author: Mr. Justice WOODBURY

text:
    Eli Clark, William Green, and Hugh McGill, Plaintiffs in error, v. The President, Directors, and Company of the Manufacturers’ Insurance Company, Defendants.
    Where an action was brought upon a policy of insurance against fire, by the assignees of the person originally insured, and in the policy it was said that it was “made and accepted upon the representation o'f the said assured, contained in hi| application therefor, to which reference is to be had,” it was ’proper -to prove by parol testimony that the representations alleged to have been made by the party originally insured were actually made by him.
    And if the assignees, by their acts, adopted these representations, when renewing the policy from time to time, the evidence was equally admissible, because the subsequent policies had reference to the one first made.
    Therefore, where the representation upon which the original policy was founded was, that “ the picker is inside of the building, but no lamps used in the picking-room,” it was a correct instruction to give to the jury, that the use Of lamps in the picker-room rendered the policy void.
    But if no representations were made or asked, it would not be the duty of the insured to make known the fact that lamps were used in the picker-room, although the risk might have been thereby increased, unless the use of them in that way was unusual.
    This case was brought up, by writ of error, from the Circuit Court of the United States for the District of Massachusetts. It was an action upon a policy of insurance against fire. The plaintiffs in error, who were also plaintiffs below, resided at Malone, in the county of Franklin and State of New York, and the insurance company was at Boston, in Massachusetts.
    The property insured was a cotton factory in Malone, owned originally by Jonathan Stearns, who applied for insurance on the 28th of April, 1834.
    There were fifty questions asked by the insurance company, and answered by Steams. The thirty-fourth question and answer were as follows: —
    “34. Is the picker inside the building? If within, state where situated and how secured; if in a separate building, state if the passage-way communicating with the factory is secured by an iron door at each end, or how otherwise secured.”

      “ 34. The picker is inside of the building, but no lamps used in the picking-room; the doors are wood, and not covered.”
    The following was written in pencil at the close of the application by the agent at Pittsfield: —
    “ The assured warrants that the waste shall be removed as often as once in forty-eight hours to a safe distance from the mill, and that the lamps in the carding-rooms shall be inclosed in glass. (This condition is required.) ”
    A policy was issued to Stearns from July 1, 1834, for one year, for $ 3,000, on the factory building and fixtures, including water-wheel, drums, shafts, and gearing; $ 11,000 on the movable machinery, and $ 1,000 on the stock in the various stages of manufacturing.
    On the 8th of July, 1834, Stearns assigned the policy to the Ogdensburg Bank, to which the company assented.
    On the 17th of June, 1835, the cashier wrote to Mr. Hall, the agent of the insurance company, inclosing a check for $263, and requesting a continuance of the policy for one year; and in August, 1S36, a similar letter, requesting a renewal or continuance of the policy.
    In August, 1837, the cashier of the bank inclosed a draft for $263, and requested a new policy. One was accordingly issued, containing the same clauses as the preceding.
    On the 13th of August, 183S, Stearns informed Mr. Hall, the agent, that the property insured had passed out of his hands into those of the bank.
    On the 25th of August, 1838, the cashier wrote to Mr. Hall, requesting a continuance of the policy, but omitting the $1,000 on stock, as the mill was not then in operation.
    In August, 1839 and 1840, similar letters were written. In the policy issued in 1840, the following clause was inserted: — “ It is understood, that the factory is not in operation, and that the assured have liberty to put the same in operation, agreeably to the representation heretofore made by Jonathan Stearns.” Upon the receipt of this policy, the cashier returned the following answer.

      “Ogdensburg Bank, August 27th, 1840.
    “ Parker L. Hale, Esq., Agent, Sj'c.

    “Dear Sir, — Will you do me the favor to send me a copy of the original survey and application, as made by Jonathan Stearns, at the time Stearns effected an insurance on the cotton factory, &c., at Malone, as I observe that the first policy made out for us specifies ‘ agreeably to the representations heretofore made by Jonathan Stearns.’ This institution does not know what those representations are, and as the factory is soon to be put in operation by Stearns, we having leased the same to him for one year, we wish you to send us a copy of the survey and application, in order to have Stearns act within those representations. ' We also wish you to send us your abstract of having the factory put in operation by Jonathan Stearns, under the policy that will take effect on the 30th instant, for one year from that time. If, on receipt of a copy of survey and application, it shall not be found sufficiently correct, you will be' notified, and we shall expect you will consent to have the policy adapted to the corrected application,’&c. In-the policy of 1839 you say, ‘contained in their" application.’ I am not aware that this institution has made any specific application, and suppose you intended the one given as to details by Stearns. Yours, &e.
    “John D. Jubson, Cashier.”
    The reply of the agent was as follows: —
    ■ “ Pittsfield, 31sf August, 1840.
    “John D. Jubson, Esq., Cashier.

    “ Dear Sir, — Herewith I inclose to you • a renewed policy, No. 622, on cotton factory, &c.; I have inserted the clause agreeably to your direction.
    “ Dear Sir,— I had deposited this letter in the post-office when I received your favor of the 27th instant. The policy is made out by inserting liberty of putting it in operation, as requested. The original survey I have not in my possession.- It is in the office at Boston. Perhaps Mr. Stearns may have kept a copy; if so, you will be able to obtain it of him; if not, I may procure for you a copy at Boston. You will, of course, see to it that the waste is removed according to the warranty, and that the lamps be inclosed in glass. Respectfully,
    “ P. L. Hale,’-’

