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of Appeal. It does not satisfy the bar or the pub. in the Circuit Court of the District of Columbia; lic, and the new judge takes his position amid a and the same authority undoubtedly attaches to the storm of any thing but applause. Nothing, how- present Supreme Court of the District as the sucever, is said in all the remarks made against his cessor to the powers and jurisdiction of the former. ability, learning, judgment or character. Indeed, it Indeed, the power of this court to entertain the is admitted on all sides that he possesses all the writ against the heads of the executive departments qualifications requisite for the place he is to occupy | has since been repeatedly affirmed. United States v. in an unusual degree, but he is denounced as being Commissioners Land Office, 5 Wall. 563; Gaines v. a young man, too young for the judicial office, the | Thompson, 7 id. 347; The Secretary v. McGarrahan, youngest that has sat within recent years. The 9 id. 298; and the question as to the extent to which ideas of the bench, bar and ruling classes as to what these officials could be thus controlled has been elabois proper in such matters have been rudely shocked rated and examined ; but whether they could be comin the appointment, and while the new judge will manded to withdraw money from the treasury has hold his place and be respected accordingly, we never previously been clearly passed upon. The point doubt if a like experiment will be again made. decided is therefore of much importance to claim

ants 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 trna

| treasury department. assumed the war risks. She caught fire at Alexandria, and was hauled into the stream, when she

NOTES OF CASES. exploded. The Third Auditor allowed the claim, and transmitted the same to the Second Comptroller, I n the case of Meek v. Breckenridge, 29 Ohio St by whom it was adjusted, and it was then approved 1 342, one Lane conveyed to Breckenridge certain by the Secretary of War. A requisition was there- premises by metes and bounds, with covenants of fore made by the Secretary of War upon the Secre- seizin, against incumbrances and warranty. A portary of the Treasury, to draw his warrant for the tion of the roof and eaves of a house, standing on amount allowed in favor of the petitioner. There the land conveyed, extended over the adjoining lot was no specific appropriation for the particular | of Meek. Lane brought action against Breckenclaim. The Secretary of the Treasury refused to ridge to recover the purchase-money, and the latter, draw his warrant, on the ground that the loss of as a defense, claimed that the right to maintain and the steamboat was by a risk which the owner took use the projection of the roof and eaves was conupon himself, and that the United States was not veyed to him by Lane; that Meek had a right to therefore responsible. He also maintained that he cut away the roof and eaves, and to oust him from had a right to recommit the claim to the Third the use of them, and that this constituted a breach Auditor for further examination, or to certify it to | in the covenants of the deed. The court held that, the court of claims for trial; and that, while he held if the right to such projection and eaves and to the case under advisement, his judgment and discre- their use belonged to Lane at the time of the contion would not be controlled by the court. Pre- veyance, it passed to Breckenridge as an appurtevious to the case of Kendall v. Stokes, 12 Pet. 524, nance to the premises granted, but, if it did not there were serious doubts, whether the executive then belong to him, such projection, etc., pot being officers of the general government could be com- within the description of the premises contained in pelled by mandamus to perform any official act | the deed, such right did not pass, and, hence, he did whatever. In Marbury v. Madison, 1 Cranch, 137, | not covenant to warrant and defend it. The first it had been determined that the Supreme Court of proposition decided by the court is in accordance the United States had no original jurisdiction of with the rule recognized by the authorities, that this writ; and the case of McIntire v. Wood, 7 id., | grant of a thing will include whatever the grantor held that no such jurisdiction was vested in the has power to convey, which is reasonably necessary district and circuit courts established by acts of l to the enjoyment of the thing granted. Morgan , Congress. In the first of these cases the court de- | Mason, 20 Ohio, 401; Philbrick v. Ewing, 97 Mass cided that the power to issue mandamus was vested 134; United States v. Appleton, 1 Sumn. 492. The

