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Jessup v. United States

This was an action at law, brought by the United States in the circuit court for the district of California against William H. Jessup as principal, and Jabez Howes and others sureties on the bond of Jessup to secure payment for revenue stamps advanced to him.

in a penalty of $10,000, and dated November 3, 1869.

The condition of the bond was as follows:

'The condition of the foregoing obligation is such that whereas, the said William Henry Jessup is a manufacturer of friction or other matches, cigar-lights, or wax-tapers; and whereas, under the provisions of the 161st section of an act entitled 'An act to provide internal revenue to support the government, to pay interest on the public debt, and for other purposes,' approved June 30, 1864, the commissioner of internal revenue is authorized, from time to time, to furnish, supply, and deliver to any manufacturer of friction or other matches, cigar-lights, or wax-tapers, a suitable quantity of adhesive or other stamps, such as may be prescribed for use in such cases, without prepayment therefor, on a credit not exceeding 60 days, requiring in advance such security as he may judge necessary to secure payment therefor to the treasury of the United States within the time prescribed for such payment; and whereas, adhesive stamps have been delivered, or hereafter may be delivered, to said William Henry Jessup by virtue of said authority: Now, therefore, if the said William Henry Jessup shall make a faithful return, whenever so required, of the moneys received by him for such adhesive stamps as have been or may hereafter be delivered to him, and of all quantities or amounts thereof undisposed of, whenever required so to do, and shall do and perform all other acts of him required to be done in the premises according to law and regulations, shall well and truly pay or cause to be paid to the treasurer of the United States, for the use of the United States, all and every such sum or sums of money as the said William Henry Jessup may owe to the United States for adhesive stamps which have been or shall be delivered to him, or which have been or shall be forwarded to him, according to his request or order, within the time prescribed for payment for the same according to law, and shall and will pay or cause to be paid to the said treasurer, for the use aforesaid, each and every sum of money as shall become due or payable to the United States, at the time and on the days each sum shall respectively become due or payable, then the above obligation to be void and of no effect; otherwise to be and remain in full force and virtue.'

Section 161 of the 'Act to provide internal revenue to support the government, to pay interest on the public debt, and for other purposes,' approved June 30, 1864, (13 St. at Large, 294, 295,) provides as follows:

'That the commissioner of internal revenue may from time to time furnish, supply, and deliver to any manufacturer of friction or other matches, cigar-lights, or wax-tapers, a suitable quantity of adhesive or other stamps, such as may be prescribed for use in such cases, without prepayment therefor, on a credit not exceeding 60 days, requiring in advance such security as he may judge necessary to secure payment therefor to the treasurer of the United States within the time prescribed for such payment. And upon all bonds or other securities taken by said commissioner, under the provisions of this act, suits may be maintained by said treasurer in the circuit or district court of the United States in the several districts where any persons giving said bonds or other securities reside or may be found, in any appropriate form of action.'

While these provisions of the law were in force, Jessup, a manufacturer of friction matches in San Francisco, California, desiring to avail himself of the privilege of obtaining internal-revenue stamps on a credit of 60 days, gave to the United States the bond in suit.

The declaration assigned for breach of the bond that Jessup had received from the United States adhesive stamps amounting to the sum of $8,000, which he had neither accounted for nor paid.

The defendants answered, admitting the execution of the bond, but denying generally the other averments of the complaint, and averring performance, and set up by way of separate answer and defense that under the law and regulations, and the condition of the bond mentioned in the complaint, all stamps, of whatsoever kind or denomination, delivered to Jessup were to be so delivered to him upon a credit not exceeding 60 days; that after the delivery and execution of said bond, and before the pretended liability mentioned in said complaint had accrued, to-wit, on the eighteenth day of April, A. D. 1870, the said United States, or some of its officers, made a new contract with the said Jessup, without the knowledge or consent of the defendants Jabez Howes, Robert Henry Elam, and Edward Kallerain Howes, (the sureties on said bond,) or either of them, whereby the credits for stamps supplied and delivered to Jessup were extended indefinitely and beyond said term of 60 days. And defendants further averred that if Jessup has become indebted to the United States for stamps furnished, supplied, or delivered to him, such indebtedness had accrued since the making of and under said new contract, and not otherwise.

The parties waived a jury and submitted the cause to the court upon the issues of fact as well as of law. The court found all the issues of fact for the United States, and rendered judgment in their favor for the sum of $7,272, with interest. To reverse that judgment this writ of error is brought.

W. W. Morrow and John E. Ward, for plaintiffs in error.

Assistant Attorney General Maury, for defendant in error.

Woods, J.

title: Jessup v. United States


text: Talk:Jessup v. United States

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

title: Talk:Jessup v. United States


text:
Jessup v. United States/Opinion of the Court

The answer of the defendants admits the execution of the bond which is the basis of the suit. The finding by the court below in favor of the United States of all the issues of fact raised by the pleadings, establishes beyond the reach of controversy that Jessup did not perform the condition of his bond; that he did not pay to the United States the sum due for revenue stamps advanced to him; and that the United States, or some of its officers, did not make a new contract with him, without the knowledge or consent of his sureties, whereby credits for stamps furnished him were extended indefinitely and beyond the said term of 60 days. The findings of the court also show that Jessup was indebted to the United States for stamps received by him, the payment of which was secured by his bond, in the sum for which judgment was rendered against his sureties.

The findings have eliminated from the case some of the questions discussed by the counsel for plaintiffs in error. The facts found by the circuit court are not open to review in this court, and we can only consider questions of law arising upon the trial and duly presented by bill of exceptions or errors of law apparent on the face of the pleadings. ''Ins. Co. v. Folsom'', 18 Wall. 237; Cooper v. Omohundro, 19 Wall. 65.