      It appeared that the cashier then wrote to Stearns for a copy of his representation, but Stearns replied that he had none. No further inquiries were made about it.
    In August, 1841, the cashier wrote to the agent, saying, — “ Please send me a new policy or a renewal receipt for the continuance of the same policy for one year from 30th instant. The factory is now and has been in operation the last year, under a lease to Colonel Jonathan Stearns. His lease will expire soon, and whether the bank will lease it again is more than I can say at present; but still we wish the same clause in the new policy that is in the present one, viz. that we have the right to put the mill in operation, &c., should we wish.”
    A policy was issued according to the above request, containing amongst other things the following: — “It is understood that the mill is under lease to Jonathan Stearns, and may again be leased to him or some other tenant, the assured being answerable for the warranty as above.”
    On the 18th of March, 1842, an indorsement was made upon the policy, that the assured had made a contract of sale, and given possession, of the property to Eli Clark, William Green, and Hugh McGill, to which the approbation of the company was requested ; which was given by Mr. Hall.
    On the 19th of August, 1842, the cashier wrote again for continuance of policy No. 704 P, and requested a new policy to be made out in the names of Clark, Green, and McGill; in case of loss, the money to be paid to the bank. The policy was issued accordingly, containing the same clauses as before, with this remark added: — “ This policy is issued upon the representation formerly made by Jonathan Stearns, the former owner, which representation is binding on the assured.”
    In August, 1843, 1844, and 1845, similar letters were written by the cashier, and similar policies issued, except that the last remark above quoted was not attached to them.
    In March, 1846, the property was destroyed by fire, and soon afterwards notice thereof given to the company.
    In October, 1846, the insured brought an action of assumpsit against the company, counting on the policy, and also containing the common money counts; under which a judgment was obtained for a return of premiums, to the amount of f> 1,200.
    In October,. 1847, the case came up for trial, upon a plea of non assumpsit and issue. The plaintiffs offered in evidence the policy, the contract between the bank and Clark, Green, and McGill, and the payment of part of the purchase-money by the latter.
    The plaintiffs also proved the loss of the property by fire, notice of the loss, that the waste was removed, and that the lamps in the carding-room were inclosed in glass, as required by the policy. Every thing was proved or admitted that was necessary to make out a prima facie case for the plaintiffs.
    The evidence showed, likewise, that the fire originated in the picking-room, which was Situated in the centre of the building, and in which a glass lamp was frequently suspended from the ceiling, and into which room a glass lantern was carried that evening, and placed by the workman on the window-sill while the picker was in operation; around the top of this lantern he first saw the light and fire, as if the cotton-dust had become ignited through the air-holes, and the fire was communicated with such rapidity to the whole cotton he was unable to extinguish it. The evidence showed further, that when the picking-room had been occasionally used to work in during the nighttime, this lantern, or one like it, had for three years been carried in, and that the globe lamp had been long used there suspended, with a reflector oyer the top, and was lighted when they worked at night in the picking-room, as well as the lantern. This appears tov have been the practice soon after 1834 or 1835, but no evidence was offered that it had been before. When the plaintiffs bought the property in 1842, they found the lamp hung and ready for use, and they continued to use it as it had been psed before.
    The defendants then offered in evidence the application of Stearns for insurance, his written answers to the fifty questions, and the policies and letters above mentioned.
    The defendants then called Parker L. Hall, who testified that, prior to the first policy to Stearns, he was agent of the defendants in Pittsfield, and that his authority did not extend to the taking of new risks on this species of property.
    It was admitted that such a use of lamps in the picker-room as appeared in this case, enhanced the danger of fire, and was material to the risk.
    To the admission of all this evidence the counsel for the plaintiffs then and there objected, on the ground that the policy contained no representations made by Jonathan Stearns, and had no reference whatever to any such representations, and thai to admit extrinsic evidence of the representations of the said Stearns, and other extrinsic evidence to connect the plaintiffs with those representations, and thus affect their rights by such representations, was not only to vary, enlarge, or modify the contract, as contained in the policy, but was in fact to set up and show, by extrinsic evidence, a distinct and different contract from that contained in the policy, and of which the policy is the written evidence on which the parties relied; and, as the printed clause in the policy referred only to representations of the assured, representations in form by the assured were the only representations which could legally be shown, and evidence that the parties did not mean the representations in form by the assured, or expressed in the policy, but meant representations of Stearns, was not admissible, because that would clearly be to enlarge or change the contract in the policy, or ráther to set up a distinct and different contract.
    But the court admitted all the evidence as proper and legal, and to this ruling and decision of the court the counsel for the plaintiffs excepted. . ' '
    The plaintiffs also proved that it was customary for these defendants, and other insurance companies in Boston, to issue policies on property, with which the underwriters were acquainted, in the printed form, like that in this case, with the clause referring to the “representation of the assured, contained in their application, to which reference is to be had,” where no written application has in fact been made by the assured, and where there is no’written representation to which reference. can be had. The counsel for the defendants objected to the admissibility- of the evidence by which these facts were proved.
    The counsel for the plaintiffs requested the honorable justice who presided at the trial to instruct the jury, —
    1. That whether the printed clause in the policy — “that this policy being made and accepted upon the representation of the said assured, contained in their application therefor (to which reference is to be had)” — was to be taken as’referring to the representation of Stearns, in 1834, was matter of law to be determined by the court, the construction and application of written contracts and instruments being wholly within the province of the court.
    2. That, in" the opinion of the court, the said clause was not to be taken as referring to the said representation of the said Stearns; that these representations are not to be taken as a part of the said policy, or as in any way binding on the plaintiffs, whose right to recover in this case could not be in any way affected by said representation.
    3. That the evidence introduced by the defendants was not sufficient in law to bar the plaintiffs’ right to recover.
    But the honorable justice declined giving these instructions to the jury, and instructed them that they would be warranted in finding that the plaintiffs had adopted the representations made by Jonathan Stearns.as a part of this policy; that, if those representations were adopted by the plaintiffs, they formed a part of the present policy in the same manner as if incorporated into it, and the use of lamps in the picker-room, in the manner testified to, in violation of these representations, rendered the policy void, and the plaintiffs would not be entitled to recover, except for a return of the premiums paid for the last four years. And the jury were further instructed, that if they found the policy declared on did not refer to the said representations of Stearns, and that no representation was in fact made or adopted by the plaintiffs respecting the use of lamps in the picker-room, they would then take the law to be, that, as it was agreed by the parties that the use of lamps in the picker-room in the manner found was material to the risk, it was the duty of the plaintiffs to disclose the fact of such use to the defendants, or their agent, when the policy was applied for,- provided such use then existed, and was known to the plaintiffs and unknown to the defendants, and was then intended by the plaintiffs to bé, and in fact was, continued after the policy was issued, and occasioned the loss in question; and that each failure of the plaintiffs, even without any fraudulent intent on their part, to make this fact known to the defendants, would avoid the policy. Thereupon the jury returned a verdict for the plaintiffs, for a return of four years’ premium.
    To these instructions, and to the said refusal to instruct, as well as to the admission of the said evidence, the plaintiffs then and there excepted; and prayed that their exceptions might be allowed and sealed by the said justice, and the same were allowed and sealed accordingly.
    In witness whereof I have hereunto set my hand and affixed
    my seal, this 10th day of November, A. D. 1847.
    r i [seal.J
    Levi Woodbury,

      Associate Justice Supreme Court U. S.

    Upon these exceptions the case came up to this court.
    It was submitted on printed arguments by Mr. Gillet, for the plaintiffs in error, and Mr. Curtis and Mr. D. A. Hall, for the defendants in error.
    It is only possible to give a brief sketch of the points taken respectively by the counsel.

