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If it is to be done the Legislature must intervene and expressly give a right of action in respect of such a de

rectors, who are grossly negligent, yet are not called fraudulent or dishonest. Let me illustrate still further. A country bumpkiu visits one of these carpen-parture from duty." The Texas court however in ters of the sixteenth century. It is his first trip to London. The carpenter takes him by a back alley to the house which he is assisting in building. When they reach the top of the house, he is asked by his host to aid him in throwing a beam to the ground beneath. He does so. It falls into the street upon a passer-by and kills him. The "country cousin" knows nothing of London, and though he sees a street, he does not know and had never an opportunity to know that there are continually passers thereon. He therefore knows nothing of the quality of the act he has done, has never had the opportunity to know, so not being negligent is not a criminal. The law does not impute knowledge to him as it does to the carpenter, because he has not had the means to acquire the knowledge.

If the "squire of high degree" was at even a later period so ignorant, no violence is done to the truth of fiction by imagining the humble Hodge, out of his element on top of a London house. See Macaulay's History, vol. 1, chap. 3.

Seale v. Baker, supra, holds this so-called moral duty a legal obligation, saying: "It is a familiar principle of law that an action for damages lies against a party for making false and fraudulent representations whereby another is induced to do an act from which he sustains damage. If the representations are untrue, it is immaterial that they have been made without fraudulent intent." But there is no discussion of the point decided in Derry v. Peek, for the court seems to base its conclusion principally upon the claimed general duty of good faith and due care imposed upon directors from their position and relation to the public. It seems to hold that an action for deceit or an action to recover damages for the violation of a trust, or an action to recover damages for negligence in the performance of a duty under circumstances similar in effect to those of Angus v. Clifford, Derry v. Peek, etc., would lie.

It is a rule of justice that one should compensate auother where he fails to use due care and thereby occaIt seems entirely contrary to the harmony of retrib- sious damage or injury to that other. This rule can be utive justice to permit one to plead a fault as an ex- no less universal in its application, under a proper civil cuse for crime, one wrong as an excuse for another; code or system, than it is under the moral code. If to permit the directors to show their honesty, their the directors in the presence of belief, though based freedom from fraud, by admitting their gross negli- on grossly insufficient grounds, are not guilty of a gence. When the lives or property of others are at breach of legal duty at common law, under the above stake one cannot dodge responsibility for his acts by circumstances, and so it is decided, then the common claiming that he did not know if the means for knowl-law is fatally defective. There can no more be actionedge are in his power and he negligently fails to use them. If one thinking he has an unloaded gun in his hands, points it at a crowd in sport, pulls the trigger, and to his surprise and to the injury of one of the crowd finds it loaded, can he be heard to say that he did not know it was loaded, that, he did not intend to injure any one, when he is indicted for an assault or for manslaughter if the person dies? If he uses such a dangerous weapon in sport he must know that it is harmless before he can escape the consequences if it proves harmful.

So in like manner these directors should see that their gun is unloaded before they aim it at all mankind." The man with the supposed unloaded gun, in pointing it at a crowd, is engaged in an unlawful act, solely because the consequences which may ensue endanger the lives of others and thus are serious. So the directors' act is intended to influence numbers, and if not properly done may be the cause of serious damage to them. The consequences then which may flow from it, if improperly done, make it unlawful to do it improperly. If then the former is guilty of manslaughter, though without inteut, or knowledge of the character of the act, from his belief that the gun was not loaded, the latter, a fortiori, are guilty of deceit, though without intent or knowledge of the character of the act from their belief in the truth of their statement. In both instances the use of ordinary care would show the falsity of the assumption upon which the parties acted. If there is any distinction between the intent of the man with the gun and the belief of directors, in this regard, it is scarcely substantial, and if any thing adds force to the argument belief is passive, intent active. If however these considerations have no force, then we find the common law, a body of general and uniform rules, elastic, pliant, comprehensive, all-embracing, suited to all imaginable circumstances of life, new or old, past, preseut or future, halting at the threshold of a new condition and confessing itself incompetent to deal with it. Lord Herschell says in Derry v. Peek, supra: "I think there is much to be said for the view that this moral duty" (i. e., to use care in ascertaining the truth of these statements before publication) "ought to some extent to be converted into a legal obligation. **

