text:
Hall v. Lanning/Opinion of the Court

These reasons do not apply to a suit upon such judgment in another State; because,

First, The title to real estate is not thereby affected.

Second, There is no remedy in any of the courts of the State where suit is brought upon the judgment, either by direct application to the court in which it was rendered, or by suit against the attorney who appeared without authority.

The fact that a party must resort to a distant forum outside the limits of his own State for redress has frequently been held to be an inadequate or insufficient remedy, and almost equivalent to none at all. Buckmaster v. Grundy, 3 Gilman (Ill.), 626, 630, 631; Tribbles v. Toul, 7 Mon. 455; Green v. Campbell, 2 Jones (Eq.), N. C. 448; Richardson v. Williams, 3 id. 119; Smith v. Field, 6 Dana (Ky.), 364; Taylor v. Stowell, 4 Met. (Ky.) 176, 177; Pander v. Cox, 28 Ga. 306, 307; Key v. Robinson, 29 id. 34; Lirch v. Foster, 1 Ves. Sr. 88; Edminson v. Baxter, 4 Hayw. (Tenn.) 112; Graham v. Tarkersby, 15 Ala. N. S. 644; Hinrichson v. Reinbach, 27 Ill. 301.

As the evidence offered by Lybrand that the attorney who appeared for him did so without authority does not contradict, but simply explains, the record, he was not estopped. Shelton v. Tiffin, 6 How. 186; Gleason v. Dodd, 4 Met. 338; Barden v. Fitch, 15 Johns. 121; White v. Jones, 38 Ill. 163; Welch v. Sykes, 3 Ill. 200; Hall v. Williams, 6 Pick. 232; Shumway v. Stillman, 6 Wend. 447; Aldrich v. Kinney, 4 Conn. 380, and cases cited therein; Haskin v. Blackmer, 20 Iowa, 162, and cases cited therein; Kerr v. Kerr, 41 N. Y. 272; Wilson v. Bank of Mt. Pleasant, 6 Leigh, 570; Price v. Ward, 1 Dutch. 229; Bigelow on Estoppel, 226; 6 Robinson's Practice, 438; 2 American Leading Cases (5th ed.), 633, 642, and cases cited; Freeman on Judgments, sect. 563 (2d ed. p. 559).

The recitals in the record of a judgment of one State, when sought to be enforced in another, can be contradicted as to any jurisdictional fact, notwithstanding their conclusive effect in the State where the judgment was rendered, and notwithstanding the constitutional provision 'that full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State,' and the act of Congress passed to carry it into effect. Thompson v. Whitman, 18 Wall. 457; Knowles v. Gas-Light & Coke Co., 19 id. 59; Starbuck v. Murray, 5 Wend. 148, per Marcy, J.; Rope v. Heaton, 9 Wis. 328, 332-337; Kerr v. Kerr, 41 N. Y. 272; Shumway v. Stillman, 6 Wend. 453; Noyes v. Butler, 6 Barb. 613; Norwood v. Cobb, 24 Tex. 551; Carleton v. Bickford, 13 Gray, 591.

Mr. Sidney S. Harris for the defendants in error.

The excluded evidence, if admitted, would not have impeached the validity of the judgment.

Hall and Lybrand were partners. The suit in New York which resulted in the judgment related wholly to their partnership transactions. The authority of one partner to employ an attorney to represent the firm in a suit, and to enter the appearance of all its members, rests on the undisputed doctrine, that such partner, in all things relating to the firm transactions, can lawfully represent the firm, unless restricted by agreement. Parsons on Partn. 174.

It is clear that one partner can make contracts for the partnership which will not only bind it to the extent of its assets, but which may lead to the ultimate individual liability of all the partners. This is a necessary legal result of his exercise of partnership authority; and either partner, acting for the firm, can employ an attorney to resist a recovery in a suit against it and to defend its interests. Parsons on Partn. 175, note; Harrison v. Stickney, 7 T. R. 208, Dampier, arguendo; Collyer on Partn., sects. 441, 678, and note; Winship v. The Bank of the United States, 5 Pet. 561; Bennett v. Stickney, 17 Vt. 531; Everson v. Gehrman, 10 How. Pr. 301; Taylor v. Coryell, 12 S. & R. 250.

One partner can bona fide admit service of process for both, and the judgment rendered will not be set aside on the motion of the other partner. Olwell v. McLaughlin, 10 N. Y. Leg. Obs. 316; Lippman v. Judson, 1 Code, N. S. 161, note; Hammond v. Harris, 2 How. Pr. 331; Crane v. French, 1 Wend. 311; Grazebrook v. McCrudie, 17 id. 437; Blodget v. Conklin, 9 How. Pr. 442.

If the partnership was dissolved, Hall still had the power to act for the firm in respect to any transactions which occurred when the partnership continued. Wood v. Braddick, 1 Taunt. 104, per Lord Mansfield; Pritchard v. Draper, 1 Russ. & My1. 191; Vinal v. Burrill, 16 Pick. 401; Bridge v. Gray, 14 id. 55; Simpson v. Geddes, 2 Bay, 533; Garland v. Agee, 7 Leigh, 362; Woodworth v. Downer, 13 Vt. 522.

The rule in this country is, that the dissolution operates as a revocation of all authority to make new contracts, but not to arrange, liquidate, settle, and pay those before created (Darling v. March, 22 Me. 184); and that either partner, after dissolution, may acknowledge in the name of the partnership a balance due from it (Ide v. Ingraham, 5 Gray, 106). In Pennsylvania it is held that a partner may, after dissolution, borrow money to pay partnership debts (Estate of Davis, 5 Whart. 530), renew the notes of the firm (Brown v. Clark, 14 Penn. St. 469), or give notes in its name in payment of debts (Robinson v. Taylor, 4 Barr, 242).

As the power of each partner must be equal to that of any other partner, unless modified by agreement, this power of one partner of winding up the affairs of the firm must be complete.

The conclusion to be drawn is, that a partner, after dissolution, has the same power as before in regard to suits brought by or against the firm; and that, if Hall had the power to authorize an appearance for the firm during its existence, he still had such power after its dissolution.

MR. JUSTICE BRADLEY delivered the opinion of the court.

The question to be decided in this case is, whether, after the dissolution of a copartnership, one of the partners in a suit brought against the firm has authority to enter an appearance for the other partners who do not reside in the State where the suit is brought, and have not been served with process; and, if not, whether a judgment against all the partners, founded on such an appearance, can be questioned by those not served with process in a suit brought thereon in another State. We recently had occasion, in the case of Thompson v. Whitman, 18 Wall. 457, to restate the rule, that the jurisdiction of a foreign court over the person or the subject-matter embraced in the judgment or decree of such court is always open to inquiry; and that, in this respect, the court of another State is to be regarded as a foreign court. We further held in that case, that the record of such a judgment does not estop the parties from demanding such an inquiry. The cases bearing upon the subject having been examined and distinguished on that occasion, it is not necessary to examine them again, except as they may throw light on the special question involved in this cause. In the subsequent case of Knowles v. The Gas-Light Company, 19 Wall. 58, we further held, in direct line with the decision in Thompson v. Whitman, that the record of a judgment showing service of process on the defendant could be contradicted and disproved.