These questions we shall now consider. It appears from the bill of exceptions that counsel for defendants moved to dismiss the action on the ground that the bond in suit was given to the United States, and not to the treasurer of the United States, as provided by section 161 of the act of June 30, 1864, as amended, and on the ground that the suit was brought in the name of the United States, as plaintiff, and not in the name of the treasurer of the United States, as provided in the same section. The first of these grounds is based on the assumption that the section referred to requires the bond to be given to the treasurer of the United States, and not the United States, and as the bond in suit is payable to the United States that it is absolutely void; the contention of the plaintiff in error being that the United States cannot take a valid bond except when and in the terms directed by the statute. But section 161 does not expressly require the bond to be made payable to the treasurer. It may be payable directly to the United States, and conditioned that payment for stamps advanced shall be made to the treasurer and not depart from any express provision of the law. But conceding the section to mean that the bond shall be payable to the treasurer, still we are of opinion that a bond in which the United States is the obligee, and which is conditioned that payment for stamps advanced shall be made to the treasurer, is a valid and binding obligation.

In the case of the U.S. v. Tingey, 5 Pet. 115, the question was made how far a bond voluntarily given to the United States and not prescribed by law, is a valid instrument and binding upon the parties; in other words, whether the United States have in their political capacity a right to enter into a contract or to take a bond in cases not previously provided for by some law. And the court declared:

'Upon full consideration of this subject, we are of opinion     that the United States have such a capacity to enter into      contracts. It is, in our opinion, an incident to the general     right of sovereignty, and the United States being a      body-politic may, within the sphere of the constitutional      powers embodied in it, enter into contracts not prohibited by      law and appropriate to the just exercise of these powers.'

To the same effect is the case of U.S. v. Bradley, 10 Pet. 343.

In the case of the U.S. v. Hodson, 10 Pet. 395, is was held in substance that when a distiller's bond was given, under section 53 of the act of June 30, 1864, (13 St. 242,) which required the bond to be conditioned for the performance of several particular acts which it specifically stated, and the agent of the government took the bond conditioned, not in the specific way directed by the statute, but for the parties' compliance with all the provisions of the act, and such other acts as were then or might thereafter be in that behalf enacted, the bond was binding on the parties.

The case of U.S. v. Linn was an action against a receiver of public moneys and his sureties. The statute required the receiver to give bond for the faithful discharge of his trust. The instrument given and sued on was without seal, and therefore not the security required by the statute. The court, nevertheless, held it to be a valid and binding obligation.

These authorities show that the United States can, without the authority of any statute, make a valid contract, and that when the form of a contract is prescribed by the statute a departure from its directions will not render the contract invalid. The bond is a good bond at common law. The circuit court was, therefore, right in overruling the motion of the defendants to dismiss the suit on the ground that the bond was given to the United States and not to the treasurer of the United States.

This conclusion disposes also of the second ground upon which the motion to dismiss was based; for if the United States can, without the authority of any statute, take a valid bond payable to the United States, they can maintain a suit upon it in their own name. It would be absurd to hold a bond to be valid on which a suit in the name of the obligee could not be maintained. The objection to the admissibility of the bond in evidence, which the bill of exceptions shows was taken, on the ground that the condition of the bond did not conform strictly to the condition prescribed by the statute, falls for the same reasons and upon the same authorities. It further appeared from the bill of exceptions that on the trial of the case the United States, to prove the breach of the condition of the bond by Jessup, offered in evidence the account kept by the treasurer of the United States at San Francisco, from which it appeared that on January 1, 1876, there was due from Jessup to the United States, for adhesive stamps advanced to him by the treasurer, the sum of $8,000. The court admitted the account in evidence notwithstanding the objection of defendants, and this is now assigned for error.

The first ground of objection urged to the admissibility of this evidence was that the account appeared to be for stamps supplied by the assistant treasurer, and the law under which the bond was given contemplated that the stamps should be furnished by the commissioner of internal revenue. But the penalty of the bond was payable directly to the United States, and its condition was that Jessup should pay or cause to be paid to the treasurer of the United States, for the use of the United States, all and every such sum or sums as he might owe the United States for adhesive stamps. This being a valid bond, any evidence which tended to show that Jessup was indebted to the United States for adhesive stamps was competent, and it was quite immaterial whether the stamps were furnished by the assistant treasurer or by the commissioner of interanal revenue.

The account was objected to on the further ground that it appeared on its face that the credits were continuously for a greater period than 60 days, and therefore that the account was not within the statute, and was incompetent and irrelevant to the issue in the action. The contention of the plaintiffs in error is that the operation of the bond extended to but one credit of 60 days; that by the security for stamps advanced on credit required by section 161, is meant a new security for each and every advance of stamps, and that manufacturers needing stamps from time to time must give security as often as a lot of stamps is advanced, and consequently that the bond in suit was security only for the first advance of stamps, and that all subsequent advances were made entirely without security. But the language of the condition of the bond clearly excludes any such construction. The condition is that Jessup shall pay such sum or sums of money as he may owe to the United States for adhesive stamps which have been or shall be deliverred to him, or which have been or shall be forwarded to him, according to his request or order, within the time prescribed for payment for the same, and shal. and will pay or cause to be paid to the said treasurer, for the use aforesaid, each and every such sum of money as shall become due or payable to the United States at the time and on the days such sums shall respectively become due and payable. The idea that the bond secured the payment of but one sum of money due for stamps purchased at one time on a single credit of 60 days, finds no support in the language of the bond. The payment of sums due at different times, for stamps purchased at different times, is expressly secured in the condition of the bond. The bond in this respect conforms to the statute, which authorizes the commissioner of internal revenue from time to time to supply and deliver to any manufacturer of friction matches a suitable quantity of adhesive or other stamps, without prepayment therefor, on a credit not exceeding 60 dyas. What we have said covers all the errors assigned.

