of Appeal. It does not satisfy the bar or the pub lic, and the new judge takes his position amid a storm of any thing but applause. Nothing, however, is said in all the remarks made against his ability, learning, judgment or character. Indeed, it is admitted on all sides that he possesses all the qualifications requisite for the place he is to occupy in an unusual degree, but he is denounced as being a young man, too young for the judicial office, the youngest that has sat within recent years. The ideas of the bench, bar and ruling classes as to what is proper in such matters have been rudely shocked in the appointment, and while the new judge will hold his place and be respected accordingly, we doubt if a like experiment will be again made. NOTES OF CASES. in the Circuit Court of the District of Columbia; and the same authority undoubtedly attaches to the present Supreme Court of the District as the successor to the powers and jurisdiction of the former. Indeed, the power of this court to entertain the writ against the heads of the executive departments has since been repeatedly affirmed. United States v. | Commissioners Land Office, 5 Wall. 563; Gaines v. Thompson, 7 id. 347; The Secretary v. McGarrahan, 9 id. 298; and the question as to the extent to which these officials could be thus controlled has been elabo rated and examined; but whether they could be commanded to withdraw money from the treasury has never previously been clearly passed upon. The point decided is therefore of much importance to claimants against the government. The duty of the The Supreme Court of the District of Columbia Secretary in drawing warrants for the payment of has decided, in a case recently published, that a money is held not to be a mere ministerial act. mandamus will not lie to compel the Secretary of He is expected to so use his discretion as that the the Treasury to draw his warrant upon the Treas- credit of the United States shall not suffer. He urer for the payment of money, unless there has must be left free in the exercise of his official duties been a specific appropriation for the particular to this end. It must, therefore, be distinctly shown claim, and a direction by Congress for its payment. that an act of Congress imperatively directs the The claim in controversy appears to have grown particular payment to be made before the writ can out of an alleged destruction of a steamboat belong-issue; and without this the aid of the court cannot ing to the petitioner, while in the service of the be invoked to control the executive head of the government, under a contract by which the latter treasury department. assumed the war risks. She caught fire at Alexandria, and was hauled into the stream, when she exploded. The Third Auditor allowed the claim,' and transmitted the same to the Second Comptroller, by whom it was adjusted, and it was then approved by the Secretary of War. A requisition was therefore made by the Secretary of War upon the Secretary of the Treasury, to draw his warrant for the amount allowed in favor of the petitioner. There was no specific appropriation for the particular claim. The Secretary of the Treasury refused to draw his warrant, on the ground that the loss of the steamboat was by a risk which the owner took upon himself, and that the United States was not therefore responsible. He also maintained that he had a right to recommit the claim to the Third Auditor for further examination, or to certify it to the court of claims for trial; and that, while he held the case under advisement, his judgment and discretion would not be controlled by the court. Previous to the case of Kendall v. Stokes, 12 Pet. 524, there were serious doubts, whether the executive officers of the general government could be compelled by mandamus to perform any official act whatever. In Marbury v. Madison, 1 Cranch, 137, it had been determined that the Supreme Court of the United States had no original jurisdiction of this writ; and the case of McIntire v. Wood, 7 id., held that no such jurisdiction was vested in the district and circuit courts established by acts of Congress. In the first of these cases the court decided that the power to issue mandamus was vested N the case of Meek v. Breckenridge, 29 Ohio St 342, one Lane conveyed to Breckenridge certain premises by metes and bounds, with covenants of seizin, against incumbrances and warranty. A portion of the roof and eaves of a house, standing on the land conveyed, extended over the adjoining lot of Meek. Lane brought action against Breckenridge to recover the purchase-money, and the latter, as a defense, claimed that the right to maintain and use the projection of the roof and eaves was conveyed to him by Lane; that Meek had a right to cut away the roof and eaves, and to oust him from the use of them, and that this constituted a breach in the covenants of the deed. The court held that, if the right to such projection and eaves and to their use belonged to Lane at the time of the conveyance, it passed to