      Mr. Gillet, for plaintiffs in error.
    The first question presented by the record for the consideration of the court is, whether the evidence offered by the defendants was legally admissible.
    The policy of insurance which is the foundation of this action is in the ordinary form, most of it being in print, and is plain, unambiguous, and complete in itself. It is susceptible of but one construction, and is as definite as any contract can be made. The defendants, for the purpose of defeating our claim upon it, were allowed to introduce twenty-eight.distinct pieces of evidence, with the view of tacking to the contract certain representations made by a former owner of the property, more than eleven years previous to its date. What the object of this evidence was appears from the charge of the learned judge who tried the cause. He instructed• the jury, “that théy would be warranted, in finding that the plaintiffs had adopted the representations made by Jonathan Stearns as a part of this policy; that if those representations were adopted by the plaintiffs, they formed a part of the present policy, in the same manner as if incorporated into it.” Thus the jury were left to decide, as a question of fact, whether the representations of Stearns were defunct and obsolete, or a living member of the defendants’ contract of insurance. And thus a perfect written contract was nullified and destroyed by a mass of parol evidence of facts, which occurred mostly between other parties, long prior to its execution.
    The general principles of law excluding parol evidence when offered to vary, add to, or modify written contracts, are laid down in 1 Greenleaf on Evidence, part 2, ch. 15, where many cases are also collected. The case of Miller v. Travers, 8 Bingham, 244, is strongly in point. This rule has always been applied in cases on policies of insurance, and often when it operated with great hardship. It was so applied, in Finney v. Bedford Commercial Ins. Co., 8 Metcalf, '348; Bryant v. Ocean Ins. Co., 22 Pick. 200; Alston v. Mechanics’ M. Ins. Co., 4 Hill, 329; New York Ins. Co. v. Thomas, 3 Johns. Cas. 1; Higginson v. Dali, 13 Mass. 96; Dow v. Whetten et ah, 8 Wend. 160; Cheriot v. Barker, 2 Johns. 346; Jennings v. Chenango Ins. Co., 2 Denio, 75; and rigidly and harshly was it adhered to in Ewer v. Washington Ins. Co., 16 Pick. 502. Mr. Duer, in the first volume of his Treatise on Insurance, p. 71, says, the policy from the time of its execution constitutes the sole evidence of the agreement of the parties, and that no previous letters or communications between them, not even the written application or agreement, can be used to vary or control its interpretation. Now, according to this rule, if the parties had agreed in writing to be bound by Stearns’s representations, and the fact -had been omitted in the policy, it could not be proved by reference to the prior written agreement.
    II. The next question to be discussed is the effect of the evidence, supposing it admissible. (The counsel then commented upon the different terms in the policies.)

      Each policy was a separate and distinct contract.. Neither could be modified by another. If the defendants intended to make the last policy like that of 1842, by binding the plaintiffs to the representations of Stearns, and omitted it by mistake, such mistake cannot be corrected on the law side of the court. Nor would this court, sitting in equity, modify the policy by inserting Stearns’s representations in it. If the omission of all reference to Stearns in this policy was at the request of the plaintiffs, such omission forms a part of the contract; if it was the voluntary act of the defendants, they are bound by it; and if it was done by their mistake, the plaintiffs are not responsible for the results of their slovenly mode of doing business. Andrews v. Essex P. and M. Ins. Co., 3 Mason, 6; Hogan v. Delaware Ins. Co., 1 Wash. C. C.. 419; 1 Duer on Ins. 132, note xi.; Graves v. Boston Marine Ins. Co., 2 Cranch, 419.
    III. The representations of Stearns form no part of this policy, because they are not incorporated into it, nor are they in any way referred to in the policy as forming a part of it. Jefferson Ins. Co. v. Cotheal, 7 Wend. 72; Snyder v. Farmers’ Ins. and Loan Co., 13 Wend. 92; Farmers’ Ins. and Loan Co. v. Snyder, 16 Wend. 481; 3 Kent’s Com. 373 ; Alston v. Mechanics’ Mutual Ins. Co., 4'Hill, 329. In the case of Houghton V Manufacturers’ Mutual Fire Ins. Co., 8 Metcalf, 114, it was held that the representations of the assured were legally adopted and embodied into the policy as a part of the contract. But in that case the representations were annexed to the poli-, cy, and the court say, that “ the policy, by the manner in which it refers to the application and representations, does legally adopt and embody them as a.part of the contract.” But in this case there is no reference whatever in the policy to Stearnses representations.
    IY. There being no written agreement by the plaintiffs to adopt Stearns’s representations, it was only a verbal promise to make them good. But this is contrary to 4 Hill, 329, and 22 Pick. 200.
    Y. There was error in the last instruction of the court to the jury.
    The counsel for the defendants in error argued in support of the following points: —
    1st. That the insured had made certain representations, which were to be deemed part of the contract, and which being false, and the loss occurring by means of their falsehood, no recovery could be had.
    2d.. That the insured failed to make known to the underwriters, when the policy was obtained, a fact material to the risk, .known to the assured and unknown to the underwriters, and which was the cause. of the loss, and therefore the policy was void.
    I.The first proposition was subdivided into the following three branches: —
    1. That the plaintiffs, by accepting the policy of August, 1842, made Stearns’s representation their own, so that it might be, and in fact was, afterwards- correctly described in the renewal policy declared ornas the representation of the assured.
    2. That by applying for a continuance of the policy, which was based solely on these representations, they did, in legal effect, adopt these representations into, and make them a part of, their application; so that, it might be, and in fact was, correctly said in such renewal policy, that the representation was contained in the application.
    3. That it clearly appearing, by the policy itself, that the original policy to the plaintiffs was issued upon the representation of Stearns, which thereafter was to be binding on the plaintiffs, and was referred to therein as the representation of the assured, and that the subsequent policies, including the one declared on, were merely continuations of that contract; and it further appearing that no representation was ever made except the one made by Stearns, and that therefore this important clause in the policy could refer to no other, and is senseless and void unless it refers to that; the jury were rightly instructed that they would be warranted in finding that the plaintiffs had adopted the representation of Stearns as a part of this policy. It may be, that, upon the actual posture of the evidence, it was not a question for the jury, because there was no fact in controversy ; but this is wholly immaterial if the jury have found, under the instructions of the court, a verdict, right in point of law; the only difference being that they were instructed they might so find, instead of being told they must so find.
    II. Upon the second ground of defence. This seems too clear to require much argument. The case in this aspect is, •that the assured make- no disclosure respecting the fact that lamps were used in the picker-room; that such use was a fact material to the risk; that such use then existed, and was known to the plaintiffs and unknown to the defendants, and was then intended by the plaintiffs to be, and in fact was, continued after the policy was issued, and that it occasioned the loss. A policy made under such circumstances is void. It is not necessary to show that a contract of sale, or any other contract, would be void for a similar cause. It is enough that a contract of insurance is thus avoided. 1 Wash. 161; 1 Phil, on Ins. 214; 2 Duer, 380, 506; 6 Cranch, 279, 338; 1 Pet. 185; 2 Pet. 25, 49; 10 Pet. 507, 512; 16 Pet. 496.
   Mr. Justice WOODBURY

delivered the opinion of the court.

The original action in this case was assumpsit by the plaintiffs in error on a-policy of insurance, made August 13, 1845.

From the detailed statement of the facts, it will be seen that the loss occurred on the 13th of March, 1846, and was to be paid to the Ogdensbui’g Bank, which held the title to the property insured, but was under a contract in a certain event to convey it to the plaintiffs, they having already paid for it in part.

The original insurance was made in 1834, by Jonathan Steams, who had mortgaged to the bank the factory insured, and who continued most of the time till the loss to conduct its operations under insurances renewed yearly, often in different names, — stipulating that any loss should be paid to the 'bank.

In April, 1834, when application was first made for insurance, the defendants, doing business in Boston (Mass.), put numerous written interrogatories to Stearns, who lived in Malone (New York), where the factory was situated, and to one of them he replied, that no lamps were “used in the picking-room.” These interrogatories, and the answers to them, were not annexed to the policy, but were put on file in the office ; and the policy purported to have been “made and accepted upon the representation of the said assured, contained in his application therefor, to which reference is to be had,” &c., &c.

