U. S. Circuit Court.-McCalmont and others v. Lawrence. lawyers exacting or receiving exorbitant fees, during the continuance of the said act. So help you God." Without taking this oath, no lawyer could practise in any court, under a penalty of 500 pounds current money.* the county, in respect of their neglect and mismanagement of their clients' causes, and other foul practises ;" and enacts that no one shall practise in those courts without a license from the governor and council, under a penalty of 40s. for every case undertaken: License to be obtained by petition to the governor and council, who should refer it to suitable persons to ex-vived and altered, so that it became the amine the candidate. If qualified, he was then to be licensed; but was to subscribe the oath of abjuration and the test, and also to take the following remarkable oath : "You shall do no falsehood, nor consent to any to be done in the court; and if you know of any to be done, you shall give notice thereof to the justices of the court, that it may be reformed: You shall delay no man for lucre or malice, nor take any unreasonable fees: You shall not wittingly or willingly sue, or procure to be sued, any false suit, nor give aid nor consent to the same, upon pain of being disabled to practise as an attorney forever. And furthermore, you shall use yourself in the office of an attorney within the court according to your learning and discretion. So help you God." For violation of duty as laid down in this law, the governor and council could suspend an attorney, or disable him forever; and the courts could make him pay all costs occasioned by his wilful neglect. Practitioners in the general court at the time of its passage, and counsellors and barristers at law were excepted from the operation of the act. Some trite provisions in 1734, 36 and 38, which come next in order, are omitted. In 1742, so much of the law of 1732, as applied to regulating attorneys and granting them licenses was repealed, not having" been found to answer the good design and intention thereof."* The same year, lawyers' fees were fixed by law, and a new oath prescribed: viz. "You shall not directly or indirectly exact, demand, or receive, any greater or larger fee or reward, or other gratuity whatsoever for the services by you to be done, as an attorney of this court, than you are permitted to take by a certain act of Assembly, intituled, an act to prevent *Hening, v. 171. In 1745, the law for regulating attorneys and granting them license was re basis of subsequent legislation on the subject for many years; and no doubt from this period the colonial bar began to assume much of that dignity and importance which now belong to the profession. The details of the law, however, will be reserved until we come to the year 1748, when it was re-enacted with amendments. In the mean time, nothing of consequence took place in reference to our subject.‡ U. S. Circuit Court. [SOUTHERN DISTRICT OF NEW-YORK.] [In Equity.] B. B. Before the Honorable SAMUEL NELSON, As- MCCALMONT AND OTHERS V. Lawrence. In a bill to enforce a judgment at law against pro- The creditor, with a judgment, who first files his *Hening, v. 181-2. + Hening, v. 345-350. The concluding part of this article in our next. U. S. Circuit Court.-McCalmont and others v. Lawrence plied to the complainants' judgment. Under the perfect. That the assignment, being dedecree A. B. purchased one lot by auction. Theclared void, could not be a source of title: stipulation at the sale was that the purchaser That if the lot should be sold by an exeshould have a perfect title. The title was ob jected to on the ground that the assignment be- cution, subsequent judgment creditors ing declared void, the title could not be conveyed could redeem; of which right they would by the deed tendered, but could only be made by be deprived if the deed under the decree a sale under an execution on the judgment. On would pass the title. That taking title una motion to compel the purchaser to take the title:-Held, that the title made under the de-der the conveyance, which the decree cree of the court was full and perfect, and that itself impeached, other creditors might the purchasers were bound to complete their also assail the assignment; and the purpurchase. chaser could not in his defence, insist that tice. That the purpose of a bill to set he was a bona fide purchaser without noaside a fraudulent conveyance was only to remove obstructions to the legal re medy, a sale or execution, which was fully adequate. That if the present at THIS was an application to compel a purchaser of land sold by a receiver under a decree to accept the title and complete his purchase, or for a re-sale of the property and an order on the purchaser to pay the deficiency. The complainants as judgment credi- tempted mode of conveyance would give tors had filed a bill to set aside as fraudu- a title, a subsequent judgment creditor, lent a conveyance of lands, made imme- first filing his bill and obtaining a decree, The diately before the complainants obtained would cut out a prior judgment. counsel cited 1 Peters' R. 443, Conrad v. judgment against the grantor, in such conAll. Ins. Co. 2 Wheaton. Thelusson veyance. The bill was filed against the v. Smith, 3 Paige R. 234. Le Roy v. debtor, (grantor) and