It is sought to distinguish the present case from those referred to, on the ground that the relation of partnership confers upon each partner authority, even after dissolution, to appear for his copartners in a suit brought against the firm, though they are not served with process, and have no notice of the suit. In support of this proposition, so far as relates to any such authority after dissolution of the partnership, we are not referred to any authority directly in point; but reliance is placed on the powers of partners in general, and on that class of cases which affirm the right of each partner, after a dissolution of the firm, to settle up its business. But, in our view, appearance to a suit is a very different thing from those ordinary acts which appertain to a general settlement of business, such as receipt and payment of money, giving acquittances, and the like. If a suit be brought against all the partners, and only one of them be served with process, he may undoubtedly, in his own defence, show, if he can, that the firm is not liable, and to this end defend the suit. But to hold that the other partners, or persons charged as such, who have not been served with process, will be bound by the judgment in such a case, which shall conclude them as well on the question whether they were partners or not when the debt was incurred as on that of the validity of the debt, would, as it seems to us, be carrying the power of a partner, after a dissolution of the partnership, to an unnecessary and unreasonable extent.

The law, indeed, does not seem entirely clear that a partner may enter an appearance for his copartners without special authority, even during the continuance of the firm. It is well known, that by the English practice, in an action on any joint contract, whether entered into by partners or others, if any defendant cannot be found, the plaintiff must proceed to outlawry against him before he can prosecute the action; and then he declares separately against those served with process, and obtains a separate judgment against them, but no judgment except that of outlawry against the defendant not found 1 Chitty's Plead. 42; Tidd's Pract., ch. vii. p. 423, 9th ed. A shorter method by distringas in place of outlawry has been provided by some modern statutes, but founded on the same principle. Now, it seems strange that this cumbrous and dilatory proceeding should be necessary in the case of partners, if one partner has a general authority to appear in court for his copartners. On the basis of such an authority, had it existed, the courts, in the long lapse of time, ought to have found some means of making service on one answer for service on all. But this was never done. In this country, it is true, as will presently be shown, legislation to this end (applicable, however, to all joint debtors) has been adopted; but it is generally conceded that a judgment based on such service has full and complete effect only as against those who are actually served. Further reference to this subject will be made hereafter.

It must be conceded, however, that the general authority of one partner to appear to an action on behalf of his copartners, during the continuance of the firm, has been asserted by several text-writers. Gow on Partn. 163; Collyer on Partn. sect. 441; Parsons on Partn. 174, note. But the assertion is based on somewhat slender authority. We find it first laid down in Gow, who refers to a dictum of Serjeant Dampier, made in the course of argument (7 T. R. 207), and to the case of Morley v. Strombong, 3 Bos. & Pull. 254, where the court refused to discharge partnership goods taken on a distringas to compel the appearance of an absent partner, unless the partner who was served would enter an appearance for him. As to this case, it may be said that it is not improbable that the home partner had express authority to appear in suits for his copartner; for, in a subsequent case (Goldsmith v. Levy, 4 Taunt. 299), a distringas, issued under the same circumstances, was discharged where the home partner made affidavit that the goods were his own, and that he had no authority to appear for his copartner. These seem to be the only authorities relied on.

But, as said before, these authorities, and one or two American cases which follow them, refer only to appearances entered whilst the partnership was subsisting; and it is pertinent also to add, that they only refer to the validity and effect of judgments in the state or country in which they are rendered.

Domestic judgments, undoubtedly (as was shown in Thompson v. Whitman), stand, in this respect, on a different footing from foreigh judgments. If regular on their face, and if appearance has been duly entered for the defendant by a responsible attorney, though no process has been served and no appearance authorized, they will not necessarily be set aside; but the defendant will sometimes be left to his remedy against the attorney in an action for damages: otherwise, as has been argued, the plaintiff might lose his security by the act of an officer of the court. Denton v. Noyes, 6 Johns. 296; Grazebrook v. McCreedie, 9 Wend. 437. But, even in this case, it is the more usual course to suspend proceedings on the judgment, and allow the defendants to plead to the merits, and prove any just defence to the action. In any other State, however, except that in which the judgment was rendered (as decided by us in the cases before referred to), the facts could be shown, notwithstanding the recitals of the record; and the judgment would be regarded as null and void for want of jurisdiction of the person.

So, where an appearance has been entered by authority of one of several copartners on behalf of all, it may well be that the courts of the same jurisdiction will be slow to set aside the judgment, unless it clearly appears that injustice has been done; and will rather leave the party who has been injured by an unauthorized appearance to his action for damages.

There are many other cases in which a judgment may be good within the jurisdiction in which it was rendered so far as to bind the debtor's property there found, without personal service of process, or appearance of the defendant; as in foreign attachments, process of outlawry, and proceedings in rem.

Another class of cases is that of joint-debtors, before alluded to. In most of the States legislative acts have been passed, called joint-debtor acts, which, as a substitute for outlawry, provide that if process be issued against several joint-debtors or partners, and served on one or more of them, and the others cannot be found, the plaintiff may proceed against those served, and, if successful, have judgment against all. Various effects and consequences are attributed to such judgments in the States in which they are rendered. They are generally held to bind the common property of the joint-debtors, as well as the separate property of those served with process, when such property is situated in the State, but not the separate property of those not served; and, whilst they are binding personally on the former, they are regarded as either not personally binding at all, or only prima facie binding, on the latter. Under the Jointdebtor Act of New York, it was formerly held by the courts of that State that such a judgment is valid and binding on an absent defendant as prima facie evidence of a debt, reserving to him the right to enter into the merits, and show that he ought not to have been charged.

The validity of a judgment rendered under this New York law, when prosecuted in another State against one of the defendants who resided in the latter State, and was not served with process, though charged as a copartner of a defendant residing in New York, who was served, was brought in question in this court in December Term, 1850, in the case of D'Arcy v. Ketchum, 11 How. 165. It was there contended, that by the Constitution of the United States, and the act of Congress passed May 26, 1790, in relation to the proof and effect of judgments in other States, the judgment in question ought to have the same force and effect in every other State which it had in New York. But this court decided that the act of Congress was intended to prescribe only the effect of judgments where the court by which they were rendered had jurisdiction; and that, by international law, a Judgment rendered in one State, assuming to bind the person of a citizen of another, was void within the foreign State, if the defendant had not been served with process, or voluntarily made defence, because neither the legislative jurisdiction not that of the courts of justice had binding force.

This decision is an authority which we recognized in Thompson v. Whitman and in Knowles v. Gas-Light Company, before cited, and which we adhere to as founded on the soundest principles of law; and, in view of this decision, it is manifest that many of the authorities which declare the effect of a domestic judgment, in cases where process has not been served on one or all of the defendants, and where those not served have not authorized any appearance and do not reside in the State, can have little influence as to the effect to be given to such a judgment in another State.

It appearing to be settled law, therefore, that a member of a partnership firm, residing in one State, cannot be rendered personally liable in a suit brought in another State against him and his copartners, although the latter be duly served with process, and although the law of the State where the suit is brought authorizes judgment to be rendered against him, the case stands on the simple and naked question, whether his copartners, after a dissolution of the partnership, can without his consent and authority involve him in suits brought against the firm by voluntarily entering an appearance for him.

We are of opinion that no authority can be found to maintain the affirmative of this question.

In the case of Bell v. Morrison, 1 Pet. 351, this court decided, upon elaborate examination, that, after a dissolution of the partnership, one partner cannot by his admissions or promises bind his former copartners. Appearance to a suit is certainly quite as grave an act as the acknowledgment of a debt.

It is well settled by numberless cases, that, even before dissolution, one partner cannot confess judgment, or submit to arbitration so as to bind his copartners. Stead v. Salt, 3 Bing. 101; Adams v. Bankart, 1 Cromp. Mee. & R. 681; Karthaus v. Ferrer, 1 Pet. 222, and cases referred to in Story on Partn., sect. 114; 1 Amer. Lead. Cas., 5th ed. 556; Freeman on Judgments, sect. 232; Collyer on Partn., sects. 469, 470, and notes; Parsons on Partn. 179, note.