No new representations appear to have been made at the different renewals, but only a general reference to representations, like that just named; and in three or four instances, when the policy was in a new name, a specific statement was inserted that the insurance was entered into “ agreeably to the representations heretofore made by Jonathan Stearns.”

Referring to the record and preliminary statement of this case for other details, the plaintiff objected first to the competency of parol evidence, which was offered to pmve that the representations signed by Stearns, and on file wit >. his application, were those made by him, and to the instruction of the court, that, if they were adopted by the plaintiffs, the present policy as well as the original one must be considered as found- < d on them and void, if they were not true.

It will be proper, then, to consider first whether this parol evidence was competent for the purpose for which it was offered.

Without meaning to impugn the great elementary principle, that written instruments are not to be varied or contradicted by parol, it suffices to say here that this testimony was not admitted to vary or contradict any portion of what had been written. See Phillips v. Preston, 5 Howard, 291.

It merely went to identify what the writing in the policy referred to, as a part or parcel of the contract, like a reference in one deed or contract to another deed or contract. 13 Wendell, 92; Jennings v. Chenango Ins. Co., 2 Denio, 82; Phillips on Ins. 47; 16 Pick. 502; 1 D. & E. 343; 2 Brod. & Bingh. 553; 4 Russ. 540; 20 Pick. 121; 1 Paige, 291; 8 Metcalf, 114, 350; 4 Howard, 353; 3 Barn. & Ald. 299; Wigram on Ext. Ev. 54, 55; 1 Hen. Bl. 254; 2 Hen. Bl. 577; 6 D. & E. 710; 1 Duer on Ins. 74.

It added to what was written nothing, it subtracted nothing, it changed nothing, and we think its admission was legal.

In the next place, the instruction that the plaintiffs were bound by those representations, if adopting them subsequently at the time of making .their insurance, accorded with both the law and equity of the transaction. If they adopted them and induced the defendants to act on them, it would operate fraudulently to let them be- disavowed after a loss. So if the plaintiffs ratified them, in their subsequent application, if no other representations were made or relied on except these, if their attention was called to these; if the bank was a party in interest through all these insurances, without repudiating these representations, and if these were the only set of representations used in all of them, it surely must comport with justice, as well as law, to have them govern.

The cases of like subsequent adoptions and ratifications of what had been done before by others are very numerous. Among them see those collected in Story on Agency, §§ 252, 253. Even “ slight circumstances and small matters will sometimes suffice to raise the presumption of a ratification.” Ward v. Evans, 2 Ld. Raym. 928; 3 Wash. C. C. 151; 13 Wend. 114; 3 Chitty Com. L. 197.

This view of the case, standing alone, would entitle the defendants to be discharged, for the picking-room, contrary to these representations, had a lamp, and indeed lamps, in it; and their use was proved to be the cause of the fire which destroyed the factory.

We should, therefore, affirm the judgment below without further inquiry, did not the bill of exceptions disclose another ruling, which, as the record now stands, requires consideration. When the judgment below is, as here, well sustained by the opinion entertained on a decisive point, it is usually of no consequence whether another point was correctly ruled or not. But as the bill of exceptions in this case was drawn up by the plaintiffs, it states that the jury were instructed to find a verdict for the defendants on the last ground, if on the facts the first one failed; and hence, looking to the record, the -last ground may have been passed on by the jury, and have influenced their verdict. To be sure, the report of this case below (in 2 Woodb. & Min. 472) shows that a verdict was taken by agreement of parties, or only proforma, in order to bring the questions of law to the Supreme Court; and therefore, that no jury could in truth in this case have been thus influenced or misled. Yet this fact not appearing on the record brought here, the case, till revised and corrected below in .this particular, must be considered as if the jury had actually examined both grounds, and had really decided upon them. But even on that hypothesis, if the second point was properly ruled, no occasion would exist for sending the case back for correction in the statement as to the verdict, in connection with the first point. ^

Whether it was properly ruled or not involves a question of much novelty, being in one aspect of it a case, perhaps, of the first impression, and without any precedent to govern us, and is of so much importance in insurances as to deserve great caution in settling it. From the report of the case below, before referred to, the Circuit Court, though alluding to the last point, do not appear to have gone into any critical discussion and opinion on it.

But the bill of exceptions being so drawn up as to exhibit a positive instruction given on it by that court to the jury, it is necessary for us to examine with care whether an instruction like that presented here could legally be given.

First, then, what is the substance of that supposed instruction?

It is, that if no representations were made or adopted by the plaintiffs, they would not be entitled to recover, if lamps were in truth used in the picking-room, which were conceded' to be material to the risk, and this use was .known to the plaintiffs and not to the defendants, and this use was meant to be continued, and was continued, and caused the present loss. In the next place, what must be considered the law- in relation to this subject ? Little doubt exists, that, when representations are made or adopted, the denial in them of a material fact, such as here, that any lamp was used in the .picking-room, where one or more was in truth used, makes the policy void, not only for misrepresentation, but misdescription and concealment. 1 Marshall on Ins. 481; Ellis on Fire and Life Ins. 58; Dobsen v. Sotheby, 1 Moody & Malk. 90; 6 Cowen, 673; 4 Mass. 337.

A false-representation avoids the policy, because it either misleads or defrauds. Livingston et al. v. Mar. Ins. Co., 7 Cranch, 332.

In such a state of things, also, the insured — knowing that he is asked for representations to enable the underwriter to decide properly whether he will insure at all, and if so, at what premium — must suppress nothing material to the ri^k, or the, underwriter will not stand on equal grounds with himself, and will be forced to act in the dark more than himself, and probably to misjudge. 1 Marshall on Ins. 473, 474, note; Lynch v. Dunsford, 14 East, 494; Maryland Ins. Co. v. Ruden’s Ad., 6 Cranch, 338; and Livingston v. Mar. Ins. Co., Ibid. 279; Columbian Ins. Co. v. Lawrence; 10 Peters, 516; McLanahan v. Universal Ins. Co., 1 Peters, 185; 2 Peters, 59; 2 Duer, 388, 379, 411; 2 Caines, 57; 1 Wash. C. C. 162.

Concealment thus would operate in some cases as a fraud, and in all will make the risk very different from what the insurer knew and agreed to. 3 Burr. 1905; Ellis on Fire and Life Ins., 38.

But the- hypothetical position presented by this record is that the law would be the same, provided no representations whatever were made, and in this form it does not,' in the- state of facts exhibited in the record, meet with the sanction of this court. The chief controversy appears to have been-concerning the first point; and when this last question was made a part of the case by agreement of counsel, it was not known Whether this court would consider the original representations by Stearns as* adopted, and thus binding o.n those subsequently insured. Independent, of those, none appear to have been made or asked.

Éepresentations, however, in insurances, it is well' known, almost invariably 'exist, either written or parol. Columbian Ins. Co. v. Lawrence, 2 Peters, 49; S. C., 10 Peters, 515. But they are not usually, named ór incorporated in the policy, except on the continent of Europe. 3 Kent, 237; 9 Barn. & Cress. 693.

It is fair to presume, that they took place in all the reported cases on insurance, though often not named, unless the contrary is expressly stated, as they are in general “ the principal inducements to- contract, and furnish the best grounds upon which the premium can be calculated.” (1 Marsh, on Ins. 450.)

