accounted for, though no statute bar existed, it was held that the claim to have the
trust executed was stale, and equity would not interfere. McKnight v. Taylor, 546.
LIMITATIONS, &c. 3; PLEADING, 11.
1. Though the decision of questions of fact belongs to the jury, yet when the court is
asked for instructions based upon evidence, it must judge of the relevancy and to
some extent of the definiteness and certainty of that evidence, and should avoid
giving any instruction upon a question which the evidence does not fairly allow to
be raised. Roach v. Hulings, 317.
2. It is error for the court to instruct the jury that a part of the evidence in the cause
does not warrant them in finding the defendant in fault. It should be left to the
jury upon the whole evidence, where there is evidence of fault, to find whether it
existed. Smith v. Condry, 487.
3. An instruction which has the effect to withdraw from the jury any matter of fact
which is open on the evidence, is erroneous. Jewell's Lessee v. Jewell, 578.
GUARANTEE, 1-3; PATENT, 3.
A contract of guarantee signed in New York, and to be executed in England, is
governed by the laws of the latter country, in respect to its construction and effect.
Bell v. Bruen, 552.
COLLISION, 1; EXECUTORS, &c. 1–3.
A license granted to an administratrix in Massachusetts, by the supreme court of that
State, to sell lands of the intestate in Alabama, is merely void.
man's Lessee, 174.
1. If an infant be disseised and then marry, her disability as a feme covert does not
relieve her from bringing a suit within ten years after she becomes of full age, under
the statute of limitations of Virginia. The only disability provided for is what
existed when the right of action accrued. Mercer's Lessee v. Selden, 491.
2. Under the statute of limitations of Virginia, an heir has ten years within which to
bring his action, if the entry of the ancestor, who was under disability at the time of
his death, was not barred. Ib.
8. Though twenty years is sufficient in equity to operate as a bar, between individuals,
as to a land title, yet such a rule cannot be applied, as between States. All the
circumstances must be considered and the amount and kind of acquiescence ascer
tained. Rhode Island v. Massachusetts, 81.
4. One who takes a deed of land from a third person, places it upon record, takes the
profits of the land, and sells parts of it, has a sufficient adverse seisin to set up the
statute of limitation, as against his children, whose guardian he was, and who claimed
in right of their mother, once the lawful owner of the land. Mercer's Lessee v. Sel-
den, 491.
5. In New York, a religious corporation can make defence under the statute of limita
tions, though not capable by law of taking and holding the lands in question. Har
pending v. The Dutch Church, 378.
6. The settled construction of statutes of limitation by the state courts, will be followed
by this court. lb.
LAPSE OF TIME; PLEADING, 3–6, 11; PUBLIC LANDS, 20.
CONTRACT, 2-4; Courts of THE UNITED STATES, 1. 11; EXECUTION, 1; Writ
of Error, 2. 5. 6.
APPEAL, 8; COURTS OF THE United States, 5. 6.
Whether, under the laws of Georgia or of South Carolina, a valid, legal marriage can
be made by an agreement of the parties, in the presence of friends, to marry, before
any sexual intercourse between them, and followed by cohabitation, the court was
equally divided in opinion. Jewell's Lessee v. Jewell, 578.
1. Under the act of January 31, 1823, (3 Stats. at Large, 723, § 1,) instructions given
by the President to the secretary of the treasury, to make the necessary advances
to the marshals of the United States to enable them to execute their duties, were
legal, and for the moneys so advanced the sureties of the marshals were responsible.
Williams v. United States, 614.
2. Such duties can be performed by the President only through the agency of the
appropriate departments. Ib.
3. The dockets and records of a court, which show, in the modes in that court usual,
the receipt of moneys by the marshal, are evidence against his sureties. Ib.
MARYLAND.
DOWER; SLAVES, 1. 2.
CLERKS, &c.; COURTS OF THE UNITED STATES, 17; ESCAPE; FORTHCOMING
BOND; PARTNERSHIP; PLEADING, 2; SLAVES, 3.
Construction of a special act of congress, of May 26, 1824, (4 Stats. at Large, 66,)
granting certain lots of ground to the city of Mobile. Mobile v. Eslava, 267; Mo-
bile v. Hallett, 284.
1. If a deed, absolute in its form, was intended as a security for a loan of money, equity
treats an attempt to convert it into a sale of the property, as a fraud, against which
it relieves by decreeing a redemption. Morris v. Nixon, 522.
2. Where the original proposition was for a loan on the security of the property, and
a bond was given for the sum advanced, though the deed was absolute, the grantee
must show that the original design of a loan on security was changed, and a sale
substituted therefor. Ib.
3. Circumstances which convinced the court that a loan on security was intended. Ib.
ASSIGNMENT, 4; CONSTITUTIONAL LAW; DOWER, 2; INSURANCE, 1-5; WRIT OF
LIMITATIONS, &c. 5; PLEADING, 3.
INSURANCE, 3. 4; LAPSE OF TIME, 2; PUBLIC LANDS, 27; STATUTES, 5.
If a novation be conditional, the original debt is not extinguished until it becomes
absolute by performance of the condition. Hyde v. Booraem, 232.
An extra service or duty performed by an officer, under the employment of the proper
department of the government charged with the execution of that duty, may be
suitably compensated by such department, if not prohibited by some positive law.
Gratiot v. United States, 106.
ARMY, &c.; RECEIVERS, &c.; PUBLIC LANDS, 28; SURETY; Taxes, 2.
PARENT AND CHILD.