It is equally well settled, that, after dissolution, one partner cannot bind his copartners by new contracts or securities, or impose upon them a fresh liability. Story on Partn., sect. 322; Adams v. Bankart, supra.

Appearance to a suit does impose a fresh liability. If there is no doubt of the validity of the demand, it places that demand in a position to be made a debt of record. If there is doubt of it, it renders the defendant liable to have it adjudicated against him, when, perhaps, he has a good defence to it.

On principle, therefore, it is difficult to see how, after a dissolution, one partner can claim implied authority to appear for his copartners in a suit brought against the firm. It may, in some instances, be convenient that one partner should have such authority; and, when such authority is desirable, it can easily be conferred, either in the articles of partnership or in the terms of dissolution. But, as a general thing, one can hardly conceive of a more dangerous power to be left in the hands of the several partners after the partnership connection between them is terminated, or one more calculated to inspire a constant dread of impending evil, than that of accepting service of process for their former associates, and of rendering them liable, without their knowledge, to the chances of litigation which they have no power of defending.

Few cases can be found in which the precise question has been raised. The attempt to exercise such a power does not appear to have been often made. Had it been, the question would certainly have found its way in the reports; for a number of cases have come up in which the power of a partner to appear for his copartners during the continuance of the partnership has been discussed. The point was raised in Phelps v. Brewer, 9 Cush. 390; but the court, being of opinion that the power does not exist even pending the partnership, did not find it necessary to consider the effect of a dissolution upon it.

In Alabama, where a law was passed making service of process on one partner binding upon all, it was expressly decided, after quite an elaborate argument, that such service was not sufficient after a dissolution of the partnership, and that acknowledgment of service by one partner on behalf of all was also inoperative as against the other partners. Duncan v. Tombeckbee Bank, 4 Port. 184; Demott v. Swaim's Adm., 5 Stew. & Port. 293.

In the case of Loomis & Co. v. Pearson & McMichael, Harper (S.C..), 470, it was decided, that, after a dissolution of partnership, one partner cannot appear for the other; although it is true that it had been previously decided by the same court, in Haslet v. Street et al., 2 McCord, 311, that no such authority exists even during the continuance of the partnership.

But the absence of authorities, as before remarked, is strong evidence that no such power exists.

In our judgment, the defendant Lybrand had a right, for the purpose of invalidating the judgment as to him, to prove the matter set up by him in his offer at the trial; and for the refusal of the court to admit the evidence the judgment should be reversed, with directions to award a venire de novo.

Judgment reversed.

MR. CHIEF JUSTICE WAITE, MR. JUSTICE STRONG, and MR. JUSTICE HUNT, dissented.

title: Hall v. Lanning/Opinion of the Court


text: Talk:Hall v. Lanning/Opinion of the Court

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


text: Sewall v. Jones

title: Sewall v. Jones


text: Talk:Sewall v. Jones

title: Talk:Sewall v. Jones


text:
Sewall v. Jones/Opinion of the Court

APPEAL from the Circuit Court of the United States for the District of Maine.

This suit was brought by Jones, assignee of Winslow, against Clark, and revived after his death, against Sewall, his administrator. Jones alleged that Clark had infringed certain patents for an improvement in preserving Indian corn, granted to Winslow; and he prayed for an injunction and an account. A decree was rendered for the complainant. The defendant appealed.

Four patents were granted to Winslow; but it is only necessary to set forth two which were held good in the court below. The principal defence relied on was that they were void for want of novelty.

These two patents of Winslow and the specification of Durand's patent, which is mentioned in the opinion of the court, are as follows:--

'No. 34,928.

'The United States of America, to all to whom these letters-patent shall come:--

'Whereas Isaac Winslow, of Philadelphia, Penn., has alleged that he has invented a new and useful improvement in preserving green corn (he having assigned his right, title, and interest in said invention to John W. Jones of Portland, Me.), which he states has not been known or used before his application; has made affirmation that he is a citizen of the United States; that he does verily believe that he is the original and first inventor or discoverer of the said invention, and that the same hath not, to the best of his knowledge and belief, been previously known or used; has paid into the treasury of the United States the sum of thirty dollars, and presented a petition to the Commissioner of Patents, signifying a desire of obtaining an exclusive property in the said invention, and praying that a patent may be granted for that purpose:--

'These are, therefore, to grant, according to law, to the said John W. Jones, his heirs, administrators, or assigns, for the term of seventeen years from the eighth day of April, one thousand eight hundred and sixty-two, the full and exclusive right and liberty of making, constructing, using, and vending to others to be used, the said invention, a description whereof is given in the words of the said Isaac Winslow in the schedule hereunto annexed, and is made part of these presents.

'In testimony whereof, I have caused these letters to be made patent, and the seal of the Patent Office has been hereunto affixed.

'Given under my hand, at the city of Washington, this eighth day of April, in the year of our Lord one thousand eight hundred and sixty-two, and of the independence of the United States of America the eighty-sixth.

'CALEB B. SMITH, Secretary of the Interior.

'Countersigned, and sealed with the seal of the Patent Office.

'[L. S.] D. P. HOLLOWAY, Commissioner of Patents.'

The schedule referred to in these letters-patent, and making part of the same, is as follows:--

'To all whom it may concern:--

'Be it known that I, Isaac Winslow, of Philadelphia, in the county of Philadelphia and State of Pennsylvania, have invented a new and useful improvement in preserving Indian corn in the green state; and I hereby declare that the following is a full and exact description thereof:--

'In my first attempt to preserve Indian corn in the green state, without drying the same, I did not remove the kernels from the cob. The article thus obtained was very bulky, and, when used, the peculiar sweetness was lost, the same being absorbed, as I suppose, by the cob. After a great variety of experiments, I have overcome the difficulties of preserving Indian corn in the green state without drying the same, thus retaining the milk and other juices and the full flavor of fresh green corn until the latter is desired for use. Instead of a hard, insipid, or otherwise unpalatable article, I have finally succeeded in producing an entirely satisfactory article of manufacture, in which my invention consists. I have employed several methods of treatment of the green corn with good results. My first success was obtained by the following process: The kernels, being removed from the cob, were immediately packed in cans, and the latter hermetically sealed, so as to prevent the escape of the natural aroma of the corn, or the evaporation of the milk or other juices of the same. Then I submitted the sealed cans and their contents to boiling or steam heat about four hours. In this way the milk and other juices of the corn are coagulated, as far as may be; boiling thus preventing the putrefaction of these more easily destructible constituents. At the same time, the milk and other juices are neither diluted nor washed away, as would be more or less the case if the kernels were mixed with water and boiled. By this method of cooking green corn in the vapor of its juices, as it were, the ends of the sealed cans are bulged out, as though putrefaction and the escape of the resulting gases had commenced within the cans. Consequently, strong cans are required; and dealers are likely to be prejudiced against corn thus put up. I recommend the following method: Select a superior quality of sweet corn in the green state, and remove the kernels from the cob by means of a curved and gauged knife, or other suitable means. Then pack these kernels in cans, and hermetically seal the latter so as to prevent evaporation under heat or the escape of the aroma of the corn. Now expose these cans of corn to steam or boiling heat for about one hour and a half; then puncture the cans, and immediately seal the same while hot, and continue the heat for about two hours and a half longer. Afterwards the cans may be slowly cooled in a room at the temperature of seventy to one hundred degrees Fahrenheit. Indian corn thus packed and treated may be warranted to keep in any climate. Being preserved in its natural state as near as possible, it retains the peculiar sweetness and flavor of fresh corn right from the growing field. It is only necessary to heat this preserved corn, and season the same, in order to prepare it for the table, as it is fully cooked in process of preserving. Other methods of treatment may be adopted without departing from my invention, so long as the hermetical sealing and use of the heat are so managed as to secure the aroma and fresh flavor, and prevent putrefaction; thus producing the new article of manufacture substantially described.