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able negligence in the absence of a legal duty than there can be fraud. If there is a legal duty on the part of these directors, to use due care to form their belief, I have attempted to show that there is, then an action of deceit will lie, provided the analogies I have used have any demonstrative force. I am aware of the weakness of this form of reasoning. But where, if there are dissimilarities, they are minor and do not affect the principle deduced from the analogy, while the similarities are all found in the structure of the principle itself, then the analogy has great force. But suppose we eliminate any idea of fraud or deceit from the question. Then it still is, does a legal duty require the directors to use due care in making their statements, etc., speak the truth? The English courts seem to answer this question in the negative. In this answer is the real difficulty, for were the answer otherwise, and one damaged could not sustain an action of deceit under the above circumstances, he could have an action on the case for negligence, where the negligence was the proximate cause of the damage. To hold this a legal duty to allow an action for such neglect, would be the simplest solution of the problem, but the Euglish courts say that the Legislature must do this. February 16, 1892.

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master armorer at the Springfield armory, for infringement of a patent. Heard on plea to the jurisdiction. Plea overruled.

*48 Fed. Rep. 481.

Wm. A. Hayes, 2d, for complainant.

Frank D. Allen, U. S. Atty., for defendant.

COLT, J. The plea in this case raises the single ques. tion of jurisdiction. The suit was originally brought by William S. Smoot, the complainant's intestate, against James G. Benton, an officer of the United States army, in command of the National armory at Springfield, Mass., charging him with infringement of two patents, dated respectively January 1, 1867, and August 27, 1867, for improvements in cartridge retractors for breech-loading fire-arms. Subsequently the defendant died, and thereupon the complainant moved to amend his bill by substituting the present defendant, Porter, master armorer at the Springfield armory. The amendment was allowed, reserving the right of the defendant to object. The defendant appeared, and without objections filed an answer in the case. The United States attorney, on behalf of Porter, urges this circumstance as tending to show that this suit is in substance, though not in form, against the United States, but I fail to see the force of this argument. The complainant, on the death of Benton, might have proceeded against his representatives, but he chose to sue the present defendant, who consents to be substituted for Benton. The suit therefore stands as if originally brought against Porter.

The defendant admits that since the date of the patents, and before the filing of the bill, he has superintended, and still superintends, the making of breechloading fire-arms at the Springfield armory, as the master armorer, but he alleges that all his acts in relation thereto have been done in obedience to specific orders from the secretary of war, and his superior officers, directing the construction thereof, and in no other way; in other words, his defense is that he has acted only as the agent of the government and under its authority. The subject-matter of this suit is a patent issued by the United States, and it became important at the outset to determine the nature of this grant. It has been authoritatively declared by the Supreme Court that the right of a patentee under letters patent was exclusive of the United States, and that it stands on the same footing as other property. James v. Campbell, 104 U. S. 356; Hollister v. Manuf. Co., 113 id. 59. Assuming the allegations of the bill to be true, this is a suit where the property rights of an individual have been invaded by an officer or agent of the United States, acting under its direction, and the question is whether this court has jurisdiction in such a suit.

In cases where this general subject has come before the Supreme Court, the proposition is admitted that the United States, as the sovereign power, cannot be sued without its consent. I need only cite on this But it is not to be point U. S. v. Lee, 106 U. S. 196. inferred from this that this court has not jurisdiction in an action where an officer or agent of the United States is sued for property in his possession as such of ficer or agent, or for injury to the person or property of another, where the defense is that he acted under the orders of the government.

In U. S. v. Peters, 5 Cranch, 115, the United States District Court of Pennsylvania, in an admiralty proceeding, decided that the libellants were entitled to the proceeds of the sale of a vessel condemned as prize of war, which had come into the hands of David Rittenhouse as treasurer of Pennsylvania. The district judge declined to enforce the decree against the representatives of Rittenhouse, on the ground that the funds were held as the property of that State, and that as she could not be subjected to judicial process, neither could the officer who held the money in her right. An application for a writ of mandamus to

compel the district judge to enforce the decree was granted.

