fourths of the legal voters had petitioned them to take stock in a railroad company,
and they had resolved to do so, but before the bonds were issued the State court had
decided that the law conferred on them no such authority, it was competent for the
legislature to authorize the council to ratify their former act and make the contract
valid. Bissell v. The City of Jeffersonville, 24 H. 287......126.
11. Where the council, after the passage of the act, ratified the former contract, and
recited that it was based on a petition of three-fourths of the legal voters, their act
was conclusive against the city in a suit upon these bonds or their coupons by in-
nocent purchasers of them for value. Ib.
12. In such case the law vested in the council the power to determine whether the
requisite number of voters had petitioned for the subscription to the railroad stock;
and in a suit by the innocent holder it is not admissible to prove by extrinsic testi-
mony that the required number had not petitioned. Ib.
1. A surety in an official bond is liable only as regards his principal's accounting for
money actually received by him during his term of office, and cannot be held for
money paid by the government to his agent after the term of his office has expired.
Bryan v. The United States, 1 Black, 140......402.
2. Nor can the surety be held liable upon the hypothesis, unsupported by evidence,
that his principal had raised money on the anticipation of drafts for which he had
made requisition, but which drafts had not been received by him prior to the expi-
ration of his term, and of which there is no evidence that he or his agent ever did
receive them or their proceeds. Ib.
1. The members of a joint stock association for dealing in lands are partners; and the
interest of one partner is subject to levy and sale, under execution, in the same man-
ner and with like effect as partnership personal property. Clagett v. Kilbourne, 1
Black, 346......494.
2. In such case, the purchaser takes only the interest of the partner, subject to an
accounting and adjustment of the partnership dealing. Ib.
3. Such a purchaser cannot maintain ejectment for the land. His remedy is by a bill
in equity for a settlement of the affairs of the joint stock company, and perhaps for
partition. Ib.
4. A member of a mercantile firm may make a contract for his individual services with
a third person in whom his partnership has no interest; and his conducting the cor-
respondence through the partnership, and even his agreement to give his partners an
interest in that particular business, does not prevent him from sustaining an action
in his own name for the services rendered under the contract. Law v. Cross, 1 Black,
533......592.
5. Where the property of A, B, and C, partners, was attached on mesne process, and
delivered up on a bond conditioned for its production if judgment should be obtained
against the defendants, and the suit was afterwards dismissed as to A and B for
want of jurisdiction, and judgment against C's administrators: Held, that the sureties
were liable, because the judgment was recovered for the partnership debt, and the
partnership property was released by virtue of the bond. Inbusch v. Farwell, 1 Black,
566......610.
6. That by reason of the act of February 28, 1839, suit may be maintained against
part of the obligors in the bond in the federal court, though another obligor is beyond
the reach of the court's jurisdiction and is not served. Ib.
1. A specification and claim in a patent which describes only such machinery as had
been formerly used in the same manner, cannot be made valid by a new use or ap-
plication to an enlarged operation. If the adaptation of the machine to a new use
is matter of invention, it should be claimed, and the new means by which it is so
adapted set forth in the specification or claim. Phillips v. Page, 24 H. 164......48.
2. It is only necessary, in notice of prior use, to give the name of the party, his place
of residence, and the place of prior use. A notice, therefore, which gives the date of
prior use does not limit the party to that date in his proof. Ib.
3. A patent surrendered for the purpose of a reissue, under the 13th section of the act
of July 4, 1836, is a legal cancellation of it, and in judgment of law extinguishes it.
Moffitt v. Garr, 1 Black, 273......468.
4. To a suit commenced before such a surrender, a plea that since the commencement
of the action the plaintiff has surrendered his patent and obtained a reissue, is a valid
defense. Ib.
5. But it does not follow that money paid under the former patent can be recovered
back. They may be voluntary payments, or, if under judgments, are protected as
res judicata. Ib.
6. The patent, for an infringement of which this suit is brought, is for a combination,
and the declaration is for an infringement of the patent as described in that in-
strument. Plaintiff cannot in such case, when it is shown that defendant did not
use part of the combination, rely upon the fact that such part is of no value in the
combination. Vance v. Campbell, 1 Black, 427 .....530.