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authorities settle the principle that that which is certain children born in Scotland during her first claimed to be an easement or servitude must not husband's life-time. The question was whether only be appendant in utility and fitness for use to these children could take under the description of the superior estate, but there must be a unity of “children ” upon the construction of an English title in the same person to both the superior estate will in an English court. The House of Lords deand the easement claimed. Riddle v. Littlefield, 53 cided that they could not take, because the divorce N. H. 508. As an easement of eavesdrip is not in the Scotch court was invalid to dissolve the Engacquirable through adverse user there would seem lish marriage according to the English law. See, to be no implication of right to the use of a pro- | to the same effect, Re Wright's Trusts, 2 K. & J. jection for such a purpose from the fact of its ex- 595; Dorin v. Dorin, 33 L. T. Rep. (N. S.) 281; istence. See Arkuright v. Gell, 5 M. & W. 203; Carturight v. Vaudry, 5 Ves. 530. See, however, Napeer v. Buluinkle, 5 Rich. 311; Wood v. Waud, Wilkinson V. Adam, 1 V. & B. 465 (though in that 3 Exch. 748; Magor v. Chadwick, 11 A. & E. 571; | case there were no legitimate children); Hill v. Sampson v. Hoddinott, 1 C. B. (N. S.) 590.

Crook, L. R., 6 H. L. 265. See, also, upon the gene

ral subject, Birthwhistle v. Vardill, 7 Cl. & Fin. 895; A curious question relating to the construction of Ilderton v. Ilderton, 2 H. Black. 145. 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. In the case of Clegg, plaintiff in error, v. GalvesRep. (N. S.) 263. A Jew, domiciled in England, ton Hotel Co., 1 Tex. L. J. 74, recently decided by the by will gave certain real and personal estate in trust Texas Court of Appeals, the action was to recover for the “children” of his son. At the date of the the balance due upon a subscription for one share of will the son was living in Holland, and was the the capital stock of the defendant in error. It apfather of several children, three of them being the peared that by the charter of the defendant its capifruits of an illicit intercourse with a woman whom tal stock was to be $250,000, in shares of $500 each, he afterwardómarried and who was also the mother and that at the time of the commencement of the acof the other children who were born in wedlock. tion only two hundred and fifty-four shares had been Previous to the marriage this woman had become a subscribed. The court decided that the action was convert to Judaism, and the marriage, according to not maintainable, holding that it is an essential conthe Jewish law, made the three children legitimate. dition to making calls in those companies where the The court held that the term “children," in the number of shares and amount of capital is fixed will, must be construed according to the law of that the whole stock shall at the time be subscribed England, and that, as there were, at the date of the for. Numerous authorities support this doctrine. See will, legitimate children to answer the description, | Salem Mill Dam Co. v. Ropes, 4 Pick. 23; S. B. Railthe children born before marriage took no interest. road Co. v. Gould, 2 Gray, 277; Cent. T. Co. v. ValThe case resembles that of Boyes v. Bedale, 1 H. & entine, 10 Pick. 142; Outown R. R. Co. v. Veazie, M. 798. In that case there was a gift by the will 39 Me. 571; Contocook Valley R. R. Co. v. Barker, 32 of an Englishman, domiciled in England, of a sumN . H. 363. It has been held that the subscription of money to one for life, with remainder to the of one man for another, without authority, for the donee's children. After the death of the testator purpose of completing the requisite number of shares, the donee went to France and acquired a French will avail nothing in favor of the assessment (Salem domicile. He then had an illegitimate child born Mill D. Co. v. Ropes, supra), and if any subscription in France, and afterward married the mother, a were conditional, it must be shown that the condiFrench woman. At the time of the marriage he tion was satisfied or waived. Penobscot R. R. Co. v. legitimated the child, according to the French law, Dunn, 39 Me. 587; Philadelphia R. R. Co. v. Hickby a contemporaneous acknowledgment. The court man, 28 Penn. St. 318; Berry v. Yates, 24 Barb, 199; held that the word "children," in the will, could Evansville R. R. Co. v. Shearer, 10 Ind. 244. And if a only mean children legitimate according to the part of the price of stock conditionally subscribed for English law, and that, therefore, the child born is paid before the performance of the condition, the before marriage could not take. See, also, Re Wil- subscriber may, upon a final breach, recover back son's Trusts, 13 L. T. Rep. (N. S.) 576, affirmed in the amount so paid. Jewett v. Lawrenceburgh R. R. the House of Lords, sub nom., Shau v. Gould, 18 Co., 10 Ind. 539. In Levy's Island R. R. Co. v. Bolton, L. T. Rep. (N. S.) 833. There an English woman, 48 Me. 455, it was held that the subscription must having been married in England, went to Scotland be made in good faith by men apparently able to and obtained there a decree of divorce from her pay. See, also, Atlantic Cotton Mills v. Abbott, 9 husband. According to the law of Scotland the Cush. 423; Macedon P. R. Co. v. Lapham, 18 Barb. divorce was valid. She then married in Scotland | 312; City Hotel Co. v. Dickenson, 6 Gray, 586; an Englishman, domiciled there, and had by him Shurtz v. Schoolcraft R. R. Co., 9 Mich. 269.