In Meigs v. M'Clung's Lessee, 9 Cranch, 11, the suit was for land on which the United States had a garri son and had erected a fort. The defendants were military officers in possession, and they insisted that no action could be brought against them because the land was occupied by the United States for the benefit of the United States, and by their direction. The court held that, the title being in the plaintiff, he might sustain his action.

Wilcox v. Jackson, 13 Pet. 498, was a suit against officers of the United States to recover possession of land which had been in the possession of the goverument for over thirty years. The court do not consider the question whether such an action could be maintained, but proceed to decide the question of the plaintiff's title.

In Osborn v. Bank, 9 Wheat. 738, the State of Ohio had levied a tax upon a branch of the bank located in Ohio. The sum of $100,000 was seized by Osborn, the auditor of the State, and delivered to the treasurer of the State. In a suit by the bank both were made parties defendant. Objections were raised to the jurisdiction of the court on the ground that the State of Ohio was the real party in interest, that the parties defendant were her officers, and that they were sued for acts done in their official capacity, and in obedience to her laws. These objections were overruled. Chief Justice Marshall says, on page 842: "If the State of Ohio could have been made a party defendant it cau scarcely be denied that this would be a strong case for an injunction. The objection is that, as the real party cannot be brought before the court, a suit cannot be sustained against the agents of that party, and cases have been cited to show that a court of chancery will not make a decree, unless all those who are substantially interested be made parties to the suit. This is certainly true where it is in the power of the plaintiff to make them parties, but if the person who is the real principal, the person who is the true source of the mischief, by whose power and for whose advantage it is done, be himself above the law, be exempt from all judicial process, it would be subversive of the best established principles to say that the laws could not afford the same remedies against the agent employed in doing the wrong which they would afford against him could his principal be joined in the suit." Again he says: "The process is substantially though not in form against the State, * and the direct inter

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est of the State in the suit as brought is admitted, and had it been in the power of the bank to make it a party, perhaps no decree ought to have been pronounced in the cause until the State was before the court. But this was not in the power of the bank.

* * * A denial of jurisdiction forbids all inquiry into the nature of the case. * * *It asserts that the agents of a State, alleging the authority of a law void in itself, because repugnant to the Constitution, may arrest the execution of any law in the United States."

Grisar v. Mc Dowell, 6 Wall. 363, was an action to recover possession of land, brought against Gen. MeDowell as an officer of the United States. The land had been reserved for military purposes by the gov ernment. The objection that this suit was brought against a military officer of the United States for property belonging to the United States, and set apart for public use, and that therefore it was substantially a suit against the government, was not passed upon by the court, but the court proceeded to determine the question of title as between the plaintiff and the government. Brown v. Huger, 21 How. 305, is a similar

case.

In Davis v. Gray, 16 Wall. 203, the State of Texas

having made a grant of alternate sections of land along which a railroad should thereafter be located, and the railroad having been located through it, a suit was brought against the governor of the State and commissioner of the land office, and they were enjoined from delivering patents of the sections of land which belonged to the railroad company. The objection to the jurisdiction of the court was disposed of on the authority of Osborn v. Bank. The court says: "Where the State is concerned, the State should be made a party, if it could be done. That it cannot be done is a sufficient reason for the omission to do it, and the court may proceed to decree against the officers of the State in all respects as if the State were a party to the record. In deciding who are parties to the suit, the court will not look beyond the record. Making a State officer a party does not make the State a party, although her law may have prompted his action, and the State may stand behind him as the real party in interest. A State can be made a party only by shaping the bill expressly with that view, as where individuals or corporations are intended to be put in that relation to the case."

rest for their weight as authority on the high character of the judge who delivered them, and not on that of the court which decided the case. That the United States are not bound by a judgment to which they are not parties, and that no officer of the government can, by defending a suit against private persons, conclude the United States by the judgment, was sufficient to decide that case, and was all that was decided."