Breckenridge as an appurte nance to the premises granted, but, if it did not then belong to him, such projection, etc., not being within the description of the premises contained in the deed, such right did not pass, and, hence, he did not covenant to warrant and defend it. The first proposition decided by the court is in accordance with the rule recognized by the authorities, that a grant of a thing will include whatever the grantor has power to convey, which is reasonably necessary to the enjoyment of the thing granted. Morgan V. Mason, 20 Ohio, 401; Philbrick v. Ewing, 97 Mass. 134; United States v. Appleton, 1 Sumn. 492. The authorities settle the principle that that which is claimed to be an easement or servitude must not only be appendant in utility and fitness for use to the superior estate, but there must be a unity of title in the same person to both the superior estate and the easement claimed. Riddle v. Littlefield, 53 N. H. 508. As an easement of eavesdrip is not acquirable through adverse user there would seem to be no implication of right to the use of a projection for such a purpose from the fact of its existence. See Arkwright v. Gell, 5 M. & W. 203; Napeer v. Bulwinkle, 5 Rich. 311; Wood v. Waud, 3 Exch. 748; Magor v. Chadwick, 11 A. & E. 571; Sampson v. Hoddinott, 1 C. B. (N. S.) 590. A curious question relating to the construction of a will arose in the case of Levy v. Solomon, recently decided in the Chancery Division of the English High Court of Justice, and reported in 37 L. T. Rep. (N. S.) 263. A Jew, domiciled in England, by will gave certain real and personal estate in trust for the "children" of his son. At the date of the will the son was living in Holland, and was the father of several children, three of them being the fruits of an illicit intercourse with a woman whom he afterward married and who was also the mother of the other children who were born in wedlock. Previous to the marriage this woman had become a convert to Judaism, and the marriage, according to the Jewish law, made the three children legitimate, The court held that the term "children," in the will, must be construed according to the law of England, and that, as there were, at the date of the will, legitimate children to answer the description, the children born before marriage took no interest. The case resembles that of Boyes v. Bedale, 1 H. & M. 798. In that case there was a gift by the will of an Englishman, domiciled in England, of a sum of money to one for life, with remainder to the donee's children. After the death of the testator the donee went to France and acquired a French domicile. He then had an illegitimate child born in France, and afterward married the mother, a French woman. At the time of the marriage he legitimated the child, according to the French law, by a contemporaneous acknowledgment. The court held that the word "children," in the will, could only mean children legitimate according to the English law, and that, therefore, the child born before marriage could not take. See, also, Re Wilson's Trusts, 13 L. T. Rep. (N. S.) 576, affirmed in the House of Lords, sub nom., Shaw v. Gould, 18 L. T. Rep. (N. S.) 833. There an English woman, having been married in England, went to Scotland and obtained there a decree of divorce from her husband. According to the law of Scotland the divorce was valid. She then married in Scotland an Englishman, domiciled there, and had by him. certain children born in Scotland during her first husband's life-time. The question was whether these children could take under the description of "children" upon the construction of an English will in an English court. The House of Lords decided that they could not take, because the divorce in the Scotch court was invalid to dissolve the English marriage according to the English law. See, to the same effect, Re Wright's Trusts, 2 K. & J. 595; Dorin v. Dorin, 33 L. T. Rep. (N. S.) 281; Cartwright v. Vawdry, 5 Ves. 530. See, however, Wilkinson v. Adam, 1 V. & B. 465 (though in that case there were no legitimate children); Hill v. Crook, L. R., 6 H. L. 265. See, also, upon the general subject, Birthwhistle v. Vardill, 7 Cl. & Fin. 895; Ilderton v. Ilderton, 2 H. Black. 145. In the case of Clegg, plaintiff in error, v. Galveston Hotel Co., 1 Tex. L. J. 74, recently decided by the Texas Court of Appeals, the action was to recover the balance due upon a subscription for one share of the capital stock of the defendant in error. It appeared that by the charter of the defendant its capital stock was to be $250,000, in shares of $500 each, and that at the time of the commencement of the action only two hundred and fifty-four shares had been subscribed. The court decided that the action was not maintainable, holding that it is an essential condition to making calls in those companies where the number of shares and amount of capital is fixed that the whole stock shall at the time be subscribed for. Numerous authorities support this doctrine. See Salem Mill Dam Co. v. Ropes, 