We find no error in the record. The judgment of the circuit court must, therefore, be affirmed.


text: Talk:Jessup v. United States/Opinion of the Court


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The Nevada v. Quick

S. P. Nash, for appellants.

R. D. Benedict, for libelants.

BRADLEY, J.

title: The Nevada v. Quick


text: Talk:The Nevada v. Quick

title: Talk:The Nevada v. Quick


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The Nevada v. Quick/Opinion of the Court

This case arises upon a libel filed in the district court for the southern district of New York by S. J. Quick, master and owner of the canal-boat Kate Green, for himself and for F. A. McKnight, against the steam-ship Nevada in a cause of collision. The libel alleges that McKnight was invested by subrogation, or otherwise, with the interest of the Western Insurance Company of Buffalo, who were insurers of 8,100 bushels of corn, the cargo of the Kate Green at the time of the collision; that on the twenty-seventh of September, 1871, while the boat was lying securely fastened in a slip in New York city, between piers No. 46 and No. 46 and No. 47 on the North river, the Nevada, which had been moored in the same slip on the north side of pier No. 46, proceeded on her way to sea, and carelessly and negligently ran into and struck the Kate Green with her propeller, causing her to sink, whereby she was greatly injured and the cargo was destroyed, resulting in a total damage of $12,000. The Liverpool & Great Western Steam Company appeared as claimants of the Nevada, and answered the libel, setting up that the collision was occasioned solely by the carelessness and negligence of the master and crew of the Kate Green. McKnight filed a petition for leave to intervene, setting forth his interest in the cargo, to-wit, that it had been insured by the Western Insurance Company, which became liable for and paid the full value thereof to the owners, and afterwards became bankrupt, and at the sale of its assets, he, McKnight, became the purchaser of its claims arising from the loss and destruction of said cargo. He was allowed to intervene accordingly. Proofs being taken, a decree was made by the district court that the libelants recover their damages and costs against the Nevada, and it was referred to a commissioner to ascertain the amount of damage. The commissioner reported that the damage done to the Kate Green, her furniture, loss of freight, and interest, amounted to $4,289.72; and that the damage to the cargo, with interest, was $8,109.64. A decree was made for these sums with costs. Upon appeal to the circuit court this decree was affirmed, and a new decree was entered (including interest to the date of the decree) in favor of Quick for the sum of $4,577.65, besides costs; and in favor of McKnight for the sum of $8,653.98, besides his costs. The owners of the Nevada have appealed from this decree. So far as relates to Quick, the owner of the Kate Green, under the recent ruling of this court in the case of Ex parte Baltimore & Ohio R. Co. ante, 35, the appeal must be dismissed; as to McKnight, it is necessary to examine the case at large. The circuit court found the facts in detail, of which it is sufficient to state, that about 3 o'clock P. M., September 27, 1871, the propeller steamship Nevada, belonging to one of the regular lines between New York and Liverpool, was lying alongside of pier No. 46, in the slip between that pier and pier No. 47, on the North river, New York, about to start on her voyage to Liverpool. She had been advertised to start at that hour, had rung her bells and blown her whistle several times, and her signals for starting were flying at mast-head. At that instant, before her screw was put in motion, a steam-tug entered the slip with the canal-boat Kate Green in tow, and placed her alongside of another canal-boat, the C. H. Hart, lying fastened to a grain elevator, which was in turn fastened to the steam-ship Scotia, lying alongside pier No. 47, on the north side of the slip. The master and steersman of the Kate Green, which lay about 60 feet from the Nevada, instantly made her fast to the Hart, and at that moment the propeller of the Nevada began to revolve, and produced a suction and commotion of the water which caused the C. H. Hart to break her fastenings, and the Kate Green to swing around under the stern of the Nevada, where she was struck by the propeller and sunk, and much injured, and her cargo was lost. She was not seen from the Nevada when she came in, and no special notice was given to her that the Nevada was about to leave, and those in charge of her had no actual knowledge of the fact until the propeller of the Nevada began to move. As soon as she began to swing around her master called loudly to the Nevada to stop her propeller, but he was not heard, or, if heard, not heeded. The court further found as follows:

'(10) No one board of the Nevada knew of the parting of the     Hart's lines, or of the swinging of the Green, or of the      accident, until after they arrived in Liverpool. If a man had     looked from her deck over her side into the slip, he could      not have failed to see what was going on all the time, from      the first movement of the propeller, and before, until she      got out.

'(11) There was an abundance of time after the breaking of     the fastenings of the Hart, and after the Green began to swing, and after the hail of her master, to have stopped the      propeller, before the collision.

'(12) The report of the commissioner as to the damages is     warranted by the evidence, and the libelant McKnight was the      owner of the claim for damages when the libel was filed.'

The conclusions of law found by the circuit court were as follows:

'(1) The Nevada was in fault for not keeping a sufficient     lookout aft and on the side next the slip, and in not seeing      the Kate Green when she came in, or as she swung over, and in      not stopping the propeller in time to avoid the collision.

'(2) The Kate Green, under the peculiar circumstances in     which she was placed, was not in fault.

'(3) The libelants are entitled to recover the damages     reported by the commissioner.'