Looking at the question upon principle he continues: "It seems to be opposed to all the principles upon which the rights of the citizen, when brought in collision with the acts of the government, must be determined. In such cases there is no safety for the citizen except in the protection of the judicial tribunals, for rights which have been invaded by the officers of the government, professing to act in its name.

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The position assumed here is that, however clear his rights, no remedy can be afforded to him when it is seen that his opponent is an officer of the United States, claiming to act under its authority, for, as Mr. Chief Justice Marshall says, to examine whether this authority is rightfully assumed is the exercise of jurisdiction, and must lead to the decision of the merits of the question. * * * The defense stands here solely upon the absolute immunity from judicial inquiry of every one who asserts authority from the executive branch of the government, however clear it may be made that the executive possessed no such power. Not only no such power is given, but it is ab

While this language is cited in support of the majority opinion of the court in U. S. v. Lee, Mr. Justice Miller in that case says he is not prepared to admit that "the court can proceed against the officer in all respects as if the State were a party." And in Cunningham v. Railroad Co., 109 U. S. 446, the same eminent judge, speaking for a majority of the court, de-solutely prohibited, both to the executive and the legclares that while the action of court in Davis v. Gray has not been overruled, "it is clear that in enjoining the governor of the State in the performance of one of his executive functions, the case goes to the verge of sound doctrine, if not beyond it, and that the principle should be extended no further."

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islative, to deprive any one of life, liberty or property without due process of law, or to take private property without just compensation."

Poindexter v. Greenhow (one of the Virginia Coupon Cases), 114 U. S. 270, was an action of detinue for personal property distrained by the defendant as treasurer of the State of Virginia for delinquent taxes, in payment of which the plaintiff had tendered coupons cut from bonds issued by the State under the Fund

In the leading case of U. S. v. Lee, 106 U. S. 196, the action was ejectment to recover the possession of lands to which the plaintiff Lee claimed title. The defendants were in possession as officers of the governing Act of March 30, 1871. By the terms of that act ment. The attorney-general suggested to the court, without making the United States a party, that the property in controversy, known as "Arlington Cemetery," had been for more than ten years, and now is, held, occupied and possessed by the government through its officers and agents, who are in the actual possession thereof as public property of the United States. To sustain this defense the court held that it was necessary to show that the defendants were in possession under the United States, by virtue of some valid authority, and the contrary appearing, judgment was awarded to the plaintiff. After reviewing the authorities Mr. Justice Miller says: "This examination of the cases in this court establishes clearly this result: that the proposition that, when an individual is sued in regard to property which he holds as officer or agent of the United States, his possession cannot be disturbed when that fact is brought to the attention of the court, has been overruled and denied in every case where it has been necessary to decide it, and that in many others where the record shows that the case, as tried below, actually and clearly presented that defense, it was neither urged by counsel nor considered by the court here, though if it had been a good defense it would have avoided the necessity of a long inquiry into plaintiff's title, and of other perplexing questions, and have quickly disposed of the case."

Mr. Justice Miller then proceeds to discuss certain expressions in the opinion of the court in Carr v. U. S., 98 U. S. 433, and he says: "As these remarks were not necessary to the decision of the point then in question, as the action was equally inconclusive against the United States, whether the persons sued were officers of the government or not, these remarks, if they have the meaning which counsel attribute to them, must

the coupons, after maturity, were receivable for all taxes and debts due the State. It was held that this created a contract between the coupon-holder and the State, and that any subsequent act of the State which forbids the receipt of these coupons is in violation of the contract, and void as against coupon-holders. Upon the question now under consideration, Mr. Justice Matthews, speaking for the majority of the court, says: "It is next objected that the suit of the plaintiff below could not be maintained because it is substantially an action against the State of Virginia, to which it has not assented. It is said that the tax collector who is sued was an officer and agent of the State, engaged in collecting its revenue under a valid law, and that the tax he sought to collect from the plaintiff was lawfully due, that consequently he was guilty of no personal wrong, but acted only in an official capacity, representing the State, and in refusing to receive the coupons tendered simply obeyed the commands of his principal, whom he was lawfully bound to obey, and that if any wrong has been done, it has been done by the State in refusing to perform its contract, and for that wrong the State is alone liable, but is exempted from suit by the eleventh article of amendment to the Constitution of the United States."