'Having thus fully described my invention, what I claim and desire to secure by letters-patent from the United States is the above-described new article of manufacture; namely, Indian corn when preserved in the green state, without drying the same, the kernels being removed from the cob, hermetically sealed and heated, substantially in the manner and for the purpose set forth.

'ISAAC WINSLOW.'

'No. 35,274.

'The United States of America to all to whom these letters-patent shall come:--

'Whereas Isaac Winslow, of Philadelphia, Penn., has alleged that he has invented a new and useful improvement in preserving green corn (he having assigned his right, title, and interest in said improvement to John W. Jones of Portland, Me.), which he states has not been known or used before his application; has made affirmation that he is a citizen of the United States; that he does verily believe that he is the original and first inventor or discoverer of the said improvement, and that the same hath not, to the best of his knowledge and belief, been previously known or used; has paid into the treasury of the United States the sum of thirty-five dollars, and presented a petition to the Commissioner of Patents, signifying a desire of obtaining an exclusive property in the said improvement, and praying that a patent may be granted for that purpose:--

'These are, therefore, to grant, according to law, to the said John W. Jones, his heirs, administrators, or assigns, for the term of seventeen years from the thirteenth day of May, one thousand eight hundred and sixty-two, the full and exclusive right and liberty of making, constructing, using, and vending to others to be used, the said improvement, a description whereof is given in the words of the said Isaac Winslow in the schedule hereunto annexed, and is made a part of these presents.

'In testimony whereof, I have caused these letters to be made patent, and the seal of the Patent Office has been hereunto affixed.

'Given under my hand, at the city of Washington, this thirteenth day of May, in the year of our Lord one thousand eight hundred and sixty-two, and of the independence of the United States of America the eighty-sixth.

'CALEB B. SMITH, Secretary of the Interior.

'Countersigned and sealed with the seal of the Patent Office.

'[L. S.] D. P. HOLLOWAY, Commissioner of Patents.'

The schedule referred to in these letters-patent, and making part of the same, is as follows:--

'To all whom it may concern:--

'Be it known that I, Isaac Winslow, of Philadelphia, in the county of Philadelphia, and State of Pennsylvania, have invented a new and useful improvement in preserving green corn; and I do hereby declare that the following is a full and exact description thereof, reference being had to the accompanying drawings, and to the letters of reference marked thereon:--

'It has long been common to boil green or unripened Indian corn, or maize, and then dry the same for winter use. But corn thus dried, when prepared for the table by again boiling, is more or less hard and insipid, having lost the fine flavor of fresh green corn.

'If ears of corn be boiled, and then hermetically sealed in cans, the cob seems to absorb the sweetness of the kernels; or if the kernels are removed from the cob after boiling, and then preserved, the finest flavor of the natural corn is lost. After many and varied attempts to preserve green corn without drying the same, finding that I did not obtain a satisfactory result, I finally conceived the idea of first removing the corn from the cob, and then boiling or cooking the kernels thus separated, and preserving them. But this was met by a new difficulty. The kernels of corn being somewhat broken by removal from the cob, the milk and other juices were dissolved out in the process of boiling; and thus the corn was left insipid and unpalatable. I then attempted to cook the corn without contact with water, by exposing the cans containing the corn to boiling water.

'This mode of preserving I found unsatisfactory. The milk of the corn was evaporated, and the corn more or less dried, whilst a long time was requisite to cook the corn sufficiently for preservation. Finally I adopted the process of removing the corn from the cob, packing the kernels in cans, hermetically sealing the same, and then boiling the cans until the corn contained therein became completely cooked. The result of this process was extraordinary, the corn being of finer flavor than corn fresh from the field when boiled upon the cob in the usual way. Since this discovery, I have adopted the practice of boiling or steaming the cans containing the corn-kernels thus sealed about four hours, though a shorter time may answer for most purposes.

'The cans should be very strong, to prevent their bursting by heat. I have sometimes practised puncturing the cans after they are well heated,-say for ten minutes. This allows the air to escape; when I immediately reseal the cans, so as to prevent the evaporation of the juices of the corn or the loss of the natural aroma.

'This puncturing has two advantages: it prevents the possible bursting of the cans; and allows the heads of the cans to press inward when cool, so that dealers can see by this test that the corn is perfectly preserved. When the cans are not punctured, their ends will remain pressed outward after cooling, and yet the corn is perfectly preserved. The above-described process of removing the corn from the cob, and then preserving the kernels, affords several advantages over any method of preserving corn heretofore known. Among these advantages are the following: 1st, The peculiar sweetness and excellent flavor of the corn thus preserved, these qualities being consequent upon retaining all the milk and other juices, together with its fine natural aroma; 2d, The economy of space in boiling and packing, and convenience of handling, transportation, and sale. Having thus fully described my improved process, what I claim, and desire to secure by letters-patent of the United States, is the above-described process of first removing the corn from the cob, and then preserving the kernels substantially in the manner and for the purposes set forth.

'ISAAC WINSLOW.'

'Witnesses:

'SAMUEL C. OGLE.

'WILLIAM OGLE.'

Preserving Animal and Vegetable Food.-Durand's Specification.

'To all to whom these presents shall come:--

'I, Peter Durand, of Hoxton Square, in the county of Middlesex, merchant, send greeting:--

'Whereas his most excellent Majesty King George the Third did by his letters-patent, under the great seal of the United Kingdom of Great Britain and Ireland, bearing date at Westminster the twenty-fifth day of August, in the fiftieth year of his reign, give and grant unto me, the said Peter Durand, my executors, administrators, and assigns, his special license, full power, sole privilege and authority, that I, the said Peter Durand, my executors, administrators, and assigns, during the term therein mentioned, should and lawfully might make, use, exercise, and vend, within England, Wales, and the town of Berwick-upon-Tweed, an invention communicated to me by a certain foreigner residing abroad, of the method of 'preserving animal food, vegetable food, and other perishable articles, a long time from perishing or becoming useless;' in which said letters-patent there is contained a proviso, obliging me, the said Peter Durand, by an instrument in writing under my hand and seal, to cause a particular description of the nature of the said invention, and in what manner the same is to be performed, to be enrolled in his Majesty's High Court of Chancery within six calendar months after the date of the said recited letters-patent, as in and by the same, relation being thereunto had, may more fully and at large appear:--

'Now know ye, that, in compliance with the said proviso, I, the said Peter Durand, do hereby declare that the nature of the said invention, and the manner in which the same is to be performed, are particularly described and ascertained as follows; that is to say:--

'First, I place and enclose the said food or articles in bottles or other vessels of glass, pottery, tin, or other metals or fit materials; and I do close the aperture of such containing vessels, so as completely to cut off and exclude all communication with the external air; and as to the method of closing, I do avail myself of the usual means of corking, airing, luting, or cementing; and in large vessels I make use of corks formed of pieces glued together in such a manner as that the pores of that substance shall be in a cross-direction with regard to the aperture into which such corks are to be driven; and I do also, in such vessels as may admit of or require the same, make use of stoppers fitted or ground with emery or screw-caps, with or without a ring of leather or other soft substance between the faces of closure, and also of cocks or cross-plugs or covers of leather, cloth, parchment, bladder, and the like.