strued of a much more radical and sweeping nature STATE INTERFERENCE WITH PATENT

than those we have referred to. It was entitled RIGHTS.

"An act to regulate the sale of patent rights, and to THE extraordinary frauds which have been prac prevent frauds connected therewith,” and provided 1 ticed by vendors of patent rights have led the that it should be unlawful to sell patent rights legislatures of several of the States to pass statutes, within the State, without first having submitted to intended to protect the purchaser. The statute of the County Court of the county in which it is desired this State (Laws 1877, ch. 65) is a fair sample of all to sell, the letters patent, the authority to sell, and of these acts, and a literal copy of some of them. a prescribed affidavit; and, thereupon, the clerk This statute requires negotiable instruments, given may, if he be satisfied, issue a certificate, which is for patent rights, or the right to make or vend evidence of authority to sell. The act then requires all patented inventions, to contain on their face the obligations, given for a patent, to contain the words, words “Given for a patent right," and makes them “Given for a patent right," and makes them subsubject to the same defenses in the hands of the pur ject to defenses. It was conceded by the counsel chaser or holder, as in the hands of the original that the provisions of the act, except the one last payee. The omission of these words is made a mis above mentioned, were void. The court held that demeanor.

void also. The decision is, therefore, “ on all fours" Of the propriety of such legislation there may be | with the Michigan case. great doubt. Most of those whom it is intended to The court said, arguendo: protect are entitled to but little sympathy. If they "If this legislation can be sustained, upon the same are defrauded it is usually through their own stu principle nothing can be found to prevent the State pidity or cupidity; even the so-called “innocent

from entirely prohibiting the sale of patent rights;

and if this be done here, it may also be done in purchaser or holder," having, as a rule, knowledge

every other State in the Union, and thus we would in fact of the consideration for the instrument pur have the spectacle of a right granted under the laws chased and sufficient information of the course of of the United States, pursuant to an express provithe patent-vending business to have reason to ques sion of the Constitution, annihilated by the laws of

the several States. tion the bona fides of the paper he takes.

“A majority of the court are of opinion that, But, whether wise or otherwise, there seems to be

while it is undoubtedly within the power of the a concurrence of decisions that such statutes are an | legislature to prescribe the form and declare the unlawful interference with the prerogative of Con

effect of negotiable instruments, this section.cannot gress, and are therefore void.

be regarded as limited to this object. It bas noth

ing to do with negotiable instruments in general, The most recent decision that has come to our

but is exclusively restricted to such as are given in notice, and one entitled to much consideration by

o much consideration by | whole or in part, for a patent right, and deprives reason of the great ability of the court, is that of them of one of the most important attributes of ne Court of Michigan, published in the negotiability. It is a marked discrimination against

the traffic in patent rights, which cannot fail to ALBANY LAW JOURNAL of the 10th inst., holding a

seriously prejudice and impair the rights of patstatute like that of New York void. Mr. Justice entees and their assignees. Cooley seems not to have taken part in the decision, “The right to vend, guaranteed by the general a matter to be regretted, since he is a recognized

government to patentees, is to traffic and sell with

the same freedom that may be exercised in regard authority on questions of constitutional limitations.

