not liable to arrest, and were entitled, upon the facts stated in such return, to be discharged from custody; and it was further adjudged that they be, and they were accordingly discharged. Mr. H. W. Rogers, for the plaintiff in

error.

Messrs. A. P. Grant and Sedgwick, for the defendants in error.

of the court:

This is a writ of error for the Northern District of New York.

Pratt, the plaintiff in error, obtained a decree in admiralty against the propeller Kentucky, for a collision on Lake Erie. The defendants had given a bond as sureties for the discharge of the vessel from the attachment when first seized, and a summary decree was entered against them, according to the rules and practice in the District Court. Execution was is sued, commanding the Marshal to make the decree out of the goods and chattels, &c., of the defendants; and in default thereof, to arrest and keep them in custody till the moneys were paid, &c., The defendants were arrested and imprisoned under this process. Afterwards a writ of habeas corpus was issued by the Circuit Court for the Northern District of New York, and upon a return of the Marshal, setting forth the above facts, as furnishing the authority for the imprisonment, an order was entered discharging them from imprisonment, holding that, as the State of New York had abolished imprisonment for debt on contracts, the defendants could not be imprisoned within the Acts of Congress of the 28th February, 1839, and 14th June, 1841.

A

The case is before us on a writ of error. motion has been made to dismiss the case for want of jurisdiction.

The case is brought up under the 22d section of the Judiciary Act, which confines the writ 273*] of error to cases "where the matter *in dispute exceeds the sum or value of two thousand dollars, exclusive of costs." This has always been held to mean a property value, and without the fact of value being shown on the record, or by evidence aliunde, the court has no jurisdiction to hear or re-examine the case. The cases of Weston v. City of Charleston, 2 Pet., 449, and Holmes v. Jennison, 14 Pet., 540, referred to, were brought up from state courts, under the 25th section of the Judiciary Act, in which case no value is required. We do not doubt but that the order discharging the defendants was a final one, and that the only objection to the jurisdiction is the one above stated.

Judgment dismissing the cause for want of jurisdiction.

JOHN R. MOFFITT, Piff. in Err.,

บ.

Moneys recovered on judgments in suits, or volrecovered back after its surrender.

Argued Mar. 11, 1862. Decided Mar. 24, 1862.

IN ERROR to the Court of the United

States for the Southern District of Ohio. The question in issue is stated by the court. Messrs. Lee & Fisher, for plaintiff in error:

Where a patent has been surrendered or abandoned an action may still be maintained for infringements committed before the surrender or abandonment.

Under former Acts, the exclusive grant to the patentee was for fourteen years. It is now for seventeen. Why may not a patentee abridge the grant? Why may he not, by his own act, limit his monopoly to five, six, eight or ten years? Does such a surrender make the monopoly void ab initio? The patent is surely good for the length of time it has already run.

A surrender of a patent for correction and reissue by virtue of the statute, does not render the patent void ab initio. If the patentee still chooses to risk a suit upon the original patent, he may recover upon it for infringements committed before it was surrendered.

If the patent is vacated from its issue, then every exercise of exclusive ownership has been illegal. If not, then infringers ought, at least, to be compelled to pay that which honest men have been willing to give the patentee.

The court has, as it seems to us, expressly refused to affirm the English doctrine, that a surrender and reissue vacated the original patent.

Shaw v. Cooper, 7 Pet., 314; Grant v. Raymond, 6 Pet., 220; Ames v. Howard, 1 Sumn., 488; Stanley v. Whipple, 2 McLean, 37; Woodworth v. Stone, 3 Story, 753-754.

It is urged, and as the main objection, that by the very act of surrender under the statute, the patentee admits that his original patent is void and, therefore, he is estopped from asserting its validity in a suit for its infringement.

To this we answer, that he makes no such admission, even by the act of statutory surrender.

The 13th section provides, "that whenever any patent which has heretofore been granted, or which shall hereafter be granted, shall be inoperative or invalid, by reason of a defective or insufficient description or specification, or by reason of the patentee claiming in his specification more than he had or shall have a right to claim as new, if the error, &c."

