or ascertained? Has it any system at all, or is it left to the judgment or fancy of those who assume to exercise pow- ISRAEL KINSMAN AND CALVIN L. GODer under its name? Too true does it seem to me the case, that the ambitious and undefined pretensions of this branch of jurisprudence, have found greater favor here than in my view, is compatible with civil liberty, with public policy or private benefit; and hence I have been the more inclined to It is that tendency of error once countenanced or tolerated to grow into precedent, which has ever enjoined it upon me as a sacred duty to resist its approaches before they have been ma tured into power; and even the conviction of an inability to accomplish this result, is with me no dispensation from the duty of resistance. Cited 20 How., 308. DARD, Appts., v. STEPHEN R. PARKHURST. (See S. C., 18 How., 289–295.) Defense that patent is invalid, is not good in suit to account for sales-agent or joint owner can not avoid paying over money on the ground that it was received on an illegal contractagreement that one partner alone should conduct the business, not void as in restraint of tradeone partner could not secretly acquire outstanding right, as against other-too late to object to master's report for first time on appeal. were begun and carried on until the 9th day of February, 1846, at which time the parties entered into a new agreement, the substantial part of which was as follows: Where one has made and sold machines under the patentee's title and for his account, that the pat-ing and carding machines, which were inventent is invalid is no defense to patentee's right to an account for the proceeds. Where money has been received by an agent or joint owner, by force of a contract which was illegal, the agent or joint owner cannot protect himself from accounting for what was so received, by setting up the illegality of the transaction in which it was paid to him. Whereas the party of the first part has advanced moneys, and become responsible for various sums of money which have been expended in getting up machinery, and tools, and stock, &c., for the manufacture of burned by the said Farkhurst; one third part of which he sold and assigned to the party of the first part: Now, therefore, the party of the first part, in consideration of $1 in hand paid by the party of the second part, the receipt whereof is hereby acknowledged, hereby covenants and agrees, that, as soon as the profits which have accrued, and which may hereafter arise, from the manufacture and sale of the said machines, so invented by the party of the second part, and so made and sold by the party of the first part, shall be sufficient to pay all legal demands for the purchase of machinery, tools, &c., &c., and other expenses incurred by said party of the first part, then he, the said party of the first part, shall and will disconWhen agreement stipulates that defendant tinue the manufacture and sale of said mashould be accountable for $100 profit on each machines, invented as aforesaid, and that all ma chine sold, he takes the risk of bad debts, and must pay whether he collects or not. Argued Feb. 21, 1856. The invalidity of the patent does not render the sales of the machines illegal, so as to taint with illegality the obligation of the seller to account. It is competent for two joint owners of a patent, to stipulate in their partnership agreement that one of them should, alone, conduct the business. The partner selling could not secretly acquire an outstanding right to the patent and set it up against his partner. This is not in restraint of trade. If the master's report of amount due was too great it should have been excepted to. It is too late to object to it here for the first time. Decided Feb. 26, 1856. APPEAL from the Circuit Court of the United States for the Southern District of New York. The bill in this case was filed in the Circuit Court of the United States for the Southern District of New York by the appellee. The court below found for the complainant, and entered a final decree for $23,220.28 and The defendants brought the case here costs. on appeal. A further statement appears in the opinion of the court. Messrs. Keller and Platt for appellants. Mr. Justice Curtis delivered the opinion of the court: | chines which he shall manufacture and sell after this date should not be sold for a less profit than $100 each, and that he will be accountable for $100 profit on each and every machine made and sold from this day, unless he has the written consent of the party of the second part to sell at a less price.' The party of the second part, in consideration of $1 to him in hand paid by the party of the first part, the receipt whereof is hereby acknowledged, and also in consideration of the agreements aforesaid, hereby covenants and agrees with the party of the first part, that he will go on and manufacture the machines aforesaid as soon as the party of the first part discontinues the same, and that he will not sell any machine for a less profit than $100 without the written consent of the party of the first part, and that he will pay over to the party of the first part one third part and share of the said profits upon all machines which he makes and sells hereafter; and that, for any machines which he may manufacture, or have manufactured, before the discontinuing of the building of the same by the party of the first part, shall be subject to the same restrictions of selling for at least $100 profit on each machine, one third of which shall be paid to the party of the first part.' This is an appeal from a decree of the Circuit Court of the United States for the Southern District of New York, in a suit in equity brought by the appellee, Parkhurst, against the appellants. The bill states, and the proofs show, that Parkhurst, being the owner of the letters patent for improvements in the machine for ginning cotton and wool, on the 22d of May, 1845, entered into a written agreement with Kinsman, the substance of which was, The original and supplemental bills aver, that Parkhurst was to be the owner of two that under this agreement Kinsman prosecuted thirds, and Kinsman of one third. of the let the business, and not only reimbursed himself ters patent; that the business of manufacturing for the cost of the machinery, tools, &c., and and selling the patented machines should be car- all his other advances, but, in violation of his ried on by the parties on their joint account, agreement, continued the manufacture and in the proportions of two thirds and one sale of the machines, so as to receive large third, Kinsman giving his personal atten- profits, of which it prays an account, and also tion to the business, and advancing a sum an injunction to restrain the further making not exceeding $1,000 for the purchase of machinery, stock, &c., for which advance he was to be repaid out of the first profits of the business. Kinsman was to pay Parkhurst $2,000 in cash, and give his note for $1,000, payable in sixty days. Under this agreement, the manufacture and sales of the machines or vending of the machines in violation of the agreement. A temporary injunction was ap plied for and obtained on the third day of July, 1847. On the 29th day of June, 1847, Kinsman made a transfer to the appellant, Goddard, who was then a clerk in his em ployment, of the tools, stock, &c., used in the manufacture; and after Kinsman was enjoined, Here, however, as already observed, there the business was carried on in Goddard's name. was no illegality; it is simply a question of A supplemental bill was then filed, making | failure of title, and as that does not appear in Goddard a party, charging him with notice of any manner to have affected the profits which all the complainant's rights at the time of the the defendants received, there can be no transfer to him, alleging the transfer itself to ground to allow it to be shown in defense. have been only colorable, and praying an ac Bartlett, Adm'r, v. Holbrook, 1 Gray, 114; count and decree as against him and Kinsman. Wilder v. Adams, 2 Wood. & M., 329, are in The Circuit Court made an interlocutory de- point. cree, declaring Parkhurst's right to an account, referring the cause to a master, to take and state the accounts, directing the master, in taking the accounts, to ascertain and report the number of machines made and sold by Kinsman and Goddard, or either of them; the advances made by Kinsman and Goddard, or either of them; and charging a profit of $100 on each machine sold. The master reported; and his report not being excepted to, was confirmed, and a final decree made, that Kinsman and Goddard should pay to the complainant the amount_reported by the master to be due from them. From this decree the appeal now before us was taken. The principle objection made by the appellants to the decree of the court below is, that Parkhurst was not the original and first inventor of the thing patented. We are not satisfied that this is made out. But we have not found it necessary to come to a decided opinion upon this point, because we are all of opinion that, under the agreement of the 9th of February, 1846, the invalidity of the patent would not afford a bar to the complainant's right to an account. Having actually received profits from sales of the patented machine, which profits the defendants do not show have been or are in any way liable to be affect ed by the invalidity of the patent, its validity is immaterial. Moreover, we think the defendants are estopped from alleging that invalidity. They have made and sold these machines under the complainant's title, and for his account; and they can no more be allowed to deny that title and retain the profits to their own use, than an agent, who has collected a debt for his principal, can insist on keeping the money, upon an allegation that the debt was not justly due. Similar views are decisive against the objection that this was a contract in restraint of trade. It was certainly competent for two persons, being joint owners of letters patent, whether