4 Pick. 23; S. B. Railroad Co. v. Gould, 2 Gray, 277; Cent. T. Co. v. Valentine, 10 Pick. 142; Oldtown R. R. Co. v. Veazie, 39 Me. 571; Contocook Valley R. R. Co. v. Barker, 32 N. H. 363. It has been held that the subscription of one man for another, without authority, for the purpose of completing the requisite number of shares, will avail nothing in favor of the assessment (Sulem Mill D. Co. v. Ropes, supra), and if any subscription were conditional, it must be shown that the condi tion was satisfied or waived. Penobscot R. R. Co. v. Dunn, 39 Me. 587; Philadelphia R. R. Co. v. Hickman, 28 Penn. St. 318; Berry v. Yates, 24 Barb. 199; Evansville R. R. Co. v. Shearer, 10 Ind. 244. And if a part of the price of stock conditionally subscribed for is paid before the performance of the condition, the subscriber may, upon a final breach, recover back the amount so paid. Jewett v. Lawrenceburgh R. R. Co., 10 Ind. 539. In Lewy's Island R. R. Co. v. Bolton, 48 Me. 455, it was held that the subscription must be made in good faith by men apparently able to pay. See, also, Atlantic Cotton Mills v. Abbott, 9 Cush. 423; Macedon P. R. Co. v. Lapham, 18 Barb. 312; City Hotel Co. v. Dickenson, 6 Gray, 586; Shurtz v. Schoolcraft R. R. Co., 9 Mich. 269. STATE INTERFERENCE WITH PATENT RIGHTS. THE IE extraordinary frauds which have been practiced by vendors of patent rights have led the legislatures of several of the States to pass statutes, intended to protect the purchaser. The statute of this State (Laws 1877, ch. 65) is a fair sample of all of these acts, and a literal copy of some of them. This statute requires negotiable instruments, given for patent rights, or the right to make or vend patented inventions, to contain on their face the words "Given for a patent right," and makes them subject to the same defenses in the hands of the purchaser or holder, as in the hands of the original payee. The omission of these words is made a misdemeanor. Of the propriety of such legislation there may be great doubt. Most of those whom it is intended to protect are entitled to but little sympathy. If they are defrauded it is usually through their own stupidity or cupidity; even the so-called "innocent purchaser or holder," having, as a rule, knowledge in fact of the consideration for the instrument purchased and sufficient information of the course of the patent-vending business to have reason to question the bona fides of the paper he takes. But, whether wise or otherwise, there seems to be a concurrence of decisions that such statutes are an unlawful interference with the prerogative of Congress, and are therefore void. The most recent decision that has come to our notice, and one entitled to much consideration by reason of the great ability of the court, is that of the Supreme Court of Michigan, published in the ALBANY LAW JOURNAL of the 10th inst., holding a statute like that of New York void. Mr. Justice Cooley seems not to have taken part in the decision, a matter to be regretted, since he is a recognized authority on questions of constitutional limitations. The argument of the court is contained in this paragraph: "The subject of granting patents and regulating the rights of patentees has been placed by the Constitution of the United States in the control of Congress. It is for that body alone to determine to whom and on what conditions they shall be granted, and how the patented privileges are to be transferred or disposed of. Where any right or privilege is subject to the regulation of Congress, it is not competent for State laws to impose conditions which shall interfere with the rights or diminish their value. In those cases where the congressional power is lawfully exercised, it is supreme. In the absence of any policy to the contrary, the transfer of such rights may follow, as it usually does, the State rule applicable to similar property as to sales or inheritances. But any attempt to discriminate against it is a direct invasion of the authority of the United States, and is invalid." In Hollida v. Hunt, 70 Ill. 109, a statute was con strued of a much more radical and sweeping nature than those we have referred to. It was entitled "An act to regulate the sale of patent rights, and to prevent frauds connected therewith," and provided that it should be unlawful to sell patent rights within the State, without first having submitted to the County Court of the county in which it is desired to sell, the letters patent, the authority to sell, and a prescribed affidavit; and, thereupon, the clerk may, if he be satisfied, issue a certificate, which is evidence of authority to sell. The act then requires all obligations, given for a patent, to contain the words, "Given for a patent right," and makes them subject to defenses. It was conceded by the counsel that the provisions of the act, except the one last above mentioned, were void. The court held that void also. The decision is, therefore, "on all fours " with the Michigan case. The court said, arguendo: "If this