A patent, then, may be reissued, if it be, 1st,

Scott.

A patentee cannot maintain a suit on a surrendered patent instituted before the surrender.

follows, the word "inoperative" manifestly refers to the defective specification, and the word "invalid" to the claim of "too much," which, under the Act of 1836, rendered the patent absolutely void.

A patent "inoperative" because of a "defective or insufficient" specification is not, necessarily, void. The specification may not de

207

scribe the invention as clearly as might be desired, or so comprehensively as to cover a particular evasion of the patent, or it may fall short of describing the whole of the invention, illustrated by the model and drawings. In such case, this court held, Batten v. Taggert, 17 How., 84, that the patentee had a right "to retrict or enlarge his claim so as to give it validity and to effectuate his invention."

Even claiming "to much" no longer renders a patent "invalid."

9th Sec. of the Act of March 3, 1837; Peterson v. Wooden, 3 McLean, 248.

The history of the litigation upon patents shows that many patents have been surrendered and reissued after they had been the subject of fierce controversy, and had repeatedly been declared valid by the courts of the United States. The validity of the famous Woodworth patent had been established in Mass. and Ohio.

See Brooks v. Bicknell, 3 McLean, 250; Washburn v. Gould, 3 Story, 122; Woodworth v. Sherman, 3 Story, 171.

And yet the patent was afterwards issued. Woodworth v. Stone, 3 Story, 751; Woodworth v. Edwards, 3 Wood. & M., 126 et seq. Mr. Henry Stanbery, for defendant in

error.

Mr. Justice Nelson delivered the opinion of the court:

The suit was brought by Moffitt against the | defendants, for the infringement of a patent for an "improvement in grain separators."

The defendants plead to the declaration, that since the commencement of the suit, the plaintiff had surrendered his patent to the United States, for the alleged infringement of which the action was brought. To which the plaintiff put in a general demurrer. The court overruled the demurrer, and sustained the plea, and gave judgment accordingly.

The 13th section of the Act of Congress of July 4, 1836, provides, "that if a patent shall be inoperative, &c., it shall be lawful for the Commissioners, upon the surrender to him of such patent," "to cause a new patent to be issued, &c., and the patent so reissued" "shall have the same effect and operation in law on the trial of all actions hereafter commenced. for causes subsequently accruing, as though the same had been originally filed in the connected form," &c.

Now, the point in the case is, whether or not the patentee may maintain a suit on the surrendered patent instituted before the surrender, if he has not availed himself of the whole of the provision, and taken out a reissue of his patent with an amended specification. The construc283* tion given to this section, *so far as we know, and the practice under it, in case of a surrender and reissue, are that the pending suits fall with the surrender. A surrender of

the repeal of it. The reissue of the patent has no connection with or bearing upon antecedent suits; it has as to subsequent suits. The antecedent suits depend upon the patent existing at the time they were commençed, and unless it exists, and is in force at the time of trial and judgment, the suits fail.

It is a mistake to suppose, that, upon this construction, moneys recovered on judgments in suits, or voluntary payment under the first patent, upon the surrender, might be recovered back. The title to these moneys does not depend upon the patent, but upon the voluntary payment or the judgment of the court.

We are satisfied the judgment of the court below is right, and should be affirmed.

*JAMES P. HARKNESS and Maria [*316 Harkness, Appts.,

บ.

ISAAC UNDERHILL.

(See S. C. 1 Black, 316-325.)

Pre-emption claim—what possession insufficient -when assignee may dispute assignor's title -dormant claim-entry may be set aside.

Where the affidavit to sustain a claim to preemption stated that claimant was an actual settler and housekeeper on the land, but the proofs established that claimant went on the land into a log pen, without a roof, and staid there only one night, it is void for fraud.

The proceeding was a fraudulent contrivance to secure the valuable privilege of a preference of entry.

An assignee may dispute the title of him under whom he held possession, where they both combined to defraud the government, and their agreement was contrary to public policy, because it was intended by contrivance to take the land out of the market at public sale. Such an agreement can have no standing in a court of justice.

