M'Gruder Bank of Washington. 1824. favour of sustaining the doctrine, that such a removal is an excuse from actual demand. Precision and certainty are often of more importance to the rules of law, than their abstract justice. On this point, there is no other rule that can be laid down, which will not leave too much latitude as to place and distance. Besides which, it is consistent with analogy to other cases, that the endorser should stand committed, in this respect, by the conduct of the maker. For his absconding or removal out of the kingdom, the endorser is held, in England, to stand committed; and, although from the contiguity, and, in some instances, reduced size of the States, and their union under the general government, the analogy is not perfect, yet it is obvious, that a removal from the seaboard to the frontier States, or vice versa, would be attended with all the hardships to a holder, especially one of the same State with the maker, that could result from crossing the British channel. With this view of the subject, we are of opinion that the judgment below, although rendered on a different ground, must be sustained. Judgment affirmed. 1824. Ex parte Wood [PATENT. PRACTICE.] Ex parte WOOD & BRUNDAGE. Under the 10th section of the patent act of the 21st of February, 1793, ch. 11. upon granting a rule, by the Judge of the District Court, upon the patentee, to show cause why process should not issue to repeal the patent, the patent is not repealed, de facto, by 'making the rule absolute; but the process to be awarded is in the nature of a scire facias at common law, to the patentee to show cause why the patent should not be repealed, with costs of suit; and upon the return of such process, duly served, the Judge is to proceed to stay the cause, upon the pleadings filed by the parties, and the issue joined thereon. If the issue be an issue of fact, the trial thereof is to be by a jury; if an issue of law, by the Court, as in other cases. In such a case, a record is to be made of the proceedings, antecedent to the rule to show cause why process should not issue to repeal the patent, and upon which the rule is founded. This cause was argued by Mr. Haines," in sup- March 11th. port of the rule, and by Mr. Emmett, against it. Mr. Justice STORY delivered the opinion of the March 17th Court. The District Judge of the southern district of New-York, under the 10th section of the patent act, of the 21st of February, 1793, chapter 11., granted a rule upon Charles Wood and Gilbert a He cited Stearns v. Barrett, 1 Mason's Rep. 153. 8 Mod. 28. 1 Salk. 144. 6 He cited 1 U. S. Law Journal, 88. Ex parte O'Reilly, 1 Ves. jr. 112. Ex parte Fox, 1 Ves. & Beames, G7. Jefferson s Case, 2 Saund. 15. Ex parte 1824. Brundage, at the instance and complaint of Jethro Wood, to show cause why process should not issue against them, to repeal a patent granted to them for a certain invention, in due form of law; and upon hearing the parties, no sufficient cause being, in his judgment, shown to the contrary, he, on the 2d day of July, 1823, passed an order, that the said rule be, made absolute, and that the said patent be repealed; and that process issue to repeal the said patent, and for the costs of the complainant. The patentees, by their counsel, moved the Court to direct a record to be made of the whole proceedings, and that process, in the nature of a scire facias, should be issued, to try the validity of the patent. The Court denied the motion, upon the ground that these were summary proccedings, and that the patent was repealed de fato, by making the rule absolute; and that the process to be issued, was not in the nature of a scire facias, to try the validity of the patent, but merely process repealing the patent. A motion was made, on a former day of this term, in behalf of the patentees, for a rule upon the district Judge, to show cause why a mandamus should not issue from this Court, directing him to make a record of the proceedings in the cause, and to issue a scire facias, for the purpose of trying the validity of the patent. The rule having been granted, and due service had, the case has since been argued by counsel, for and against the rule; and the opinion of this Court is now to be deliyered. Two objections have been urged at the bar, against the making this rule absolute. The first is, that these proceedings, being summary, are not properly matters of record. The second, that this is not a case in which, by law, a scire facias, or process in the nature of a scire facias, can be. awarded, to try the validity of the patent. Both of these objections are founded upon the provisions of the 10th section of the patent act, and must be decided by a careful examination of those provisions. The words are, "that, upon oath or affirmation being made, before the Judge of the District Court, where the patentee, his executors, &c. reside, that any patent, which shall be issued in pursuance of this act, was obtained surreptitiously, or upon false suggestion, and motion made to the said Court within three years after issuing the said patent, but not afterwards, it shall and may be lawful for the Judge of the said District Court, if the matter alleged shall appear to him to be sufficient, to grant a rule that the patentee, or his executor, &c. show cause why process should not issue against him, to repeal such patent; and if sufficient cause shall not be shown to the contrary, the rule shall be made absolute; and thereupon, the Judge shall order process to be is sued against such patentee, or his executors, &c., with costs of suit. And in case no sufficient cause shall be shown to the contrary, or if it shall appear that the patentee was not the true inventor or discoverer, judgment shall be rendered by such Court for the repeal of the said patent. And if the party at whose complaint the process issued, shall have judgment given against him, he shall pay all . 1824. such costs as the defendant shall be put to in defending the suit, to be taxed by the Court, and recovered in due course of law." Ex parte Upon the slightest inspection of this section, it will be at once perceived, that however summary the proceedings may be, they are of vast importance to the parties, and involve the whole right and interest of the patentee. The jurisdiction given to the Court, is not general and unlimited, but is confined to cases where the patent was obtained surreptitiously, or upon false suggestions; where the patentee resides within the district; and where the application is made within three years after the issuing of the patent. It is, therefore, certainly necessary, that all these facts, which are indispensable to found the jurisdiction, should be stated in the motion and accompanying affidavits; and without them, the Court cannot be justified in awarding the rule. It follows, of course, that in any record that is to be made of the proceedings, they constitute the preliminary part, and ought not to be omitted. In the present case, they have been wholly omitted, and the record is, in this respect, incomplete and inaccurate. But it is said that, technically speaking, these proceedings are not matters of record. They are certainly proceedings of a Court of record, for such are all the Courts of the United States, in virtue of their organization, both upon principles of the common law, and the express intendment of Congress. In general, the interlocutory proceedings in suits are not entered of record, as they are deemed merely collateral incidents. But where |