to any and all other property, according to the comThe argument of the court is contained in this mon and usual course of trade and business, and paragraph:

whatever tends to prevent this, necessarily tends,

to that extent, to destroy the right granted.” “The subject of granting patents and regulating the rights of patentees has been placed by the Con In Ex parte Robinson, 2 Biss. 309, a statute of Institution of the United States in the control of diana similar to the first provision of that of IiCongress. It is for that body alone to determine

nois was held void by the Circuit Court of the Unito whom and on what conditions they shall be granted, and how the patented privileges are to be

ted States, on substantially the same ground. The transferred or disposed of. Where any right or

opinion was delivered by Mr. Justice Davis, of the privilege is subject to the regulation of Congress, it Supreme Court, and was a mere summary of the is not competent for State laws to impose condi

“conclusions " which he had reached. He said: tions which shall interfere with the rights or diminish their value. In those cases where the con

" The property in inventions exists by virtue of gressional power is lawfully exercised, it is supreme.

the law of Congress, and no State has a right to In the absence of any policy to the contrary, the

interfere with its enjoyment, or to annex conditions transfer of such rights may follow, as it usually

to the grant. If the patentee complies with the does, the State rule applicable to similar property

law of Congress on the subject, he has a right to go as to sales or inheritances. But any attempt to into the open market, anywhere within the United discriminate against it is a direct invasion of the States, and sell his property. If this were not so, authority of the United States, and is invalid.” it is easy to see that a State could impose terms

which would result in a prohibition of the sales of In Hollida v. Hunt, 70 III, 109, a statute was con- | this species of property within its borders, and a

this way nullify the laws of Congress, which regu- Commonwealth, 11 Bush, 311; S. C., 21 Am. Rep. late its transfer, and destroy the power conferred

| 220. Judge Pryor said: upon Congress by the Constitution."

"There is a manifest distinction between the In Helm v. First National Bank, 43 Ind. 167; S.C., right of property in the patent, which carries with 13 Am. Rep. 395, a statute like those of Michigan

it the power on the part of the patentee to assign

it, and the right to sell the property resulting from and New York was held void for the same reasons. the invention or patent. A State has no power to

In State v. Peck, 25 Ohio St. 26, the court gave say, through its legislature, that the patentee shall construction to an act similar to that of New York,

not sell his patent, or that its use shall be common but did not pass upon its validity, nor, in fact, was

to all its citizens, for this would be in direct conflict

with the law of Congress. * * * The discovery that question raised so far as the report indicates.

or invention is made property by reason of the patThe principle of these decisions was applied to a ent, and his right of property the patentee can disvery different state of facts in Grover & Baker Sew pose of under the law of Congress, and no State ing Machine Co, v. Butler, 53 Ind. 454; S. C., 21 Am.

legislation can deprive him of this right; but when

the fruits of the invention or the articles made by Rep. 200. A statute of Indiana required all foreign

reason of the application of the principle discovcorporations to comply with certain conditions simi- ered is attempted to be sold or used within the lar in terms to those usually required, as a condi jurisdiction of the State, it is subject to its laws tion precedent to transacting business. The court held

like other property.” that the act did not apply to corporations engaged

In that case the court held that a State statute in the manufacture and sale of articles covered by

providing for the inspection of illuminating oils letters patent.

and forbidding the sale of any that would not The absurdity of this application of the doctrine stand a prescribed test applied as well to patented seems obvious, although the dicta of some of the oils as to others. 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

LETTER FROM Hon. WILLIAM BEACH LAWRENCE. science and useful arts, by securing for limited


