general orders in English chancery practice, notwithstanding said orders, is sustained by the following authorities: Smith v. Turner, 1 Vern., 274; Kemp v. Squire, 1 Ves., 205; Ogilvie v. Herne, 13 Ves., 563: Hamilton v. Houghton, 2 Bligh., 170; Taylor v. Salmon, 3 Myl. & C., 109; Daley v. Duggan, 1 Ir. Eq., 311; Cruise v. Shiel, 6 Ir. Eq.. 132; Murray v. Byrne, 11 Ir. Eq., 125. The court below misconstrued the rules prescribed by this court, and specially the 19th and 32d rules. The 19th rule contains no limitation on the 32d rule, and is besides applicable only to final decrees. Again; the decree which was thus adjudged to have become absolute, was not regularly entered under the 19th rule of the court. 3. The interest of the complainants in this suit was thus terminated before final decree, and no such decree should have been rendered in their favor. 4. The court below was in error in refusing leave for the filing of a supplemental bill in favor of Baker & Smith. The proposed parties complainant, Baker & Smith, were entitled to the benefit of what had been done, on the title which they had acquired. Story Eq., Pl., secs. 389, 349, 351; Calv. Part., pp. 99, 100. The fact that an interlocutory decree had been entered upon Mason's title, did not bar his grantee who had purchased that title. A supplemental bill may be filed as well after as before a decree. Story Eq. Pl., sec. 338. The hearing upon the decree prayed for, would have necessarily led to an inquiry into the propriety of the decree sought to be enforced; and the court below could then have followed the decision of this court in Bloomer v. McQuewan, 14 How., 539, and dismissed the bill, as the Circuit Court in the case of Perkins v. Fourniquet, 6 How., 206, reversed its interlocutory decree after the adverse decision of this court in a similar case. See Barb. Ch., 3, 63, et seq. 5. These questions are all proper to be discussed on appeal. An appeal in equity brings up all the questions decided in the court below to the prejudice of the appellant. Buckingham v. McLean, 13 How., 150. For these reasons the appellant prays that the decree against him in the court below may be reversed. Messrs. A. Payne and B. R. Curtis, for the appellees: As to the motion for leave to answer: The bill having been filed at the November Term, 1850, and subpoena served Nov. 18th, returnable Jan. 6th, and the defendant having failed to plead answer or demur, as required by the rules of the court, it was properly ordered to be taken for confessed; and upon such confession a decree for an injunction and an account was properly made at the June Term, 1851. After four terms had elapsed, and voluminous and extended proceedings had been had before the master in taking the account, the defendant, for the first time, asked the court to open the decree and allow him to file an answer. We respectfully submit: I. The decision of the motion to open the decree and allow an answer to be filed, even when made at the proper term, rests in the sound discretion of the Circuit Court, and is not subject to re-examination here. Wylie v. Coxe, 14 How., 1; The Marine Ins. Co. v. Hodgson, 6 Cranch, 206; U. S. v. Evans, 5 Cranch, 280; Welch v. Mandeville, 7 Cranch, 153. A reference to the 19th rule for the practice of the Circuit Courts in equity, will show how entirely the allowance or refusal of this motion, if made in time, rests in the discretion of the Circuit Court. II. If this court could" review this decision of the Circuit Court, that decision was clearly right. The 19th rule expressly declares that "when the bill is taken pro confesso, the court may proceed to a decree at the next ensuing term thereof, and such decree rendered shall be deemed absolute unless the court shall at the same term, set aside the same, or enlarge the time for filing the answer upon cause shown upon motion and affidavit of the defendant." Instead of moving at the term when the decree was entered, the motion was not made until the fourth term thereafter. The court had no power then to grant it. The motion to dismiss the bill based upon facts dehors the record, was wholly irregular and could not be allowed. A transfer of the title by each of the plaintiffs, pendente lite, cannot affect the rights of the defendant. Eades v. Harris, 1 You. & Coll. Ch., 230. Certainly it could not do so in this case; for the allegation is that Mason parted with his title in April, 1852, and the account of the profits comes down only to Aug. 29, 1851. See pp. 56, 101. In addition to this, if the copy of the agreement of Mason, annexed to the motion and found on pp. 123-125, were admitted to be regularly in the case, it did not devest Mason of his interest; for it was only a conditional license to run ten machines in the City of