LIMITATIONS, &c. 4.
In Mississippi, suits on written promises of copartners, may be brought against
one or more of them, and if three are sued, and one pleads and two are defaulted,
the plaintiff may discontinue against the one who defends, and take a judgment by
default against the others. Amis v. Smith, 311.
1. A patent for a combination of three distinct things, is not infringed by combining
two of those things with a third, which is substantially different from the third ele-
ment described in the specification. Prouty v. Ruggles, 331.
2. Where that third element, as described in the specification, was, forming the top of
the standard of a plough, so as to secure, brace, and draft, by extending the stand-
ard back from the bolt to such a distance as to form a brace to the beam, and mak
ing the after part of this extension square, in such a manner that, being jogged into
the beam it relieved the bolt in a heavy draft. Held, that the specification and
claim covered only this described manner of relieving the bolt, and if the defendant
did not jog the bolt into the beam, he did not infringe. Ib.
A patentee having described and claimed his improvement on the cotton-gin, as
consisting in a particular form of the rib, and a particular mode of fastening it to
the framework of the gin: Held, 1. That this mode of fastening was an essential
part of the invention claimed. 2. That if the defendant used a substantially differ-
ent mode of fastening, he did not infringe. 3. That it was a question of fact for
the jury, whether the mode used by the defendant was substantially different from
that described and claimed by the plaintiff. Carver v. Ilyde, 400.
4. Circumstances which will authorize a jury to presume the existence of a license
from a patentee to use his invention. M'Clurg v. Kingsland, 567.
5. Congress may modify the rights of a patentee and of the public, by legislation after
the emanation of a patent, provided it does not take away existing rights of prop-
erty. Ib.
6. The 7th section of the act of March 3, 1839, (5 Stats. at Large, 354,) is not limited
to patents for machines, manufactures, and compositions of matter; it embraces an
invention of a new improvement in the art of casting iron, by giving an angular
direction to the tube which conducts the metal to the mould. Ib.
ARMY, &c. 7; BANK; NOVATION.
PEDIGREE.
EVIDENCE, 1. 2.
PENNSYLVANIA.
INSOLVENT, 1; SLAVES, 6.
1. In a declaration on a bond conditioned to prosecute with effect an action of re-
plevin, it is a sufficient assignment of a breach, that "the suit was not prosecuted
with effect." Gorman v. Lenox's Executors, 44.
2. In Mississippi, any number of breaches may be assigned, in a replication to a plea
of general performance of the condition of a bond. United States v. Boyd, 68.
8. The statute of limitations of New York, having made twenty years' adverse posses
sion of land a bar, a plea of forty years' adverse possession is good, and it is not
necessary to make express reference in the plea to the statute relied on. Harpend-
ing v. Dutch Church, 378.
4. To test the sufficiency of an answer in support of a plea, every allegation in the bill,
not denied by the answer, must be taken as true; and then, the plea having been
set for hearing, the inquiry is, whether, upon that state of facts, the plea affords a
bar. Harpending v. Dutch Church, 378.
5. If the bill avers an express trust, and charges certain facts as evidence of the exist-
ence of that trust, and the defendant pleads the statute of limitations, he must sup-
port the plea by an answer denying those facts which are evidence of the trust. Ib.
6. The allegations in the bill and the denials in the answer examined, to determine
whether the statute of limitations was a bar. lb.
7. Where several defendants unite in a plea of non est factum, if the instrument appear
to be the deed of any one of those so uniting in the plea, the issue must be found
for the plaintiff. United States v. Linn, 510.
8. A count which avers that an accounting officer received public moneys during his
continuance in office, is not good as against a surety who became such some time
after he had entered on his office, there being no allegation that the moneys, received
before the defendant became surety, were in the hands of the officer at the time the
defendant became surety, and were not accounted for afterwards. Ib.
9. A plea by one of several defendants in an action of debt on bond, that it was mate-
rially altered after its delivery, without his consent, but not averring the alteration
was made by the plaintiff, or with his privity, is bad on demurrer. Ib.
10. A demurrer to a bill by Rhode Island against Massachusetts, which showed that
the complainant was led into a mistake in marking a boundary, by the agents of the
defendants, was overruled. Rhode Island v. Massachusetts, 81.
11. Lapse of time sufficient to create a bar under the statute of limitations, unaccounted
for by the bill, may be taken advantage of by demurrer. 1b.
12. A variance can only be taken advantage of at the trial.
utors, 44.
13. The plea of not guilty in trespass, only puts the matter of the declaration in issue,
and a variance between it and the writ cannot be noticed by the court.
v. Fisk, 587.
14. Trespass, de bonis asportatis, is a transitory action, and it is not necessary to lay in
the count the true venue, and also the venue for trial under a scilicet. Ib.
AMENDMENT; COURTS OF THE UNITED STATES, 1. 15. 16; EQUITY, 2; ESCAPE;
EXECUTION, 1; Partnership.
POSTMASTER-GENERAL.
BILLS OF EXCHANGE, &c. 2.
POWER OF SALE.
CONSTITUTIONAL LAW.
APPEAL, 3-8; COURTS OF THE UNITED STATES, 5-14. 16. 17. 19; EVIDENCE, 11:
FORTHCOMING BOND; PARTNERSHIP; PLEADING, 12; WAIVER; WRIT OF
ERROR, 2. 5-8.
PRESCRIPTION.
ADVERSE POSSESSION.
ARMY, &c. 1. 4; EVIDENCE, 7; MARSHAL, 1. 2.
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