1. Questions on the validity of certain entries of lands in the state of Kentucky. Holmes v. Trout. *171 2. A survey itself, which had not acquired notoriety, is not a good call for an entry; but when the survey has been made conformable to the entry, and the entry can be sustained, the call for the survey may support an entry. The boundaries of the survey must be shown; this principle is fully settled by the decisions of the courts of the state of ld. Kentucky...... 8. It has been a settled principle in Kentucky, that surplus land does not vitiate an entry, and a survey is held valid, if made conformably to such an entry... ......Id. ... 4. The principle is well settled, that a junior entry shall limit the survey of a prior entry to its calls; this rule is reasonable and Id. just...... 5. Until an entry is surveyed, a subsequent lo cation must be governed by its calls; and this is the reason why it is essential that every entry shall describe with precision the land designed to be appropriated by it; if the land adjoining the entry should be covered by a subsequent location, it would be most unjust, to sanction a survey of the prior entry, beyond its calls, and so as to include a Id. part of the junior entry...... 6. The locator may survey his entry in one or more surveys, or he may, at pleasure, withdraw a part of his entry; when a part of a warrant is withdrawn, the rules of the landoffice require a memorandum on the margin of the record of the original entry, showing what part of it is withdrawn...... .... Id. 7. In giving a construction to an entry, the intention of the locator is to be chiefly regarded, the same as the intention of the parties in giving a construction to a contract. If a call be impracticable, it is rejected as surplusage, on the ground, that it was made through mistake; but if a call be made for a natural or artificial object, it will always control mere course and distance; where there is no object called for, to control a rectangular figure, that form must be given to the survey...Id. LANDS AND LAND-TITLES. 1. Questions on the validity of certain entries of lands in the state of Kentucky. Holmes v. Trout...... *171 2. A survey itself, which had not acquired notoriety, is not a good call for an entry; but when the survey has been made conformable to the entry, and the entry can be sustained, the call for the survey may support an entry. The boundaries of the survey must be shown; this principle is fully settled by the decision of the courts of the stateof Kentucky.. . . . . ld. 3. It has been a settled principle in Kentucky, that surplus land does not vitiate an entry, and a survey is held valid, if made conformably to such an entry... ... Id. 4. The principle is well settled, that a junior entry shall limit the survey of a prior entry to its calls; this rule is reasonable and just..... ......ld. 5. Until an entry is surveyed, a subsequent location must be governed by its calls; and this is the reason why it is essential, that every entry shall describe with precision the land designed to be appropriated by it; if the land adjoining to the entry should be covered by a subsequent location, it would be most unjust, to sanction a survey of the prior entry, beyond its calls, and so as to include a part of the junior entry.... ... ld. 6. The locator may survey his entry in one or more surveys, or he may, at pleasure, withdraw a part of his entry; when a part of a warrant is withdrawn, the rules of the landoffice require a memorandum on the margin of the record of the original entry, showing what part of it is withdrawn..... Id. 7. In giving a construction to an entry, the intention of the locator is to be chiefly regarded, the same as the intention of the parties in giving a construction to a contract. If a call be impracticable, it is rejected as surplusage, on the ground, that it was made through mistake; but if a call be made for a natural or artificial object, it will always control mere course and distance; where there is no object called for, to control a rectangular figure, that form must be given to the survey... Id. 8. Under the laws of Kentucky, the cancelling of a deed does not re-invest the title in the grantor..... .... Id. 9. In Polk's Lessee v. Wendell, 5 Wheat. 308, it is said by this court, that, on general principles, it is incontestable, that a grantee can convey no more than he possesses; hence, those who come in under a void grant, can acquire nothing. Sampeyreac v. United States.... *222 10. The legal title to lands in Ohio can only be passed by a proper conveyance by deed, according to the laws of that state. Morris v. Harmer... *554 See FLORIDA LAND-CLAIMS. 1. In the district court of the northern district of New York, writs of right were prosecuted for lands lying in that district, and neither in the writs, nor in the counts, was there an averment of the value of the premises being sufficient in amount to give the court jurisdiction; the tenants appeared, and moved to dismiss the cause for want of jurisdiction; which motion was granted; subsequently, the demandant moved to reinstate the cases and to amend, by inserting an averment that the premises were of the value of $500; which motion was denied by the court; the demandant also moved the court to compel full records of the judgments and orders of dismissal, and of the process in the several suits, to be made up and filed, so that the demandant might have the benefit of a writ of error to the supreme court, in order to have its decisions upon the grounds and merits of such judgments and orders; the district court refused this motion; on a rule in the supreme court for a mandamus to the district judge, and a return to the same, it was held, that the refusal to allow the amendment to the writ and count, by inserting the averment of the value of the property, was not the subject of examination in this court; the allowance of amendments to pleadings is in the discretion of the judge of the inferior court; and no control over the action of the judge, in refusing or admitting them, will be exercised by this court. The court granted a mandamus, requiring the district judge to have the records of the cases made up, and to enter judgments thereon, in order to give the demandant the benefit of a writ of error to the supreme court. Ex parte Brad street..... *634 MARRIAGE-SETTLEMENT. 