Prov. idence. As to the exceptions to the master's report, the first was a general assignment of error in the balance, without specifying any item in the account as erroneous. Such an exception cannot be sustained. Story v. Livingston, 13 Pet., 359; Dexter v. Arnold, 2 Sumn., 108; Wilkes v. Rogers, 6 Johns., 566. The appellant may also attempt to assign error in the interlocutory decree, by which the cause was referred to the master to take an account. We submit that the appellant cannot now take an objection to that decree. The 19th rule expressly provides, that a decree founded upon an order taking a bill confessed, shall be absolute at the close of the term at which the decree is entered. In McMicken v. Perin, 59 U. S. (18 How.), 507, where a bill was taken pro confesso, and, at the same term, a decree of reference was made, it was objected that the master had not allowed to the appellant the amount admitted by the bill to be due to him. But as no exception had been taken to the master's report, this court refused to reverse the decree. Mr. Justice McLean delivered the opinion | icy would increase the evil of the wrong-doer, of the court: without benefit to anyone. In Livingston et al. v. Woodworth et al., 15 How., 546. the true rules of damages in such cases is laid down. This is an appeal from the Circuit Court for the District of Rhode Island. A bill was filed in this case by Mason et al., claiming to be owners of a territorial right to the exclusive use of the Woodworth patent for planing boards, charging the defendant with using three of the machines in the City of Providence, in violation of the complainant's right. The suit was commenced the first year of the extension of that patent by Congress, and the three machines which were sought to be enjoined were those used during the first extended term of the patent, under a license from its owners. A preliminary injunction was granted. At the June Term, 1851, of the Circuit Court, a decree pro confesso was entered against the defendant, and he was perpetually enjoined. The case was referred to a master, to take an account of the profits or income derived by the defendant, or which by reasonable diligence might have been realized by him, from the use made of the three machines. Exceptions were taken to the first report of the master, and it was referred to him again under the same instructions. It is contended the court erred in refusing leave to the defendant to answer, on the motion made at June Term, 1853. A motion to amend, or file an answer after default, is generally addressed to the discretion of the court. Under some circumstances, the court, for the purposes of justice, will go great lengths in opening a default and allowing a plea to be filed. But this is done or refused by the court, in the exercise of its discretion, which is not subject to the revision of this court. In the case before us, the motion, to file an answer was not made until after the decree pro confesso had been entered, and a reference made to a master for an account. This was more than three years after the bill was filed. Whether the Circuit Court refused the motion on the ground of delay, or a want of merits in the cause assigned, does not appear; but it is sufficient to say, that on such grounds the decree cannot be reversed. The motion to dismiss the complainant's bill, upon proof that they had parted with all their interest in the subject matter of the suit, was properly overruled. The allegation is, that Mason parted with his title in April, 1852, and the account of the profits is brought down only to the 29th August, 1851. The right asserted in this action was not affected by the conveyance of Mason to Baker & Smith. The refusal of the Circuit Court to permit a Before the second report of the master, a motion was submitted to the court by the defendant to set aside the decree pro confesso, and for leave to answer the bill on the ground that the Supreme Court in the case of Bloomer v. McQuewan et al., 14 How., 539, had held, in a case similar to this, that the licensee's privilege continued under the extension of patent by Congress, the same as under prior ex-supplemental bill to be filed by Baker & Smith, tensions; but the court refused the motion; consequently, the appeal does not bring before us any question under the last extension of the patent. At the November Term, 1854, the master made his second and final report, in which he stated the sum of $2,566.46 as the amount of profits which the defendant, by reasonable diligence, might have derived from the use made by him of such patented machines, and the sales of the products thereof, during the period cov ered by the suit. was, under the circumstances, a matter of discretion in the court; and it affords no ground for