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Opinion of the court.

Their promise is contained in the last clause of the instrument, and it is conditional; but it is a mistake to suppose that it is not a joint one with the assignee. Neither the assignee nor the other two defendants promised to give their notes for the consideration, excepting on the happening of the condition therein specified. Legal effect of the promise by all three was, that they would give their joint and several notes for the two unpaid instalments, "payable as aforesaid, with interest aforesaid," as soon as the patent for the improvement in the grain-reaper and grass-mower aforesaid was obtained by the inventor. Obligation to perform was made dependent upon the future and undetermined action of the patent officer. Applicants for patents may, by law and the usages of the bureau, amend their specifications, and do everything authorized to be done by the patent solicitor in this case. Assignee knew what authority he and his associate inventor had conferred upon the solicitor, and it must be understood that the other defendants also knew what was the law upon the subject and the general usage of the Patent Office. Instructions of the court, therefore, were right, that when the letters patent were issued, the assignee was bound, by the letter and spirit of his contract, to execute his notes. Defendants are right in supposing that a surety may stand upon the very terms of his contract; that he will be discharged if any alteration is made in his agreement, without his knowledge or consent, which prejudices him, or which amounts to the substitution of a new agreement for the one he executed.*

But sureties are as much bound by the true intent and meaning of their contracts which they voluntarily subscribe as principals. They are bound in the manner, to the extent, and under the circumstances as they existed when the contract was executed. Roth v. Miller.† Strong doubts are entertained whether any one of the defendants can be regarded

Bonar v. McDonald, 1 English Law and Equity, 8; McWilliams v. Mason, 5 Duer, 276; Maher v. Hall, 5 Barnwall & Cresswell, 269; Bouler v. Cox, 4 Beavan, 380; Islyn v. Hartell, 8 Taunton, 208.

† 15 Sergeant & Rawle, 100.

Opinion of the court.

as a surety; but it is unnecessary to decide that question at the present time. Terms of the contract, or that part of it under consideration, were based on the undetermined action of the Patent Office, and in consideration of that fact it must be assumed that the parties not only knew that the specifications might be amended or withdrawn, but that they contracted in view of the probability that such changes might be made.*

Patentees, also, are clothed with the power, wnenever the patent granted shall be inoperative or invalid by reason of a defective or insufficient description or specification, if the error arose from inadvertency, accident, or mistake, to surrender the same; and thereupon the Commissioner of Patents, upon the payment of the duty, is authorized to cause a new patent to issue. Reissue must be for the same invention, and in judgment of law it is only a continuation of the original patent; and, consequently, the rights of the patentee, except as to prior infringements, are to be ascertained by the law under which the original application was made.†

Original patent in this case was surrendered, and on the 7th of February, 1860, four distinct reissues were granted. Prior patent, as already explained, embraced all those improvements in its specifications, but the claim was restricted to the principal improvement. Object of the surrender was to correct that part of the specification known as the claim, and it is admitted by the defendants that the reissues cover all the improvements specified in the assignment, and no more than what was embraced in the original specifications. Under the circumstances, we are of the opinion that the instruction of the court that the declaration is sufficient was correct. Considering the state of the record, we have not thought it necessary to reproduce the instructions of the court, but have preferred to state our views of the law applicable to the case, and only wish to add that the instruc

* Barclay v. Lucas, 1 Term, 291, n.; Miller v. Stewart, 9 Wheaton, 703; 4 Stat. at Large, 122.

+ Shaw v. Cooper, 7 Peters, 315; Grant v. Raymond, 6 Peters, 244; Stanley v. Whipple, 2 McLean, 35.

Statement of the case.

tions of the court were in all substantial respects correct. The decree of the Circuit Court, therefore, is

AFFIRMED WITH COSTS.

HOGAN v. PAGE.

1. A patent certificate, or patent issued, or confirmation made to an original grantee or his "legal representatives," embraces representatives of such grantee by contract, as well as by operation of law; leaving the question open in a court of justice as to the party to whom the certificate, patent, or confirmation should enure.

2. The fact that A., many years ago, did present to a board of commissioners appointed by law to pass upon imperfect titles to land, a "claim" to certain land, describing it as "formerly" of B., an admitted owner; the fact that the board entered on its minutes that A., "assignee" of B.,. presented a claim, and that the board granted the land to "the representatives" of B.; and the fact that A., with his family, was in possession of the land many years ago, and cultivating it, are facts which tend to prove an assignment; and as such, in an ejectment where the fact of an assignment is in issue, should be submitted as evidence to the jury.