'Secondly, When the vessels have been thus charged and well closed, I do place them in a boiler, each separately surrounded with straw, or wrapped in coarse cloth, or otherwise defended from striking against each other; and I fill the said boiler so as to cover the vessels with cold water, which I gradually heat to boiling, and continue the ebullition for a certain time, which must depend upon the nature of the substances included in the vessels, and the size of the said vessels, and other obvious circumstances, which will be easily apprehended by the operator without further instructions. Vegetable substances are to be put into the vessel in a raw or crude state, and animal substances partly or half cooked, although these may also be put in raw. The food or other articles thus prepared may be kept for a very long time in a state fit for use, care being taken that the vessel shall not be opened until their said contents shall be wanted for consumption.

'And, lastly, I do declare, that although the application of the water-bath, as hereinbefore described, may be the most commodious and convenient, I do likewise avail myself of the application of heat by placing the said vessel in an oven, or a stove, or a steam-bath, or any other fit situation for gradually and uniformly raising the temperature of the same, and suffering them to cool again; and, further, that I do, as the choice of the consumer or the nature of the said food or other articles may render preferable, leave the aperture of the vessel, or a small portion thereof, open until the effect of the heat shall have taken place, at which period I close the same.

'In witness whereof, I, the said Peter Durand, have hereunto set my hand and seal the thirtieth day of August, in the year of our Lord one thousand eight hundred and ten.

'PETER DURAND. [L. S.]

'And be it remembered, that on the thirtieth day of August, in the year of our Lord one thousand eight hundred and ten, the aforesaid Peter Durand came before our said lord the king in his chancery, and acknowledged the specification aforesaid, and all and every thing therein contained and specified in form above written; and also the specification aforesaid was stamped according to the tenor of the statute made for that purpose. Enrolled the thirtieth day of August, in the year of our Lord one thousand eight hundred and ten.'

Mr. E. N. Dickerson for appellant.

The process claimed is substantially described in specifications of Durand and Gunter published in the United States and England before the application for the patents in question. The original discovery was by Appert, a scientific Frenchman.

Mr. W. H. Clifford, contra.

The English patent of Durand was the invention of Appert; but the process described in Durand's patent does not cover the invention of Winslow.

MR. JUSTICE HUNT delivered the opinion of the court.

Jones, as assignee of four several patents for a new and useful improvement in preserving Indian corn, brought his action against Clark, the original defendant, alleging infringements of the same. These patents were issued to Isaac Winslow, and were as follows: viz., No. 34,928, dated April 8, 1862, 'for a new and useful improvement in preserving Indian corn;' No. 35,274, dated May 13, 1862, 'for a new and useful improvement in preserving green corn;' No. 35,346, dated May 20, 1862, and No. 36,326, dated Aug. 26, 1862.

The two patents last above mentioned were declared and adjudged by the court below to be void; and from this judgment no appeal has been taken. They are no longer elements in the case before us, and are dismissed from further consideration.

The patent first mentioned is for an article of manufacture, a result. The second one is for a process by which a result is obtained. The first is the more full, and embraces all that is contained in the second.

The first objection made to the patents is the want of novelty. It is contended that they were anticipated by the Appert process embodied in the Durand patent of 1810; also by the patent of Gunter of 1841, and by that of Wertheimer of 1842. It is an elementary proposition in patent law, that, to entitle a plaintiff to recover for the violation of a patent, he must be the original inventor, not only in relation to the United States, but to other parts of the world. Even if the plaintiff did not know that the discovery had been made before, still he cannot recover if it has been in use or described in public prints, and if he be not in truth the original inventor. Dawson v. Follen, 2 Wash. C. C. 311; Bedford v. Hunt, 1 Mas. 302.

Durand's patent is described in his specification, enrolled in the English Court of Chancery, as based 'upon an invention communicated to him by a certain foreigner, residing abroad, of the manner of preserving animal food, vegetable food, and other perishable articles, a long time from perishing or becoming useless.'

In describing the nature of the invention and the manner in which the same is to be performed, he says,--

'First, I place the said food or articles in bottles of glass, pottery, tin, or other metals or fit materials, and I close the aperture so as completely to cut off or exclude all communication with the external air;' and he describes the various means of effecting that purpose.

'Second, When the vessels are thus charged and well closed, I place them in a boiler, each separately surrounded with straw or wrapped in a coarse cloth, or otherwise defended from striking against each other. I fill the boiler so as to cover the vessels with cold water, which I gradually heat to boiling, and continue the ebullition for a certain time, which must depend upon the nature of the substances included in the vessels, and the size of the vessels, and other obvious circumstances which will be readily apprehended by the operator. Vegetable substances are to be put into the vessel in a raw or crude state, and animal substances partly or half cooked, although these may also be put in raw.'

The specification then declares that the inventor did avail himself of the application of heat by placing the vessel in an oven, stove, steam-bath, or other fit situation for gradually and uniformly raising the temperature and suffering it to cool again, and that as the choice of the consumer or nature of the said food or other articles may render preferable, leave the aperture of the vessel, or a small portion thereof, open until the effect of the heat shall have taken place, at which period the same is to be closed.

The points following are embraced in this patent:--

1. It is for the purpose of preserving for a long time animal or vegetable food.

2. The articles thus to be preserved are to be placed in tin other vessels, so arranged as to exclude communication with the external air.

3. An aperture may be left in the vessel, at the choice of the operator, until the effect of the heat shall have taken place, when it is to be closed.

4. The vessels thus prepared are placed in a boiler filled with cold water, which is heated to a boiling point, which boiling shall be continued for such time as shall be required by the substances contained in the vessels.

5. Although a water-bath is preferred, the inventor declares that he avails himself of heat through an oven, stove, steam-bath, or any other situation fit for gradually raising the temperature and suffering it to cool again.

6. Vegetables are to be put into the vessels in a raw or crude state; animal substances raw or partly cooked.

7. The invention is general in its terms, embracing all vegetables and all animal substances capable of being thus dealt with.

Winslow's patent of April 8, 1862, No. 34,928, is declared to be for an improvement in preserving Indian corn in the green state.

The letters-patent declare that the first 'success of the inventor was obtained by the following process: The kernels, being removed from the cob, were immediately packed in cans hermetically sealed, so as to prevent the escape of the natural aroma of the corn or the evaporation of the milk or other juices of the same. I then submitted the sealed cans and their contents to boiling or steam heat for about four hours. . . . By this method of cooking green corn in the vapor of its juices, the ends of the cans are bulged out. Strong cans are required, and dealers are likely to be prejudiced against corn thus put up. I recommend the following method: Select a superior quality of green corn in the natural state; remove the kernels from the cob by means of a curved and gauged knife, or other suitable means; then pack in cans, hermetically seal the cans, expose them to steam or boiling heat for about an hour and a half; then puncture, seal while hot, and continue the heat for about two hours and a half.' At the close, the inventor says that what he claims to secure by the patent is the new article of manufacture; namely, Indian corn preserved in the green state without drying, the kernels being removed from the cob, hermetically sealed, and heated as described.

Let us now state the points embraced in this, the plaintiff's patent, and compare them with the points heretofore stated as included in the Durand patent.

1. Winslow's declared object is the preservation of Indian corn in the green state.

Durand's is for preserving Indian corn not only, but all vegetable substances in their raw or crude state.

2. Winslow recommends removing the kernels from the cob before the process of preservation is commenced, placing the kernels in cans, sealing them, and exposing them to heat.

Durand, not limiting himself to the article of corn, provides that the articles to be preserved shall be placed in cans, and subjected to heat in the same manner. He does not stipulate or recommend that the article shall be first removed from the cob, the vine, the twig, or whatever may be the natural support of the vegetable to be preserved, as the corn from the cob, the pea from its pod, the grape or the tomato from its vine, the peach from its stem, the berry from its stalk. Neither does he recommend that it shall not be so removed. His process embraces the article in whatever form it may be presented. It is for the preservation of raw or crude or uncooked vegetables in whatever form they may be presented, and necessarily includes a case where they have been previously removed from their natural support. A prior removal from the stalk would be the natural, and, in many cases, a necessary proceeding.