the assignees only. Rogers, 1 Johns. Ch. Cas. 478. In November last, on a hearing on pleadings and proofs, the court made a decree, declaring the assignment void as to the complainants; ordering the property remaining unsold in the hands of the assignees to be sold by a receiver who had been appointed in the cause, and the conveyance to be executed on such sale by the receiver, and by the grantor and grantees in the deed of assignment, and the proceeds of the sale to be applied to the complainant's judgment. Under this decree, a sale was made of lots to divers persons; and among others, to Mr. A. B. Davenport of one lot, who paid his deposit and signed a contract to complete the sale. The sale had been announced as one which was to give a perfect title. Mr. Davenport's counsel, ascertaining that there were subsequent judgments (in date after the assignment and complainant's judgment,) objected to the title, on the ground, that the assignment being declared void, the title could not be conveyed by the deed tendered, but could only be made by a sale under an execution on the judgment. A motion was now made to compel the purchaser to take the title. Lot, and W. C. Wetmore, for the purchaser, insisted that the title should be D. Lord, contra., cotended that the assignment was void only as to the complainants, and therefore, the deed of the assignees under the decree, passed the title as to all but them and their right was executed by the decree. That in declaring the assignment_void as to the complainants, a court of equity could modify its relief, by ordering the estate applied by the trustees so as to prevent the fraud intended by the deed, and to relieve the party intended to be delayed, as in the numerous cases of trusts implied by a court of chancery, out of fraudulent acts and deeds. That the legal title as to all but assailing creditors was in the assignees, and a purchaser from them, under the order of the court, was a bona fide purchaser; and the purchase, if made before the title was attacked, was a valid one. That the very course pursued in the decree had been adopted in Butler v. Stoddart, 7 Paige, 164, as to personality; U. S. Bank v. Housman, 6 Paige, 538, and Bean v. Smith, 2 Mason Rep. 284, as to lands. He also cited 5 Paige, 23, Amer v. Blunt and Grover v. Bakeman, 11 Wendell R. 187. April 16. After advisement the court this day delivered their opinion. U. S. Circuit Court-George N. Tatham and others v. David Loring. NELSON, J., delivered the opinion of the court, stating that the following points had been ruled in the case. and the judgment debtor had in the lands transferred by his assignment, for that which would have been bound by the judg ment in the proceedings mentioned, had not such assignment been made and discharged of all right of redemption by him or other judgment creditors. I. Chancery has jurisdiction on a bill filed by a judgment creditor for relief against a conveyance of lands by his debtor, made with intent to defeat the judgment lien or to hinder or delay satisfaction of the judgment, whether execu-fore the court, are bound to accept the tion has been issued thereon or not. title offered them. IX. The purchasers, upon the facts be II. The creditor who first institutes a suit in chancery to avoid a fraudulent Mr. Lord suggested, that where the obconveyance, is entitled to relief without jection was held unfounded, it was usual regard to other creditors standing in the to give costs, which was deemed advansame right, but who have not made them-tageous to the purchaser as showing the selves joint parties with him. court's opinion of his title. III. The relief awarded in these cases, is founded upon the fraud attempted THE COURT said, they had so made the against a lien already attached to land; order granting the motion with costs. or because of the assignment with fraudulent intent to prevent the lien from attaching, and equity consequently give the full) remedy which could have been obtained through the lien by execution, but without referring the matter to the action of the law court or its process. IV. For chancery having acquired jurisdiction of the subject matter, because of the fraud, will apply the property fraudulently conveyed, to the satisfaction of the prosecuting creditor pursuant to its own methods of proceeding. V. The action of chancery upon the fraudulent grantor or assignee is only to the extent of supplying a remedy to the suitor creditor; as to all other parties the assignment remains as if no proceedings had been taken. may VI. It is competent for chancery to order the assignee of real estate fraudulently conveyed to him, to re-convey it to the assignee in order that execution act upon it; or to order him to convey it to the proper officer of the court of chaucery, or otherwise, so as best to effect its appropriation in satisfaction of the judg ment debt. VII. To that end the order heretofore granted by this court, that the assignees and assignor in this case, furthermore join with the receiver in executing conveyances to the purchasers under the sale directed by the court, is appropriate and valid. VIII. The title made pursuant to the decree of this court in that behalf, is full and perfect, for all the interest the assignees Where a patent was taken out by the assignees of the inventors in their own name, such assignees being citizens of the United States, but it appeared that the inventors were aliens and had never been residents of the United States, or put their invention on sale there.