But the relation of the parties seems entirely changed, if the insurer asks no information and the insured makes no representations. That is the chief novelty in this question, as hypothetically stated in the bill of exceptions. We think that the governing test on it must be this, ■— it must be presumed that the insurer has in person or by agent in such a case obtained all the information desired as to the premises insured, or .ventures to take the risk without it, and that the insured, being asked nothing, has a right to presume that nothing on the risk is desired from him.

This rule must not be misapprehended and supposed to rest on a principle different and somewhat ordinary, that insurers are always to be expected to possess some general knowledge of such matters as they deal with, independent of inquiries to the ássured. 8 Peters, 582.

Nór on the position well settled, that the insurer must be presumed to. know what is material'in-the course of any particular tráde, — its usages at home and abroad, and those transactions which are public, and equally open- to the knowledge of both parties. Hazard’s Ad. v. New England Mar. Ins. Co., 8 Peters, 557; 2 Duer on Ins. 379, 478; 3 Kent’s Com. 285, 286; Green v. Merchants’ Ins. Co., 10 Pick. 402; 4 Mason, C. C. 439; Buck et al. v. Chesapeake Ins. Co., 1 Peters, 160. Nor on any special usage proved, as in Long v. Duff, 2 Bos. & Pul. 210, that it was, in a case like this," the duty of the underwriter to obtain this information for himself.”

But when representations are not asked or given, and with only this general knowledge the insurer chooses to assume the risk, he must in point of law be deemed to do it at his peril. It has been justly remarked, in a case somewhat like this in principle, — “ With this knowledge, and without asking a question, the defendant underwrote; and by so doing he took the knowledge of the state of the place upon himself,” &c. 1 Marshall on Ins. 481, 482; Carter v. Boehm, 3 Burr. 1905.

In cases of fire insurance, also, the underwriters may be considered as more likely to do this than in marine insurance ; because the subject insured is usually situated on land and nearer, so as to be examined easier by them or their agents; and the circumstances connected with it are more uniform and better known to all. 1 Har. & Gill, 295; Burrit v. Saratoga M. F. Ins. Co., 5 Hill, 192.

It is true, that, from what is reasonable and just, some exceptions must exist to this general rule, though none of them are believed to cover the present case. Thus the insurer must be supposed, if no special information has been asked or obtained, to take the risk, on the hypothesis that nothing unusual exists enhancing the risk; and hence, as in this case, if lamps are used in the picking-room, which do enhance it, he must show that their use in the manner practised was unusual or not customary, and then, though no representations had been asked or made, he would make out a case, where it was the duty of the insured to inform him of the fact, and where suppressio veri would be as improper and injurious as suggestio falsi. Livingston v. Mar. Ins. Co., 6 Cranch, 281.

So if any extrinsic peril existed, outside and near a building insured, and which increased the risk, the insured should communicate that, though not requested. Bufe v. Turner, 6 Taunt. 338; Walden v. Lou. Ins. Co., 12 Louis. 134. But as to the ordinary risks connected with the property insured, if no representations whatever are asked or given, the insurer must, as before remarked, be supposed to assume them; and, if he acts without inquiry anywhere concerning them, seems quite as negligent, as the insured, who is silent when not requested to, speak. The conclusions on the whole case then ate, that the defendants are entitled to be discharged on the first ground upon the merits; because the plaintiffs were interrogated in writing on this very fact and risk, or others were, whose answers they adopted; and the truth was not disclosed in their representations in reply, when it is conceded to have been material to the risk; and therefore, by the express stipulations of this policy, as well as by the general principles of the law. of insurance, the plaintiffs should not recover. But our judgment cannot be rendered on this conclusion, standing alone, because the second point is connected with it in the form before explained. Again, the defendants would be • entitled to be discharged under the second point on the ground, which accords with the truth here, that representations were really made on this subject; but not, if none whatever were made, according to what is hypothetically suggested in the record. The judgment below must, therefore, be reversed, for the purpose of correcting what is defective in the manner of stating how the verdict was taken and how the last question stood by itself on the facts proved; and the case must be remanded to the court below, with instructions to take all proper steps to carry into effect the views presented in this opinion.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Massachusetts, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit' Court in this cause be, and the same is hereby, reversed, with costs, for the purposes of correcting what is defective in the manner of stating how the verdict was taken, and how the last question stood by itself on the facts proved, and that this cause be, apd the same is hereby, remanded to the said Circuit Court for further proceedings to be had therein in conformity to the opinion of this court.'