Where the claim laid dormant after the entry was set aside, at the General Land Office, for eighteen years, and fourteen years after the patent to another was issued, and the land was again conveyed and the grantee and those holding under him have he'd possession from 1841 to the time when this suit was brought, and, in the meantime, the land had greatly increased in value and changed in its circumstances, a court of equity cannot decree for the complainant, if there was no other de

fense.

An entry which has been allowed by the register and receiver may be set aside by the commissioner.

Argued Mar. 10, 1862. Decided Mar. 24, 1862.

PPEAL from the Circuit Court of the Unit

sense of the provision, means an act which, in judgment of law, extinguishes the patent. It is a legal cancellation of it, and hence can no more be the foundation for the assertion of a right after the surrender, than could an Act of Congress which has been repealed. It has frequently been determined that suits pending, which rest upon an Act of Congress, fall with

Illinois.

This action was commenced by the present appellant, by bill filed in the court below, for the purpose of compelling the defendant to

NOTE.--Pre-emption rights-see note to U. S. v.

Fitzgerald, 10 L. ed. U. S. 785.

Relief denied in equity from lapse of timesee note to Pratt v. Carroll, 3 L. ed. U S. 627.

The facts appear in the opinion.

Messrs. A. Williams, E. S. Terry and A. Wylie, for appellant:

Bill of chancery filed August 13, 1854, in the Circuit Court of the United States for the Northern District of Illinois, to compel Underhill to convey to the complainant Maria Harkness the west half of the east half of the S. E. quarter, 8 N. 8 E., in the county of Peoria, and State of Illinois.

On the 27th day of September, 1832, Isaac Waters filed in the Land Office at Quincy, Illinois, proof of his right of preemption to said half quarter under the Preemption Act of the 5th of April, 1832, in conformity with the instructions of the Commissioner of the General Land Office.

His right of preemption was then allowed by the Register and Receiver of said Land Office, but the land was not then entered because the plat of the survey thereof had not been filed in said office.

On the 13th of July, 1833, said Waters executed to Stephen Stillman and William A. Stewart his bond of that date, reciting that said Waters and Stillman jointly cultivated and improved said land; that said preemption by their mutual consent was proved in the name of said Waters, with the understanding that Waters should convey the east half thereof to Stillman, he (Stillman) paying one half of the purchase money and binding himself to convey the same to said Stillman and Stewart, he (Stewart) to pay one half of the purchase money.

On the 2d of July, 1835, the said Waters, by his bond of that date, sold the west half of said half quarter to Moses Pettengal and William Wolcott. In the same year and about the same time, said Pettengal and Wolcott assigned said bond to Aaron Russell.

Said Waters occupied and cultivated said west half, from the spring of 1832 till he sold the same in 1835. Said Russell occupied and cultivated the same till his death in 1838, and put improvements thereon worth $7,000. The widow of said Russell occupied the same till her death in 1839, and her administrators occupied the same from her death till they were forcibly evicted therefrom in 1841, by Aquila Wren. Said Waters departed this life about the 1st of August, 1835.

The widow of said Waters, on behalf of herself and his children, on the 7th of August, 1835, and within one year from the filing of the plat of said survey, entered said land at said Land Office, under the proof filed by her said husband, as aforesaid.

Said Stewart, by his indorsement on the back of said bond from said Waters to him and said Stillman, assigned his interest therein to Franeis Church, on the 20th of August, 1834.

On the 15th of October, 1834, Church, in like manner, assigned the same to Isaac Underhill, who in like manner assigned the same to John C. Flanagan, on the 12th of November, 1834. Said Stillman cultivated his part of said land from 1833 till the 8th of June, 1836, when

Said Stillman, on the 9th of June, 1836, by his deed of that date, conveyed the west half thereof to Aquila Wren, it being the land in controversy.

Stillman died in 1837.

On the 16th of July, 1838, said Wren caused the said half quarter to be entered at said Land Office under the direction of the Commissioner of the General Land Office, upon the proof so as aforesaid filed by the said Stillman.