-Held, that the assignees had no title to such patent. CASE for the infringement of "a new and useful improvement in the machine for making or manufacturing pipes and tubes from lead and other metallic substances." The plaintiffs claimed as assignees of John and Charles Hanson the inventors; and the patent was granted to the assignees on the 29th of March, 1841. The breach assigned in the declaration was for making and using the patented machine, and scribers. The opinion is in the hand-writing of the *This case was supplied to us by one of our sublate Judge Story, and is not, as we understand, to be found in the Massachusetts Reports. U. S. Circuit Court.--George N. Tatham and others v. David Loring. the plea was the general issue, with a specification of special matters of defence. Dexter, for the plaintiffs, in the opening, stated that the patent was for improvements on Thomas Burr's invention. His patent was granted in 1820, and was a total failure. The plaintiff's claimed several improvements, some of which were equivalents of each other. He cited the Repertory of Arts, vol. 41, p. 267, (1822,) and the Journal of Arts, No. 6, p. 41, for November, 1820. B. R. Curtiss and Hoar, for the defendant made several points in defence. (1.) That there was no novelty in the supposed invention in the patent: and they cited the Journal of the Franklin Institute, vol. S, p. 136, N. F. 1831. The London Journal of Arts, vol. 5, p. 76. (2.) That the machine used by the defendant was not the same combination as that of the plaintiffs, in the apparatus or the mode of operation. (3.) That the supposed inventors are aliens; and although the assignees are citizens, they can take only such rights as the inventors could take; and here had not shown any title in conformity to the patent acts. For this they cited the patent act of 1836, ch. 357, s. 6, s. 9, s. 10, s. 12, s. 15. Patent act of 1837, ch. 45, s. 6, and patent act of 1839, ch. 88-36. STORY, J.-The plaintiffs insist that the defendant has violated their patent by using what is called the fixed cone, and also the chamber in their machine. In respect to the chamber, the defendant insists that the patent by its term, is limited to a chamber of conical form. Whereas, he uses a simple cylindrical form. The defendant also insists that he uses the short cone and holder, and that it is not included in the specification. In respect to the first objection, I incline to think that the plaintiff, by his specification, claims only the conical form of the chamber, and has made that form a material part of his invention. In respect to the cone, I have more doubt; but incline to think that the cone, although not distinctly claimed in the specification, is nevertheless, by implication, included as a part of the improvements claimed in the patent. However, it is not necessary to decide either point. The great objection is, as to the validity of the patent. The inventors are confessedly aliens; and the assignees can claim nothing, except what the aliens could have claimed, if they had taken out the patent. They take by assignment the rights of the inventors and can take no more, their being citizens of the United States makes no difference in the case. The inventors are not, and have never been residents in the United States, and they have not put their invention on sale to the public in the United States. These facts are conceded. Now the 9th section of the patent act of 1836, ch. 357, expressly requires, that the applicant for a patent, if an alien, shall have been a resident in the United States for one year next preceding his application, and shall have made oath of his intention to become a citizen. The 15th section of the same act makes it a good matter of defence, and bar to the suit for a violation of the patent, that the patentee, if an alien at the time when the patent was granted, had failed and neglected, for the space of eighteen months from the the date of the patent, to put and continue on sale to the public on reasonable terms, the invention or discovery for which the patent issued. But The 11th section of the same act makes every patent assignable; and the 6th section of the act of 1837, ch. 45, enables the assignee of any invention to take out a patent therefor, in his own name. the section contains no clause authorizing a patent to be granted to the assignee, where the inventor himself would not be entitled to a patent. That would be to place the assignee in a better situation, and to give him a higher and yet different claim from that of the inventor himself. No such policy can possibly be deduced from the nature or objects of the patent act; and if the doctrine were well founded, a non-resident alien might evade the whole provisions of the patent acts, and enjoy an unrestricted monopoly of his patent by a single transfer thereof to a citizen. My opinion is, that the present objection is fatal to the suit. Mem. Upon this opinion being expressed, the plaintiff asked leave to become non-suit, with leave to move for a new trial upon the last point, if he should, In Chancery.