the reversal of the decree. It is not perceived what interest these assignees could have in a suit for an infringement of the patent, be fore their right accrued; and any attempt to make them parties, with the view to benefit the defendants in the pending suit, was unsustainable. For the reasons assigned, the decree for damages must be reversed, at the costs of the defendants in error, as founded on an erroneous estimate; and the cause is remanded to the Circuit Court, with instructions to enter a decree for the amount of the profits realized by the de fendant from the wrongful use of the patent. Cited 7 Wall., 522; 3 Wall., Jr., 344; 9 Wall., 802; 6 Blatchf., 136; 93 U. S., 70. The decree was entered, on the report of the master, for the estimated amount of profits which the defendant, with reasonable diligence, might have realized; not what, in fact, he did realize. This instruction was erroneous. The rule in such a case is, the amount of profits received by the unlawful use of the machines, as this, in general, is the damage done to the owner of the patent. It takes away the motive of the infringer of patented rights, by requiring him to pay the profits of his labor to the owner of the patent. Generally, this is sufficient to protect the rights of the owner; but where the wrong has been done, under aggravated circumstances, the court has the power, under the Statute, to punish it adequately, by an increase RAFAEL GARCIA CAVAZOS AND WIFE of the damages. The injury done is measured by the supply of planed boards thrown upon the market, which lessens so much the demand. But, if the liability of an infringer is to be increased by an estimate of the work he might do, with great diligence, he will be more likely to exceed the estimate than fall below it. This pol Ex parte IN THE MATTER OF JACOB MUS- D. ET AL. (See S. C., 20 How., 280-290.) Appeal, how applied for-part of defendants cannot appeal without summons and sevET ance. NOTE.-Mandamus, when will issue. See note to McCluny v. Siliman, 15 U. S. (2 Wheat.), ang. A motion was made at this term for a rule on the District Judge of Texas to show cause why a mandamus should not be issued, commanding him to allow an appeal in the above case. This rule was granted on the affidavit of Simon Mussina, as agent for a part of the defendants. In his answer the Judge says: "I am now ready to allow the appeal, and always have been"; that sometime before the 15th day of January, 1857, Mr. Daniel Atchinson, of Galveston, stated to him, at chambers, that he wished to take an appeal for Jacob Mussina in the above case, and that the Judge inquired whether the time limited for taking appeals had expired, and was informed it had not. The Judge then replied: "Mr. Mussina has a right to an appeal, and I will allow it as a matter of course, when the opposing counsel shall appear, and I will fix the amount of the bond." It is his practice to allow appeals in the pres ence of the counsel. Mr. Hale, the counsel for the defendants, lives in Galveston, near the place where the court was held, and was daily in court. No application seems to have been made in court on the subject of the appeal; no citation was presented to the District Judge; no bond for his approval. The conversation with Simon was one of the defendants, was taken. Mussina, on whose oath the rule was entered, was agent for Jacob Mussina, Angela Gracia, Lafon Tarneva, who were also defendants, and he desired that these persons might be allowed an appeal, and also the other defendants, so as to remove the case to the Supreme Court. At this time the cause was pending in the Supreme Court, on the appeal taken by Shannon. That appeal was irregular, as less than all the defendants in a joint decree cannot appeal without a summons and severance in the court below. And this was not done on Shannon's appeal. The regular mode of proceeding would have been to dismiss the appeal in this court, pray for another appeal in the court below, and for a summons and severance, so that the defendants desirous of an appeal might take it, without the concurrence of those defendants who were opposed to it. Had the appeal been prayed in open court, and entered upon the record, the Judge below might well have refused it, as the legal steps for its allowance were not taken. Under such circumstances, it was the duty of the Judge to act in the presence of the opposing counsel. Owings et al. v. Kincannon, 7 Pet., 399; Todd et al. v. Daniel, 16 Pet., 521. Whether an application might not have been made to this court to correct the irregularity of the appeal, is not before us under the rule for the mandamus. The writ is refused. ISAAC M. FISHER, Appt., v. JOHN HALDEMAN, JACOB S. HALDEMAN, RICHARD J. HALDEMAN, AND ROBERT J. HALDEMAN, Executors of