It seems hardly necessary to do more than to state the case as the facts are found by the court in order to decide it. The Kate Green came into the slip, it is true, at the time the Nevada was about to leave; and those in charge of her ought to have known this fact from the ringing of the Nevada's bells and her visible signals for starting. But supposing they did know it, what more could they do than they did do? They immediately made fast to the C. H. Hart, which was also made fast to the ship lying at the north pier. It was reasonable for them to suppose that the fastening of the Hart was secure. They could not know that it would break. It was that break which set them adrift, subject to the suction caused by the motion of the Nevada's propeller. Their own fastenings were sufficient. We do not see how the court could find otherwise than that they were free from fault or negligence. Perhaps they might have done something else which would have been better. The event is always a great teacher. They might have staid out in the river and not entered the slip; or, having entered, they might have gone back to the bulk-head and staid there till the Nevada left. But these possibilities are not the criteria by which they are to be judged. The question is, did they do all that reasonable prudence required them to do under the circumstances? And this question, we think, must be answered in the affirmative.

Then, how is it with the Nevada? Did those on board of her do all that was reasonably required of them? It is significantly asked by her counsel, whether a steam-ship is to be precluded from the use of her own means of locomotion? Must she be subjected to the inconvenience and expense of employing a tug to tow her out into open water? That does not necessarily follow. If, indeed, the action of her propellers is such as to cause unavoidable injury to other craft in a crowded harbor, or in a confined space like that of a slip or dock used by vessels of every kind, she might be justly required to find other means of moving in a position involving so much peril. This is no more than is required in analogous cases. Railroad companies are compelled to slacken the speed of their trains in passing through cities, and are often either prohibited from using ordinary locomotive-engines in the more public streets, or required to guard their tracks by means of gates, bars, or fences, in order to prevent accidents and collisions. Incidental inconveniences, it is true, attach to the use of many of the great improvements of the age; inconveniences which must be submitted to in order that the public may have the benefit of those improvements. Almost every new machine inflicts loss of employment upon some portion of the laboring class, which are thus obliged to seek other fields of industry. Steam-boats have taken the place of sailing vessels; railroads have interfered with steam-boats, and have rendered useless thousands of stage coaches, and the appliances connected with them. The vast power and speed of the modern locomotive-engine, carrying its thousand passengers, or its hundreds of tons of merchandise, require the private carriage and the country team to await its passage and give it the right of way. The large steamer which navigates our rivers creates an agitation of the waters which cannot be prevented without staying its speed and crippling its usefulness, and which requires from smaller vessels in its neighborhood increased attention and care to avoid being foundered or injured. Horse railroads in cities incumber the streets with their iron tracks and render the passage of private vehicles more difficult and dangerous. But while these incidental and unavoidable inconveniences must be submitted to in order that the greater benefit derived from the new improvements may be enjoyed, there still remains the duty of so managing and operating them as to do the least possible injury consistent with the fair attainment of their substantial benefits. The ocean steamer is one of the great inventions of the century, and one of the advanced instrumentalities of modern civilization; but while it may freely exercise its powerful propeller and sport its leviathan proportions on the ocean or in deep and open waters, it is justly required to observe extraordinary care and watchfulness when surrounded by feebler craft in a crowded harbor. Under some circumstances, and within a limited space, it may even be required to dispense with the use of its ordinary means of locomotion, and resort to the employment of towage or other safe and quiet means of changing its position and effecting its necessary movements. Such a modification of the use of its power, when absolutely required for the safety of other vessels rightfully located in its vicinity, would produce no material diminution of its efficiency in the accomplishment of its principal design.

However, we do not mean to say that, in the application of these principles to the present case, it was the duty of the Nevada to remit the use of her propeller in leaving her place in the slip where she lay. The court does not find her in fault for using it, but for not having a lookout at her stern, and on the side next to the slip, who could have seen the breaking away of the Hart and Kate Green from their fastenings, and, by giving timely alarm, could have averted the disaster by a momentary stopping of the Nevada's engine. In such a place, and in the midst of such a crowd of vessels as then filled the slip, since she did put her propeller in motion, she was bound to use the utmost caution and circumspection in order to avoid doing injury. The least that could be expected of her was a constant lookout at every part. But the court finds that 'no one on board the Nevada knew of the parting of the Hart's lines, or of the swinging of the Green, or of the accident, until after they arrived at Liverpool. If a man had looked from her deck over her side into the slip, he could not have failed to see what was going on all the time, from the first movement of the propeller, and before, until she got out.' And the court further finds that 'there was abundant time after the breaking of the fastenings of the Hart, and after the Green began to swing, and after the hail of her master, to have stopped the propeller before the collision.'

This, as it seems to us, settles the case and amply justifies the conclusion of law made by the court below, that 'the Nevada was in fault for not keeping a sufficient lookout aft and on the side next the slip, and in not seeing the Kate Green when she came in, or as she swung over, and in not stopping the propeller in time to avoid the collision.' In view of the principles to which we have adverted, and which ought to control this case, no other conclusion could have been reached.

We see no error in the decree of the circuit court, and it is therefore affirmed, with interest and costs.


text: Talk:The Nevada v. Quick/Opinion of the Court


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United States v. Frerichs (106 U.S. 160)

This case was an information filed in the district court of the United States for the southern district of New York against a distillery, claiming that it was forfeited to the United States for violation of the revenue laws. Frerichs, the defendant, appeared as claimant and denied the forfeiture. Upon the trial the district court was of opinion that there was no evidence of any violation of the revenue laws for which the seizure had been made, and directed a verdict for the claimant, which having been brought in, judgment was rendered thereon in his favor. Thereupon the United States, by their attorney, moved the court to enter of The following sections of the Revised Statutes of the United States are pertinent to the controversy in this case:

'Sec. 909. In suits or informations brought, where any seizure is made pursuant to any act providing for or regulating the collection of duties on imports or tonnage, if the property is claimed by any person, the burden of proof shall lie upon such claimant: provided, that probable cause is shown for such prosecution, to be judged of by the court.

