Hardeman et al. . Anderson.

Mr. Howard opposed the motion. It did not appear that all reasonable exertion had been used by the party. The judgment appealed from was given in May, 1840, and the case was not docketed and dismissed until February, 1845. In the mean time, the plaintiff in error appears to have relied upon the clerk of the court below to send the record up. The effort to obtain security for costs was very faint. If such reasons are allowed to be sufficient to reinstate a case after dismissal under the rule, the rule itself may as well be abolished. Certainly, a court which passes a rule has power to relax it, whenever proper occasion shall offer. But this motion does not apply to a case which has been dismissed. It is not to reinstate that case, but it is to call forth the power of the court in another case, upon another writ of error. The act of Congress divides appeals into two classes, giving to them very different rights. Where the party is diligent, and prosecutes his writ of errot without delay, the law gives a supersedeas. But if he is dilatory, the law is reluctant to deprive him of the benefit of an appeal, but subjects him to the risk of an execution. Thus the rights of creditor and debtor are both protected. But in order to prevent a vexatious and lingering suit, and to supply an omission in the act, a rule of court compels the appellant to prosecute his suit under the penalty of dismissal by an application from the appellee. The appellant has his choice, either to prosecute his appeal with or without the benefit of a supersedeas, and the act of Congress has made a clear distinction between these two modes. But the present motion is to take a case out of one of these classes, and put it in the other.

The case of Stockton v. Bishop does not apply, because every step required by the act of Congress was taken in that case; and this court not only can, but ought to, protect cases which are in regular progress towards it, according to all the forms of law.

Mr. Justice MCLEAN delivered the opinion of the court, directing the following order to be passed.

WM. AND D. HARDEMAN AND WM. P. PERKINS, PLAINTIFFS IN ERROR, v. EDWARD ANDERSON.

On consideration of the motion made in this cause on a prior day of the present term of this court, to wit, on Friday the 9th instant, by Mr. Crittenden, of counsel for the plaintiffs in error, for a writ of supersedeas to stay execution on the judgment below in this cause, and of the arguments of counsel thereupon had, as well against as in support of the motion, it is the opinion of this court that a supersedeas should be allowed, under the general powers conferred upon this court by the fourteenth section of the act of the 24th of September, 1789, leaving the question, whether a writ of error will lie to the judgment in this case, an open one. Where

Hardeman et al. . Anderson.

upon it is now here considered and ordered by this court, that a writ of supersedeas be and the same is hereby awarded, commanding the judges of the Circuit Court of the United States for the Southern District of Mississippi to stay any execution or proceedings on the judgment of the said Circuit Court in this case pending this writ of error, and also command the marshal of the United States for the said district that from every and all proceedings on execution or in any wise molesting the said plaintiffs in error on account of the said judgment, he entirely surcease, the same being superseded.

26th January, 1846.

Supersedeas.

UNITED STATES OF AMERICA, sct.:

The President of the United States of America to the Honorable the Judges of the Circuit Court of the United [SEAL.] States for the Southern District of Mississippi, and to the Marshal of the United States for the said District, Greeting:

Whereas, lately, in the said Circuit Court before you, the said judges, or some of you, in a cause lately pending in said court between Edward Anderson, plaintiff, and William Hardeman and D. Hardeman, defendants, a judgment was rendered by the said Circuit Court, at the May term, 1839, of said court, in favor of the said plaintiff, and against the said defendants, for the sum of $8,293.45, with interest thereon at the rate of eight per centum per annum, together with costs and charges of suit, on which judgment an execution of fieri facias issued, and was levied by the marshal of said district on certain property of said defendants, which property was left in the hands of the defendants upon their executing a forthcoming bond, with one W. P. Perkins as security, and which forthcoming bond was returned by the said marshal to the said Circuit Court at the next November term thereof, A. D. 1839, "Forfeited," having thereby, according to the laws of Mississippi, the force and effect of a judgment against the said defendants and the said security for the aforesaid debt, interest, and costs, and upon which last-mentioned judgment an execution of fieri facias was issued against the goods and chattels, lands and tenements, of the said William Hardeman, D. Hardeman, and W. P. Perkins, for the amount of the said judgment, interest, and costs, as aforesaid, as also for the sum of $133.81 additional costs subsequently accruing; upon which execution, the aforesaid marshal returned that he had received thereon "$9,125 in Union money, or post notes of the Union Bank," which said return of the marshal last aforesaid the said Circuit Court, at a subsequent term, to wit, on the 20th of May, A. D. 1840, set aside, and awarded an alias fieri facias on the judgment last aforesaid. Whereupon, the said Wm. Harde