November 12, 1877. times, to authors and inventors, the exclusive right

To ISAAC GRANT THOMPSON, Esq. to their respective writings and discoveries.” The

MY DEAR SIR– In a postscript to the communicaobject of this and of the patent laws is not to aid

tion which I addressed to you under the date of 10th a man in vending the result of his genius, but to of March last * I took occasion to refer to a case of exgive him the exclusive use of it. Under letters pat tradition involving the good faith of the United States, ent his invention becomes property, subject to all

which Senator Stevenson, of Kentucky, the counsel for the incidents of property and to the operation of

the prisouer, had just brought to my notice. One

Hawes, who had been treasurer of the city of Covington, uniform State laws. In Livingston v. Van Ingen, 9

and who, in consequence of his official defalcations, had Johns. 582, Chancellor Kent said:

escaped to Canada, was, in accordance with the then 6 Again the power granted to Congress goes no

recent arrangement, under which the extradition article further than to secure to the author or inventor a

of the treaty of 1842 was provisionally revived, deright of property, which, like every other species

manded of the provincial authorities, on charges of of property, must be used and enjoyed within each

forgery, for which, as well as for embezzlement, he State according to the laws of such State. The had been indicted in the State court. Extradition power of Congress is only to ascertain and define (embezzlement not being an offense included in the the right of property; it does not extend to regu treaty) was granted on three of the charges of forgery lating the use of it. That must be exclusively of and refused on the fourth charge, which, it was conlocal cognizance. If the author's book or print sidered, did not present a prima facie case. contains matter injurious to public morals or peace, When the matter came before the court at Covingor if the inventor's machine or other production ton, in June last, the forgery case, for which extradiwill have a pernicious effect upon the public health tion had been refused, was dismissed, on motion of or safety, no doubt a competent authority remains

the public prosecutor. The other three forgery cases, within the State to restrain the use of the patent

which comprised all the matter for which the accused right."

was extradited, were tried, and the prisoner acquitted

and discharged by the judgment of the court. In the Grover & Baker case the law condemned

Though the continuance of the temporary arrangewas a general law, and uniform in its operations;

ment between Mr. Fish and Lord Derby was dependent besides this, it did not in any degree interfere with on the United States abstaining from trying an extrathe sale or assignment of rights under letters pat dited person for other than the crime for which he ent, as did the other cases above cited, but the in

was surrendered, it was then attempted to call up the

indictments for embezzlement, which, it was admitted, terference, if any, was limited to the sale of articles

had been found previously to the demand of extradiresulting from the patented invention. This dis

tion, and which, moreover, were for an offense not tinction is clearly pointed out in an able decision

*Albany Law Journal, vol. xv, pp. 224, 232. See, also, vol. of the Supreme Court of Kentucky in Patterson v. I xiv, pp. 85, 99, vol. xvi, pp. 133-4.

within the treaty. Counsel appeared on the part of him to be so tried. Even in reference to one of the United States, who suggested, as instructed by the indictments for forgery against the prisoner, an the government at Washington, the expediency, on offense included in the treaty, Great Britain refused public considerations (negotiations with regard to a extradition for the reason that the prima facie case new treaty of extradition being then pending), of de required by law was not made out. When Great ferring any action in the matter. For that reason, Britain refused extradition for that offeuse, with what and also, as it was understood, to afford the Governor propriety could the United States, or the State of of Kentucky an opportunity to take measures to quash Kentucky, a component part of the United States, the proceedings, the embezzlement cases were contin proceed to try him for that offense so refused? It is ued until the August term.

undoubtedly true that Kentucky has jurisdiction over The question of the competency of the court to pro- all offenses committed within her territory, unless ceed in the matter was raised on two motions on be there be a treaty stipulation to the contrary, or a law half of the prisoner. The first, which was made on of Congress, passed within the purview of the constitu17th August, was to continue the cause and transfer tion. A treaty is the supreme law of the land, and I, the prisoner to the custody of the authorities of the a judge of a State court, am bound to enforce it as United States, to be returned or permitted to return has heretofore been said.” to his domicile and asylum in the Dominion of Can Judge Jackson then refers to the provision of the ada. The attorney for the Commonwealth objected, treaty, that extradition shall ouly be made upon and by consent the further consideration of the mo "such evidence of criminality as, according to the laws tion was continued until the 30th of August, when

ontinued until the 30th of August. when / of the place where the fugitive or person so charged the prisoner moved the court, in addition to his orig shall be found, would justify his appreheusion and inal motion, to quash and set aside the return of the commitment for trial, if the crime or offense had been sheriff on the bench warrant, issued against him. there committed."