'Sec. 970. When, in any prosecution commenced on account of the seizure of any vessel, goods, wares, or merchandise, made by any collector or other officer under any act of congress authorizing such seizure, judgment is rendered for the claimant, but it appears to the court that there was a reasonable cause of seizure, the court shall cause a proper certificate thereof to be entered, and the claimant shall not in such case be entitled to costs, nor shall the person who made the seizure nor the prosecutor be liable to suit or judgment on account of such suit or prosecution: provided, that the vessel, goods, wares, or merchandise be, after judgment, forthwith returned to such claimant or his agent.'

record a certificate that there was a reasonable cause of seizure. The motion was denied. The case was then carried by writ of error to the circuit court, where it was adjudged that there was no error in the record. To reverse this latter judgment this writ of error is prosecuted. The only question raised in this court is whether the district court erred in refusing to enter the certificate of reasonable cause.

Mr. Phillips, Sol. Gen., for plaintiff in error.

Edward Salomon, for defendant in error.

WOODS, J.


text: Talk:United States v. Frerichs (106 U.S. 160)


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United States v. Frerichs (106 U.S. 160)/Opinion of the Court

We are of opinion that the refusal of the district court to grant a certificate of reasonable cause is not a matter which can be reviewed in the circuit court or in this court. It is only from final judgments that a writ of error lies from the district to the circuit court, or from the latter court to the supreme court. The granting or the refusal to grant the certificate is not a final judgment in the sense of the statute which allows writs of error. The certificate, when granted, is no part of the original case. It is a collateral matter which arises after final judgment. It is granted to protect the person at whose instance the seizure was made, should an action of trespass be brought against him by the claimant for the wrongful seizure of the latter's property. The granting of the certificate of reasonable cause is, therefore, only antecedent and ancillary to another suit, and is not a final judgment in the case in which it is given. It is not final or effectual for any purpose unless certain facts subsequent to the judgment are shown, namely, the immediate return to the claimant or his agent of the property seized in the original suit. This court has decided that a refusal to enter an exoneratur on a bail bond, that judgments awarding or refusing to award or setting aside writs of restitution in actions of ejectment, that a judgment on a writ of error coram nobis, that a judgment refusing a writ of venditioni exponas, that a refusal to quash an execution or to quash a forthcoming bond, were not final judgments to which a writ of error would lie. Morsell v. Hull, 13 How. 212; Smith v. Trabue, 9 Pet. 4; Barton v. Forsyth, 5 Wall. 190; Gregg v. Forsyth, 2 Wall. 56; Pickett's Heirs v. Legerwood, 7 Pet. 144; Boyle v. Zacharie, 6 Pet. 648; Evans v. Gee, 14 Pet. 1; McCargo v. Chapman, 20 How. 555; Amis v. Smith, 16 Pet. 303. See, also, Barker Hollier, 8 Mees. & W. 513.

These authorities lead to the opinion we have expressed in this case. We think the judgment of the circuit court should be affirmed, and it is so ordered.


text: Talk:United States v. Frerichs (106 U.S. 160)/Opinion of the Court


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Mason v. Northwestern Mutual Life Insurance

This is an appeal from the circuit court for the northern district of Illinois. The suit below was a bill in chancery to foreclose a mortgage brought by the insurance company against Murphy and others. Murphy, the mortgagor, after making the mortgage, had assigned the property to Edward G. Mason, the appellant, and Mason was made a party to the foreclosure suit with a view to barring his equity of redemption. On the second day of January, 1877, a decree was entered for the amount of the money due on the mortgage, and directing H. W. Bishop, a master in chancery of the court, to sell the property, and to make such sale 'in accordance with the course and practice of this court.' The master, in due time, reported the sale of the property to the complainant, which report and sale were, on the thirty-first day of July, 1877, confirmed. The decree of confirmation contained a clause that the defendants, including Mason, 'be forever barred and foreclosed of all equity of redemption in or to said property,' and directed the commissioner to make a deed and deliver possession to the purchaser. From this decree Mason, in proper time, took the present appeal.

E. G. Mason, for appellant.

M. S. Hoyne, for appellee.

MILLER, J.


text: Talk:Mason v. Northwestern Mutual Life Insurance


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Mason v. Northwestern Mutual Life Insurance/Opinion of the Court

The error relied on to reverse the decree is the absolute foreclosure of the equity of redemption, without allowing the time for that purpose which the statute of Illinois provides. The case comes directly within that of Brine v. ''Ins. Co.'' 96 U.S. 627. Indeed, it is stronger, for while in that case we took the admission of counsel on both sides that 'a sale in accordance with the course and practice of the court' meant a sale which did not admit of any equity of redemption, we have in this case a decree of confirmation of the sale which expressly and in the strongest terms cuts off all such right. In accordance with the principle settled by this court in the case of Brine v. ''Ins. Co.'' both these decrees were erroneous.

It is, however, urged as a reason for not applying that principle in the present case, that the appeal was not taken until after the period had elapsed within which the appellant could by the statute have exercised the right of redemption, and that he has neither paid nor tendered the sum necessary to redeem. The cases of Suitterlin v. ''Ins. Co.'' 90 Ill. 491, and Burley v. Flint, decided at the last term of this court, are relied on in support of this view.

