before a jury, if it be seen that the admission | thus submitted, involving a question upon the of the testimony could not have properly influ- Statute of Limitations, and which presented the enced the jury to a different conclusion on the difficulty we are now considering. question of fact. The cases will be found collected in Cowen and Hill's notes, vol. 4, pp. 775-6, 3d ed.; see, also, 1 Duer. Sup. C. R. pp. 431-4. It must be admitted that the courts which have adopted this principle apply it with great caution where the trial has been had before a jury, and require a clear case to be made out that the rejection has worked no prejudice to the party. Other courts have denied its application altogether, and refused to look into the record to see whether the evidence night or might not have influenced the jury.

In cases where the trial by jury has been waived, and the facts as well as the law submitted to the judgment of the court, a more liberal application may be safely indulged; though, if the determination of the question of fact be against the party offering the evidence, we do not perceive why the rejection should not be regarded as error, reviewable on a bill of exceptions.

A more difficult question arises in these cases where the facts as well as the law are submitted to the court in reviewing on exceptions the correctness of the ruling of the law involved in rendering the judgment.

Maule, J., who delivered the opinion of the court, in endeavoring to overcome it, observed: "It may be, that, if upon the case stated by the parties or by the judge, it appears to the court of appeal that the decision which has been come to can be sustained by a particular view of the facts which does not render it necessary to arrive at the conclusion that he has erroneously decided the point of law before him, this court may have no power to review the judgment; yet that, where it is manifest from the facts stated, that in order to arrive at the conclusion he has arrived at, the judge must have decided a matter of law in a certain way, that will be a determination in point of law, with respect to which an appeal will lie. So, that, supposing there be a judgment which can be sustained, consistently with the law, by any view that can be taken of the facts stated, such a judgment probably cannot be reversed; yet, still, where the judge states the facts which were before him, and these facts will sustain *his judgment upon one view of the law [*15 only, and that an incorrect one, this court may have jurisdiction to entertain the appeal."

and furnishes the rule by which the point of law may be ascertained that was decided in rendering the judgments intended to be reviewed.

This view is directly applicable to the case In trials before a jury these come up on the of a bill of exceptions where the jury has been instructions prayed for, or by exceptions to the dispensed with, and the judge substituted in its charge. The questions of law are thus separat-place, to pass upon the facts as well as the law, ed from the questions of fact, the former to be determined by the court, the latter by the jury. But, where both questions are submitted to 14*] the court, and both determined at the same time, and by the same tribunal, the separation is more difficult. The principles of law applicable to the case are so dependent upon the facts, and the finding of these in the case supposed exclusively within the province of the judge who is substituted for the jury, it would seem, as a general proposition, nearly impracticable for the appellate court to ascertain from the case the principles of law that had governed the decision; especially in the absence of his opinion in the case.

But these principles must be ascertained, to enable the court to review them on a writ of error, as the bill of exceptions lies only upon some point arising either upon the admission or refusal of evidence, or is a matter of law arising from a fact found, or not denied, and which has been overruled by the court. 4 How. 297; 8 Johns. 495; 2 Cai. 168.

As an illustration of the difficulty, and to aid us in the solution of it, we may refer to a late Act on England, and the decision of the common bench under it. It is the Act of 13 and 14 Victoria, ch. 61, which conferred upon the county courts a limited jurisdiction in civil cases, and gave an appeal from their determination "in a point of law or upon the admission or rejection of evidence,"-"to any of the superior courts of common law at Westminster."

It will be seen that an appeal is given here upon the same ground that a bill of exceptions was given by the Statute of Edward 1, ch. 31. The parties were at liberty to waive a trial by jury, and submit the facts, as well as the law, to the judge of the County Court. A case came up before the common bench, that had been

In order, however, to disembarrass the proceedings as far as practicable in this peculiar mode of the trial of a common law case, and to enable the appellate court to re-examine the point or points of law involved, the counsel, after the close of the evidence, should present the propositions of law which, it is claimed, should govern the decision; and the court should state the rulings thereon, or in coming to its determination. And, in return to the writ of error so much of the evidence, and no more, should be incorporated in the bill of exceptions as was deemed necessary to present the points of law determined against the party bringing the writ. No technical exception need be stated except in the case of the rejection or admission of evidence. As the rulings in the final determination do not take place upon the trial, or need not, the exception would be impracticable.