3. Winslow directs that the kernels shall be subjected to the heat for a period of about one and a half hours before puncturing, and for about two and a half hours after the puncturing. The double use of the word 'about' indicates that the time is not to be considered as precisely specified.

Durand directs that the boiling shall continue for such length of time as shall be required by the particular substances contained in the vessel. Corn, pease, tomatoes, peaches, berries, asparagus, may very likely require great difference in the time in which the heat shall be applied to produce the required effect. In each case, that is to be the measure of the time.

4. Winslow says other modes may be adopted so long as hermetical sealing and the use of heat are so managed as to secure the aroma and fresh flavor and prevent putrefaction.

Durand declares that he intends to include in his patent heat through an oven, stove, steam, or any other situation by which the temperature is gradually raised and suffered to cool again.

The same idea is put forth at the close of Winslow's specification, where he declares that what he claims by his patent is the manufacture of Indian corn in its green state, the kernels being removed from the cob, hermetically sealed, and heated.

We are of the opinion that the substance of all that is found in Winslow's patent had, nearly half a century before he obtained his patent, been put forth in Durand's patent. If Durand's patent were now in force in this country, and a suit brought upon it against Jones, the claimant under Winslow, for an infringement, the right to recover could not be resisted. Durand would show a patent intended to effect the same purpose,-to wit, the preservation of vegetables for a long time; employing the same process,-to wit, the effect of heat upon vegetables placed in a metallic vessel, the gradual cooling of the same, hermetically sealed after puncture to allow the escape of gases. This is also Winslow's process.

To constitute an infringement, the thing used by the defendant must be such as substantially to embody the patentee's mode of operation, and thereby to attain the same kind of result as was reached by his invention. It is not necessary that the defendant should employ the plaintiff's invention to as good advantage as he employed it, or that the result should be the same in degree; but it must be the same in kind. Winans v. Denmead, 15 How. 330.

To infringe a patent, it is not necessary that the thing patented should be adopted in every particular. If the patent is adopted substantially by the defendants, they are guilty of infringement. Root v. Ball, 4 McLean, 177; Alden v. Deney, 1 Story C. C. 336.

In an action for infringement, the first question is, whether the machine used by the defendant is substantially, in its principle and mode of operation, like the plaintiff's. If so, it is an infringement to use it. Howe v. Abbott, 2 Story C. C. 190; Parker v. Haunth, 4 McLean, 370.

If he has taken the same plan and applied it to the same purpose, notwithstanding he may have varied the process of the application, his manufacture will be substantially identical with that of the patentee. Curtis, sect. 312.

Erskine, J., says, in Walter v. Potter, Webs. Pat. Cas. 585, 607, the question of infringement depends upon whether the plan which the defendant has employed is in substance the same as the plaintiff's, and whether all the differences which have been introduced are not differences in circumstances not material, and whether it is not in substance and effect a colorable evasion of the plaintiff's patent.

When a party has invented some mode of carrying into effect a law of natural science or a rule of practice, it is the application of that law or rule which constitutes the peculiar feature of the invention. He is entitled to protect himself from all other modes of making the same application; and every question of infringement will present the question, whether the different mode, be it better or worse, is in substance an application of the same principle. Curtis, sect. 320.

It is said, however, that a distinction exists in this,-that Winslow's patent provides that the corn shall be removed from the cob before the process begins, and that Durand does not specify this idea. If this be conceded, it does not alter the case. Although he may preserve Indian corn by removing it from the cob more advantageously than by letting it remain on the cob, he does it by using the Durand process. He still applies Durand's process of heating, puncturing, and cooling, and no more takes the practice out of Durand's patent than if he should specify that pears or peaches would be the better preserved if their outer coating should be first removed, or that meat could the better be preserved if the bones were previously extracted. Whether the improvement or combination could be the subject of a patent, it is not material to consider.

It is said again, that 'instead of packing the kernels in the vessels selected for the purpose, in their crude state, as suggested in the English patent, the process patented by the assignor of the plaintiff directs that the kernels should be cut from the cob in a way which leaves a large part of the hull on the cob, and breaks open the kernels, liberating the juices, to use the language of the patentee, and causing the milk and other juices of the corn to flow out and surround the kernels as they are packed in the cans, in such a mode that the juices form the liquid in which the whole is cooked, when the cans are subjected to the bath or boiling water.'

This argument is based upon an error in fact. There is no such language in the patent. The sole expression of the patent is to provide, first, that the corn shall be removed from the cob; and, second, that it shall be subjected to heat in vessels hermetically sealed. Thus Winslow recites that difficulty had been encountered by him in preserving the corn upon the cob. This produced an insipid article; and accordingly he says, 'My first success was obtained by the following process: The kernels, being removed from the cob, were immediately packed in cans and hermetically sealed, so as to prevent the escape of the aroma, and submitted to heat,' &c. There is not a word in the patent to the effect that the kernels shall be cut off in a particular way, or that a large part of the hull shall be left on the cob, nor, indeed, that the kernels shall be cut off at all. It is simply provided that the corn shall be removed from the cob. The means are not specified.

Farther on, the patentee, Winslow, says, 'I recommend the following method.' This is not of the substance of the patent. A recommendation is quite different from a requirement. The latter is a demand, an essential, a necessity. The former is a choice or preference between different modes or subjects, and is left to the pleasure or the judgment of the operator. He may adopt it. He will do well if he does. But he may reject it, and still accomplish his object by means of the patent.

The principle is this: The omission to mention in the specification something which contributes only to the degree of benefit, providing the apparatus would work beneficially and be worth adopting without it, is not fatal, while the omission of what is known to be necessary to the enjoyment of the invention is fatal. Curtis, sect. 248.

An excess of description does not injure the patent, unless the addition be fraudulent. Id. sect. 250.

Accordingly, when the inventor says, 'I recommend the following method,' he does not thereby constitute such method a portion of his patent. His patent may be infringed, although the party does not follow his recommendation, but accomplishes the same end by another method.

But the patentee does not even recommend that the kernels shall be cut off in such manner that a large portion of the hull shall remain upon the cob, nor does he distinctly recommend the cutting off of the kernels in any manner. His recommendation is simply that the kernels be removed by any convenient and suitable method. His language is, 'I recommend the following method: Select a superior quality of sweet corn in the green state, and remove the kernels from the cob by means of a curved and gauged knife or other suitable means.' Any means that are suitable for removing the kernels, whether by knife or any other method, are within this language.

That the simple removal of the corn from the cob, before it is subjected to heat, without reference to cutting it off in such manner as to leave a portion of the hull on the cob, or without reference to cutting at all, is the claim of Winslow's patent, is clearly shown by another consideration.

The first patent of Winslow and his second patent, as stated in the opinion of the court below, are intended to effect the same purposes; the one being a patent for the article, the other for the process by which the article is produced. 'Both patents (it is there said) may be considered together, as all the proofs applicable to one apply equally to the other; and the positions taken in argument are the same in both, without an exception.'

Now, it is quite significant of the intent of the claimant, and of the meaning of the first patent, that his second patent, which is for the process, and would properly be more specific as to every essential mode, makes no claim that the corn shall be removed from the cob by cutting, much less that it should be cut in any particular manner, or with a view to any particular effect. After describing his disappointment in the result when he merely cooked the corn, and in attempting to preserve it when packed, without removal from the cob, or where it was removed after having been boiled on the cob, he says, 'Finally I adopted the process of removing the corn from the cob, packing the kernels in cans, hermetically sealing the same, then boiling the cans until the corn contained therein became completely cooked.' The word 'cutting' is not to be found in this patent. Removal from the cob before commencing the preservation, without reference to the manner or means, except only that they should be suitable, is the plain intent of both patents. In this respect they are identical with each other, and are not inconsistent with Durand's patent.