valid or invalid, to enter into a copartnership for the manufacture and sale of the patented machines, and to stipulate that one of them should alone conduct the business. This was a provision for the prosecution of the business in a particular mode, and not for its restraint. It is a very common and not an illegal stipulation in partnership articles, that neither partner shall carry on that business for which the partnership is formed, outside the partnership and for his own account. Besides, if the contract to refrain from the manufacture could not be enforced, as being against public policy, this would afford no answer to a claim for an account of profits actually realized by prosecuting the business, there being no connection between the illegal stipulation and the profits of the business. It was insisted by the appellants that they did not act under the complainant's title, but under some right acquired from one Sargent. We are not satisfied that Sargent had even an inchoate right to a patent for the machines which the appellants made and sold. But even if he had, the defendant, Kinsman, could not secretly acquire the outstanding right of Sargent, if any, and set it up against his joint owner, Parkhurst, in derogation of his rights under the agreement of the 9th of February, which Kinsman entered into with knowledge of this alleged title of Sargent; and Goddard is bound by the same equities, for he not only purchased pendente lite, and with actual notice of the suit, but we are satisfied the sale to him was made to enable Kinsman to attempt to evade the injunction. The appellant, Goddard, objects that he has been charged by the final decree, jointly with Kinsman, for the profits on sales of machines made before the transfer to him by Kinsman. If this be so, it arises from the report of the master, who was directed by the interlocutory decree to report the sales made by Kinsman and Goddard, or either of them, and the advances and expenditures of them, or either of The invalidity of the patent does not render the sales of the machine illegal, so as to taint with illegality the obligation of the defendants to account. Even where money has been received, either by an agent or a joint owner, by force of a contract which was illegal, the agent or joint owner cannot protect himself from accounting for what was so received, by setting up the illegality of the transaction in which it was paid to him. Thus, where a ves-them. sel engaged in an illegal trade carried freight which came into the hands of one of the part owners, and on a bill filed by the other part owner for an account, the defendant relied on the illegality of the trade, but it was held to be no defense. Sharp v. Taylor, 2 Phil. Ch., 801. So in Tenant v. Elliot, 1 B. & P., 3, the defendant, an insurance broker, having effected an illegal insurance for the plaintiff, and received the amount of a loss, endeavored to defend against the claim of his principal by showing the illegality of the insurance, but the plaintiff recovered. See, also, McBlair v. Gibbes, 17 How., (53 U. S.) 236. If his report, was in this or any other particular erroneous, it was incumbent on the defendants to have pointed out the error by an exception filed pursuant to the rules of the court on that subject. But no exception was filed, the report was confirmed, and the final decree was drawn up and entered without objection by the appellant, Goddard, reciting that it appears by the report of the master that the sum of $23,220,23 is due and owing by Kinsman and Goddard to Parkhurst, and thereupon proceeds to decree them to pay that sum. When a motion to dismiss the appeal was made at a former day, on the ground that the master's report not having been excepted! to, and the appellants not having objected to the final decree, there was nothing open on this appeal, the appellant's counsel declared that the appeal was designed only to review the interlocutory decree which had decided the merits of the cause, and that, unless error was found therein, there was no ground for the appeal. The motion to dismiss the ap peal was overruled, the court being of opinion that it was open to the appellants to review the decision made by the interlocutory decree. But the interlocutory decree does not direct the master to charge Goddard and Kinsman jointly with profits on sales made by Kinsman alone. If the master put such an interpretation on the decree, it was an erroneous interpretation, and should have been brought be fore the court below by an exception. It is too late to object to it here, for the first time. The appellants also insist that they were charged with profits not actually received, by reason of the failure of the purchasers to pay, and other causes. But this was in accordance with the agreement of the 9th of February, which stipulates that Kinsman shall be accountable for $100 profit on each machine made and sold by him. By force of this stipulation, he and Goddard, who acted with him under this agreement, took the risk of bad