Livingston v. Van Ingen.

must have been their opinion when senators, on a point immediately under their consideration, cannot be thought improper. The same principle is recognised by the very laws under which the plaintiffs claim; for the judiciary act not having made any such provision in such a case, unless the parties were citizens of different states, it was thought necessary to establish by those acts the right of a patentee to sue in a Circuit Court, but at the same time, such right was restricted to its legal forum as it regards this case then, the legislature is not chargeable with any omission, or with affording a remedy, without a designation of the tribunal which was to administer it, for although by the constitution the judicial power is extended to all cases in law and equity, arising under the laws of the Union, Congress may certainly say that the relief which they intended to afford in a particular case shall be at law only. If it had been thought proper to proceed at law in this Court, the complainants would probably have found no difficulty on the score of jurisdiction, and it may be added, that if this case be of equity cognizance at all, (which has been strongly controverted and on which no opinion is given,) it is probably so at common law, and in that case Congress were not bound, even if they had the right, to give jurisdiction of it to any federal Court.

It was further urged in favour of the present jurisdiction, that the Supreme Court of this state has decided that an action cannot be maintained there, founded on the patent laws of the United States; and that as the Court of Chancery of the state would give no relief, the parties thus excluded from the federal and state Courts, would be without redress, if the decision of the Supreme Court of the United States were considered as applying to them. It is not for me to say what the Chancellor of this state will think his duty, if a similar application be made to him; but if this be a case of equitable jurisdiction at common law, as it was sometimes alleged to

Livingston v. Van Ingen.

be by the complainant's counsel, no objection is perceived to his taking cognizance of it. But should he think otherwise, there is still another answer to this difficulty, which is that if the parties be remediless it is no fault of the law, which gives them if not a perfect, at least a liberal, and what will probably prove, if they choose to pursue it, a very effectual remedy; for it is not to be believed, as was supposed at the bar, that they will have to bring action after action to establish their right. Let them proceed in only one trial at law, and the defendants will not be hardy or foolish enough to continue on very unequal terms, what will then be settled to be a violation of their patent rights; such a verdict will for ever after keep all intruders at a distance. But if absolutely without remedy elsewhere, it does not follow that this Court can help them. A Court, constituted like this, is not to reason itself into jurisdiction from considerations of hardship, when a plain and safer rule is prescribed by the Supreme Court, which is, to examine on all occasions, what powers are committed to it, by the laws of the United

States.

Another argument which it may be expected will be noticed, was, that as an action at law under the patent acts may be prosecuted in this Court, even between citizens of the same state, there was, necessarily, conferred on it a right to hold jurisdiction of the present bill; for as the Court possessed equity powers in virtue of the judiciary act, it was impossible to give it jurisdiction as a Court of Law, without at the same time calling into exercise its powers as a Court of Equity. If it becomes necessary in an action at law regularly before it, for either party to appeal to its equity side, in aid or defence of such action, such application might not be improper. But this is not a bill of that kind. It would be the action at law in such case, on which its jurisdiction would attach. But the answer to the argument is, that by the judi

Livingston v Van Ingen.

ciary act no equity powers are given to this Court, between citizens of the same state; and it results from the decision which has been cited, that a Circuit Court must not only confine itself to the cases defined by Congress, but that if by a particular act it is authorized to proceed in the given case as a Court of law only, a party must come into it on that side, to bring himself within the provisions of it.

There being then no law conferring on this Court a right to take cognizance as a Court of Equity of cases of this nature, between citizens of the same state, my opinion is, that this Court cannot entertain cognizance of the present bill, and that the plaintiffs therefore can take nothing by their motion.

After this decision, it would be superfluous and improper to express any opinion on any other of the important points which were made on the argument of the present question. If the parties were citizens of different states, it is not intended to say that the plaintiffs would or would not be entitled to the equitable relief which they seek.

J. O. HOFFMAN, C. D. COLDEN, and C. GRAHAM for the complainants.

T. A. EMMET and J. WELLS for the defendants.

Note. The Chancellor of the state was afterwards applied to for an injunction in this case, and refused it; but on an appeal from his decision to the Court of Errors, it was granted. 9 John. Rep. 507.