The discovery in question has been of immense benefit to mankind. By means of food preserved in a compact and nutritious form, protected from its natural tendency to decay, deserts are traversed, seas navigated, distant regions explored. It is less brilliant, but more useful, than all the inventions for the destruction of the human race that have ever been known. It is to France that the honor of this discovery belongs, and to Appert, a French citizen. It does not belong to America or to Winslow. Appert's process presents all that we now know upon the subject. It contains absolutely every thing of value that is contained in Winslow's patent.

Other grave questions are presented by the record before us. We are satisfied, however, to place our decision upon the ground that the want of novelty in the patents of Winslow is fatal to the plaintiff's right of recovery. We do not discuss the other questions.

The decree must be reversed, and a decree ordered in favor of the defendant below.

title: Sewall v. Jones/Opinion of the Court


text: Talk:Sewall v. Jones/Opinion of the Court


text:
The Free State

APPEAL from the Circuit Court of the United States for the Eastern District of Michigan.

The facts are stated in the opinion of the court.

Mr. W. A. Moore for the appellants, and Mr. George B. Hibbard and Mr. Ashley Pond for the appellee.

MR. JUSTICE HUNT delivered the opinion of the court.

title: The Free State


text: Talk:The Free State

title: Talk:The Free State


text:
The Free State/Opinion of the Court

There is but a single question of fact in issue between the parties; and that is as to the course and conduct of the 'Meisel' shortly before the collision.

There is but a single question of law in the case; and that is as to the duty of the propeller under the sixteenth of the articles established by Congress for avoiding collisions of vessels.

The facts, as established by the evidence on both sides, and which cannot justly be disputed, are as follows: About daybreak on the morning of July 17, 1870, the weather being fine, and free from fog, the sailing scow 'Meisel' entered the Detroit River on her voyage from Lake Erie to a port on Lake Michigan. The wind was west-south-west, free to the scow; and she sailed in a course generally north, but by the marks upon the land, which were well known to her captain, and plainly visible, rather than by the compass, keeping nearer to the Canadian than the other shore. As she passed the village of Amherstberg, the steamer 'Jay Cooke' came out from the dock at that place, and passed the scow on her starboard side, at a distance of twice or three times the length of the steamer. The propeller 'Free State' was then approaching on her passage down the river. As the steamers approached each other, the 'Jay Cooke' gave one blast of her whistle, which was responded to by the 'Free State' by the same signal. This indicated that the steamers would pass each other port to port. After the 'Cooke' had passed away from her, the scow ported her helm to get into the wake of the 'Cooke.' As the propeller approached nearer, a second order to port was given by the master of the scow; and she was sailing under this order when she was struck by the propeller on her port side, near the main rigging. The scow was sunk by the collision, and the wife and child of the master were drowned.

The propeller 'Free State' was on her voyage down the lakes from Chicago to Buffalo; was making nine or ten miles an hour when she sighted the 'Meisel.' The scow showed her green light only as she came in sight of the propeller. As she passed the 'Cooke,' the propeller 'Free State' bore to the Canada shore, intending to leave the scow to windward. As the propeller was thus bearing to port, the scow changed her course to port, as already mentioned. The master of the propeller ordered her helm hard-a-port, and rang the bell to stop and back. It was then too late to avoid a collision.

The point of fact in dispute is this: As the 'Cooke' was passing her, as already stated, did the scow put her helm to the starboard, thus changing her direction to the west, and authorizing the propeller to believe that she would continue to hold her course westerly, so that it became the duty of the propeller to pass her on her starboard side?

We are of the opinion that she did, not only on the testimony of all on board the propeller, but by the testimony of the master and mate of the scow. The evidence of the master shows, that, as she entered the Detroit River, the course of the scow was northerly, the wind being west-south-west, the sails on her starboard side, and within two hundred or three hundred feet of the Canada shore. He says, that, when the 'Cooke' passed him, the propeller was three hundred or four hundred feet distant between him and the shore; that, as soon as the 'Cooke' had passed, he ordered the man at the wheel to keep her off a little; that she swung right off to the mainland (the Canada side). He told him to steady, and he did so. The 'Cooke' had, before this, blown the single whistle; and the captain says he supposed he could follow in her track, and pass the propeller on the port side.

This master does not state distinctly, nor does he deny, the very obvious fact, that, as the 'Cooke' began to pass him, he put his helm to the starboard, and bore up into the wind. Such must have been the fact, as he was previously steering as nearly north as might be, in the same course with the 'Cooke;' and, after she had passed him, it was necessary to port his helm to bring him again into that line. He was out of the line, and could only have been so by starboarding his helm as the 'Cooke' was passing him. The 'Cooke' was three hundred or four hundred feet from him; and, as she preserved a safe distance from the shore, the scow was probably about the middle of the channel when the 'Cooke' had passed her.

The mate is more explicit. He says, that, as the 'Cooke' was coming up under their quarter, the captain gave the order to keep her up a little, so as to give the 'Cooke' more room, and that under this order she swung to port between two and three points of the compass, and ran under that order till the 'Cooke' had passed them. How long a period of time this was, or what distance of travel it covered, is not stated. The 'Cooke' had just come out of the dock at Amherstberg, and probably had not acquired much speed. The scow was a free sailer, as is stated, handled well and easily; and, with all sails drawing, she was under way. As the 'Cooke' began to lap her quarter, she bore to the west, and so continued till the 'Cooke' had entirely left her. Although we do not know the time or the distance that they so sailed together, we do know that it was so long and so far: first, that the 'Cooke' escaped entirely from her; and, second, that the propeller deemed her then course to be the course adopted by the scow; that she would continue upon that course; and that, to pass her safely, she must shape her own course to the eastward.

Supposing her original direction to have been due north, a variation of three points to the west-as stated by the mate-would have carried the scow to north-west by north three thirty-second parts (3/32), or nearly one-tenth of a circle westerly of her former course.

The propeller, assuming that the scow would continue her course of north-west by north, bore to the east, intending to pass between the scow and the Canada shore; which she could have done easily and safely, had the scow so continued her course. The subsequent order, however, to keep off the scow, frustrated this intention, and produced the collision.

This somewhat tedious statement of the facts of the case determines not only that the scow was in the wrong and the propeller in the right in the particulars we have considered, but will aid materially in settling the point of law which is in dispute between the parties. That question arises upon the sixteenth of the rules enacted by Congress for avoiding collisions. It is in these words: 'Every steamship, when approaching another ship so as to involve risk of collision, shall slacken her speed, or, if necessary, stop and reverse; and every steamship shall, when in a fog, go at a moderate speed.' 13 Stat. 60, 61.

It is contended that here was risk of collision; that the propeller did not slacken her speed or stop and reverse in time, and hence that she was also in fault, and the damage should be apportioned. A collision did certainly occur; but was the situation of the parties such that the principle of this article applied to the propeller? Does this article contemplate a case where a collision is the result of sheer negligence, and disobedience of well-known rules? or does it apply to cases, where, supposing the parties intend to perform and do reasonably perform their respective duties, the emergency is such that there is still danger that a collision may occur?-as if, instead of their being, as was the fact, but the three vessels-the 'Cooke,' the 'Meisel,' and the propeller-within a mile of the scene of action, and with a channel a thousand feet in width, there had been two other sailing vessels alongside of or immediately in the rear of the 'Meisel.' The 'Meisel,' as the 'Cooke' approached, bore off to the west. If one of the other supposed vessels had borne to the east, and the third had continued a northerly course, the propeller would have been placed in an embarrassing position. If she should bear westerly, she would meet the 'Meisel;' if easterly, she would encounter the second vessel; and, if she continued her course without variation, she would be upon the third supposed vessel. It would be the plain duty of the propeller under these circumstances, in compliance with the sixteenth article, to slacken her speed, to stop and reverse if necessary, and wait until time should point out the safe course to be pursued. It would be a case involving risk of collision.