We have stated more at large, the proper practice in bringing up for review cases of this peculiar character, than was necessary to the disposition of the one before us, as they are frequently occurring, and the practice governing them not very well settled.

As it respects the case in hand, we have already shown that the state practice of Louisiana in appeals does not apply to the case of writs of error from this court to the circuit courts; and hence the circumstance, that other evidence had been given and was before the court than what appeared in the bill of exceptions, furnished no objection to the re-examination of the point of law there presented; and that if the other evidence was deemed

material it should have been brought upon the record by the defendant in error. We must assume, therefore, that the bill of exceptions contains all the testimony deemed material to raise the point of law involved.

A deeded land to B, in trust for A during life and after his death for his two sons and daughter; held that an equitable interest, as ten ants in common, in fee simple, was secured to th A three children by the deed; and that, after death, their conveyances, and that of the trusted passed the whole interest, legal and equitable, t the purchaser.

Upon the facts, held that fraud in the convey ances was not sustained.

Where, soon after the action was commenced. plaintiff conveyed his interest to a trustee, an died after appeal to this court, held, the trustee as quired no new interest by his death, and coul not be substituted as his representative, on the ap peal. The only persons who can appear, in hi stead. are those, who, upon his death, succeed t the interest he then had.

That shows the admission of the proof of a state of facts, as a special defense to the bill of exchange which had been set up, and the only one set up, in the answer, namely: that the bill had been accepted for the balance of the price of a sugar mill constructed and sold to the defendant by the drawers that the mill was badly constructed, and defective in workmanship and materials, that at the time of the ac16* ceptance, the drawers promised *at some future day to make the necessary repairs; that they had failed to make them, by which the defendant had suffered damage to the amount of $1,835.60, which he claimed in abatement of Argued Dec. 14, 1854. the face of the acceptance, and that the plaintiffs had notice of these facts before the trans-United States for the District of Missouri fer of the paper to them.

The court below reduced the recovery to $1,743.50, which must have been on the ground of this special defense, as no other appears in the record.

Now, we agree, that if this suit had been between the original parties, the defense would have been unobjectionable. 9 How. 213; Code of Prac. 374, 377; 6 N. S. 671, 688. But, the plaintiffs are bona fide holders of the paper, for value, and therefore not subject to this defense, or to any abatement of the face of the bill, arising out of the transaction between the original parties.

It is true, the plaintiffs knew, at the time they took the paper, that it was given as part of the price for the sugar mill, and that the mill had been defectively constructed; but they also knew that the defendant, upon the promise of the builders to make the necessary repairs, had agreed to accept the bill unconditionally and had accepted it accordingly. They knew, therefore, that he looked to this undertaking for indemnity, and not to any conditional liability upon the acceptance.

The transaction, therefore, which is brought home to the plaintiffs, lays no foundation, in law or equity, to impeach the paper in their hands.

The ruling of the court below, in this respect, was consequently erroneous, and the judgment

must be reversed.

Judgment reversed and cause remanded.

Where the death of a party was suggested at De cember Term, 1851, and his legal representative did not appear by December 10, Term, 1854, held that under rule 61, the bill must as to him be en tered abated.

Decided Dec. 19, 1854

PPEAL from the District Court of the

The case is stated by the court,

Mr. Worthington and Mr. Snethen for appellants. Mr. A. H. Lawrence for appellee.

Mr. Chief Justice Taney delivered the opinion of the court:

*This is an appeal from the decree of [*44 the Circuit Court of the United States for the District of Missouri, sitting as a court of equity.