-James B. Taylor v. Jacob Crowninshield and others. upon further consideration elect so to do. In Chancery, [New-York.] Before the Hon. ANTHONY L. ROBERTSON, Assistant Vice-Chancellor. JAMES B. TAYLOR V. JACOB CROWNIN SHIELD AND OTHERS. A witness may be examined as to the same matters before his testimony be closed: an objection to such re-examination should be put specially on that ground to be available and not be made to the form of the question. Witnesses may have recourse to a written memoranda to refresh their memory, whether made cotemporaneously with the transaction to which they refer or not, provided they are afterwards able to testify from independent recollection: the use of such memoranda in court is subject to the discretion of the court, to prevent improper tampering with the witness: dates and numbers are peculiarly the subject of such aids to the memory, and in such case their use should not be excluded without clear proof of collusion. Testimony in relation to an instrument of the same date, drawn and recorded at the same time, between the same parties, under the direction of the same person, with an instrument where genuineness is in dispute, is admissible to show that the person claiming such instrument not in dispute, under whose direction it was drawn, had some agency in the concoction of the disputed instrument. Declarations by an attesting witness or certifying officer, tending to contradict the facts attested or certified to, are not admissible in evidence: but the statements of such witness or officer, that he did not know the grantor, in an instrument whose execution he has attested or certified before his knowledge of the existence of a controversy respecting it, are admissible; as are also his acts before such knowledge to show his understanding of what constitutes necessary acquaintance with the grantor. Declarations as to ignorance of a mortgagee, of a person who caused the mortgage to be prepared, recorded and assigned to the complainant, before actual notice to the mortgagor of such assignment, is admissible to show such person the author of a spurious mortgage and the actual nonexistence of a mortgagee. Non-existence of a mortgagee may be proved by inquiring of such persons as may be supposed to have known him if he did exist; at all events, it is sufficient to cast the burden of proving such existence on the assignee of such mortgage. The condition, pursuit, habits and character of a party are admissible, with other facts to prove the improbability of his borrowing a large sum of money or executing a specific security; but they must have relation to the nature of the contract: thus the wealth, possession of ready money, frugality, caution, want of business habits or pursuits, habit of consulting others, are circumstances going to disprove a loan of large sums of money, for no conceiveable purpose to a person whose wants and disposition did not need it. The present appearance of an instrument, the genuineness of which is disputed, is to be determined by inspection, not the testimony of witnesses. Circumstances are admissible to disprove any possible intercourse between a supposed mortgagor and mortgagee. Intimacy between the complainant and the person into whose hands the instrument in dispute was last traced, is good evidence in the absence of any other proof, to show the complainant obtained it from him. The conduct of a party, who may be supposed to know the truth of a case, in pre-occupying the minds of witnesses, particularly those whose mere opinions are required, and especially by false statements and in deterring others by menaces, is material in the inquiry as to the reliability of the testimony of the witnesses, prepossessed or those introduced to contradict the witness whose testimony is sought to be warped. Doubts being thrown on the probable genuineness of an instrument and an unimpeached witness having sworn to writing it after the death of the party supposed to have executed it, more evidence will be required than the certificate of a commissioner of deeds as to its execution. Any alteration apparent on the face of an instrument, must be explained by the party claiming a benefit, otherwise it is presumed to have beon done after the instrument was executed. Any mode of communication which in the ordinary course of the transactions of life, induces a reasonable presumption of a writing being that of a party, qualifies the person with whom such communication is made, to testify as to such handwriting. General opinions as to hand-writing are more to be relied on, than the indication of particular discrepancies in the mere form of letters. The mutilated appearance of a security of great value, if genuine, for which no cause is assigned, is a circumstance to be considered in deciding upon its genuineness. In addition to the proof of the signature of an attesting witness, some evidence of the identity of the grantor is necessary, either by proof of his hand-writing or otherwse. (See Whitelocke v. Musgrove, 1 Cr. & M. 520.) Mortgage pronounced a forgery. THIS suit was brought for the foreclosure of a mortgage on property in Brooklyn, alleged to have been made by William James Proctor to one Roberto De La Vaca; and by him to have been assigned to the complainant. The defence was |