The opinion then proceeds to answer these objections in the light of the adjudged cases in the Supreme Court, reliance being placed especially on U. S. v. Lee and Osborn v. Bank. In the course of this discussion it is said: "A defendant sued as a wrong-doer, who seeks to substitute the State in his place, or to justify by the authority of the State, or to defend on the ground that the State has adopted his act and exonerated him, cannot rest on the bare assertion of his defense. He is bound to establish it. The State is a po

litical corporate body, can act only through agents and can command only by laws. It is necessary therefore for such a defendant, in order to complete his defense, to produce a law of the State which constitutes his commission as its agent, and a warrant for his act. This the defendant in the present case undertook to do. He relied on the act of January 26, 1882, requiring him to collect taxes in gold, silver, United States treasury notes, National bank currency, and nothing else, and thus forbidding his receipt of coupons in lieu of money. That it is true is a legislative act of the government of Virginia, but it is not a law of the State of Virginia. The State has passed no such law, for it cannot, and what it cannot do it certainly, in contemplation of law, has not done. The Constitution of the United States and its own contract, both irrepealable by any act on its part, are the law of Virginia, and that law made it the duty of the defendant to receive the coupons tendered in payment of taxes, and declared every step to enforce the tax thereafter taken to be without warrant of law and therefore a wrong. He stands then stripped of his official character, and confessing a personal violation of the plaintiff's rights for which he must personally answer, he is without defense."

It was accordingly directed that judgment be rendered for the plaintiff.

its agent or officer. Mr. Justice Clifford, speaking for the court, says on this point: "Public employment is no defense to the employee for having converted the private property of another to the public use without his consent and without just compensation."

After reference to the, clause in the Constitution which provides that private property shall not be taken for public use without just compensation, and to the section of the Patent Act giving the patentee the exclusive right to make, use and vend to others his invention or discovery for a certain term of years, he then proceeds: "Agents of the public have no more right to take such private property than other individuals under that provision, as it contains no exception warranting any such invasion of the private rights of individuals. Conclusive support to that proposition is found in a recent decision of this court, in which it is held that the government cannot, after the patent is issued, make use of the improvement any more than a private individual, without license of the inventor or making him compensation. U. S. v. Burns, 12 Wall. 246."

The question of infringement is then considered and determined against the patentee. This opinion does not discuss the objection which has been raised in this class of cases to the jurisdiction of the court, and in view of the subsequent expressions of the court in James v. Campbell, 104 U. S. 356, and Hollister v. Man

clusive of the question.

In Cunningham v. Railroad Co., 109 U. S. 446, this general question was discussed, and the cases in which|ufacturing Co., 113 id. 59, it can hardly be deemed conthe court had taken jurisdiction, where the objection was interposed that the suit was substantially against the State, and that therefore the State was a necessary party, were examined and classified. The second class of cases is stated by Mr. Justice Miller as follows: "Another class of cases is where an individual is sued in tort for some act injurious to another in regard to person or property, to which his defense is that he has acted under the orders of the government. In these cases he is not sued as, or because he is, the officer of the government, but as an individual, and the court is not ousted of jurisdiction because he asserts authority as such officer. To make out his defense he must show that his authority was sufficient in law to protect him. Mitchell v. Harmony, 13 How. 115; Bates v. Clark, 95 U. S. 204; Meigs v. McClung, 9 Cranch, 11; Wilcox v. Jackson, 13 Pet. 498; Brown v. Huger, 21 How. 305; Grisar v. McDowell, 6 Wall. 363; U. S. v. Lee, 106 U. S. 196.

This language is cited with approval in Poindexter v. Greenhow.

In reviewing the cases involving the general principle now under consideration, the fact should not escape observation that the judges of the Supreme Court have been much divided in opinion. The leading cases of U. S. v. Lee and the Virginia Coupon Cases were decided by a bare majority of the court, four of the judges dissenting in each case. But notwithstanding this diversity of opinion, I think it is not going too far to say that the doctrine enunciated by Mr. Justice Miller, under the second head of his classification in Cunningham v. Railroad Co., has become the established law of the Supreme Court, and it is under this head the present case falls.