The case is this: Pierre Barribeau was seised

in fee simple of a lot of ground in the Town of St. Louis; and by deed dated May 8, 1829, conveyed it to Joseph White, in trust for the grantor during his life, and after his death for his two sons, Adrian and Pierre, and his adopted daughter, Euphrasie, who had grown up in his family.

After the death of the grantor, his sons, Adrian and Pierre, and White, the trustee, joined in a deed to Brant, the appellee, for all the interest of the two sons in the lot. But at the time this deed was made, Pierre had not attained the age of twenty-one years. Subsequently, however, he executed a deed of confirmation, and in that deed professed to convey two undivided third parts of the premises.

Euphrasie, the adopted daughter, executed a deed to Amarinth Loiselle, purporting to convey the whole of this lot. And afterwards she and Amarinth made separate deeds, on the same day, to Samuel Merry, for her third part of the premises; and Merry afterwards conveyed to Brant. If, therefore, the several deeds above mentioned are valid, Brant is entitled to

PIERRE BARRIBEAU and Euphrasie T. Perry, the whole lot.
Appellants,

V.

JOSHUA B. BRANT.

(See S. C. 17 How. 43-46.)

Adrian died intestate and without issue. And after his death Pierre and Euphrasie filed this bill, charging that all of the deeds made by them respectively, and by Adrian in his lifetime, were obtained by misrepresentation and

Trusts-substitution of representatives of de- fraud; that they were illiterate and did not

ceased party-abatement.

NOTE.-Deed, when void for fraud, insanity, drunkenness, duress, undue influence, imbecility, infancy, or fraud on marriage, from ward to guardian, cestui que trust to trustee, from heir to executor-see note to Harding v. Handy, 6 L. ed. U. S. 429.

Death of parties, effect on suit-see note to

Green v. Watkins, 5 L. ed. U. S. 256; and note to

Weeks v. Russell, 3 L.R.A. 212.

understand the object and effect of these instruments when they were executed; and that the consideration paid was far below the real value of the property. The bill further charged that Pierre was still under the age of twenty-one when he made the deed of confirmation.

The answer of Brant denies all fraud and

misrepresentation, and avers that the parties were perfectly aware of the contents of the

several instruments when they were executed, | filed, Pierre, the complainant, conveyed all his and that the price was a fair one according to the value of the property at that time; and that Pierre was of full age when he made the deed of confirmation.

It has been contended on the part of the complainants, that under the deed from Pierre Barribeau the elder, to White, the three cestuis que trust took a joint interest, and that upon GREY P. WEBB et al., Plaintiffs in Error,

forever unto the legatees and devisees of A B, deceased," is valid and contains a sufficient descrip

tion of the grantees.

Being a release of the bare legal title to equitable owners in fee, on partition between them as tenants in common, it is no objection that it has The common law requirement of words of inheritance in a release between tenants in common, is founded on feudal reasons, which have no application when the release is to the equitable owner in fee.

no words of inheritance.

A record of partition as a muniment of plaintiffs title, is evidence. It is not objectionable because it is res inter alios acta.

(Mr. Justice Catron did not sit in this cause.) Argued Dec. 1854,

ignorant of the proper forms of certificates of acknowledgment required by law,

In some states, the statutes concerning acknowledgments and registry were stringent, while the practice was loose and careless. And, in some, the courts, by unnecessary strictness in their construction of the statutes, added to the insecurity of titles, in a country where too many have acted on the supposition that everyone who can write is fit for a conveyancer. The great evils likely to arise from a strict construction applied to the bona fide conveyances of an age so careless of form, have compelled legislatures to quiet titles by confirmatory acts. in order to prevent the most gross injustice.