Hardeman et al. . Anderson.

man, D. Hardeman, and W. P. Perkins sued out a writ of error in due form of law and in proper time, and filed their bond in error, with sufficient security approved by one of the judges of the said Circuit Court, so as to operate per se as a supersedeas, and which said writ of error was abated and quashed by the order of this court on the 28th day of February, A. D. 1845, by virtue of the forty-third rule of court, in consequence of the failure of the aforesaid plaintiffs in error to file a transcript of the record of the case with the clerk of this court, and to have their case docketed, in compliance with the rules of court. Whereupon, the aforesaid plaintiffs in error sued out another writ of error in due form of law, filed their bond in error in a sum double the amount of the aforesaid judgment, with sufficient security approved by one of the judges of the aforesaid Circuit Court, and a citation having been regularly taken out, served upon the defendant in error, and duly returned, as by the inspection of the transcript of the record of the said Circuit Court, which was brought into the Supreme Court of the United States by virtue of said writ of error, agreeably to the act of Congress in such case made and provided, fully and at large appears. And whereas, in the present term of December, in the year of our Lord eighteen hundred and forty-five, it is made to appear, on affidavit to the said Supreme Court of the United States, that the failure of the aforesaid plaintiffs in error to file the transcript of the record and docket the writ of error first aforesaid mentioned, and which operated, per se, as a supersedeas, was not owing to any neglect or fault on their part, but wholly attributable to the neglect of the clerk of the said Circuit Court to make out in due time, and as requested by the said plaintiffs in error, a transcript of the record, as alleged in said affidavit, and that in consequence thereof they are exposed to an execution on the aforesaid judgment. It is thereupon now here ordered by this court, that a writ of supersedeas be, and the same is, hereby awarded, to be directed to the aforesaid marshal, commanding and enjoining him and his deputies to stay any and all proceedings upon any execution which may have been issued on the aforesaid judgment of the said Circuit Court in said case, and which has or may come to his hands, and that he return any such execution with the writ of supersedeas to the said Circuit Court, and that the judges of the said Circuit Court cause any such writ of execution to be stayed, and to stay any execution or further proceedings of every kind and character on the judg ment of the said Circuit Court in this case, pending the aforesaid writ of error in this court.

You, therefore, the Marshal of the United States for the Southern District of Mississippi, are hereby commanded, that from every and all proceedings on any execution on the aforesaid judgment, or in any wise molesting the said defendants on the account aforesaid, you entirely surcease, as being superseded, and that you

Holliday et al. v. Batson et al.

do forthwith return any such execution in your hands, together with this supersedeas, to the said Circuit Court, as you will answer the contrary at your peril. And you, the judges of the said Circuit Court, are hereby commanded to stay any execution which may have issued as aforesaid, and to stay any execution or further proceedings on the aforesaid judgment of the said Circuit Court in this case, pending the writ of error last aforesaid in this court.

Witness the Honorable ROGER B. TANEY, Chief Justice of said Supreme Court, this 27th day of January, in the year of our Lord one thousand eight hundred and forty-six.

WM. THOS. CARROLL,

Clerk of the Supreme Court of the United States.