1. The whole charge of the circuit court was brought up with the record. This is a pracfice which this court have uniformly dis 2. This court have nothing to do with comments of the judge of the circuit court upon the evidence. Carver v. Astor, 4 Pet. 80-1, cited upon this point... .Id. 3. The question now before the court is, whether the charge to the jury in the circuit court contains any erroneous statement of the law; in examining it, for the purpose of ascertaining its correctness, the whole scope and bearing of it must be taken together; it is wholly inadmissible, to take up single and detached passages, and to decide upon them, without attending to the context, or without incorporating such qualifications and specifications as naturally flow from the language of other parts of the charge; the whole is to be construed as it must have been understood, both by the court and the jury, at the time it was delivered.. ... Id. 4. Upon principle and authority, to make an ante-nuptial settlement void as a fraud upon creditors, it is necessary that both parties should concur in, or have cognisance of, the intended fraud. If the settler alone intend a fraud, and the other party have no notice of it, but is innocent of it, she is not, and cannot be affected by it. Marriage, in contemplation of the law, is not only a valuable consideration to support such a settlement, but is a consideration of the highest value, and from motives of the soundest policy, is upheld with a strong resolution; the husband and wife, parties to such a contract, are, therefore, deemed, in the highest sense, purchasers for a valuable consideration; and so that it is bonâ fide, and without notice of fraud, brought home to both sides, it becomes unimpeachable by creditors...... Id. 5. Fraud may be imputed to the parties, either by direct co-operation in the original design, at the time of its concoction, or by constructive co-operation, from notice of it, and carrying the design, upon such,notice, into operation Id. 6. Among creditors equally meritorious, a debtor may conscientiously prefer one to another; and it can make no difference, that the preferred creditor is his own wife. ....... Id. 7. Marriage articles or settlements are not required by the laws of New Jersey to be recorded, but only conveyance of real estate; and as to conveyances of real estate, the omission to record them avoids them only as to purchasers and creditors, leaving them in full force between the parties..... ... Id. NAVY AGENT. 1. The act of the 27th of March 1804, by which the president of the United States was authorized to attach to the navy-yard at Washington a captain of the navy, for the performance of certain duties, was correctly construed by the head of the navy department until 1829, allowing to the defendant commissions on the sums paid by him, as the special agent of the navy department in making the disbursements. United States v. Macdaniel,*1 2. By an act passed 10th July 1832, congress authorized the appointment of a separate and permanent navy-agent at Washington, and directed the performance of the duties "not only for the navy-yard in the city of Washington, but for the navy department, under the direction of the secretary of the navy, in the payment of such accounts and claims as the secretary may direct." These duties would not have been so specially stated in this act, if they had been considered by congress as coming within the ordinary duties of an agent for the navy-yard at Washington, under the act of 1804; but independent of this consideration, it is enough to know, that the duties in question were discharged by the defendant, under the construction given to the law by the secretary of the navy...... Id. See HEADS OF Departments: PUBLIC ACCOUNTS. 1. The defendant was indicted for robbing the mail of the United States, and putting the life of the driver in jeopardy, and the conviction and judgment pronounced upon it extended to both offences; after this judgment, no prosecution could be maintained for the same offence, or for any part of it, provided the former conviction was pleaded. United States v. Wilson..... .*150 2. The power of pardon, in criminal cases, had been exercised, from time immemorial, by the executive of that nation whose language is our language; and to whose judicial institutions ours bear a close resemblance; we adopt their principles respecting the operation and effect of a pardon; and look into their books for the rules prescribing the manner in which it is to be used by the person 3. It is a constituent part of the judicial system, that the judge sees only with judicial eyes, and knows nothing respecting any particular case of which he is not informed judicially; a private deed, not communicated to him, whathever may be its character, whether a pardon or release, is totally unknown, and cannot be acted upon. The looseness whiah would be introduced into judicial proceedings would prove fatal to the great principles of justice, if the judge might notice and act upon facts not brought regularly into the cause; such a proceeding, in ordinary cases, would subvert the best-established principles, and would overturn those rules which have been settled by the wisdom of ages.....ld. 4. There is nothing peculiar in a pardon which ought to distinguish it in this respect from other facts; no legal principles known to the court will sustain such a distinction; a pardon is a deed, to the validity of which delivery is essential; and delivery is not complete, without acceptance; it may then be rejected by the person to whom it is tendered; and if it be rejected, we have discovered no power in a court to force it on him............ Id. 5. It may be supposed, that no being condemned to death would reject a pardon, but the rule must be the same in capital cases and in misdemeanors; a pardon may be conditional, and the condition may be more objectionable than the punishment inflicted by the judg ment...... 6. The pardon may possibly apply to a different person or a different crime; it may be absolute or conditional; it may be controverted by the prosecutor, and must be expounded by the court; these circumstances combine to show, that this, like any other deed, ought to be brought "judicially before the court, by plea, motion or otherwise.".... ...ld. 7. The reason why a court must, ex officio, take notice of a pardon by act of parliament, is, that it is considered as a public law, having the same effect on the same case, as if the general law punishing the offence had been repealed or annulled.. ..Id. PATENT FOR INVENTIONS. 1. Action for an alleged violation of a patent for an improvement in guns and fire-arms. Shaw v. Cooper..... .*202 2. The letters-patent were obtained in 1822; and in 1829, the patentee having surrendered the same, for an alleged defect in the specification, obtained another patent. This second patent is to be considered as having relation to the emanation of the patent of 1822; and not as having been issued on an original application..... .....ld. 3. The holder of a defective patent may surrender it to the department of state, and obtain a new one, which shall have relation to the emanation of the first. Grant v. Raymond, 6 Pet. 220, cited and affirmed..... ...Id. 4. A second patent, granted on the surrender of a prior one, being a continuation of the first, the rights of a patentee must be ascertained by the law under which the original application was made..... ..ld. 5. By the provisions of the act of congress of 17th April 1800, citizens and aliens, as to patent-rights, are placed substantially upon the same ground; in either case, if the invention was known or used by the public, before it was patented, the patent is void; in both cases, the right must be tested by the same rule.... ....Id. 6. What use by the public, before the application is made for a patent, will make void the right of a patentee.... ....Id. 7. From an examination of the various provisions of the acts of congress relative patents for useful inventions, it clearly appears, that it was the intention of the legislature, by a compliance with the requisites of the law, to vest the exclusive right in the inventor only; and that, on condition that his invention was neither known nor used by the public, before his application for a patent. If such use or knowledge shall be proved to have existed prior to the application for the patent, the act of 1793 declares the patent void; and the right of an alien is vacated in the same manner, by proving a foreign use or knowledge of his invention; that knowledge or use which would be fatal to the patent right of a citizen, would be equally so to the right of an alien..... ...Id. 8. The knowledge or use spoken of in the act of congress of 1793, could have referred to the public only; for the provision would be nugatory, if it were applied to the inventor himself; he must necessarily have a perfect knowledge of the thing invented, and of its use, before he can describe it as by law he is required to do, preparatory to the emanation of a patent. . . . . ...ld. . There may be cases in which a knowledge of the invention may be surreptitiously obtained and communicated to the public, that do not affect the right of the inventor; under such circumstances, no presumption can arise in favor of an abandonment of the right to the public by the inventor; though an acquiescence on his part will lay the foundation for such a presumption. It is undoubtedly just, that every discoverer should realize the benefits resulting from his discovery, for the period contemplated by law; but those can only be reserved by a substantial compliance with every legal requisite; this exclusive right does not rest alone on his discovery, but also upon the legal sanctions which have been given to it, and the forms of law with which it has been clothed........ . . . . . . Id. 10. No matter by what means an invention may have been communicated to the public, before a patent is obtained, any acquiescence in the public use by the inventor, will be an abandonment of the right. If the right were asserted by him who fraudulently obtained it, perhaps, no lapse of time could give it validity; but the public stand in an entirely different relation to the inventor. His right would be secured, by giving public notice that he was the inventor of the thing used, and that he should apply for a patent.... Id. 11. The acquiescence of an inventor in the public use of his invention, can, in no case, be presumed, where he has no knowledge of such use; but this may be presumed from the circumstances of the case. This will, in general, be a fact for a jury, and if the inventor do not, immediately after this notice, assert his right, it is such evidence of acquiescence in the public use, as for ever afterwards to prevent him from asserting it. After his right is perfected by a patent, no presumption arises against it, from a subsequent