The first of these cases was a suit in the state court of Illinois to obtain the benefit of the right of redemption from a sale under a foreclosure decree in the circuit court of the United States for the northern district of Illinois. The supreme court of Illinois refused the relief asked because the plaintiff in that court had made no effort to redeem within the statutory period; a ruling which this court, in the case of Burley v. Flint, held to be sound. The reason for this is that, while not seeking to reverse the decree under which the sale was made, nor to set aside the sale, the proceeding recognized both as valid, and undertook to assert the right of the party to redeem, as though the sale had been made in accordance with the statute of Illinois. This right, of course, could only be secured by a strict compliance with that statute, and having permitted the period to elapse within which he had a right to redeem, he came too late. The court very properly dismissed the bill.

In the case of Burley v. Flint this court approved and adopted the views of the Illinois court and applied the principle to the case of a bill of review which sought the same end. The bill was filed after the period of statutory redemption, and without any tender of the amount necessary to redeem within that time.

Both these cases differ from the present one in that they were efforts to enforce the right of redemption outside of and against the terms of the decree, while the present case seeks by an appeal to reverse and set aside the decree. In the former cases equity required that before coming to the court for the relief which plaintiffs asked, they should have done what the law required of them, or go at least so far as to offer, within proper time, to pay the redemption money. Not having done this, the court very properly refused to permit them to exercise this right after that time had passed, and with it the right to redeem. In the present case the appellant has exercised his right of appeal from the decree within the time allowed to him by the laws of the United States for that purpose. He has, therefore, rightfully brought this case before us for review. His right to do this does not depend upon any offer to redeem within the 15 months allowed by the Illinois statute, but is an absolute right which we cannot refuse or deny. As it is apparent from the face of the decree, and from what we have said in the case of Brinc v. Insurance Co., that both the original decree of sale and the subsequent decree of confirmation are erroneous in refusing to allow the right of redemption under the statute, they must be reversed. If anything were necessary to add force to this reasoning, it would be found in the fact that the appellant Mason, in his answer to the original foreclosure bill, expressly referred to the statute of Illinois, and asked that any decree made in the case should make provision for redemption within 15 months after the sale.

The decree for sale and the decree of confirmation of the circuit court are reversed, and the case remanded to that court for further proceedings in accordance with this opinion.

Mr. Justice HARLAN, being absent at the argument, took no part in the decision in this case.


text: Talk:Mason v. Northwestern Mutual Life Insurance/Opinion of the Court


text:
Clough v. Gilbert Barker Manufacturing Company

R. H. Lyon and E. N. Dickerson, for appellant.

''Wm. Stanley'', for appellee.

BLATCHFORD, J.


text: Talk:Clough v. Gilbert Barker Manufacturing Company


text:
Clough v. Gilbert Barker Manufacturing Company/Opinion of the Court

This suit was brought by the appellant against the appellees to recover for the infringement of letters patent granted to the appellant July 14, 1870, for an 'improvement in gas-burners.' The circuit court dismissed the bill. The specification of the patent says:

'My invention relates more particularly to the burners for     burning illuminating gas made by saturating air with vapors      of gasoline, commonly called air-gas. It has been found that     common bat-wing or fish-tail burners are not adapted to      burning this gas as ordinarily made, owing to the variable      density of the gas coming from the generating apparatus. The     object of my improvement is to adapt the slitted or bat-wing      burner to the burning of air-gas. Said improvements consist     First, in perforating the base of the burner-tube with small      holes or passages for gas to escape at the base of the      burner, and surrounding the burner with a tube open at the      top but closed at  the bottom, and united to the burner below      the perforations in the burner-tube. It is more convenient to     screw the tube to the burner, but it may be attached in any      suitable manner. Second, in regulating the escape of the gas     from the perforations at the base of the burner by a sliding      tubular valve or cut-off, introduced into the burner-tube at      the base and extending upward within it, the position of the      tubular valve being regulated by a screw. These improvements,     by furnishing a regulated supply of gas outside of the      burner, but directed to the tip of the burner by the      surrounding-tube, give steadiness and increased illuminating      power to the flame of the bat-wing burner and make it a      desirable burner for burning air-gas. The drawings represent     a bat-wing burner as improved by me. Figure 1 represents an     elevation of my improved burner attached to a short piece of      gas-pipe. Figure 2, a view showing the surrounding tube in     section and the burner therein. Figure 3, a vertical section     through the burner and tube. Figure 4, a transverse section     through the base of the burner-tube. Letter a represents the     burner-tip; b, the burner-tube; c, perforations at the base      of the burner-tube; d, the surrounding-tube screwed to the      base of the burner-tuge; e, the tubular valve extending up in the      burner-tube, and operated by an annular screw, f, attached to      the lower end. Said annular screw, besides having a screw to     work in the base of the burner, has an internal screw by      which it and the burner are attached to the gas-pipe, as      clearly shown in figure 3 and the other drawings, the gas-way      being through the annular screw and tubular valve to the      burner. As the burner is connected to the gas-pipe, g, by     means of the annular screw, the adjustment of the gas      escaping through the perforations of the burner-tube is      easily made by turning the burner upon the annular screw. I     claim as my invention and improvement in air-gas burners, the      bat-wing burner, perforated at the base, in combination with      the surrounding-tube, substantially as described. Also, in     combination with the bat-wing burner, perforated at the base,      and surrounding-tube, the tubular valve for regulating the      supply of external gas to the burner, substantially as      described.'