ERROR to the Supreme Court of Missouri; the case being thus:

After the cession, in 1803, by France, of Louisiana, to the United States, Congress passed an act* establishing a board of commissioners at St. Louis, for the purpose of settling imperfect French and Spanish claims. The act provided that any person who had, for ten consecutive years prior to the 20th December, 1803, been in possession of a tract of land not owned by any other person, &c., should be confirmed in their titles."

In 1808, one Louis Lamonde presented a claim for a tract of one by forty arpens, " formerly the property of Auguste Condé." The minutes of the board, of November 13th, 1811, disclosed the following proceedings:

"Louis Lamonde, assignee of Auguste Condé, claiming one by forty acres, situate in the Big Prairie district of St. Louis, pro

* Act of 3d March, 1807, 2 Stat. at Large, 440.

Argument for the plaintiff and defendant.

duces a concession from St. Ange and Labuxière, LieutenantGovernor, dated 10th January, 1770.* The board granted to the representatives of Auguste Condé forty arpens, under the provisions of the act of Congress, &c., and ordered that the same be surveyed, conformably to possession, &c."

The minutes did not record the fact that any assignment of this land from Condé to Lamonde had been presented to the board, or that other proof was made of such conveyance.

This decision of the board, among many others, was reported to Congress, and the title made absolute by an act of 12th April, 1814. In 1825, Lamonde obtained from the recorder of land titles a certificate of the confirmation.

Hogan, claiming through Lamonde, now, A. D. 1850, brought ejectment at St. Louis against Page for a part of this land. Lamonde was an old inhabitant of St. Louis, who had died some ten years before the trial at a very advanced age; and there was some evidence on the trial that he and his family cultivated this lot in the Grand Prairie at a very early day, before the change of government under the treaty of 1803; and evidence that by the early laws of the region these interests passed by parol.

The court below decided that the plaintiff was not entitled to recover upon the evidence in the case.

Mr. Gantt, for the defendant here and below, in support of this ruling, insisted here that, as no assignment or transfer of Condé's interest in the concession was proved before the land board or at the trial, the confirmation could not enure to the benefit of Lamonde, so as to invest him with the title; and that, in the absence of the assignment, the confirmation "to the representatives of Auguste Condé" enured to the benefit of his heirs.

Messrs. Browning, Hill, and Ewing, argued contra for the plaintiff, that, as Lamonde presented his claim to the board,

* This concession, about which there was no dispute, was to Condé.

Opinion of the court.

as assignee of Condé, and as such set up a title in his notice of the application, the act of the board should be regarded as a confirmation of his right or claim to the land; and the cases of Strother v. Lucas,* Bissell v. Penrose,† and Landes v. Brant, in this court, were referred to as supporting this view of the confirmation.

Mr. Justice NELSON delivered the opinion of the court. On looking into the cases cited on the part of the plaintiff, it will be seen that the confirmations which there appeared were either to the assignee claimant by name, or in general terms, that is, to the original grantee and "his legal representatives;" and when in the latter form, it was the assignee claimant who had presented the claim before the board, and had furnished evidence before it of his derivative title, and which had not been the subject of dispute. The present case, therefore, is different from either of the cases referred to.

A difficulty had occurred at the Land Office, at an early day, in respect to the form of patent certificates and of patents, arising out of applications to have them issued in the name of the assignee, or present claimant, thereby imposing upon the office the burden of inquiring into the derivative title presented by the applicant. This difficulty, also, existed in respect to the boards of commissioners under the acts of Congress for the settlement of French and Spanish claims. The result seems to have been, after consulting the Attorney-General, that the Commissioner of the Land Office recommended a formula that has since been very generally observed, namely, the issuing of the patent certificate, and even the patent, to the original grantee, or his legal representatives, and the same has been adopted by the several boards of commissioners. This formula, "or his legal representatives," embrace representatives of the original grantee in the land, by contract, such as assignees or grantees, as well as by operation of law, and leaves the

* 12 Peters, 458.

8 Howard, 338.

† 10 Id. 870.

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