legislation can be sustained, upon the same principle nothing can be found to prevent the State from entirely prohibiting the sale of patent rights; and if this be done here, it may also be done in every other State in the Union, and thus we would have the spectacle of a right granted under the laws of the United States, pursuant to an express provision of the Constitution, annihilated by the laws of the several States. "A majority of the court are of opinion that, while it is undoubtedly within the power of the legislature to prescribe the form and declare the effect of negotiable instruments, this section cannot be regarded as limited to this object. It has nothing to do with negotiable instruments in general, but is exclusively restricted to such as are given in whole or in part, for a patent right, and deprives them of one of the most important attributes of negotiability. It is a marked discrimination against the traffic in patent rights, which cannot fail to seriously prejudice and impair the rights of patentees and their assignees. "The right to vend, guaranteed by the general government to patentees, is to traffic and sell with the same freedom that may be exercised in regard to any and all other property, according to the common and usual course of trade and business, and whatever tends to prevent this, necessarily tends, to that extent, to destroy the right granted." In Ex parte Robinson, 2 Biss. 309, a statute of Indiana similar to the first provision of that of Illinois was held void by the Circuit Court of the United States, on substantially the same ground. The opinion was delivered by Mr. Justice Davis, of the Supreme Court, and was a mere summary of the "conclusions" which he had reached. He said: "The property in inventions exists by virtue of the law of Congress, and no State has a right to interfere with its enjoyment, or to annex conditions to the grant. If the patentee complies with the law of Congress on the subject, he has a right to go into the open market, anywhere within the United States, and sell his property. If this were not so, it is easy to see that a State could impose terms which would result in a prohibition of the sales of this species of property within its borders, and in this way nullify the laws of Congress, which regulate its transfer, and destroy the power conferred upon Congress by the Constitution." In Helm v. First National Bank, 43 Ind. 167; S.C., 13 Am. Rep. 395, a statute like those of Michigan and New York was held void for the same reasons. In State v. Peck, 25 Ohio St. 26, the court gave construction to an act similar to that of New York, but did not pass upon its validity, nor, in fact, was that question raised so far as the report indicates. The principle of these decisions was applied to a very different state of facts in Grover & Baker Sewing Machine Co. v. Butler, 53 Ind. 454; S. C., 21 Am. Rep. 200. A statute of Indiana required all foreign corporations to comply with certain conditions similar in terms to those usually required, as a condition precedent to transacting business. The court held that the act did not apply to corporations engaged in the manufacture and sale of articles covered by letters patent. The absurdity of this application of the doctrine seems obvious, although the dicta of some of the cases is broad enough to justify it. We very much doubt if the extent of the power conferred by the Constitution upon Congress has not been overrated. Congress has power "to promote the progress of science and useful arts, by securing for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries." The object of this and of the patent laws is not to aid a man in vending the result of his genius, but to give him the exclusive use of it. Under letters patent his invention becomes property, subject to all the incidents of property and to the operation of uniform State laws. In Livingston v. Van Ingen, 9 Johns. 582, Chancellor Kent said: "Again the power granted to Congress goes no further than to secure to the author or inventor a right of property, which, like every other species of property, must be used and enjoyed within each State according to the laws of such State. The power of Congress is only to ascertain and define the right of property; it does not extend to regulating the use of it. That must be exclusively of local cognizance. If the author's book or print contains matter injurious to public morals or peace, or if the inventor's machine or other production will have a pernicious effect upon the public health or safety, no doubt a competent authority remains within the State to restrain the use of the patent right." In the Grover & Baker case the law condemned was a general law, and uniform in its operations; besides this, it did not in any degree interfere with the sale or assignment of rights under letters patent, as did the other cases above cited, but the interference, if any, was limited to the sale of articles resulting from the patented invention. This distinction is clearly