7. Having both in his patent and in his declaration set out his combination as an entirety,
he is bound by it, and cannot charge as an infringement anything less than the use
of the whole. The 9th section of the act of 1837 (5 U. S. Statutes, 194) has reference
to a claim of more than the patentee invented, in a case where the part invented can
be clearly distinguished from that which he has not. Ib.
8. A contract by one with an inventor, engaging his services and ingenuity in perfect-
ing a machine for his benefit, gives him no claim to an improvement made after the
expiration of that contract. Appleton v. Bacon & North, 2 Black, 699......806.
9. And when, by some mistake or irregularity, the patent which was applied for by the
inventor for this improvement has been issued to his former employer, the patent
must be surrendered and canceled. Ib.
1. It is an elemental principle of the common law, where a contract is jointly payable
to several, a defendant can take advantage of the non-joinder of all the obligees by
demurrer or in arrest of judgment on the general issue. Farni v. Tesson, 1 Black,
309......477.
2. The objection is not obviated by an allegation in the declaration that plaintiff's is
the sole beneficial interest in the bond, the others being sheriffs, agents, and mere
nominal obligees. Ib.
3 This principle of the common law, though technical, cannot be disregarded by the
federal courts without the aid of a statute. Ib.
4. In a suit by the vendor on a contract to make a good title for the purchase money,
it is not a sufficient averment that he had been ready and willing to make a deed.
It is necessary that it should be also averred that such a deed would convey a good
and perfect title. Washington v. Ogden, 1 Black, 450......542.
See BANKS AND BANKING, 2; EJECTMENT 1; EQUITY, PRACTICE, 2.
PRACTICE IN CIRCUIT COURT.
1. It is not error in a federal court of original jurisdiction to permit, on proper showing,
a plea in bar to be withdrawn, and a plea to the jurisdiction, to wit, want of proper
citizenship, to be filed. Such a course is proper, and is also the exercise of a dis-
cretion not reviewable in this court. Eberly v. Moore et al., 24 H. 147......43.
2. To an action of replevin, a plea that the goods and chattels replevied are not the
property of the plaintiff, is good in bar of the action. Dermott v. Wallach, 1 Black,
96......382.
3. It is error to go to trial and take a verdict that there was no rent in arrear, and render
judgment thereon, paying no attention to the plea of no property in plaintiff. Ib.
4. In such case the judgment must be reversed as a mistrial, and a new trial ordered. Ib.
5. The court comments severely on the practice of incorporating large masses of evi-
dence, including all offered or given, and, on general exceptions, to the charge of the
court. Johnston v. Jones, 1 Black, 210......440.
6. The federal courts follow the State courts as to rules of evidence, including compe-
tency of witnesses, when there is no act of congress to the contrary, and in Ohio, where
plaintiff was offered and was by the law of that State competent as a witness, his rejec-
tion is error, for which the judgment must be reversed. Vance v. Campbell, 1 Black,
427......530.
7. When the testimony which this witness would have given is not disclosed, this court
cannot presume it was immaterial to save the judgment. Ib.
8. The court is not bound to give or refuse every one of a long series of instructions for
the jury prayed for by a party. If it appear that the law was sufficiently explained
to the jury, and the law as given was sound, there is no error on which it can be
reversed for refusing instructions asked. Law v. Cross, 1 Black, 533......592.
9. This court reasserts the doctrine that where the statutes of a State have made a party
to a suit a competent witness in his own behalf, the federal courts are bound by the
law when sitting within that State. Wright v. Bales, 2 Black, 535......806.
10. Where a bill of exceptions shows on its face that exceptions were taken at the time
of the ruling of the court, it is immaterial as to what time during the term they were
reduced to writing and signed by the judge and filed with the clerk. Russell v. Ely,
2 Black, 575......837.
11. Where the question is as to the accounting for supplies, and the report of the master
merely found the amount due, without stating an account, this court will not reverse
such a finding. The appellant should have had a new reference to the master, with
directions to state an account, and to report evidence, to which, if he objected, he could
file exceptions. The Ship Potomac, 2 Black, 581......842.