source: Caselaw Access Project

author: Mr. Chief Justice TANEY

license: Public Domain

text:
    Nathaniel Lord, Plaintiff in error, v. John W. Veazie, Defendant.
    Where it appears to this court, from affidavits and other evidence filed by persons, not parlies to a suit, that there is no real dispute between the plaintiff and de- ’ fendant in the suit, but, on the contrary, that their interest is one and the same, and is adverse to the interests of the parties who filed the affidavits, the judgment of the Circuit Court entered pro forma is a nullity and void, and no writ of error will lie upon it. It must, therefore, be dismissed.
    This case was brought up, by writ of error, from the Circuit Court of the United States for the District of Maine.
    A motion was made by Mr. Moor, upon his own account and also as counsel for the City Bank, at Boston, to dismiss the appeal, upon the ground that it was a fictitious case, got up between said parties for the purpose of settling legal questions upon which he, the said Moor and the City Bank, had a large amount of property depending. The motion made by Mr. Moor upon his individual account was to dismiss the appeal ; that made by him as counsel for the City Bank was in the alternative, either to dismiss the suit, or order the same back to the Circuit Court for trial, and allow the said City Bank to be heard in the trial of the same.
    It appeared upon the documents and affidavits filed, that, in 1842, the Bangor and Piscataquis Canal and Railroad Company, in the State of Maine, which had been chartered by the. State, executed a deed to the City Bank, at Boston, by virtue of which that bank claimed to hold the entire property of the company.
    In 1846, the Legislature of Maine granted to William Moor and Daniel Moor, Jun., their associates and assigns, the sole right of navigating the Penobscot River.
    In July, 1847, an act was passed additional to the charter of the first-named company, by virtue of which a reorganization took place. The City Bank claimed to' be the sole proprietors or beneficiaries under this new charter, -and John W. Veazie, .who held a large number of shares in the original company, claimed that the management and control were granted to the stockholders.
    In August, 1848, John' W. Veazie and Nathaniel Lord executed a written instrument, which purported to be a conveyance by Veazie.to Lord of 250 shares of the stock of the railroad company, for the consideration of $> 6,000. This deed contained the following covenant: —
    . “ And I do hereby covenant and agree to and with the said Lord, that I will warrant and defend the said shares, and all property and privileges of said corporation incident thereto, to the said Lord, his executors, administrators, and assigns, and that the said shares, property, and privileges are free and clear of all encumbrances; and I further covenant with said Lord, that the stockholders of said company have the right to use 'the waters of the Penobscot River within the limits mentioned in their char ter. for the purposes of navigation and transportation by steam or otherwise.’.’
    In' September, 1848, this action- on the above covenant was docketed by consent, and a statement of facts agreed upon by the respective counsel, under which the opinion of the court .was to be taken, viz. that if the claim of the City Bank was valid, 'then the plaintiff was entitled to recover; or if the canal and railroad company, or the stockholders thereof, had not a right to navigate the river, then the plaintiff was also entitled to recover. This last prayer involved Moor’s right.
    In October, 1848, the court, held by Mi1. Justice Ware, gave judgment for the defendant pro forma, at the request of the parties-,' in. order that the judgment- and question might be brought before this court, and the case 'was brought up by writ of error, as before mentioned.
    On the 31st of January, 1849, the record was filed in this court, and on the'2d of February, printed arguments of counsel were filed, and the case submitted to the court on the 5th. It was- not taken up by the court, but continued to the next term. .. .
    Ón the 28th of December,-1849, Mr. Wyman B. S. Moor filed, with the motion to dismiss, as above mentioned, an affidávit, stating the pendency of a suit by him against Veazie in the courts. of Maine, which involved the same right of navigating the r-iver which was-one of the points of the present case. He further stated his belief, that this case was a feigned issue, got up coliusively between the said Lord and Veazie; for the purpose of prejudicing his (Moor’s) rights, and obtaining, .the judgment of this court upon principles of law affecting a large amount of property, in which he and others were interested.
    When the motion came on for argument, a pumber of affidavits were filed in support of and against the motion. It is unnecessary to state their contents, as they were not particularly commented on by the court. They proved that none of the persons whose interest was adverse to that of the plaintiff and defendant had any-knowledge of these proceedings, until after the case was removed to this court, and submitted for decision on printed arguments, although, one or more of those most- deeply interested resided in the town in which Lord, one of the parties, lived.
    The motion was argued by Mr. Moor, in support of, and Mr. Bradbury and Mr. Hamlin against it.
    In support of the motion to dismiss, these points were taken by Mr. Moor: —
    1. That a fictitious suit, or a feigned issue, or a suit instituted by persons to try the rights of third persons, not parties to the record, is a contempt of court, and will be dismissed on motion. Hoskins v: Lord Berkeley, 4 Term R. 402; 3 Bl. Com. 452; R. J. Elsam, an attorney, 3 Bam. &. Cress. 597; 2 Inst. 215; Brewster v. Kitchin, Comb. 425; Coxe v. Phillips, Cas. Temp. Hardwick, 237 ; Fletcher v. Peck, 6 Cranch, 147, 148..
    2. That any person as amicus curien may make the motion. Rex v. Yeaux, Comb. 13 ; Dove v. Martin, Comb. 170 ; Brown v. Walker, 2 Showers, 406 ; Cox v. Phillips, before cited.
    3. A suit may be shown to be fictitious, either by inspection of the record or by evidence aliunde, or by both. The case of R. J. Elsam, before cited; Hoskins v. Lord Berkeley, before cited; Fletcher v. Peck, before cited ; Coxe v. Phillips, before cited.
    4. That this is a fictitious suit, or a suit amicably instituted and conducted, to affect the rights of other parties, will appear from the record.
    5. That it is an amicable or fictitious suit appears from the facts, that the suit in equity in the Supreme Judicial Court of Maine, Moor v. Yeazie, involves the same question as to the construction and constitutionality of the act set forth in printed case, and marked G, as are involved in the case at bar, and that the plaintiff in error is the son-in-law, and the defendant in error is the son, of said Samuel Yeazie.
    That said suit was in contemplation before the institution of •this suit.

      That the defendant in error has heretofore set up the same claim to the property of said railroad company against the City Bank as is involved in this suit.
    That the existence of this suit was kept from the knowledge of the parties really interested, till the writ of error was entered here.
    This court sits for the correction of errors of inferior courts, and not to adjudicate upon the agreement of parties.
    There has been no.such judgment in this suit that this court will revise by writ of error. Judiciary Act of 1789, <§> 22 (1 Stat. at Large, 84); Act of April 29, 1802, eh. 31, § é (2 Stat. at Large, 159); Lanusse v. Barker, 3 Wheat. 137, 14-7; McDonald v. Smalley etal., 1 Pet. 621; Shankland v. The Corporation of Washington, 5 Peters, 390; Stimpson v. Westchester Railroad Co., 3 Howard, 553; Dewolf v. Usher, 3 Peters, 269 ; Zeller’s Lessee v. Eckert, 4 Howard, 298.
   Mr. Chief Justice TANEY

delivered the opinion of the court.

The court is satisfied, upon examining the record in this case, and the affidavits filed in the motion to dismiss, that the contract set out in the pleadings was made for the purpose'of instituting this suit, and that there is no real dispute between the plaintiff and defendant. On the contrary, it is evident that their interest in the question brought here for decision is one. and the same, and not adverse; and that in these proceedings the plaintiff and defendant are attempting to procure the opinion of this court upon a question of law, in the decision-'of which they have a common interest opposed to that of other ’ persons, who are not parties to this suit, who had no knowledge of it while it was pending in .the Circuit Court, and. no opportunity of being heard there in defence of their rights. And their conduct is the more objectionable, because they have brought up the question.upon a statement of facts agreed, on, between themselves, without the knowledge of the parties with whom they were in truth in dispute, and upon a judgment pro- forma, entered by their mutual consent, without any actual judicial decision by -the court. It is a question, too, in which it appears that property to a very large amount is involved, .the right to which depends on its decision.

It is proper to say that the counsel who argued here the motion to dismiss, in behalf of the parties to the suit, stand entirely acquitted of any participation in the purposes for which these proceedings were instituted; and indeed could have had none, as they were not counsel in the Circuit Court, and had no concern with the case until after it came before this court. And we are bound to presume that the counsel who conducted the case in the court below were equally uninformed of the design and object of these parties; and that they would not knowingly have represented to the court that a feigned controversy was a real one.

It is the office of courts of justice to decide the rights of persons and of property, when the persons interested cannot adjust them by agreement between themselves, — and to do this upon the full hearing of both parties. And any attempt, by a mere colorable dispute, to obtain the opinion of the court upon a question of law which a party desires to know for his own interest or his own purposes, when there is no real and substantial controversy between those who appear as adverse parties to the suit, is an abuse which courts of justice have always reprehended, and treated as a punishable contempt of court.

The suit is spoken of, in the affidavits filed in support of it, as an amicable action, and the proceeding defended on that ground. But an amicable action, in the sense in which these words are used in courts of justice, presupposes that there is a real dispute between the parties concerning some matter of right. And in a case of that kind it sometimes happens, that, for the' purpose of obtaining a decision of the controversy, without incurring needless expense and trouble, they agree to conduct the suit in an amicable manner, that is to say, that they will not embarrass each other with unnecessary forms or technicalities, and will mutually admit facts which they know to be true, and without requiring proof, and will bring the point in dispute before the court for decision, without subjecting e.ach other to unnecessary expense or delay. But there must be an actual controversy, and adverse • interests. The amity consists in the manner in which it is brought to issue before the court. And such amicable actions, so far from being objects of censure, are always approved and encouraged, because they facilitate greatly the administration of justice between the parties. The objection in the case before us is, not that the proceedings were amicable, but that there is no real conflict of interest between them; that the plaintiff and defendant have the same interest, and that interest adverse and in conflict with the interest of third persons, whose rights would be seriously affected if the question of law was decided in the manner that both of the parties to this suit desire it to be.