JACOB M. HALDEMAN, Deceased, AND THOMAS CHAMBERS, Administrator de bonis non of THOMAS DUNCAN, Deceased. (See S. C., 20 How., 186-194.) laws of that State. Mr. Atchinson, at the chambers of the Judge, Pre-emption right in Pennsylvania-governed by respecting the appeal, is all that was said to him on the subject. If it were mentioned in open court, he has no recollection of it. The Clerk of the court, the Deputy Clerk, the Crier, the Marshal of the United States and his deputy, who were in attendance on the court, all coroborate, on oath, the statement of the Judge, and say no application was made in open court for the appeal; and no entry on the docket is found of such an application. From the certified copy of the petition for an appeal, it does not, appear to have been filed, or that an entry of it was made on the docket. In 1749, by the law of the land,a preemption right to islands in the Susquehannah River in Pennsylvania could not be obtained by settlement. This doctrine has continued to be recognized as settled law in Pennsylvania for half a century. We are bound to acquiesce in and follow their decisions. THE bill in this case was filed in the Circuit Court of the United States for the Eastern District of Pennsylvania, by the appellant, for the recovery of a certain island in the Susque NOTE.-Jurisdiction of U. S. Supreme Court to declare state law void as in conflict with State Con See note to Jackson v. Lamphire, 28 U. S. (3 Pet.), 280. A party wishing an appeal should make an application for its allowance in open court, or to the Judge at his chambers, and should name stitution-To revise decrees of State courts as to conhis securities. And the bond should be pre-struction of state laws. Power of State courts to pared for the approval of the Judge, and the construe their own statutes. citation for his signature, unless the appeal was prayed in open court and entered upon the record. It appears the decree in question was entered jointly against several defendants, and that an appeal by Patrick C. Shannon only, who It is for State courts to construe their own statutes. Supreme Court will not review decisions except when specially authorized by statute. See note to Commercial B'k v. Buckingham, 46 U. S. (5 How.), 317. hannah River, containing about 700 acres, of which he claimed to be the equitable owner. The court below dismissed the bill, and the complainant brought the case here on appeal. A further statement appears in the opinion of the court. Mr. Fisher, for appellant: The original settlers and improvers of Big Island and their legal and equitable represent atives, continued in possession of the Island from 1749 to 1802 under their original titles. As to legal and equitable effect of such a possession on the title of plaintiff who claims as an assign, see the following cases: Esling v. Williams, 10 Pa. St., 126; Farr v. Swann, 2 Pa. St., 245. Thirty years' possession is conclusive of title. Alexander v. Pendleton, 8 Cranch, 462. Possession is evidence of title in fee simple. Woods v. Farmere, 7 Watts, 382; Wallwyn v. Lee, 9 Ves., 31; Railroad v. Erie, 27 Pa. St.. 380. The consent of the proprietaries, in whatever was shown, was sufficient to vest an equitable title in a settler which the courts would protect. Sergeant's Land Law of Pennsylvania, 37. Messrs. Reverdy Johnson and J. M. Reed, for appellees: The civil law recognized all rivers as navigable which were really so, and this liberal view was adopted by the founder of Pennsylvania. Carson v. Blazer, 2 Binn., 475; Fisher v. Carter, 1 Wall., Jr., 70. This policy was early developed in the instructions given by William Penn before he left England, to three commissioners for the settling of the Colony, in which he said: "Let no islands be disposed of to anybody, but let things remain as they were in that respect till I come." Hazard's An., 530. And in after times the proprietaries appropriated them to their own use by special warrants, these islands were withdrawn from appropriation. In Pennsylvania, twenty-one years' possession Thus, from the first settlement of the country is conclusive. Strickler v. Todd, 10 Serg. & R., 68. Limitations. No time will cover a fraud, so long as it remains concealed; for until discovery the title to avoid the transaction does not prop erly arise. Cotterell v. Purchase, Cas. t. Talb., 63; Alden v. Gregory, 2 Eden, 280; Morse v. Royal 12 Ves., 374; Bicknell v. Gough, 3 Atk., 557; Booth v Warrington, 4 Bro. P. C., 163: Hovenden v. Lord Annesley, 2 Sch. & Lef., 634; Roche v. O'Brien, 1 Ball. & B.,330; Blennerhasset v. Day, 2 Ball. & B., 118; Whatton v. Toon, 5 Madd., 54; Lewin on Trusts, 616. A tenant is estopped from denying the title of his landlord, and this rule applies to trusts, mortgages, and to every case