12. That libelant had some one included with him in the furnishing of supplies is no
ground for reversing the decree in his favor. Ib.
13. The federal courts adopt the decisions of the State courts in construing State stat-
utes as the law of such cases; and where these courts have varied, this court accepts
the latest decision of the highest court of the State as a sound one. Leffingwell v.
Warren, 2 Black, 599...... 854.
14. The supreme court of Wisconsin having decided that a tax deed, however defective,
is, when recorded, color of title, so as to sustain the limitations of three years' pos-
session under it as a bar to any action by the true owner, this court is bound by that
decision. Ib.
15. It is therefore immaterial, in such case, that the tax deed is void on its face if it
shows a sale and the tax was unpaid. Ib.
See BANKS AND BANKING, 2; EJECTMENT, 1, 2, 3, 4, 5, 6, 7.
PRACTICE IN SUPREME COURT.
1. Where a rule, either at common law or in equity, issues from this court in the exer-
cise of its original jurisdiction against a State, it should be served upon the governor
or chief magistrate of the State, and upon its attorney general. Kentucky v. Denni-
son, 24 H. 66......10.
2. Where a judgment is recovered in ejectment against a tenant, his landlord having
defended the suit, can take a writ of error in the name of the heirs of the tenant
after his death, and they cannot have the writ dismissed if the landlord will give a
bond to protect them against costs. Kellogg v. Forsyth, 24 H. 188......64.
3. Where the question is of the jurisdiction of this court over a judgment of a State
court, it may be determined from an examination of the pleadings, bill of exceptions,
or certificate of that court; but the assignment of errors and the published opinion
of the court make no part of the record, to which alone this court can resort. Med-
berry v. State of Ohio, 24 H. 413......204.
4. Service of citation on a writ of error, where the defendant in error is dead, cannot
be legally made on the widow or executor of his attorney in the court below, who is
also dead. Bacon v. Hart, 1 Black, 38......347.
5. Nor is it sufficient that it was served on the law partner of the deceased attorney,
unless the name of the latter appeared of record as attorney in the case.
This court
does not take judicial notice of law partnerships in practice in the courts. Ib.
6. Where an appellant, after he had taken exception to the amount of damages in the
master's report, had admitted the amount to be correct, for the purpose of making the
sum sufficient for allowance of an appeal, he will not be heard in this court to contro-
vert that amount. The Steamer New Philadelphia, 1 Black, 62......361.
7. Under proper circumstances this court will award a certiorari even at the third term
after the appeal is filed, but will not permit it to delay the hearing. Clark v. Hackett,
1 Black, 77......371.
8. It is no sufficient ground to dismiss a writ of error, on motion in this court, that
there is no error apparent on the record. To attempt to ascertain this on motion, is
to decide the merits of the case before it is reached in its regular order on the docket.
Hecker v. Fowler, 1 Black, 95......381.
9. This court will not interfere with the discretion of the court below in refusing
evidence offered in rebuttal which should have been introduced at first as evidence
in chief. Johnston v. Jones, 1 Black, 210......440.
10. Where the appellant has purchased by a friend, the debt against which he appeals,
and carries on a pretended controversy by counsel paid by himself on both sides,
on a record selected by them for the purpose of obtaining a decision injurious to the
rights of persons not before the court, the appeal will be dismissed on affidavits
proving these facts. Cleveland v. Chamberlain, 1 Black, 419......528.
11. In the appellate court it cannot be presumed in aid of the verdict that the sufficiency
of the plaintiffs' title was proved, because the record shows affirmatively that no such
proof was given. Washington v. Ogden, 1 Black, 450......542.
12. This court cannot look beyond the record as transmitted from the court below in a
chancery appeal, any more than in a writ of error, with a view to affect its judgment
in the case. The United States v. Knight, 1 Black, 488......563.
13. Hence, after its judgment is pronounced, it will not hear a motion founded on affida-
vits of newly-discovered evidence to open the decree here and remand the case for a
further hearing in the court below. Ib.