debts. It appears, from the master's report, that evidence tending to show that some of these losses were attributable to the interference of Parkhurst was offered to the master and rejected by him. But no exception having been taken to bring this point before the Circuit Court, it is not open here. We have considered all the objections to the decree of the Circuit Court, and finding them un. tenable, we order the decree to be affirmed, with damages and costs. Cited 5 Blatchf., 255. JAMES L. RANSON, Plaintiff in Error, v. WILLIAM WINN AND ISABELLA DAVIS, Administrators of THOMAS I. DAVIS, Deceased. (See S. C., 18 How., 295-297.) Petition to be made party to a suit-master's report to be made and excepted to, and exceptions decided, in order to review. Where a creditor of an intestate filed a petition, praying to be made a party to a suit pending, no answer was put in, nor does any part of the original bill or any proceeding in that suit appear on the record: Held, that the proceeding is irregular and cannot be sustained. Where a chancery suit involves matters of account, the action of a master should be had in the inferior court, and the items admitted or rejected should be stated, so that exceptions may be taken, and such case should be brought before this court on rulings of the exceptions by the Circuit Court. Argued Feb. 15, 1856. Decided Feb. 26, 1856. PPEAL from the Circuit Court of the There is no original bill of any sort, and no answer of any sort; no process showing the pendency of any suit, nor any agreement of counsel, dispensing with those material parts of the record. The petition is entitled as follows: WILLIAM S. HENIMAN v. ISABELLA DAVIS and WILLIAM In chancery. The appellees submit that the order of the court below, dismissing Ranson's petition to be made a party in this suit, should be affirmed. Mr. Justice McLean delivered the opinion of the court: This is an appeal from the Circuit Court of the United States for the District of Columbia. The proceedings on which the appeal was taken were had on a petition of the appellant, Ranson, in the Circuit Court of the district, stating that he was the creditor of the intestate for $8,113.48, a balance due on merchandise furnished, and other matters of account. account was filed with the petition, showing the items charged, and he prayed to be made a party in a suit pending; and he adopts the allegations and prayers of the bill, and calls upon the defendants to answer, &c. An No answer was filed by the defendants, nor does any part of the original bill to which reference is made, or any proceeding in that suit, appear on the record. An account is stated of the value of produce purchased by Ranson, and forwarded to Thomas J. Davis, and priced as of the 28th May, 1847, which, in the whole, amounted to $31,879.80. The entire expenditure in purchasing the produce, including losses, amounted to the sum of $21.280.43, leaving a profit of $10,599.37. A further account is stated in detail of purchases of grain amounting to a large sum. An auditor was appointed by the court, who, in a long report, states the correspondence between Ranson and Davis, which conduces to show that Ranson was engaged in purchasing wheat and other grain, to be forwarded to Davis, who owned a mill in Georgetown. Exceptions were taken to the report of the auditor. and the court ordered that the cause be again referred to him, with instructions to take such testimony as may be offered by Ranson, on the points mentioned in his affidavit filed in the cause, and that he report to this court, as soon convenient, the substance of such testimony, and what changes, if any, such additional testimony may render proper in the report heretofore made by said auditor in reference to said claim. as The auditor returned the additional testimony which he took, but made no alteration in his former report. It was admitted in the argument that the estate of Davis was insolvent, and the object of Ranson seemed to be, to enforce his claim against the estate of Davis in preference to other creditors. From the record, the nature of the suit, in A United States for the District of Columbia, which Ranson prayed to become a party, does The case is stated by the court. Mr. W. S. Coxe for the appellant. Messrs. J. Marbury and H. Winter Davis, for the appellees: not appear. It may have been a suit by other creditors, but no notice is taken of them in the subsequent proceeding, nor is there any pleading except the petition to be made a party. This proceeding is irregular, and cannot be sustained. The exceptions to the report of the auditor were overruled by the Circuit Court, and the petition of Ranson was dismissed. Where a chancery suit involves matters of account, the action of a master should be had in the inferior court, and the items admitted or rejected should be stated, so that exception may be taken to the particular items or class of items, and such a case should be brought before this court on the rulings of the exceptions by the Circuit Court. The bill is