Said Wren and his wife, on the 23d of February, 1841, conveyed the said land to Isaac Underhill, who occupied it until he laid it out into town lots, in 1851 or 1852.

The administrators of said Russell, after their eviction from said land, recovered judgment on said bond against the widow and heirs of said Waters for $3,000, for the satisfaction of which the land in controversy was sold, and by the sheriff conveyed to the complainant, Maria Harkness, one of the heirs of said Isaac Waters. His other heirs also conveyed the same to her.

These are the facts about which there is no controversy. The only matter about which there is any controversy is, whether Isaac Waters was a settler and housekeeper on said land on the 5th of April, 1832. The preponderance of the evidence shows that he was; that he put a log cabin on it and inclosed and cultivated four or five acres of it in the spring of that year; and some four or five witnesses swear positively that he was living in the house as early as the 5th of April. About the same number of witnesses never knew of his residing in that house, and think they would have known it if he had resided there; several others say he did reside there that spring, but are not positive as to the precise time. It may be safely affirmed, that Waters's dwelling-house being on the quarter joining this on the south, and having his little improvement on the land in controversy, and learning through the papers the provisions of the preemption law, and that it would be likely to pass, moved the log cabin on to this land and resided in it a few days, including the 5th of April, and then returned to his former dwelling. One of the witnesses assigns that as the reason why he recollected that Waters was living there on the 5th of April.

Intrinsically, it made no difference whether his dwelling was on this or the adjoining tract of land. His improvement, which was the substantial part of the requirement of the Act, was on the land; and his temporary dwelling and his residence therein was only necessary to bring him within the letter as he clearly was within the spirit of the law. The government was now wronged by or dissatisfied with the sale to Waters. It was attempted to be set aside, not on behalf of the government, but of Stillman. The government had no interest in the matter. They got no more money from Stillman than they had received from Waters, and Waters' money was as good as that of Stillman.

Waters' entry was no fraud on the rights of Stillman. It was made with his consent and for his benefit; and his subsequent possession,

* *

A person entering into possession of land under a contract which he does not repudiate, cannot afterwards and while holding such possession, acquire a title from the government by proving a right of preemption in himself, and then deny the title under which he took. Thredgill v. Pintard, 12 How., 24; Tilghman v. Little, 13 Ill., 239; Peyton v. Stith, 5 Pet., 485.

And while thus in possession, he could not acquire an outstanding title to defeat that under which he entered into possession. Such title, when acquired, would inure to the benefit of the grantor or vendor.

Hallett v. Collins, 10 How., 174; Hunt v. Thorn, 2 Mich., 213.

We insist that, under the proper construction of the law an actual residence on the land is not necessary.

The words of the Act, "actual settlers being housekeepers upon the public lands," do not, necessarily, require an actual residence on the land: Such construction was never given to the Preemption Act of 1830, (Land Laws and Opinions, 473) or the Act of 1834 (Id., 525). In both of these Acts the class of persons on whom their benefits were intended to be conferred, are designated as "every settler or occupant of the public land," and it is submitted that there is no substantial difference between the language of the latter Act and that of 1832, in designating the persons entitled to the benefit of the provisions of said Acts, and this conclusion is confirmed by the fact that Congress, in referring to the beneficiaries under the Act of 1832, designated them "as settlers or occupants of the public lands."

In all cases in which Congress intended to require personal residence on the land, it has so declared, in plain language, as in the Act of 29th May, 1830 (1 L. L. and Op., 468); Act 22d June, 1838 (Id., 574); Act 4th Sept., 1841, (5 Stat. at L., 453), and numerous special preemption Acts passed prior to 1830.

Again; it is said that the Commissioner of the General Land Office decided the entry of Waters to be fraudulent and void.

We deny the authority of the commissioner to entertain an appeal, in such cases, from the decision of the Register and Receiver.

The Act of 1832 conferred judicial powers upon the latter officers. No appeal is provided for and, consequently, none could be taken.

See U. S. v. Arredondo, 6 Pet., 709; Wilcox v. Jackson, 13 Pet., 511; Elliott v. Piersol, 1 Pet., 340.

