the defendants, and allowed by the court. A part of the defendants, who had originally claimed appeal, before any further proceedings abandoned it; and the residue of them, excepting Todd, have since the appeal was filed, abondoned it, and Todd only has entered his appearance in the Supreme Court. The record stood in the names of all the appellants. A motion was made to dismiss the appeal, for irregularity and want of jurisdiction, on the ground that it cannot be maintained on be half of Todd alone. The court refused to dismiss the appeal.

be used in connection with other parts of a machine which has been publicly known and used a long time. There must, therefore, be some mode of fastening and connecting it with the other machinery; and the effect produced by the rib necessarily depends in a great degree upon the mode in which it is arranged and connected with the saw, and the other parts of the machine. He specifies the mode and claims it as part of his invention. According to his state- The proper rule in cases of this sort, where there ment his improvement consisted in the form of are various defendants, seems to be that all the defendants affected by a joint decree (although it the rib which increased the depth between the may be otherwise, where the defendants have sepupper and lower surface, as the part where the arate and distinct Interests, and the decree is sev cotton is drawn through the grate, in the slop-joined in the appeal; and if any of them refuse or eral, and does not jointly affect all), should be ing up so as to meet the upper or outer surface decline, upon notice and process (in the nature of a above the saws, and in the smooth and unin- summons, and severance in a writ of error) to be terrupted passage produced by the manner in Issued in a court below, to become parties to the appeal, then that the other defendants should be which it was connected with the frame. These at liberty to prosecute the appeal for themselves three things he represents as constituting his and upon their own account; and the appeal as to improvement, and they are all combined to- the others be pronounced to be deserted, and the decree of the court below as to them be proceeded gether in his specification and claim, making in and executed. together one invention to be used in connection with the other and old machinery of the cotton

gin. And the drawing which accompanies his

patent shows the manner in which the rib is sloped and arranged with the saw and annexed to the framework, in order to attain the object of the invention.

Now, the end to be accomplished is not the subject of a patent. The invention consists in the new and useful means of obtaining it. And if the defendant had by a rib of a substantially different form, or differently arranged with the saw, or not fastened at all to the frame, made an improvement which more effectually secured the object intended to be accomplished by the plaintiff's patent, it would be difficult to maintain that it could not be lawfully used, because it produced the same result with the plaintiff's invention.

saw,

The usefulness of the rib depends altogether, as described in the specification, upon the manner of its connection with the periphery of the and with the framework. And if, therefore, as was said by the Circuit Court, the rib made by the defendant was not fastened at all to the framework, or in a manner substantially different from the plaintiff's or in a manner known and used before the plaintiff's invention, 520*] it was no infringement of his patent. And whether the manner was the same in substance or not, was a question of fact for the jury, and as they found for the defendant, we must assume that it was substantially different. The judgment of the Circuit Court is therefore affirmed.

521*] JAMES TODD, Thomas Warren, Tristram G. Mitchell, William C. Mitchell, and Woodbury Storer, Administrator of Israel Waterhouse, Deceased,

APPEAL from the Circuit Court of the Unit

ed States for the District of Maine.

Mr. Davies, for the appellee, moved to dismiss the appeal. He stated that the appeal had been actually entered in the Circuit Court, in the names of the appellants mentioned on the record; but that there were other defendants in the Circuit Court, against whom the decree had been rendered, who had not joined in the appeal, not having had any regular notice of such appeal. They were Hayes, Gouch, and Westcott.

Of the above-named appellants, James Todd alone enters his appearance here, by his counsel, Francis O. J. Smith, Esq., who now brings up the record, and proposes to prosecute the appeal on behalf of Todd in this court, singly, without any of the rest; whose names, [*522 however (appearing in the record as appellants), are extended on the docket by the clerk.

The counsel for Todd, by writing filed in the case here, February 16th, disclaims and disavows any and all appearance for either of the other defendants, named as appellants.

The other defendants who joined in the appeal have subsequently abandoned any further prosecution of it; and have given notice to the complainant's counsel to that effect, submitting to the decree, and some of them offering to pay their respective amounts, according to the decree of the Circuit Court; the last notice by the Mitchells being dated January 28th, 1842, at which time the appeal here had not been entered, nor the record filed.

Mr. Smith, for the appellant, James Todd, opposed the motion.

The only party here actually interested in the appeal is Mr. Todd. Although he had been only an agent in the transaction out of which the controversy involved in this suit arose, the decree of the Circuit Court affected him as principal, and subjected him to the payment of a considerable sum of money. It was to CHARLES DANIEL, Complainant and Ap controvert this claim that the appeal had been

V.

pellee.

prosecuted. If others who had been appellants

NOTE. That no one but parties to the record can be heard on review, see note to 9 L. ed. U. & 201.

As to parties necessary in equity, see note to 4 L. ed. Ü. S. 242; 5 L. ed. U. S. 97.

As to who are necessary parties in error, see note to 8 L. ed. U. 8. 727.

had withdrawn their appeal, or if some of them did not enter an appeal, the party who now asks to maintain it should not be injured by this condition of the case.