where one man obtains possession of the land of another by recognizing his title. Willison v. Watkins, 3 Pet., 43. Time does not run in favor of the trustee in possession, whose title is consistent in equity with the title of the cestui que trust. The Claimant, 3 Pet., 52; 7 Johns. Ch., 122. Settlement Right. A first settler holds his allowance of land, 300 acres, against the proprietaries, the Commonwealth, and all subsequent settlers and warrantees. Gilday v. Watson, 2 Serg. & R., 410. The actual settler has always been a favorite with the courts and Legislature of Pennsylvania. Emery v. Spencer, 23 Pa. St., 271. Before the Revolution, a settler was entitled to take and hold 300 acres against proprietaries, warrantees and other settlers. It was an actual personal resident settlement, with a manifest intention of making it a place of abode, and the means of supporting a family and continuing from time to time, unless interrupted by the enemy. Bonnet v. Devebaugh, 3 Binn.,,184. The usage of the Land Office bound the proprietaries to grant the land to actual settlers on the usual and common terms, and should the proprietaries refuse to make the grant, chancery would enforce it. Bonnet v. Devebaugh, 3 Binn., 184. 1 Wall., Jr., 70. In Carson v. Blazer, 2 Binn., 477, decided on June 2, 1810, Chief Justice Tilghman said: "But the common law principle concerning rivers, even if extended to America, would not apply to such a river as the Susquehanna, which is a mile wide, and runs several hundred miles through a rich country, and which is navigable, and is actually navigated by large boats. But there is another objection to the adoption of this principle. The common law gives to each proprietor one half of the river adjoining his shore; and if this doctrine is applied to the Susquehanna, every owner of the bank must own all the islands nearest to that bank; a right never contended for." William Penn, the proprietor and Governor of Pennsylvania in 1683, in speaking of the new City of Philadelphia, uses this emphatic language: The situation is a neck of land, and lieth between two navigable rivers, Delaware and Schuylkill, whereby it hath two fronts on the water-each a mile-and two from river to river. Delaware is a glorious river; but Schuyl kill being a hundred miles boatable above the falls, and its course northeast towards the fountain of Susquehannah, that tends to the heart of the Province, and both sides our own, it is like to be a great part of the settlement of this age." Lowber's Ordinances of the City of Phila delphia, p. 289. In Hunter v. Howard, 10 S. & R., 245, the court say: "Islands in the great rivers of Pennsylvania, under the Provincial Government were never the subjects of appropriation, either by office right or settlement. The proprietaries appropriated them to their own use by special warrants. The State has pursued the same policy. When the Land Office was opened on April 8, 1785, for the sale of the residue of the waste lands, shortly before purchased from the natives by the State, it is provided, "That all islands within the bed of the River Susquehannah, and of the east and west branches thereof, and of the rivers Ohio and Alleghany (and Delaware), are excepted and would have been settled by the jury definitively, except that the plaintiff suffered a nonsuit. Judge Baldwin's tribute to Chief Justice Tilghman, is peculiarly just and appropriate. (p. 83). reserved. And the said islands may be sold by | was before the court, passed upon by them, and special order of the President or Vice-President in council, concerning each of them, by public sale or otherwise, for the best prices that can be gotten for the same (islands), and all occupancy and every survey, claim, or pretense for holding the same islands by any other title, shall be utterly void. See 13th section, Act 8th April, 1785, 2 Smith's Laws of Pennsylvania, p. 322. "Under the Provincial Government of Penusylvania, the islands in the great rivers of the State never were the subjects of appropriation." Johns v. Davidson, 16 Pa. St., 512. "Islands and proprietary reservations, &c., were never within the general jurisdiction of the Land Office." Jones v. Tatham, 20 Pa. St., 398; see, also, 1 Smith's Laws, 479; 4 Smith's Laws, 268; Hunter v. Howard, 10 Serg. & R., 245; Rundle v. Canal Co., 1 Wall., Jr., 274; Rundle v. Canal Co., 14 How., 80. "It has been modified with respect to islands; but still the Legislature kept in view the sale of the islands at a full and fair price by the Act March 6, 1793 (3 Smith's Laws, p. 93), directing the sale of certain islands in the River Susquehanna. Then came the Act of Jan. 27, 1806 (4 Smith's Laws p. 206), which gives rise to the present controversy directing the In the verdict and final judgment