The conclusion, therefore, is that, under the Act referred to, the Register and Receiver are constituted a tribunal to determine preemptions under said Act, and no appeal being provided for by that and analogous Acts, their decision was final and conclusive, if within the law and power of those officers, and there was no fraud in the claimant. Id., 511; Lytle v.

Waters' entry was made August 7, 1835, and at that time he was clearly entitled to a preemption under the Act to Řevive the Act entitled "An Act to Grant Preemption Rights to Settlers on Public Lands, approved May 29th, 1830," approved June 19, 1834.

This Act provides that every settler or occupant of the public lands prior to the passage of this Act, who is not in possession and cultivated any part thereof in the year one thousand eight hundred and thirty-three, shall be entitled to all the benefits and privileges provided by the Act to grant preemption rights to settlers on the public lands, approved May 29, 1830.

The proof of the preemption right of Waters being satisfactory to the land officers, under the Act of 1832, there was no necessity of opening the case and receiving additional proof under any of the subsequent laws. Lytle v. Arkansas, 9 How., 333.

Waters having a just and substantial right to enter the land at the time the entry was made, all formal objections thereto were cured by the Act to Confirm the Sales of Public Lands in Certain Cases, approved July 2, 1836.

The Register and Receiver having sold the land to Waters, in conformity with the instructions of the Commissioner of the General Land Office, had no further power or jurisdiction over it. Neither had the Commissioner of the General Land Office power to set aside the sale even for fraud. This could only be done by judicial authority.

Opinions of Attorney-General, Public Land Laws, Instructions and Opinions, part 2, No. 15, page 16; No. 57, p. 85; No. 58, p. 85; No. 64, p. 99; No. 88, p. 140; Elliott v. Piersol, 1 Pet., 340; Wilcox v. Jackson, 13 Pet., 511; Lytle v. Arkansas, 9 How., 333; U. S. v. Arredondo, 6 Pet., 707, 729; La Roche v. Jones, 9 How., 155, 14 Pet., 458.

The entry of Waters was vacated on an er parte application, without notice. A judicial decree, made under such circumstances and in such manner, would be a nullity. So, for a stronger reason, if the decision of a mere executive or ministerial officer.

Stillman is estopped, by the bond between himself and Waters, from setting up a title acquired as his was, in opposition to the title of Waters.

12 How., 24; Hallett v. Collins, 10 How.. 174, 183; Hunt v. Thorn, 2 Mich., 213; Peyton v. Stith, 5 Pet., 485; Tilghman v. Little, 13 Ill., 239.

Stillman then entered into possession under Waters, and claimed title to the land under him. No one claiming under him can set up another title in fraud of this title to Waters.

Winlock v. Hardy, 4 Litt., 272-4; Riley v. Million, 4 J. J. Marsh, 395-6.

Wren and Underhill purchased with full knowledge of the claim of Waters, and, of course, are in no better situation than Stillman.

The Statute of Illinois, in force before Underhill's purchase, made the recording of these

different transfers of the interest of Waters' notice to Underhill.

1 Purp., Stat. 159, sec. 28.

The possession of Russell was continued by himself and representatives until 1841, when they were forcibly evicted from the land. Now this open and notorious possession, of those claiming under the preemption of Waters, was notice to all persons of the title or the right under which they claimed.

Rupert v. Mark, 15 Ills., 542; Tuttle v. Jack son, 6 Wend., 213; Colby v. Kenniston, 4 N. H., 262; Matthews v. Demerritt, 22 Me., 312; Landes v. Brant, 10 How., 348; Dyer v. Martin, 4 Scam., 146; Dixon v. Doe, 1 Sm. & M., 70; Boling v. Ewing, 9 Dana, 76; McConnel v. Read, 4 Scam., 123; 1 Story, Eq. Jur., sec. 400; 2 Ves., 437; 13 Ves., 118; Buck v. Halloway's Devisees, 2 J. J. Marsh., 180; Grimstone v. Carter, 3 Paige, 421-437; Governeur v. Lynch, 2 Paige, 300; Chesterman v. Gardner, 5 Johns. Ch., 29. And this rule extends to the possession of a preemption in Illinois.