It cannot be said that the Supreme Court have authoritatively decided the identical question raised in this case, of the right of a patentee to maintain a suit in tort for the infringement of a patent-right against an individual whose defense is that all his acts in relation thereto were done as an officer or agent of the government and in obedience to its orders.

Cammeyer v. Newton, 94 U. S. 225, was an action brought for the infringement of a patent, and one of the defenses set up was that the use if any which the defendant had made of the patented improvement was done under the direction of the United States, and as

James v. Campbell was a suit brought upon a patent against James, a public officer, to respond for the use of the patented machine. The Circuit Court rendered a decree in favor of the complainant. Campbell v. James, 17 Blatchf. 42. After admitting the exclusive right of the patentee in the invention, which the government itself cannot use without just compensation, unless by consent, the opinion then proceeds: "But the mode of obtaining compensation from the United States for the use of an invention, where such use has not been by the consent of the patentee, has never been specifically provided for by any statute. The most proper forum for such a claim is the Court of Claims, if that court has the requisite jurisdiction. As its jurisdiction does not extend to torts, there might be some difficulty, as the law now stands, in prosecuting in that court a claim for the unauthorized use of a patented invention, although where the tort is waived, and the claim is placed upon the footing of an implied contract, we understand that the court has, in several recent instances, entertained the jurisdiction. * If the jurisdiction of the Court of Claims should not be finally sustained, the only remedy against the United States, until Congress enlarges the jurisdiction of that court, would be to apply to Congress itself. The course adopted in the present case, of instituting an action against a public officer, who acts only for and in behalf of the government, is open to serious objections. We doubt very much whether such an action can be sustained. It is substantially a suit against the United States itself, which cannot be maintained under the guise of a suit against its officers and agents, except in the manner provided by law. We have heretofore expressed our views on this subject in Carr v. U. S., 98 U. S. 433, where a judgment in ejectment against a government agent was held to be no estoppel against the government itself. But as the conclusion which we have reached in this case does not render it necessary to decide this question, we reserve our judgment upon it for a more fitting occasion."

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The court then proceeds to discuss the patent and to decide the case upon its merits against the patentee.

It is to be noticed that this case is prior tʊ U. S. v. Lee and the Virginia Coupon Cases; also that the fore

going remarks of Mr. Justice Bradley concerning the jurisdiction of the court are based upon Carr v. U. S. In U. S. v. Lee the language of the court in Carr v. U. S. is commented upon, and it is said that the decision in that case did not properly extend to certain remarks of the court. It may also be observed that Mr. Justice Bradley was among those members of the court who dissented in U. S. v. Lee, and that he wrote the dissenting opinion in the Virginia Coupon Cases. The more recent case of Hollister v. Manuf. Co., 113 U. S. 59, was a suit to enjoin the infringement of a patent, and one of the defenses relied upon was that all the acts of the defendant complained of in the bill were done by him in the discharge of his duties as collector of internal revenue of the United States, and by direc tion of the commissioner of internal revenue, and that he had acted as collector by virtue of legal appointment by the president of the United States.

Mr. Justice Matthews, speaking for the court, refers to the doubts expressed in James v. Campbell whether such a suit against public officers could be sustained, or whether a suit upon an implied promise of indemnity might not be prosecuted against the United States in the Court of Claims, and then adds: "If the right of the patentee was acknowledged, and without his consent an officer of the government, acting under legislative authority, made use of the invention in the discharge of his official duties, it would seem to be a clear case of the exercise of the right of eminent domain, upon which the law would imply a promise of compensation, an action on which would lie, within the jurisdiction of the Court of Claims, such as was entertained and sanctioned in the case of U. S. v. Manufacturing Co., 112 U. S. 645. And it may be that, even if the exclusive right of the patentee were contested, such an action might be brought in that court, involving all questions relating to the validity of the patent; but as we have concluded to dispose of the present appeal upon other grounds, it becomes unnecessary to decide the question arising upon this defense."