Mr. Justice Story delivered the opinion of the court:

This is an appeal from the decree of the Circuit Court for the District of Maine, in a suit in equity, in which the appellants were the original defendants. After the decree was made, an appeal was claimed by all the defendants, and allowed by the court. A part of the defendants, who originally claimed the appeal, before any further proceedings, abandoned their appeal; and the residue of them, excepting Todd, have, since the session of this court, abandoned their appeal, and Todd only has entered his appearance. But the record stands in the names of all the defendants as parties ap: pellant. Under these circumstances, the counsel for the appellee has moved the court to dismiss the appeal for irregularity and want of jurisdiction, upon the ground that it cannot be maintained on behalf of Todd alone.

there is no pretense to say that any practical inconvenience can occur from Todd's now prosecuting it alone, and since the other defendants have all had notice and declined to interfere, and are content to abide by the original decree.

In the case of Coxe and Dick v. The United States, 6 Peters, 172, no doubt was entertained by this court that a writ of error might be entertained by the defendants severally, [*524 where the judgment operated under the laws of Louisiana as a several as well as joint judgment, although they might have united in the writ of error; and if any one chose not to prosecute it, the others might, upon a summons and severance, proceed alone.

The case of Owings v. Kincannon, 7 Peters, 399, seems to have been misunderstood at the bar. The objection in that case was not that one or more of the defendants might not pursue an appeal for their own interest, if the others refused to join in it upon due notice, and process for that purpose from the Circuit Court; but that it did not appear that all the defendants were not ready and willing to join in the appeal, and that the appeal was brought by some of the appellants without giving the others an opportunity of joining in it, for the protection of their own interest, not only against the appellee, but against the appellants, as their own interests might be distinct from, or even adverse to, that of the appellants; and it was right and proper that all the parties should have an opportunity of appearing before the court, so that one final decree, binding upon all the parties having a common interest, might be pronounced.

There is no doubt that the appeal having 523*] been deserted by all the original defendants except Todd, it must be dismissed with costs as to them. But as to Todd very different considerations must arise. He seeks to reverse the decree in the court below, as erroneous in regard to himself; and the question is, whether he is not entitled to maintain the appeal separately, for his own interest, although it is deserted by all the other defendants. We think that he is, otherwise an irreparable in jury might be inflicted upon him by an erroneous decree, for which the law would not afford him any redress. The decree in this case is in fact against him as principal, and against the other defendants in aid of him, for distinct portions of the purchase money received by them under the contract of sale made by Todd, and stated in the bill and answer. The decree may be entirely right in regard to ADAM S. MILLS et al., Plaintiffs in [*525 the other defendants, and yet it may be erroneous as to Todd. He has, or at least may have, a distinct and independent interest in the

Upon the whole, therefore, our opinion is that the appeal must be dismissed with costs against all the defendants except Todd, and as to him it is to be retained for a hearing upon the merits.

Error,

V.

controversy in respect to which he is entitled to WILLIAM G. BROWN et al., and the County of St. Clair, Defendants in Error.

be heard in this court.

risdiction.

writ of error to the Supreme Court of a State, in The Supreme Court has not jurisdiction on a which the judgment of the court was not, necessarly, given on a point which was presented in the case involving the constitutionality of an act of the Legislature of the State of Illinois asserted to violate a contract.

The proper rule in cases of this sort, where there are various defendants, seems to be that Writ of error to Supreme Court of State-ju. all the defendants affected by a joint decree (although it may be otherwise, where the defendants have separate and distinct interests, and the decree is several, and does not jointly affect all), should be joined in the appeal; and if any of them refuse or decline, upon notice and process (in the nature of a summons and severance in a writ of error) to be issued in the court below, to become parties to the appeal, then that the other defendants should be at liberty to prosecute the appeal for themselves and upon their own account; and the appeal as to the others be pronounced to be deserted, and the decree of the court below as to them

be proceeded in and executed. In the present case what has occurred is equivalent to such proceedings. All the defendants originally claimed an appeal; some of them have declined to pursue it at all; others have deserted it since it was pending in this court; and, therefore,

The Supreme Court will not, when requested by in a case in which it has not jurisdiction to affirm the counsel for plaintiffs and defendants in error, or reverse the judgment of the court from which the same has been brought by a writ of error to a State court, examine into the questions in the case and decide upon them. Consent will not give jurisdiction. When the act of Congress has so carefully and cautiously restricted the jurisdiction concrees of the State tribunals, the court will not exferred upon this court, over the judgments and deercise jurisdiction in a different spirit.