14. The court does not doubt its power, however, to set aside a judgment and order a re-
argument at the same term, but this is only done when upon the record of the case one
of the judges who concurred in the judgment has since seen cause to doubt its correct-
Ib.
15. An appellant here cannot set up as a ground for reversing the decree of the circuit
court that it was rendered for more than the appellee had recovered in the district
court-there being no cross appeal-when the circuit court merely changed the form
of the decree without changing its substance. Clifton v. Sheldon, 1 Black, 494......
567.
16. When a case is brought here on writ of error to a circuit court of the United States
under the 22d section of the judiciary act, this court will not dismiss it for want of
a suggestion of errors; but if it appears that there was no bill of exception or other
ruling of the court found in the record of which error can be predicated, the judg-
ment will be affirmed. Taylor v. Morton, 2 Black, 481......770.
17. James & Co. were purchasers, under a decree of mortgage foreclosure, of the western
division of the La Crosse railroad, and the present appeal was from a decree of fore-
closure against the eastern division, under different mortgage authorized by statutes
of the State: Held, that James & Co. could not intervene in this court to contest a
decree by foreclosure for a larger sum than the decree rendered in the circuit court, on
the ground that, as they had bought all the rolling stock, this decree might prejudice
their rights.
Bronson & Soutter v. La Crosse and Milwaukie R. R. Co., 2 Black, 514
....798.
18. Nor on the ground that, as general creditors of the defendant corporation, the
increased amount of the decree might prejudice their interests as such. Ib.
19. Nor is it anything to them that a judgment creditor of the road was not made a
party to the suit. Ib.
20. A decree in a foreclosure suit which ascertains the amount due, and directs the
land to be sold in default of payment, is a final decree, so as to be the foundation
of an appeal. Ib.
21. When the State court of Wisconsin, under statute concerning fraudulent assignments,
which is a copy of 13th Elizabeth, chapter 5, held an assignment void, because it author-
ized the assignee "to sell upon such terms and conditions as in his judgment may
appear best for all parties," this court will follow that construction of these statutes
by those courts. Sumner v. Hicks, 21 Black, 532......804.
22. But a second assignment, made on purpose to correct this error, and which is not
obnoxious to that charge, is good, notwithstanding the making of the first. Ib.
23. When the bill of exceptions does not embody the witness's testimony, this court
must suppose that there was in it sufficient to justify the court's statement of its
effect. Russell v. Ely, 2 Black, 575......837.
24. The deposition of that witness, sent up to this court by the clerk and duly certified
cannot be received as part of the record, because it is not made part of the bill of
exceptions, by reference or otherwise. Ib.
1. The first question to be determined in these cases is whether, at the time of the cap-
ture of the several vessels above named, there existed a lawful blockade which they
are charged with violating. The Prize Cases, 2 Black, 635......876.
2. There can be no lawful blockade without the existence of war-such war as will
justify a resort to this mode of subduing the hostile force. Ib.
3. A war may exist when one of the belligerents claims sovereign rights as against
the other. Where a party in rebellion occupy and hold in a hostile manner a cer-
tain portion of territory, have cast off their allegiance and declared their independ-
ence, have organized armies and commenced hostilities against their sovereign, the
world acknowledges them as belligerents and the contest as a war. Ib.
4. A civil war is never solemnly declared. An insurrection becomes such by the
amount of its numbers, power, organization, and purpose of those who take part in
it; and the lawful government exerts itself to put it down without a formal declara-
tion of war against it. Ib.
5. But the actual existence of such a war may, from its very nature, become a fact in
the domestic history of the country of which the courts must take judicial notice. Ib.
6. Where the regular course of justice is interrupted by revolt, rebellion, or insurrec-
tion, so that courts of justice cannot be kept open, civil war exists, and hostilities
may be prosecuted on the same footing as if those opposing the government were
foreign enemies invading the land. Ib.
7. It was the right and duty of the President of the United States, in the absence of
congress, to recognize and to meet this condition of actual territorial war which he
did not inaugurate or proclaim; and as the war was a fact which could not be
ignored, it was within the scope of his authority to institute the blockade of the
hostile ports. Ib.
8. Neutrals were bound to respect this blockade as much as any other. Ib.
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