ROBERT HOLLIDAY ET AL. v. JOSEPH N. BATSON ET AL.

In order to entitle a party to have a case docketed and dismissed, under the fortythird rule of court, the certificate of the clerk of the court below must set forth an accurate titling of the case.

Mr. Barton having filed and read in open court a certificate in writing, in the following words and figures, to wit:

"Clerk's Office, Circuit Court, United States, 5th Circuit, and Eastern District of Louisiana.

"ROBERT HOLLIDAY ET AL. v. JOSEPH N. BATSON ET AL.

"In the above-entitled cause, I certify that a final judgment was rendered in the Circuit Court of the United States for the 9th (now 5th) Circuit and Eastern District of Louisiana, on the twentieth day of January, eighteen hundred and forty-one, and that a writ of error was taken by the defendants, returnable to the January term, 1842, of the Supreme Court of the United States.

"Witness my hand, and the seal of said court, at New Orleans, this 4th February, 1845.

[SEAL.]

DUNCAN N. HENNEN, Clerk."

and moved the court to docket and dismiss the said writ of error, under the forty-third rule of court. It is thereupon now here considered and ordered by the court, that the said motion be, and the same is, hereby overruled, the titling of the case in the said certificate being too vague and uncertain.

Per Mr. Chief Justice TANEY. The above motion was made and overruled at the preceding

Wilson v. Rousseau et al.

term. At the present term, a certificate was filed, with a proper titling, and, on motion of Mr. Eustis, the case was docketed and dismissed.

JAMES G. WILSON, PLAINTIFF, v. LEWIS ROUSSEAU AND CHARLES EASTON.

The eighteenth section of the patent act of 1836 authorized the extension of a patent, on the application of the executor or administrator of a deceased patentee. Such an extension does not inure to the benefit of assignees under the original patent, but to the benefit of the administrator (when granted to an administrator), in his capacity as such. But those assignees who were in the use of the patented machine at the time of the renewal have still a right to use it. The extension could be applied for and obtained by the administrator, although the original patentee had, in his lifetime, disposed of all his interest in the then existing patent. Such sale did not carry any thing beyond the term of the original patent.

A covenant by the patentee, made prior to the law authorizing extensions, that the covenantee should have the benefit of any improvement in the machinery, or alteration or renewal of the patent, did not include the extension by an administrator, under the act of 1836. It must be construed to include only renewals obtained upon the surrender of a patent on account of a defective specification. Parties to contracts look to established and general laws, and not to special acts of Congress.

A plaintiff, therefore, who claims under an assignment from the administrator, can maintain a suit against a person who claims under the covenant.

An assignee of an exclusive right to use two machines within a particular district can maintain an action for an infringement of the patent within that district, even against the patentee.

In the case of Woodworth's planing-machine, the patent granted to the adminis trator was founded upon a sufficient specification and proper drawings, and is valid.

The decision of the Board of Commissioners, to whom the question of renewal is referred, by the act of 1836, is not conclusive upon the question of their jurisdiction to act in a given case.

The Commissioner of Patents can lawfully receive a surrender of letters patent for a defective specification, and issue new letters patent upon an amended specification, after the expiration of the term for which the original patent was granted, and pending the existence of an extended term of seven years. Such surrender and renewal may be made at any time during such extended term.

THIS case, and the three subsequent ones, namely, Wilson v. Turner, Simpson et al. v. Wilson, and Woodworth & Bunn v. Wilson, were argued together, being known as the patent cases. * Many of the points of law involved were common to them all, and those which were fully argued in the first case which came up were but incidentally touched in the discussion of the subsequent cases.

*The reporter intended to publish the arguments of counsel in these patent cases in extenso, and with that view applied for and obtained from many of the counsel their arguments prepared by themselves; but circumstances beyond his control prevent him from executing this purpose. He returns his thanks to those gentlemen who so kindly furnished him with their arguments, and regrets that his original design has been frustrated.