The Act in question is one of these; it is a wise and just Act; it governs this case, and justifies the court in admitting this deed in evi

Decided Dec. 19, 1854, IN ERROR to the Circuit Court of the United States for the Middle District of Tennessee. The case is stated by the court. Messrs, Francis D. Fogg and Gillett for plain-dence. It was registered in 1809, and some of tiff in error. Mr. Meigs for defendant in error.

the grantees have been in possession under it ever since. After such a length of time, the law presumes it to have been registered on lawful authority, without regard to the form of certificate of probate or acknowledgment. As a legal presumption it is conclusive that the deed was properly acknowledged, although the contrary may appear on the face of the papers.

On the trial of this case, the plaintiff below having shown that the lessor of plaintiff was one of the children of Anthony Bledsoe-also the will of Anthony Bledsoe, and a grant of five thousand acres of land, by the State of North It is not a "retrospective law" under the Carolina to Nicholas Lang-offered in evidence Constitution of Tennessee, which the Legislaa copy of a paper writing purporting to be a ture is forbidden to pass. It is prospective; de deed from John J. Lang, Basset Stith, and claring what should thereafter be received in Mary his wife, and others, devisees of the legal courts as legal evidence of the authenticity of estate, to the "legatees and devisees of the late ancient deeds. It makes no exception as to the Anthony Bledsoe," for the one-fourth part of rights of married women, and the courts can said tract, or 1,250 acres, by certain metes and make none. Informalities and errors in the acbounds. This copy is certified by the register knowledgment of femes covert, are those which of Maury County, Tennessee, as there recorded the carelessness and ignorance of conveyancers on the 11th of January, 1809. The defendants were most liable to make, and which, most reobjected to the admission of this copy as evi-quired such curative legislation. dence, "because it was not duly proved, acknowledged or authenticated, so as to entitle the same to registration, and there was no proof of the acknowledgment or privy examination of Mary Stith, the feme covert, and that the registration of said deed being unauthorized, a copy would not be read." The court overruled the objection, and permitted the deed to be read and the exception to this ruling is chiefly relied on as a ground for reversing the judgment of the court below.

The registration being thus validated, copies of such deeds stand on the same footing with other legally registered deeds, of which copies are made evidence by the law.

The objections to the form of this deed, that it has no effective words of grant to convey a fee, nor states a consideration, nor sufficiently describes the grantees, cannot be supported. It is true, it is a very informal conveyance, but it contains *enough within it to show its [*579 validity. It appears that Anthony Bledsoe, as locator of the land for Lang, was entitled by their contract, to one fourth. The whole legal

to one fourth in Bledsoe's devisees. The deed does not contain the words give, grant, bargain and sell, etc., but only "a release and quitclaim forever, unto the legatees and devisees of Anthony Bledsoe, deceased." The will of Bledsoe is in evidence. The deed, by this description, necessarily refers to that instrument to ascer tain the persons who are such "legatees and devisees," and thus far incorporates it. It contains, therefore, a sufficient description of the grantees.

The acknowledgment certified by this deed, which reports to have been taken in open court, in Halifax County, North Carolina, at Novem-title was in Lang's devisees, the equitable title ber Sessions, 1807, is admitted not to have been such as the Registration Acts then required, nor was it certified under the seal of the court, as required by law. But an Act was passed in 1839, by the Legislature of Tennessee, the 9th section of which contains the following provi578*] sion: That whenever a deed has been registered "twenty years or more, the same shall be presumed to be upon lawful authority, and the probate shall be good and effectual, though the certificate on which the same has been registered has not been transferred to the register's books, and no matter what has been the form of the certificate of probate or acknowledgment."

In the early settlement of most of our States, the forms of conveyances of land were very simple; and they were usually drawn either by the parties themselves, or by persons equally

It has no words of inheritance, because it is a release of the bare legal title to equitable owners in fee, on partition between them as tenants in common. This appears on the face of the deed. The consideration of the conveyance is stated to be a release, on behalf of the grantees, "of all claims under a certain con tract," etc. By the common law, there is a dis

tinction between a release by one joint tenant to another, and the same as between tenants in common; the first requires no words of inheritance, but the latter does. But this technical distinction is founded on feudal reasons with respect to livery of seisin, which have no application where the release is to the equitable owner in fee. By the Statutes of Tennessee, registering the deed is the only livery of seisin required.