A judgment entered under such circumstances, and for such purposes, is a mere form. The whole proceeding was in contempt of the court, and highly reprehensible, and the learned district judge, who was then holding the Circuit Court, undoubtedly suffered the judgment pro forma to be entered under the impression that there was in fact a controversy between the plaintiff and defendant, and that they were proceeding to obtain a decision upon a disputed question of law, in which they' had adverse interests. A judgment in form, thus procured, in. the eye of the law is no judgment of the court.' It is a nullity, and no writ of error will lie upon it. This writ is, therefore, dismissed.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of. the United States for the District of Maine, and was argued by counsel, and it appearing to the court here, from the affidavit and other evidence filed in the case by Mr. Moor, in behalf of third persons not.parties to' this suit, that there is no real dispute between the plaintiff and defendant in this suit, but, on the contrary, that their interest is one and the same, and is adverse to the interests of the persons aforesaid, it is the opinion' of this court, that the judgment of the Circuit Court entered pro forma in this case is a nullity and void, and that no writ of error will lie upon it. On consideration whereof, it is now here ordered and adjudged jjy this court,. that the writ of error be, and the same is hereby, dismissed, each party paying his own costs, and that this cause be, and the same is hereby, remanded to the said court, to be dealt with as law and justice may require.


author: Mr. Justice McLEAN

text:
    Elijah Peale, Trustee and Assignee of the President, Directors, and Company of the Agricultural Bank of Mississippi, Plaintiff in error, v. Martha Phipps and Mary Rice, who is authorized and assisted in the Suit by her Husband, Charles Rice.
    An error in a citation, calling Mary Rice the wife of Charles Bowers, -whereas she was the wife of Charles Rice, is not fatal in a case coming from Louisiana. The practice there is for the husband to assent, when the wife brings a suit, so that his name is merely a matter of form.
    Nor is it. a fatal error when the citation was issued at the instance of E. Peale as plaintiff in error, instead of Elijah Peale, Trustee of the Agricultural Bank of Mississippi.
    The acceptance of the service of the citation by the attorney for the parties shows that the error led to no misapprehension.
    This case was brought up, by writ of error, from Louisiana, and a motion was made by Mr. Henderson to dismiss it, upon the grounds stated in the opinion of the court.
   Mr. Justice McLEAN

delivered the opinion of the court.

A motion is.made to dismiss this, writ of error on three grounds: — -

1. Because there is no citation to the defendants in error, as the law requires.

2. Because the citation is. addressed to Martha^ • Phipps and' Mary Rice, “ wife of George Bowers, and by him assisted,” who are not the persons or parties defendants in the record.

3. Because said citation is stated to have been issued at the instance of E. Peale, as plaintiff in error, — iñsteád of Elijah Peale, Trustee of the Agricultural Bank of Mississippi, &c. '

. The suit was brought by Martha Phipps and Mary Rice ,• and in the petition they are called Martha Phipps and Mary Bowers, wife of. Charles Rice, who is authorized.and assisted in this suit by her said husband, Charles.” The defendant is named Elijah Peale, in his capacity of Trustee and Assignee of the President, Directors, and Company of the ■ Agricultural Bank of Mississippi.” The decree is in favor of Martha Phipps arid Mary Rice.

The citation appears to have been issued by E. Peale, and was directed to Martha Phipps, and Mary Rice, “ wife of George Bowers, .and by him assisted.” And the service of the citation was accepted by S. S. Prentiss, plaintiff’s attorney, at New Orleans, the 22d of October, 1849.

The names of the defendants iri error are correctly stated in the citation, except that Mary Rice is.represented as the wife of George Bowers, instead of the wife of Charles Rice. Under the procedure in Louisiana, the husband is named in the petition as assenting to the suit brought in the name of his wife. He is Uot a party to the suit, nor is he responsible for costs.' The use of the name of the husband is merely formal, and the misnomer alleged could not have misled, the defendants in error. Nor could they have been misled by the omission in the notice of the capacity of trustee, iri which the defendant' below was sued, and in which he necessarily prosecutes the writ of error. The acceptance of the service of the notice by the counsel of the defendants in error, without exception, shows that there could have been no misapprehension in regard to it. The motion to dismiss the case is overruled.

Order.

On consideration of the motion to dismiss this writ' of error, submitted to the court by General Henderson, on a prior' day of the present term of this court, to wit, on Friday, the 28th ultimo, it is now here- ordered by this court, that said motion be, and the same is hereby, overruled.


author: Mr. Chief Justiee TANEY

text:
    Jacob P. Wilson, Complainant, v. Daniel Barnum.
    The following question, sent up to this court upon a-certificate of division in opinion between the judges of the Circuit Court, — viz. “Whether, according to the true construction of the Woodworth patent, as amended, the' machines made or used" by the defendant at the time of filing the bill, or either of them simply, do or do not infringe the said amended letters patent ? ” — is a question of fact, over which this court has no jurisdiction.
    The jurisdiction given to it by statute in certified cases only extends to points of law.
    This case came up from the Circuit Court of the United States for the Eastern District of Pennsylvania upon a certificate of division in opinion between the. judges thereof.
    It is not necessary to do. more than insert the- statement of facts and point of division, as they are found in the record. -

      Statement of Pacts and Point of Division of Judges.

    United States of America, Eastern District of Pennsylvania.

    . At á Circuit Court of the United States, begun and held at the city of Philadelphia, for the Eastern District of Pennsylvania, on the 13th day of November, in the year of our Lord 1849.
    Present, the Honorable Robert C. Grier, and the Honorable John K. Kane.
    Jacob P. Wilson v. Daniel Barnum.

      Statement of Pacts.