use by the public... ....ld. 12. A strict construction of the act of congress, as regards the public use of an invention before it is patented, is not only required by its letter and spirit, but also by sound policy...... ... Id. 13. The question of abandonment to the public does not depend on the intention of the in, ventor; whatever may be the intention, if he suffer his invention to go into public use, through any means whatsoever, without an immediate assertion of his right, he is not entitled to a patent; nor will a patent obtained under such circumstances protect his right....... PLEAS AND PLEADING. See PRACTICE. PRACTICE. ... Id. 1. A case not being properly prepared in the circuit court for a hearing, the decree was 2. A decree was pronounced by the district court of the United States for the district of Alexandria, in December 1829, from which the defendants appealed, but did not bring up the record; at January term 1832, the appellees, in pursuance of the rule of court, brought up the record and filed it; and, on motion of their counsel, the appeal was dismissed; on the 9th of March 1832, a citation was signed by the chief justice of the court for the district of Columbia, citing the plaintiffs in the original action to appear before the supreme court, then in session, and show cause why the decree of the circuit court should not be corrected; a copy of the record was returned with the citation, "executed," and filed with the clerk. The record is brought up irregularly, and the cause must be dismissed. Yeaton v. Lenox...... *220 3. The act of March 1803, which gives the appeal from decrees in chancery, subjects it to the rules and regulations which govern writs of error; under this act, it has been always held, that an appeal may be prayed in court, when the decree is pronounced; but if the appeal be prayed, after the court has risen, the party must proceed in the same manner as had been previously directed in writs of error.... .....Id. 4. The judiciary act directs, that a writ of error must be allowed by a judge, and that a citation shall be returned with the record; the adverse party to have at least twenty days' notice; this notice, the court understands, is twenty days before the return-day of the writ. . . . . . . . Id. 5. Under the provisions of an act of congress passed on the 26th May 1824, proceedings were instituted in the superior court of the territory of Arkansas, by which a confirmation was claimed of a grant of land alleged to have been made to the petitioner, Sampeyreac, by the Spanish government, prior to the cession of Louisiana to the United States by the treaty of April 3d, 1803; this claim was opposed by the district-attorney of the United States; and the court, after hearing evidence, decreed that the petitioner recover the land from the United States. Afterwards, the district-attorney of the United States, proceeding on the authority of the act of 8th May 1830, filed a bill of review, founded on the allegation, that the original decree was obtained by fraud and surprise, that the documents produced in support of the claim of Sampeyreac were forged, and that the wit nesses who had been examined to sustain the same were perjured; at a subsequent term, Stewart was allowed to become a defendant to the bill of review, and filed an answer, in which the fraud and forgery were denied, and in which he asserted that if the same were committed, he was ignorant thereof, and asserted, that he was a bonafide purchaser of the land for a valuable consideration, from one John J. Bowie, who conveyed to him the claim of Sampeyreac by deed, dated about the 22d October 1828. On a final hearing, the court being satisfied of the forgery, perjury and fraud, reversed the original decree: Held, that these proceedings were legal, and were authorized by the act of the 5th of May 1830 Sampeyreac v. United States.... .*222 6. The act for regulating processes in the court of the United States, provides, that the forms and modes of proceeding, in courts of equity, and in those of admiralty and maritime jurisdiction, shall be according to the principles, rules and usages which belong to courts of equity and to courts of admiralty, respectively, as contradistinguished from courts of common law, subject, however, to alterations by the courts, &c. This act has been generally understood to adopt the principles, rules and usages of the court of chancery of England. Vattier v. Hinde.... *252 7. It is the settled practice in the courts of the United States, if the case can be decided on its merits, between those who are regularly before them, although other persons, not within their jurisdiction, may be collaterally or incidentally concerned, who must have been made parties, if they had been amenable to its process, that these circumstances shall not expel other suitors who have a constitutional and legal right to submit their case to a court of the United States; provided the decree may be made without affecting their interests; this rule has also been adopted by the court of chancery in England..... Id. 8. The plea was offered after issue was joined on a plea in bar, and the argument of the cause had commenced. The court might admit it; and the court might also reject it; it was in the discretion of the court to allow or refuse this additional plea; as it did not go into the merits of the case, the court would undoubtedly have acted right in rejecting it. Breedlove v. Nicolet..... ..... Id. 9. All the proceedings in a case are supposed to be within the control of the court while they are in paper, and before a jury is sworn, or judgment given; orders made may be revised, and such as in the judgment of the court may have been irregular or improperly made, may be set aside.... .Id. |