Circuit Court of the State of Illinois, claiming, | to be raised here are, 1st. Whether the Act of by a bill filed in that court to hold under an Assembly of 1819 was not a contract with the act of the Legislature of Illinois, an exclusive said Wiggins, his heirs and assigns; and, 2d. right to erect a ferry on the Mississippi River, Whether the Act of 1839 does not impair the from land owned by them, in the city of St. contract. Louis, Missouri. The defendants in the suit *These points are not directly stated [*527 denied the right thus set up, and claimed the in the pleadings, nor are they noticed in the right to set up another ferry, from Illinois to decree of the Circuit or Supreme Court of the St. Louis, under other acts of the Legislature State. Yet if it appeared from the bill that the of Illinois. The case was, after a decree of the court could not have sustained the demurrer Circuit Court in favor of the defendants, car-without considering and deciding these points; ried by the plaintiff by appeal to the Supreme if they were necessarily involved in the decision Court of the State, where the judgment in favor of the case, as presented by the bill and demurof the defendants was affirmed. The plaintiffs rer, this court would have jurisdiction upon prosecuted this writ of error, on the ground the writ of error, although they are not exthat the act of the Legislature of Illinois, pressly stated in the decrees to have been raised passed subsequent to the act which had author- and decided. ized the plaintiffs to erect their ferry, was a violation of the contract made with the plaintiffs by the act of Assembly.

The decision of the Supreme Court of Illinois, which was in favor of the defendants, was given upon other questions presented in the besides the questions on the contract made by the first act of the Assembly of Illinois.

case,

The counsel for the plaintiffs in error pro526*] posed to the court that a decision upon the whole merits of the case should be made, although it might be considered that the court had jurisdiction of the case on the writ of er ror; the questions in the case being of great importance, and the parties being willing and desirous to have them decided by this court.

The case was argued by Mr. Bogy and Mr. Jones for the plaintiffs in error, and by Mr. Key and Mr. Reynolds for the defendants.

Mr. Chief Justice Taney delivered the opin ion of the court:

This case is brought here by writ of error to the Supreme Court of Illinois under the 25th section of the Act of 1789.

It appears that the Legislature of Illinois, by a law passed March 2, 1819, granted to a certain S. Wiggins, his heirs and assigns, the right to establish a ferry, upon his own lands, across the Mississippi, near the town of Illinois.

It is unnecessary for the purposes of this opinion to state the contents of the bill. Indeed, as concerns the question before us, it could not well be understood without giving the whole bill in its own words. It is sufficient to say that we have carefully examined it, and are satisfied that the points proposed to be raised here, were not necessarily involved in the judgment given by the State court. On the contrary, we think it may have come to the conclusion that the demurrer ought to be sustained on other grounds, and that the bill was not so framed as to require a decision upon these questions.

It is true that the plaintiffs and defendants in error have both waived all objections to jurisdiction, and have pressed the court for a decision on the principal points. But consent will not give jurisdiction. And we have heretofore, on several occasions, said, that when the act of Congress has so carefully and cautiously restricted the jurisdiction conferred upon this court, over the judgments and decrees of the state tribunals, it would ill become the court to exercise it in a different spirit. And it certainly could not be justified in expressing an opinion favorable or unfavorable as to the correctness of this decree, when it has rot the power to affirm or reverse it.

The writ of error must therefore be dismissed.

V.

By a subsequent Act of March 2, 1839, the Legislature of Illinois granted to the County of St. Clair, in that State, and to certain commissioners in behalf of the county, the right to locate a road and ferry landing between Cahokie *JOSHUA MAURAN, Plaintiff in Error, [*528 Creek and the Mississippi River, opposite to St. Louis. And the commissioners appointed by this law proceeded to lay out the road and establish the landing on certain lands which belonged to the plaintiffs in error; and to which, by sundry conveyances, they derived title from the said Wiggins.

The plaintiffs in error thereupon filed their bill in the Circuit Court of the State, praying that the County of St. Clair and the said commissioners should be enjoined from further proceedings under the act of Assembly last above mentioned. The respondents, the present defendants in error, appeared and demurred generally to the bill; and upon final hearing of the cause, the demurrer was sustained by the Circuit Court and the bill dismissed. From this decision the complainants appealed to the Supreme Court of the State where the decree of the Circuit Court was affirmed. The points proposed

EDWARD BULLUS, Defendant in Error.

Construction of a letter of guaranty-evidence -practice.

In the construction of all written instruments,

to ascertain the intention of the parties is the
great object of the court, and this is especially
the case in acting upon guarantees.
Generally, all Instruments of suretyship are con-
strued strictly as mere matters of legal right. The
rule is otherwise where they are founded on a val-

uable consideration.

NOTE. As to guarantles, continuing and other, and construction of, see note to Drummond ▼ Prestman, 12 Wheat. 516; and note to Edmonston v. Drake, 5 Pet. 624.

Construction of guaranties.

A guaranty should receive a fair and reasonable Interpretation, so as to attain the object for which the instrument was designed, and the purposes to which it is to be applied; not with a technical

IN error to the Circuit Court of the Un
N error to the Circuit Court of the United | That Bullus paid into the partnership stock

"The defendant in error and Joshua Mauran, Jun., of the city of New York, on the 8th of September, 1836, entered into articles of co-whom he conversed relative to the terms of the partnership in the trade and business of general shipping merchants, and of buying and selling merchandise on their own account, and also on commission for the account of others, which was to continue three years. Mauran agreed to pay into the firm as capital stock such sums as he should be able to realize on closing the business of merchandising in which he had been engaged. Bullus agreed to pay a sum of from twenty-eight thousand to thirty thousand dollars in cash.