dismissed at the plaintiff's costs, without prejudice. JOHN DOE, ex dem. JAMES B. McCALL, v. Messrs. David M'Donald and George Ricard v. Williams, 7 Wheat., 59; Jackson v. Doe v. West, 1 Blackf., 133; Robinoe v. Doe, 6 "In such a case, it is incumbent on a party setting up the defense to establish the existence of such an outstanding title beyond controversy." Greenleaf's Lessee v. Birth, 6 Pet., 312; Jackson v. Hudson, 3 Johns., 375; Jackson v. Todd, 6 Johns., 257. We think that no court can examine the transcript in question without being convinced that there was fraud in it. But the defendants insist that a fraudulent decree cannot be attacked collaterally. The contrary is decided in Fermer's case, Co., 77; WILLIAM CARPENTER AND JOHN A. see, also, Kennedy v. Daly, 1 S. & L., 355; REITZ. (See S. C., 18 How., 297-307.) Deed may be impeached, although basis of title in former action where parties were non resi dents and infant, and no judgment on the deed having been given—not res judicata-judgment only conclusive on matter involved-cannot conclude party who had no interest. In action of ejectment it is competent for plaintiffs to impeach a deed, although some defendants claimed under the same deed in a former action of partition, between same parties, two of the plaintiffs in ejectment having been non-residents and not having appeared, and another, an infant when the partition suit was pending, and no judgment having been given or question involved upon the deed in the partition suit. The right of the plaintiffs to impeach the deed was not involved in the partition suit so as to be deemed res judicata. Proceedings in partition are not appropriate for a litigation between the parties in respect to title. A judgment is conclusive between the parties only upon a matter legitimately within the issue, and necessarily involved in the decision. Two of the defendants in the partition suit, plaintiffs here, were non-residents of the State, and neither appeared nor were served with process. As to them the proceedings were purely in rem, and the decree acted only on the res or subject matter, and only upon such interest as was shown in the bill. Philipson v. Earl of Egremont, 6 Q. B., 537, 605; 2 Blackf., 103; 1 Carter, 133; Broom. Leg. Max., 577. Mr. C. Baker, for defendants in error: The defendants insist that the plaintiff's prima facie case was rebutted by them in two ways: 1. By proof of a subsisting outstanding title in the original patentees of the land 2. By showing that the rights of the lessors of the plaintiff were not concluded by certain proceedings of the Vandenburg Circuit Court to which they were parties, and the record of which was given in evidence by the defend ants. In ejectment the plaintiff must recover on the strength of his own title, and not on the weakness of his adversary. Eldon v. Doe, 6 Blackf., 344. The judgment or decree of the court having jurisdiction is conclusive upon the rights of the parties thereto, and cannot be impeached collaterally. Horner v. Doe, 1 Cart. (Ind.), 133; Doe v. Smith, 1 Cart. (Ind.), 460; Carpenter v. Doe, 2 Cart. (Ind.), 465; Doe v. Rue, 4 Blackf., 263; Grignon's Lessee v. Astor, 2 How., 339; 10 Pet, 449. It is also objected that two of the defendants were infants, and a decree was taken against them without proof. Such a decree is erro Those proceedings may conclude the question of partition from being afterwards agitated, but they cannot conclude the title of even a party to them whom the proceedings themselves show had no in-neous. terest or concern in the question of partition. (Mr. Justice CURTIS, apprehending that one of his connections is interested in the subject matter of this case, did not sit therein.) Submitted Jan. 15, 1856. Decided Feb. 26. 1856. ERROR to the Circuit Court of the IN to the Circuit of The case is stated by the court. NOTE.-When a deed is void for fraud, insanity, drunkenness, duress, undue influence, imbecility, infancy, or fraud on marriage, from ward to guardian, from cestui que trust to trustee, from heir to executor. See note to Harding v. Handy, 11 Wheat., 103. Service of notice to appear and defend, when necessary to validity of a judgment. See note to Hollingsworth v. Barbour, 4 Pet., 466. Estoppel by recitals in deed, will or other instrument. Effect of recitals generally. See note to Carver v. Jackson, 4 Pet., 1. 8 Blackf., 273, 300; 2 Carter, 161. It is also objected, that on a bill for partition, it is not competent for a court of equity to try a question of title. This is not the law in Indiana. 5 Blackf., 335. Mr. Justice Nelson delivered the opinion of the court: This is a writ of error to the Circuit Court of United States for the District of Indiana. The suit in the court below was an action of ejectment by the plaintiffs to recover the possession of certain town lots in the City of Lamasco. They proved on the trial that their father James B. McCall, was the owner of an undivided fourth of a certain part of said City, and had been in the possession of the same, and |