But whether the deed passed the legal estate in fee or not, was a question not arising in the case, as the lessor of plaintiff was one of the devisees of Anthony Bledsoe, and therefore one of the original grantees in the deed, and had a legal as well as equitable estate.

The objection to the record of partition between the heirs or devisees of Nicholas Lang, because it was res inter alios acta, ought not to have been made. The authenticity of the record was not disputed, and if it had any legal bearing whatever on the title of the plaintiff, the defendants, who had as yet shown no title, cannot object to the muniments of plaintiffs' title, when offered in evidence, whether they be deeds, wills or partitions, "because they are res inter alios acta."

The judgment of the Circuit Court is therefore affirmed.

72*] *THE TROY IRON AND NAIL TORY, Appellants,

V.

machine to make similar spikes; and which machine it is alleged infringed the monopoly secured to Burden by his patent of 1810. The case was brought to a hearing on the following stipulation:

"The defendants agree not to deny the validity of the complainant's patent, provided they make out their title to the said letters patent to be good.

They also agree not to deny that the machine complained of in the complainant's bill is an infringement on the patent granted to H. Burden, on August 4, 1840.

"If the complainants shall establish their title to the letters patent aforesaid, the proper decree may be entered for the complainants, unless the defendants shall prove that the spike machine used by them, and complained of in the bill aforesaid, was constructed prior to the alleged application of H. Burden, made April 18, 1839, for letters patent therefor, according to the provisions of the Statute of the United States, 1839, chap. 88, sec. 7; or was the result of an independent, original invention, prior in time to the invention of the said Burden; in either of which cases the proper decree shall be entered for defendants.

The only question presented for our consid eration on the stipulation is, whether the machine employed by the appellees was constructed prior to April 18, 1839, when Burden made FAC-application at the Patent Office for his patent.

GEORGE ODIORNE, Jr., and Francis Odiorne.

The machine complained of was built by Richard Savary, for the Boston Iron Company, in the spring of 1839, and obtained, by the appellees, by assignment. Savary was the patentee of a machine to make ship and boat

(See S. C. 17 How. 72-74.) Patents-machine constructed before patent ap- spikes, and at the suggestion of the agents of

The case is stated by the court.

Mr. George T. Curtis for the appellant. 73*] *Mr. Justice Catron delivered the opinion of the court:

Henry Burden obtained a patent in 1840 for a machine to make hook-headed spikes. He applied for the patent on the 18th of April, 1839. It was assigned to the Troy Iron and Nail Company, who filed a bill against the Odiornes to enjoin them, and for an account for using a

NOTE. What constitutes infringement of patent, -see notes, 36 L. ed. U. S. 1073; 40 L. ed. U. S. 1025.

the Boston Iron Company added an attachment of an apparatus to make a hook head to spikes; the process for making which Savary deposes he discovered in August, 1838. The time at which this apparatus was attached to the machine (substantially complete in its operative parts) is the time when the machine complained of was "constructed," in the sense of the stipulation; it not being necessary that the machine should be geared and doing work. We are satisfied that it was set up and substantially finished before the 18th of April, 1839, and therefore order the decree below to be affirmed. Affirmed with costs.

JOSEPH BATTIN, Patentee, and Samuel Battin, Assignee, Plaintiffs in Error,

V.

JAMES TAGGERT, Deft. in Er.

SAME

V.

ROBERT RADCLIFFE et al., Defts. in Er.

SAME

V.

JOHN G. HEWES, Deft. in Er.

(See S. C. 17 How. 74-86.) Patents-reissue of, must be for same invention-questions for jury.

Where there is a defect in the specifications, or claim, for a patent, the patentee may surrender it,