The opinion then proceeds to discuss the patent and to dispose of the case against the contention of the patentee.

ers, including the government. To deprive him of the full enjoyment of these rights by using his invention without his consent is to deprive him of his property without just compensation or due process of law, and therefore in conflict with those provisions of the Constitution which secure this protection to the citizen.

I am of opinion therefore that the plea in this case should be overruled.

WILL-SIGNING BY MARK-PROOF. SURROGATE'S COURT, CITY AND COUNTY OF NEW YORK.

WILL OF HYLAND.

A will signed by the testator by his mark may be admitted to probate upon the testimony of a single surviving attesting witness.

Arthur Van Siclen, for proponent.

RANSOM, Surrogate. The decedent signed his will by a mark. On the face of the paper it was properly attested by two subscribing witnesses, whose signatures follow the recitals in a full attestation clause. One of them, Metz, has since died. Lawler, the surviving witness, testifies to all the facts necessary to show the proper execution of the instrument.

The provisions of the Revised Statutes and of the Code, in respect to the execution of wills, are substantially alike. 5 Rev. Stat. (6th ed.), p. 39, § 11; Code, Civ. Pro., § 2620. The language of the Code is: "If all the subscribing witnesses, or if a subscribing witness is dead, ** ** the will may nevertheless be established upon proof of the handwriting of the testator and of the subscribing witnesses, and also of such circumstances as would be sufficient to prove the will upon the trial of an action."

The real question to be decided is whether the evidence of Lawler, the surviving witness, of the making of the mark by the decedent, without confirmatory testimony by others, is sufficient under the law to admit the will. The subject has been considered by various surrogates in this State.

In 1867 Surrogate Tucker of this county (Matter of Walsh, 1 Tucker, 132), held that a will subscribed by a mark could not be admitted if the second subscribing witness could not be produced.

In 1870 the surrogate of Orange county criticized this conclusion, holding that Surrogate Tucker must have overlooked an important particular of the section of the statute which provided for the proof "of such other circumstances as would be sufficient to prove such will on a trial at law," and he held that if others present at the time of the execution proved the making of the mark by the testator, it was sufficient to admit the will to probate. Simpson's Will, 2 Redf. 29.

It is at least doubtful whether the present action could be brought in the Court of Claims. In its preseut form it is an action in tort, and not upon any contract, express or implied, and as was said by Mr. Justice Bradley in James v. Campbell, the jurisdiction of that court does not extend to torts. While the Supreme Court have declined to pass upon the question of jurisdiction in these cases, they have assumed jurisdiction and disposed of each case on its merits; in other words, no case can be found where the court has dismissed the suit for want of jurisdiction, and this would seem to be sufficient ground in this case to overrule the plea, and allow the case to be heard upon bill, answer and proofs. If however the principle established in the cases we have reviewed, and the rule laid down by Mr. Justice Miller in Cunningham v. Railroad Co., are sound, it is difficult to see why the court has not jurisdiction in the present case. This is an action of tort for the infringement of a patent, brought against an individual, who is an officer or agent of the United States, and whose defense is that he acted under orders of the government. That this is no defense in actions of this general character has, as we have seen, been repeatedly held by the Supreme Court, and the objection interposed that these suits are substantially against the government, and that therefore it is a necessary party to enable the court to grant relief, has been many times urged without avail. The rights secured to a patentee under his grant from the government are a form of property, in the enjoyment of which he is entitled to protection against all trespass-signed by a mark.

In 1876 in the Will of Reynolds, 4 Dem. 68, Surrogate Coffin of Westchester county stated that in such a case "It is indispensably requisite that the handwriting of the testator be proven, which can be done by some one sufficiently familiar with the cast or form of the writing of the person to enable him to identify it as his, but that a cross-mark has no such cast or form as to distinguish it from a like mark made by any other individual, and cannot be the subject of expert testimony. But the difficulty would doubtless be obviated were witnesses able to testify that they were also present and saw the deceased make nis mark." As there was no other than the surviving subscribing witness present to prove the fact, probate was refused. In 1877, in Worden v. Van Giesen, 6 Dem. 237, the surrogate of Monroe county denied probate of a will It had a full attestation clause

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