Bruner v. Manlove, 3 Scam., 339.

The Act of July 2d, 1836, confirmed the right and entry of Waters. At that time Stillman had no right in the land; he had merely applied to preempt the land. No officer of the United States had then decided that Stillman was entitled to preempt. Stillman's money was not paid until July 16, 1838. Now, if the preemption of Waters was within the effect of July 2, 1836, then by that Act the title passed to Waters, and no action of any ministerial officer could devest him of his right. His right could not be recalled by the Government of the United States, after having been vested in him by the law.

Messrs. J. M. Carlisle and W. B. Webb, for appellees:

The Register, Receiver and the Commissioner of the General Land Office were legally authorized to rescind and set aside, or to treat as a nullity, the entry made by the heirs of Waters, and to permit Stillman or his heirs or assignees to enter the land.

1. Because such has been the contemporaneous construction of all the preemption laws, the Commissioner of the General Land Office having exercised this power at an early period, and from the time of the passage of the Act of 5th April, 1832, to the present time, under all the preemption laws which have been passed. 2d Land Laws, p. 646, No. 606.

2. It is the settled law of the land, as established by numerous decisions.

It was under these Acts that the decision in the case of Gray v. McCance was made.

The decision is conclusive of this case, unless the Supreme Court of the State of Illinois has mistaken the law.

Waters never was, at any time, settler and housekeeper upon the land in controversy.

Waters, at some time in 1832, was on the land, perhaps over one or two nights, in order to secure a preemption to it, and pretended to be a housekeeper and settler thereon, when, in fact, he was a housekeeper living in the Town of Peoria, on another tract of land. No witness saw him there more than once; all say he went there, not to settle or keep house, but to get a preemption to the land under pretense of doing so.

Was he then a settler and housekeeper, within the meaning of the Act of April 5th, 1832? 1 Land Laws, p. 494.

There is a plain and palpable distinction between a settler and housekeeper on public lands, and a settler and occupant of such land.

A settler and occupant of the public lands need not, necessarily, reside in a house upon the particular tract of land claimed. It is not indispensable that he should be a housekeeper anywhere.

To entitle himself to the benefit of the Act he must have been a settler and housekeeper on the 5th of April, 1832.

2 Land Laws, p. 262, No. 506; p. 565, No. 507; p. 568, No. 509; p. 569, No. 510; p. 570, No. 511; p. 571, No. 512; p. 641, No. 599.

The reliable evidence in the case tends to prove that Waters was in the cabin with his wife, only at the time he made his affidavit before Hunt for a preemption.

The Act of April 5, 1832, expired by its own limitation on the 5th of October, 1832. Waters' right to a preemption, if he had any, ceased then. There was no guaranty on the part of the United States, that the plats or surveys would be made and returned at any particular time. On the 5th of October, 1832, all the claim or pretense of claim which any one had by proof of preemption, was gone; such party, having paid no money, could not in equity even insist upon a revival of the law, but occupied the same position that he would have done if the Act had never been passed.

It is laid down that in all the general preemption laws from 1814 to 1843, the Register and Receiver are intrusted with the power of deciding who is entitled to preemption. The Commissioner of the General Land Office is authorized to superintend and revise the proceedings of the Register and Receiver.

Perry v. O'Hanlon, 11 Mo., 585; Huntsucker v. Clark, 12 Mo., 333; Nelson v. Sims, 23 Miss., 383; Glenn v. Thistle, 23 Miss., 42; Mitchell v. Cobb, 13 Ala., 137; Dickinson v. Brown, 9 Sm. & M., 130; Gray v. McCanee, 14 Ill., 343. See,

This was

Settlers being housekeepers and none others, were authorized to enter by preemption under the Act of April 5, 1832.

What were the conditions upon which such settlers and housekeepers might enter such land?

That, in addition to their being such settlers and housekeepers, they complied with such regulations as might be prescribed by the Secretary of the Treasury.

The Register or Receiver had no jurisdiction