    This was a suit in equity. The bill was filed April 5th,-1849, by the plaintiff, as assignee of letters patent issued to William Woodworth. After due notice, a motion was made for a special injunction, which was fully heard before his Honor, John K. Kane, at a regular Circuit Court, on the 21st, 22d, 23d, 24th, and 25th days of May, A. D. 1849, his Honor, Judge Grier, being absent. The defendant resisted the motion, and filed affidavits on his part, when, after a full hearing of the parties and arguments of counsel, on the 1st day of June, 1849, a special injunction was granted, a copy of which is annexed to this statement. Afterwards, on the 4th day of June, "ji-149, the defendant filed an answer, setting up the fact of his having a patent for his machine, and denying all similarity between it. and that of the plaintiff; which same defénce had been previously- set up by the said affidavits, on the hearing of the motion for the injunction. Afterwards, on the 29th day of-June,-1849, a motion was made by the defendant to dissolve the injunction, which motion was duly argued on the bill and affidavits on the part of the plaintiff, and on the answer and affidavits on the part of the defendant; and on the 1st day of August, 1849, an order was made in the cause directing an issue to be tried by a jury, for the purpose of ascertaining whether the machines of the defendant were or were not infringements of the machine of the plaintiff, and ordering the injunction to stand, on the plaintiff giving security to the defendant in the sum of ten thousand dollars, which was done.
    The issue came on to be tried by a jury on the 17th day o-f October, 1849, and after a protracted trial, the jury was discharged, not being able to agree. • .
    At this present term of the court, both of the judges being present, a motion was made by the defendant to dissolve the injunction, and arguments of counsel were heard thereon. Thereupon, without any decision being had on said motion, and upon an agreement of the parties, with the consent and by the direction of the, court, this cause was brought to a final hearing on the pleadings and the proofs which had been taken herein, as well as on the proofs and evidence which were put in on the trial of the issue before the jury, and which last-named proofs and evidence were, for the purpose of said final hearing, considered as proofs in this cause.
    The pleadings were a bill, an answer, and a replication; copies of which are hereunto annexed, and a copy of all the proofs and evidence used on said final hearing is also hereunto annexed.
    On said final hearing, it appeared and was determined by the court as matter of fact, —
    1. That letters patent of the United States were issued to William Woodworth, on the 27th day of December, 1828, of the tenor and effect mentioned in the bill.
    2. That William Woodworth died intestate, on the 9th day of February, 1839, in the city of New York, and that William W. Woodworth, his son, and one of his heirs at law, was thereupon duly appointed his administrator by the surrogate of the city and county of New York.
    3. That on the 16th day of November, 1842, an extension of the said letters patent for seven years from the 27th day of December, 1842, was duly granted by the United States, under the eighteenth -section of the Patent Act of July -4, 1836, to the said William W. Woodworth, as administrator as aforesaid. •
    4. That by an act of Congress of the United States, passed February 26th, .1845, the said letters patent were further extended to the said William W. Woodworth, as administrator as aforesaid, for seven years from the 29th day of December, 1849.
    5. That ■ on the' 8th day of July, 1845, the said letters patent were surrendered for a defective specification, and renewed letters patent were thereupon issued on the same day, on an amended'specification, to the said William W. Woodworth, as administrator as aforesaid; which renewed letters patent were of the tenor and effect set forth in the bill. An authenticated copy of tfie said renewed letters- patent of July 8, 1845, and of the specification and drawings thereto, and an authenticated copy of the said original letters patent of December 27th, 1828, and of the specification and drawings thereto, were produced on the hearing, and may be produced on argument, before the Supreme Court of the United States.
    6. That the exclusive right of the said renewed letters patent of July 8, 1845, for the district of Southwark, in the county of Philadelphia, and Eastern District of Pennsylvania, was vested in the plaintiff.
    7. That the defendant had erected, within the said' district of Southwark, and used and operated therein, since the said exclusive right became vested in the plaintiff, and before the filing of the bill, a machine for tonguing and grooving boards and plank, and also a machine for planing boards and plank. Tne machine for tonguing and grooving boards and plank was constructed as stated in the evidence. (A model thereof was produced on the hearing by the plaintiff, and the machine itself was produced on the hearing by the defendant. The same are certified by the clerk of the court, and may be used on argument before the Supreme Court of the United States.) The machine for planing boards and plank was constructed as shown-by a model produced on the hearing by the plaintiff, and by the machine itself on the hearing by the defendant. (The same are certified by the clerk of the court, and may be used on argument before [the] Supreme Court-of the United States.)
    8. That letters patent were issued to the defendant on the 13th day of March, 1849, which are referred to in, and a copy of which is annexed to, his answer herein.
    On the final hearing, the following question occurred, to wit: —
    Whether, according to the true construction of the Wood-worth patent, as amended, the machines made or used by the deferidant, at the time of filing the bill, or either of them singly, • do or do not infringe the said amended letters patent.
    On which question the opinions of the judges were opposed.
    Whereupon, on a motion by William H. Seward and St. George Tucker Campbell, plaintiff’s counsel, it was ordered that the point on which the disagreement hath happened may, during the term, be stated, under the seal of the court, to the Supreme Court to be finally decided.
    R. C. Grier.
    J. K. Kane.
   Mr. Chief Justiee TANEY

delivered the opinion of the court.

This case comes before the court upon a certificate of division, and has been submitted on printed arguments.

The plaintiff, who claims as assignee of what is generally called the-Wdodworth patent, filed a.bill in equity, praying an injunction against the defendant to restrain him from using a certain machine, in which, as the complainant charged, boards .were planed, tongued, and grooved in the same manner as in the Woodworth machine; the machine of the defendant operating in the same way in every respect as the one for which the complainant held the patent.

The defendant, in his answer, denied that his machine was substantially like and upon the plan of the Woodworth machine. Other defences were also taken in the answer. But it is not necessary to notice them, as they do not concern the question certified.

A great mass of testimony was taken on both sides in the Circuit Court, and models and drawings produced of the two machines; all of which have been sent ‘up for the examination and consideration of this court, with the certificate of division.

On the final hearing of the casé, the judges of the Circuit Court differed in opinionkm the following question : — “ Whether, according to the true construction of the Woodworth patent, as amended, the machines made or used by the defendant at the- time of filing the bill, or either of them singly, do or do not infringe the said amended letters patent ? ”

The question thus certified is one of fact, and has been discussed as such in the arguments offered on both sides. It is a question as to the substantial identity of the two machines. And its decision must depend upon the testimony of witnesses; the examination of the models and drawings, or of the machines themselves; and the application of mechanical principles and combinations, which the court could learn only from the testimony of persons skilled in the science of mechanics.

The jurisdiction of this court to hear and determine a question certified from the Circuit Court is derived altogether from the Act of 1802, ch. 31, § 6 (2 Stat. at Large, 159); and that act evidently gives the jurisdiction only in cases where the judges of the Circuit Court differ in opinion on a point of law. The language of the whole provision upon this subject so clearly requires this construction, that it is unnecessary to comment on it. And it would be utterly inconsistent with the well known and established proceedings of courts of equity, as well as courts of common law, to take out of a case during its' progress a single question of fact, and send it here with the evidence upon that point only, for the final decision of this court. In the case before us, a great number of facts must be ascertained and determined from the evidence, before- a final opinion could be formed upon the question certified.

Besides, this act of Congress has been in force for nearly half a century, and has been repeatedly acted on in this court; and it has uniformly received the construction we now give to it. 'In the multitude of questions which have been certified-, this court has never taken jurisdiction of a question of fact. And in a question of law it requires the precise point to be stated, otherwise the case is remanded without an answer.

The question now -certified being one of fact, we have no jurisdiction; and the case must therefore be remanded to the Circuit Court, to be there proceeded in as law and justice may require.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Eastern District of Pennsylvania, and on the point or question on which the judges of the said Circuit Court were opposed in -opinion, and which was certified to this court for its opinion, agreeably to the act of Congress in súch case made and provided, and was argued by counsel. And it appearing to this court, upon an inspection of the said transcript, that no point in the case, within the meaning of the act of Congress, has been certified to this court, the'point or question being one of fact, it is thereupon now here ordered and degreed by this court, that this cause be, and the same is hereby;'"dismissed, and,that this cause be, and the same is hereby, remanded to the said ■ Circuit Court, to be proceeded in according to law.