The court (Jackson, J.), after an exhaustive history “If there be any thing agreed upon between the of extradition, including the decisions of our courts, | two high contracting parties, it was that for the of. recognizing it as exclusively within the domain of the fenses therein enumerated and for no other there was Federal government, and an examination of the cor to be a mutual surrender, or, in other words, extradirespondence respecting the treaty between England tion for the cases therein provided and stated, and for and the United States, to which the affairs of Law. no other, whenever there was the case made therein rence and Winslow gave rise, came to the conclusion, by the proof under the treaty. For uothing else that "it was bound to take judicial cognizance of the could such a demand of surrender be made. And treaty as the supreme law of the land,' and that if by when so made, it is monstrous that there should be a the terms of the treaty, either expressed or implied, trial for any thing else." the prisoner cannot be tried for any offense for which

“I am aware," said the judge, “that in the case of he was not extradited, then, although he may be within Richard B. Caldwell and others, decided January 3, the bar of the court or in a jail under the control of 1871, in the southern district of New York, by Judge this court, as this court is bound to regard that treaty, Benedict, it was held that no matter how wrongfully it is outside of its jurisdiction to proceed with the or fraudulently the United States government obtained trial, as 'the supreme law of the land' otherwise pro possession of a party, although expressly against the vides; and thus this whole question hinges upon the

hns this whole anestion hinges upon the 1 provisions of a solemn treaty with another governconstruction of the treaty.

ment, he could be tried for any offense, although not “I have heretofore stated," continued the judge,

extradited for the same; and the remarkable doctrine “that it is the American doctrine, and I may say that

was'uttered that whether there was extradition in good it is the British doctrine, that there can be no extradi faith or not, because the prisoner was at the bar of the tion unless by positive treaty stipulation. By the

court and in the custody thereof, he could be tried for terms of the tenth article of the treaty, now under

any thing, even a non-extradition offense. consideration, it is only for certain offenses that ex

"With me, when there is a solemn duty staring me tradition will be permitted by either goverument.

in the face, which would preclude a trial, although the Embezzlement is not one of these offenses. There is

party might be in the custody of the court, I would now no government that will deliver upany one charged

not disgrace my government or my country by the aswith a political offense, not even Turkey, and inde

sumption of jurisdiction, when by such assumption pendent of the question, whether the embezzle

the plighted faith of my government would be rioment of the funds of a town, a component part of a

lated. I hold that the section of the treaty now under State government, is or is not a political offense,

consideration does not authorize this government or about which there is some difference of opinion among

England to demand extradition, except for the offenses nations, is it not the true doctrine that when nations included in the treaty, and then only for the offenses enumerate the crimes for which they will permit ex proveu in accordance therewith. And inasmuch, as I tradition, they must be confined to that enumeration ? have heretofore said, my view of international law is, It is urged in argument that there is no positive stipu that there is and can be no extradition except for oflation against the trial of a non-extraditable offense. Why mention any offeuse, if a party can be tried for except for the offenses thus extradited, so far as any and every thing not mentioned? When uations Hawes is concerned, he has had a trial and disposition enumerate the cases for extradition do they not ex of the cases for which he was extradited; and now clude every thing not enumerated? Here we have by that it is proposed that he shall be tried for offenses this treaty a mutual agreement that certain offenders for which he was not extradited, I say, under the sancand none others may be extradited to be tried, is the tion of my oath, that I cannot try him now. I caunot prisoner to be tried for that for which he was not dismiss the cases pending against him; but I can extradited ? It must be conceded that the govern- say, by my order, that in the face of a treaty, which is ment of Great Britain would not have surrendered the supreme law of the land, I will not now try Hawes

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