The fifteenth article provides that 'if two ships, one of which is a sailing ship and the other a steamship, are proceeding in such directions as to involve risk of collision, the steamship shall keep out of the way of the sailing ship.' It has been repeatedly held under this article, that the sailing vessel must hold its course, and rely upon the steamship to avoid a collision. This is not only the right of the sailer, but it is its duty; and the steamer is bound to believe that the sailer will so act, and may manage its own vessel upon that supposition. The Nichols, 7 Wall. 656; The Scotia, 14 id. 170; The Potomac, 8 id. 590.

The scow, after the 'Jay Cooke' had reached her, stood up the river upon a course of north-west by north. The steamer was coming down the same stream in a direction nearly south. Observing that the scow was sailing in the direction mentioned, the steamer starboarded her helm, thus bearing to the east of south. On these courses there was no risk of collision with the scow. There was no possibility of collision. The faster and the farther the vessels saided, the farther apart were they. The vessels adopted the principle of the fifteenth article: the scow selected her course; and the steamer, acquiescing in that selection, took the suitable means to pass her in safety. There was no risk of collision. The sixteenth rule did not come into use; and it was not necessary that the steamer should slacken, stop, or reverse.

Subsequently, and when the vessels were within three hundred feet of each other, and probably within three minutes of time, the scow changed her course, and practically ran under the bows of the steamer. Then there was risk of collision, but not until then. The steamer, in this emergency, did stop and reverse; but the time was too short, and the distance too small, to prevent the catastrophe.

To permit a risk of collision under circumstances like these before us is of itself a fault. There is no evidence that there was another vessel within a mile of the three we have mentioned. The channel was a thousand feet wide; and it was the duty of the steamer to shape her course so as to avoid all risk before the vessels were so near each other that any risk could arise. She would have been greatly in fault if she had permitted the point of slackening or stopping and reversing to arise.

The appellants insist that the rule of law is this: That where a steam-vessel is approaching another vessel, and where a collision might be produced by a departure of the latter from the rules of navigation, the former vessel is bound to slacken her speed, or stop and reverse.

We have examined with care the authorities cited by the appellants; but we find none that sustain this proposition. The rule is otherwise.

If two steamers are meeting each other end on, or nearly so, where there is plenty of sea-room, and at a considerable distance from each other, it is not the duty of either to stop, reverse, or to slacken. The duty of each is to pass on the port side, and the rate of speed is not an element in the case. The risk of collision is not present under such circumstances.

In the case of the 'Scotia,' above quoted, the court say (14 Wall. 170), 'This duty of a steamer to keep out of the way implies a correlative obligation to the ship to keep her course, and to do nothing to mislead. Nor is the steamer called to act except where she is approaching a vessel in such a direction as to involve a risk of collision. She is required to take no precautions when there is no apparent danger. Was the 'Scotia,' then, in fault? We have already said that she was not bound to take any steps to avoid a collision until danger of a collision should have been apparent; and we think there was no reason for apprehension until the ship light was seen closing in upon her. It is not the law that a steamer must change her course or must slacken her speed the instant she comes in sight of another vessel, no matter in what direction it may be. The Earl of Elgin, L. R. 4 P. C. L.; The Potomac, 8 Wall. 590; Williamson v. Barrett, 13 How. 101.

The decree of the Circuit Court was right, and must be affirmed.

title: The Free State/Opinion of the Court


text: Talk:The Free State/Opinion of the Court


text:
Mitchell v. Board of Commissioners of Leavenworth County Kansas

ERROR to the Supreme Court or Kansas.

THIS case presents the following facts: Mitchell, the plaintiff, kept his account with a banking firm in Leavenworth. On the 28th February, 1870, he had a balance to his credit of $19,350 in current funds, for which he that day gave his check, payable to himself in United States notes. They were paid to him. He immediately enclosed them in a sealed package, and placed them for safe keeping in the vault of the bank. On the 3d March he withdrew his package, and deposited the notes to his credit. This was done for the sole purpose of escaping taxation upon his money on deposit.

Personal property in Kansas, which includes money on deposit, is listed for taxation as of March 1 in each year. Mitchell did not list any money on deposit. The taxing officers, in due time, on discovery of the facts, added $9,000 to his assessment on account of his money in bank. He asked the proper authorities to strike off this added assessment. This was refused. A tax was thereupon in due form levied, and its collection threatened.

He then filed his bill in equity against the defendants, who are the proper authorities, to restrain the collection of this tax, alleging for cause, in substance, that as his bank balance had been converted into United States notes, and was held in that form on the day his property was to be listed, he could not be taxed on that account. The Supreme Court of Kansas, on appeal, dismissed the bill, for the reason, as appears by the opinion, which in this case is sent here as part of the record,-that 'a court of justice, sitting as a court of equity, will not lend its aid for the accomplishment of any such purpose.' Mitchell sued out a writ of error.

Messrs. R. M. & Quinton Corwine and Mr. J. W. English for the plaintiff in error.

The statute of Kansas imposing a tax on personal property provides that all property shall be listed as on the first day of March in each year. Its intent is to assess such property as is then liable to taxation. If there is none on that day, there is no right of taxation.

The object of all taxation is to compel lawfully taxable property of every kind to contribute its just proportion of taxes. It must, however, on the proper day of assessment, have an actual bona fide existence as such, in order that the law of the State may reach it.

The right of the plaintiff in error to withdraw his deposit and convert it into legal-tender notes is unquestionable. The money was his own, and he could invest it in United States bonds, legal-tender notes, mortgage-paper, or whatever securities he might elect.

The question here is, not what was his motive in making the investment, but what was the character of that investment on the day of his tax return with respect to its liability or nonliability to pay taxes to the State.

The facts show, that, on the day fixed by the statute for the assessment of the tax, the property of Mitchell consisted of notes of the United States. It was, therefore, exempt from taxation.

The presumption is, that the bank listed its taxable property, including this money exchanged by Mitchell. If so, the same money has been twice assessed. Even upon the theory of the Supreme Court of Kansas, this assessment is manifestly unjust.

No counsel appeared for the defendant in error.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.


text: Talk:Mitchell v. Board of Commissioners of Leavenworth County Kansas


text:
Mitchell v. Board of Commissioners of Leavenworth County Kansas/Opinion of the Court

We think the decision in this case was correct. United States notes are exempt from taxation by or under state or municipal authority; but a court of equity will not knowingly use its extraordinary powers to promote any such scheme as this plaintiff devised to escape his proportionate share of the burdens of taxation. His remedy, if he has any, is in a court of law.

The decree is affirmed.


text: Talk:Mitchell v. Board of Commissioners of Leavenworth County Kansas/Opinion of the Court


text:
The Sunnyside

APPEAL from the Circuit Court of the United States for the Eastern District of Michigan.

The facts are stated in the opinion of the court.

Mr. W. A. Moore and Mr. Ashley Pond for the appellants, and Mr. F. H. Canfield and Mr. D. B. Duffield for the appellees.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

title: The Sunnyside


text: Talk:The Sunnyside

title: Talk:The Sunnyside