Congress have since supplied this defect of jurisdiction. By the act of 15th of February, 1819, it is provided, "That the Circuit Courts of the United States shall have original cognizance, as well in equity as at law, of all actions, suits, controversies, and cases, arising under any law of the United States, granting or confirming to authors or inventors the exclusive right to their respective writings, inventions, and discoveries; and upon any bill in equity, filed by any party aggrieved in any such cases, shall have authority to graut injunctions, according to the course and principles of Courts of Equity, to prevent the violation of the rights of any authors or inventors, secured to them by any laws of the United States, on such terms and conditions as the said Courts may deem fit and reasonable: Provided however, That from all judgments and decrees of any Circuit Courts, rendered in the premises, a writ of error or appeal, as the case may require, shall lie to the Supreme Court of the United States, in the same manner, and under the same circumstances, as is now provided by lawlin other judgments and decrees of such Circuit Courts." 6 vol. Laws U. S. 369.

CIRCUIT COURT OF THE UNITED STATES,

NEW-YORK, APRIL TERM, 1812, AT NEW-YORK.

BEFORE

Hon. BROCKHOLST LIVINGSTON, Associate Justice of the Supreme Court.

Hon. WILLIAM P. VAN NESS, District Judge.

DENN EX DEM. FISHER v. HARNDEN.

The judgments of a Court not having jurisdiction are not merely erroneous, and valid until reversed, but are void ab initio.

The adoption of a treaty, with the stipulations of which the provisions of a state law are inconsistent, equivalent to a repeal of such law.

A judgment of a State Court in a case where jurisdiction was acquired, not by the common law, but by a statute of the state, which before the rendition of the judgment had been thus virtually repealed by the adoption of a treaty, was held not voidable, but void.

In 1780 the ancestor of the lessors of the plaintiff, a British subject, was indicted in the Supreme Court of New-York, under the act entitled "an act for the forfeiture and sale of the estates of persons who have adhered to the enemies of this state," &c.; and in October, 1783, a judgment of forfeiture against his estates was rendered. The treaty of peace stipulating against any subsequent confiscation, was signed in September preceding. Held that the proceedings were coram non judice, and void.

The alienage of the plaintiffs in ejectment cannot be set up to defeat a recovery where their ancestor held the lands at the time of the treaty of 1794. The circumstance of the special verdict's not finding the fact that he held them at that time, not noticed.

The act of New-York, entitled "an act limiting the period of bringing, claims and prosecutions against forfeited estates," was not intended to bar those against whom the forfeiture bad passed, but to bar the claims of strangers to the forfeiture. The mischief apprehended was the loss of deeds, which was to

Fisher v. Harnden.

feared in the case of strangers only, and not of those who claimed under the forfeited title.

Utility of statutes of limitation.

LIVINGSTON, J. THIS is an action of ejectment for lands situate at Granville, in the county of Washington, and within this District. The defendant having pleaded not guilty, a special verdict was found, which contains the following facts:

Donald Fisher, on the 1st of January, 1777, was seised in fee of the premises in question, and was in the actual possession thereof, and continued so until the rendering of the judgment hereinafter mentioned.

Donald Fisher lived and died a British subject, and had issue the lessors of the plaintiff, who were his only children and heirs at law, one of whom was born in 1776, another on the 23d of April, 1785, and the other on the 23d December, 1787, and all of them are and always have been subjects of Great Britain.

Donald Fisher resided at Hebron, in the county of Washington, from 1793 until his death, which happened on the 1st of September, 1798.

On the 17th of April, 1780, the grand jury of the county of Charlotte presented an indictment against Donald Fisher, for adhering to the enemies of this state, on which such proceedings were had that afterwards, to wit, on the third Tuesday of October, in the year 1783, the said Donald Fisher not having appeared and traversed the indictment, a judgment was rendered against him by the Supreme Court of this state, by which it was considered that he do forfeit all his estate real and personal, within this state, to the people thereof.

On the 28th of March, 1797, the state of New-York passed an act "for limiting the period of bringing claims and prosecutions against forfeited estates." This act, after reciting that, "whereas the title deeds and other documents relative