The defendants, in their answer, set up that they have not infringed the patent, and that it is void for want of novelty. At the request of both parties a trial at-law was had in the court below, of two questions:

'First, whether or not the complainant is the first and     original inventor of the improvement in gas-burners for which      the first above-named patent has been granted to him; second,      whether or not the gas-burners manufacturned by the      defendants are substantially identical with those described      in the complainant's patent and schedule thereto annexed, in      their construction and mode of operation.'

The issues were tried before the court and a jury, and the jury answered both of the questions in the affirmative. Afterwards, on a case made, the defendants moved, before the judge who tried the issues, for a new trial, on the ground that the verdict was against the weight of the evidence. He denied the motion in a written opinion, in which he stated that the weight of the evidence on the question of infringement was not such as to justify him in granting a new trial, and that he was satisfied with the conclusion of the jury on the question of priority. He afterwards signed and filed a certificate that in his opinion the verdict on both questions was sustained by the evidence given.

The burners made by the defendants were made in accordance with the description of the first form of burner described in the specification of letters patent granted to John F. Barker, one of the defendants, July 26, 1870, for an 'improvement in gas-burners.' The drawings of that patent consist of 10 figures, which are thus referred to in the specification:

'Figure 1 is a side view of one modification of my invention;     figure 2 is a side view of the shell; figure 3 is a side view      of the burner; figure 4 is a vertical longitudinal section of      the shell through line, A, B, of figure 2; figure 5 is a      vertical longitudinal section of the burner through line, C,      D, of figure 3; figure 6 is a side view of another      modification of my invention; figure 7 is a side view of the      shell; figure 8 is a side view of the burner; figure 9 is a      vertical longitudinal section of the shell through line, E,      F, of figure 7; and figure 10 is a vertical section through      line, G, H, of figure 8.'

'My invention relates to a device for regulating the flow of     carbureted air or gas from the burner to its point of      combustion, and it consists of a burner having a screw-thread      made upon its lower part, upon which is fitted, to turn      freely thereon, a shell or tube, also having a screw-thread      upon its interior lower part; and the bore of said tube or      shell is somewhat larger in diameter than the diameter of the      upper part of the burner upon which it turns. A series of     perforations is made in the lower part of the burner, so      that, when the burner is made or set for the combustion of      carbureted air or gas of any certain quality, the flame may      be increased or diminished by turning the shell either up or      down, as the case may be; the shell, in its movements up or      down, either closing or opening the holes or perforations,      and letting out or stopping the flow of the gas through the      said holes, as it is moved up or down. In the use of     carbureted air for illuminating purposes it is almost always      the case that when the gasoline is first placed within the      generator, it gives off a much greater amount of vapor, and      the air, in passing through the generator, absorbs a greater      amount of the carbon, and consequently becomes more      thoroughly charged with, and is much richer in the      illuminating qualities of the gasoline than when the      generator has been charged for a greater lengh of time; and,      as a result, the carbureted air is sometimes too rich to make      a desirable light, with the same amount passing out of the      burner, and at other times, as when the generator has been      charged a longer time, the carbureted air flowing through the      burner is deficient in illuminating power, and the light or      flame produced is not uniform in its power or steadiness, and is sometimes      liable to produce a smell or smoke when too rich in carbon. My invention is designed to obviate all difficulty in this     respect, as the burner is set or made to let out at the tip      the minimum quantity of gas that will produce a good flame,      and, as the gasoline remains longer in the generator and      becomes weaker in its illuminating qualities, the outer tube      or shell may be turned so as to let out more gas and increase      the flame without liability to smoke.

'That others skilled in the art may be enabled to make and     use my invention, I will now proceed to describe its      construction and mode of operation: In the drawing, L      represents the main part of the burner, which is made similar      to the common burner, except that the lower part has a      screw-thread made upon the outside and inside. Figures 1, 2,     3, 4, and 5 represent one modification, in which L is the      burner, having the usual screw-thread made upon the lower      interior part by which to secure it to the pipe. At a is a     conical shoulder or seat upon the exterior, shown in figures      3 and 5, and a screwthread, d, made upon the exterior of the      lower end, and the small holes, c, are made either at the      seat, a, or just below it. I is a shell or tube, the inside     diameter of its upper part being somewhat greater than the      outside diameter of the part, L, and upon the interior of the      tube, at a, is a conical-shaped seat made to fit upon the      exterior seat, a, upon the burner, L. A screw-thread, d, is      made upon the interior of the lower part of the tube, I,      which fits the thread, d, upon the exterior of the burner, L.      The operation of this modification is as follows: When the      tube, I, is turned entirely onto the burner, L, the inner      seat, a, fits down upon the shoulder, a', of the burner, L,      and the only place of egress for the gas is through the slot      at the tip. When the gasoline is fresh or new this slot will     be quite sufficient to supply the flame, but, as the gasoline      becomes more exhausted of carbon, the tube or shell, I, may      be turned up a little, so that the seat, a, shall be raised      slightly from the shoulder, a', and more or less of the gas      will pass out through the holes, c, and pass up between the      tube, I, and the burner, L, as the tube, I, is turned up or      down, and, when the gas which escapes through the holes, c,      and passes up between the tube and burner reaches the top, it      unites with that passing out of the slot at the tip,      increasing the volume and flame. In this device the gas,     after passing out through the holes, c, is prevented from      passing down between the tube and burner by the      screw-threads, d' and d, upon the inside of the tube and      outside of the burner. In the modification shown in figures     6, 7, 8, 9, and 10, both the burners and regulating tube are      similar to that already described, except that the thread, d, upon the outside of the burner, L, is      carried up higher, and the holes, c, are made below the top      of the outer thread, but above the top of the inside thread. The thread upon the inside of the tube, I, is not so long as     the outside thread upon the burner, L, but is considerably      less, so that, when the tube, I, is turned entirely down on      the burner the holes will be above the thread on the inside      of the tube; and there is no inside seat in the tube, I, to      operate upon a beveled or conical exterior shoulder upon the      burner, L, as in the other modification. The operation of     this modification is as follows: If the flame be too weak,      the tube, I, is turned down upon the burner, L, until the top      of the inside thread of the tube begins to pass below the      holes, c, when the gas will escape and pass up between the      tube and burner, and increase the flame as before. If it     should be desirable to stop the escape of gas through the      holes, c, it is only necessary to turn up the tube upon the      burner, and, when the thread inside the tube covers the      holes, c, then there will be no escape of gas. It will be     seen that the principles of the operation of both      modifications are very much alike, and are intended to      accomplish the same object, although the tube turns up in the      first case to let out more gas, while it turns down in the      second case; both being equivalent, however, in their      operation, and accomplishing the same result. I am aware that     gas-burners have been heretofore made to give an additional      supply of gas to the flame, but in those that I have seen      they consisted of more pieces and were considerably more      expensive to manufacture, and in their poeration the burner      revolved with the tube, thus causing the flame to revolve      also. This is very objectionable, as it is often desirable to     have the flame stand in one particular direction. In this     device the flame does not turn in the least, while the whole      burner may consist of only two pieces, and is cheaply made,      and its operation and effect are perfect.' The claim of that      patent is, 'An improved gas-burner, consisting of the burner      or pillar, L, having holes, c, c, therein, and provided with      the movable or adjustable shell or tube, I, all constructed      and operating substantially as and for the purposes herein      described and specified.'