pointed out in an able decision of the Supreme Court of Kentucky in Patterson v. Commonwealth, 11 Bush, 311; S. C., 21 Am. Rep. 220. Judge Pryor said: "There is a manifest distinction between the right of property in the patent, which carries with it, and the right to sell the property resulting from it the power on the part of the patentee to assign the invention or patent. A State has no power to say, through its legislature, that the patentee shall not sell his patent, or that its use shall be common to all its citizens, for this would be in direct conflict with the law of Congress. * * * The discovery or invention is made property by reason of the patent, and his right of property the patentee can dispose of under the law of Congress, and no State legislation can deprive him of this right; but when the fruits of the invention or the articles made by reason of the application of the principle discovered is attempted to be sold or used within the jurisdiction of the State, it is subject to its laws like other property." In that case the court held that a State statute providing for the inspection of illuminating oils and forbidding the sale of any that would not stand a prescribed test applied as well to patented oils as to others. MY DEAR SIR-In a postscript to the communication which I addressed to you under the date of 10th of March last* I took occasion to refer to a case of ex tradition involving the good faith of the United States, which Senator Stevenson, of Kentucky, the counsel for the prisoner, had just brought to my notice. One Hawes, who had been treasurer of the city of Covington, and who, in consequence of his official defalcations, had escaped to Canada, was, in accordance with the then recent arrangement, under which the extradition article of the treaty of 1842 was provisionally revived, demanded of the provincial authorities, on charges of forgery, for which, as well as for embezzlement, he had been indicted in the State court. Extradition (embezzlement not being an offense included in the treaty) was granted on three of the charges of forgery and refused on the fourth charge, which, it was considered, did not present a prima facie case. When the matter came before the court at Covington, in June last, the forgery case, for which extradition had been refused, was dismissed, on motion of the public prosecutor. The other three forgery cases, which comprised all the matter for which the accused was extradited, were tried, and the prisoner acquitted and discharged by the judgment of the court. Though the continuance of the temporary arrangement between Mr. Fish and Lord Derby was dependent on the United States abstaining from trying an extradited person for other than the crime for which he was surrendered, it was then attempted to call up the indictments for embezzlement, which, it was admitted, had been found previously to the demand of extradition, and which, moreover, were for an offense not *Albany Law Journal, vol. xv, pp. 224, 232. See, also, vol, xiv, pp. 85, 99, vol. xvi, pp. 133-4. within the treaty. Counsel appeared on the part of the United States, who suggested, as instructed by the government at Washington, the expediency, on public considerations (negotiations with regard to a new treaty of extradition being then pending), of deferring any action in the matter. For that reason, and also, as it was understood, to afford the Governor of Kentucky an opportunity to take measures to quash the proceedings, the embezzlement cases were continued until the August term. The question of the competency of the court to proceed in the matter was raised on two motions on behalf of the prisoner. The first, which was made on 17th August, was to continue the cause and transfer the prisoner to the custody of the authorities of the United States, to be returned or permitted to return to his domicile and asylum in the Dominion of Canada. The attorney for the Commonwealth objected, and by consent the further consideration of the motion was continued until the 30th of August, when the prisoner moved the court, in addition to his original motion, to quash and set aside the return of the sheriff on the bench warrant, issued against him. The court (Jackson, J.), after an exhaustive history of extradition, including the decisions of our courts, recognizing it as exclusively within the domain of the Federal government, and an examination of the correspondence respecting the treaty between England and the United States, to which the affairs of Lawrence and Winslow gave rise, came to the conclusion, that "it was bound to take judicial cognizance of the treaty as the 'supreme law of the land,' and that if by the terms of the treaty, either expressed or implied, the prisoner cannot be tried for any offense for which he was not extradited, then, although he may be within the bar of the court or in a jail under the control of this court, as this court is bound to regard that treaty, it is outside of its jurisdiction to proceed with the trial, as