presented sale of the islands in the rivers Delaware, Ohio, by the appellant in his bill, he shows that all and Alleghany. This Act gives the improver the the merits were tried in that case, and that the right of pre-emption for three years, and makes decision embraced all the equity as well as the special provision how the value shall be ascer-law of the case; and when such is the case in tained; the officers of the Land Office shall appoint, on application made for the island, three disinterested men, who shall value the same on their oaths, and shall certify the value to the Secretary of the Land Office, who shall thereupon issue a warrant to such applicant, &c. The Act declares that the preemption right shall be vested in the actual settler or improver for the term of three years; and that after the expiration of that time, it shall be lawful for the Commonwealth to grant such improved island to the first who shall apply for the same subject to the regulations and provisions con. tained in the Act.' In Shrunk v. Schuylkill Nar. Co., 14 S. & R., p. 71, Chief Justice Tilghman said: "Now, with us it has never been supposed, from the earliest times to the present moment, that the owners of land on the bank had the right of property in the soil to the middle of the river in front of their land; because if they had, they would have a right to the islands also, contrary to universal opinion and practice. These islands have never been open to applicants under the common terms of office, either under the Proprietary or State Government, but have always been sold on special contract and for higher prices than common; whereas the lands on the banks of rivers have always been open to the public on the usual terms and at the usual prices. For a particular account of the manner in which islands have been granted, I refer to the case of Hunter v. Howard, 10 Serg. & R., 243. As for the soil over which our great rivers flow, it has never been granted to anyone, either by William Penn or his successors, or the State Government." In this very case on the common law side of the Circuit Court, reported in 1 Wall., Jr., 69, under the name of Fisher v. Carter, the late Judge Baldwin, one of the very ablest Land lawyers in the State, held on Nov. 8, 1843, that at no time in the history of Pennsylvania, neither before Oct. 13, 1760, nor since, have islands in her great rivers been open to settlement on the same terms with fast land generally. They could be settled only on agreed terms. The case is worthy of attentive perusal, as all the evidence contained in the present record, with the exception of some immaterial matter, Pennsylvania, the ejectment becomes a bill in equity, and one verdict and judgment is final. Philadelphia v. Davis, 1 Whart., 490; Seitzinger v. Ridgway, 9 Watts., 496; Amick v. Oyler, 25 Pa. St., 508; Lynch v. Cox, 23 Pa. | St, 265; Lykens v. Tower, 27 Pa. St., 462. Mr. Justice Grier delivered the opinion of the court: The appellant filed his bill in the Circuit Court of the United States for the Eastern District of Pennsylvania, claiming to be the equitable owner of an island in the Susquehanna River, containing about 700 acres, and praying that the respondents may be decreed to surrender to him the possession of the same, to deliver up their deeds and muniments of title, and account for the rents, issues, and profits. In order to ascertain the questions involved in the case, it will not be necessary to give an abstract of the bill or specify the allegations of the answer. A brief statement of some of the admitted facts and charges of the bill will suf fice. It commences the history of the case with the first charter to and immigration of William Penn, the proprietor of Pennsylvania. Butw do not think it necessary to go farther back than the year 1760. In that year, the proprietors, claiming that the islands in the Susquehanna and other navigable streams were their private proverty, had them surveyed and returned as such. About the year 1798, the persons under whom complainant claims were found by the agent of the proprietors in possession of the island, and claiming a right, from their long occupancy, to a pre-emption right as settlers. They had occupied parts of the island as far back as 1749 or 1750, some ten years before the proprietors had surveyed it; and though not in possession at that time, had afterwards returned. They were told by the agent for the Penns, that they had no title, and if they wanted a legal title they must purchase from the Penns, and that islands never had been subject to be taken up by settlement as the other proprietary lands. These occupants refused or neglected, or were unable to purchase; and about the year 1800, Thomas Duncan purchased from the agents of the Penns. Finding |