the supreme law of the land' otherwise provides; and thus this whole question hinges upon the construction of the treaty. "I have heretofore stated," continued the judge, "that it is the American doctrine, and I may say that it is the British doctrine, that there can be no extradition unless by positive treaty stipulation. By the terms of the tenth article of the treaty, now under consideration, it is only for certain offenses that extradition will be permitted by either government. Embezzlement is not one of these offenses. There is now no government that will deliver up any one charged with a political offense, not even Turkey, and independent of the question, whether the embezzlement of the funds of a town, a component part of a State government, is or is not a political offense, about which there is some difference of opinion among nations, is it not the true doctrine that when nations enumerate the crimes for which they will permit extradition, they must be confined to that enumeration? It is urged in argument that there is no positive stipulation against the trial of a non-extraditable offense. Why mention any offense, if a party can be tried for any and every thing not mentioned? When nations enumerate the cases for extradition do they not exclude every thing not enumerated? Here we have by this treaty a mutual agreement that certain offenders and none others may be extradited to be tried, is the prisoner to be tried for that for which he was not extradited? It must be conceded that the government of Great Britain would not have surrendered him to be so tried. Even in reference to one of the indictments for forgery against the prisoner, an offense included in the treaty, Great Britain refused extradition for the reason that the prima facie case required by law was not made out. When Great Britain refused extradition for that offense, with what propriety could the United States, or the State of Kentucky, a component part of the United States, proceed to try him for that offense so refused? It is undoubtedly true that Kentucky has jurisdiction over all offenses committed within her territory, unless there be a treaty stipulation to the contrary, or a law of Congress, passed within the purview of the constitution. A treaty is the supreme law of the land, and I, a judge of a State court, am bound to enforce it as has heretofore been said." Judge Jackson then refers to the provision of the treaty, that extradition shall only be made upon "such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found, would justify his apprehension and commitment for trial, if the crime or offense had been there committed." "If there be any thing agreed upon between the two high contracting parties, it was that for the offenses therein enumerated and for no other there was to be a mutual surrender, or, in other words, extradition for the cases therein provided and stated, and for no other, whenever there was the case made therein by the proof under the treaty. For nothing else could such a demand of surrender be made. And when so made, it is monstrous that there should be a trial for any thing else." "I am aware," said the judge, "that in the case of Richard B. Caldwell and others, decided January 3, 1871, in the southern district of New York, by Judge Benedict, it was held that no matter how wrongfully or fraudulently the United States government obtained possession of a party, although expressly against the provisions of a solemn treaty with another government, he could be tried for any offense, although not extradited for the same; and the remarkable doctrine was uttered that whether there was extradition in good faith or not, because the prisoner was at the bar of the court and in the custody thereof, he could be tried for any thing, even a non-extradition offense. "With me, when there is a solemn duty staring me in the face, which would preclude a trial, although the party might be in the custody of the court, I would not disgrace my government or my country by the assumption of jurisdiction, when by such assumption the plighted faith of my government would be violated. I hold that the section of the treaty now under consideration does not authorize this government or England to demand extradition, except for the offenses included in the treaty, and then only for the offenses proven in accordance therewith. And inasmuch, as I have heretofore said, my view of international law is, that there is and can be no extradition except for offenses especially provided by treaty, and no trial except for the offenses thus extradited, so far as Hawes is concerned, he has had a trial and disposition of the cases for which he was extradited; and now that it is proposed that he shall be tried for offenses for which he was not extradited, I say, under the sanction of my oath, that I cannot try him now. I cannot dismiss the cases pending against him; but I can say, by my order, that in the face of a treaty, which is the supreme law of the land, I will not now try Hawes |