After such certificate was signed and filed, the Gilbert & Barker Manufacturing Company, one of the defendants in this suit, brought a suit in equity in the court below, as owner of the said patent granted to John F. Barker, for the infringement of the same, against Clough, the plaintiff in this suit, alleging as the infringement the making and selling of burners constructed exactly like the two forms described in the patent to said Barker. The only testimony taken directly in the present suit was that taken on the trial before the jury and embodied in the case made, on which the motion for a new trial was made. But considerable testimony was taken, for final hearing, in the suit against Clough, and that testimony is contained in the record in this case, and it is understood that such testimony was considered and used, by agreement of parties in the court below, as part of the proofs in this case.

The first claim of the Clough patent is a claim to 'the bat-wing burner, perforated at the base, in combination with the surrounding tube, substantially as described.' The elements of this claim are a bat-wing burner, with a burner-tube; the burner-tube perforated at its base with small holes or passages for gas to escape at the base of such burner-tube; and another tube, surrounding the burner-tube, open at the top and closed at the bottom, and united to the burner-tube below the perforations in it. The method of regulating the escape of gas from the perforations is no part of the first claim. The office of the combination in the first claim is, as the specification states, to enable the surrounding-tube to direct to the tip of the burner the gas which comes through the perforations, such surrounding-tube being open at the top and closed at the bottom, and united to the burner-tube below the perforations.

Two forms of burner are presented as infringements of the first claim. They are, both of them, substantially like the first form of burner described in the patent of Barker; the outside tube, in both of them, turning up to let out more gas. Each of these burners contains the combination of the first claim of the Clough patent.

It was held by the court below that the combination covered by the first claim of the Clough patent was found in a burner called the Horace R. Barker burner, the existence of which prior to Clough's invention was held to have been satisfactorily proved. Of the Horace R. Barker burners it was said by the court:

'In those burners the burner was a bat-wing burner,     perforated at the base. The perforations did not consist of     small holes, but the stem of the burner was slitted all the      way down to the base, allowing the gas to escape through the      whole length of the slit. There was a surrounding-tube united     to the burner below the lower end of the slit. The     burner-stem had a cone near its top, and, when the      surrounding-tube was screwed so as to be in a certain      position with reference to such cone, the effect was to      direct to the tip of the burner the supply of gas coming      through the slit below, the surrounding-tube being open at      the top and closed at the bottom, and the flame was      thickened, and a ring of flame was formed. The structure and     mode of operation of the combination were the same as those      of the combination covered by the first claim of the      plaintiff's patent. The fact that the perforations in the     Horace R. Barker burner existed not only at the base, but      were continued in the form of a slit all the way up, makes no      difference. Nor does it make any difference that the Horace     R. Barker burner had a cone near its top. The first claim of     the plaintiff's patent is broad enough to cover the Horace R.      Barker burner, and that claim must be held to be invalid for      want of novelty.'

On the trial before the jury the existence and operation of the Horace R. Barker burners were testified to by Horace R. Barker himself and by John F. Barker, and a copy of the rejected application of Horace R. Barker for a patent was put in evidence. The question was submitted to the jury by the court as to whether the effect produced by Clough's invention had been produced in the Horace R. Barker burner by a combination or mode of operation substantially the same as in the burner of Clough; and the attention of the jury was called by the court, in its charge, to the contention of Clough, that the object of the Horace R. Barker burner was to control the size of the slit in the burner by a clamp; that if some gas escaped through an orifice at the top of the surrounding-tube, and was projected upon the burner-tip, the escape was accidental and not desired; and that in a well-made burner it was not intended to escape and did not escape. The jury found for Clough, on the question of novelty, as against the Horace R. Barker burner. When the motion for a new trial was made before the judge who presided at the jury trial, he said, in his opinion denying the motion:

'The device mainly relied upon by the defendants upon the     question of priority was a burner of Horace R Barker, for which he made an unsuccessful application for a      patent prior to the date of the plaintiff's invention. It     consisted of a bat-wing burner, slitted nearly to the base,      and a surrounding-tube smaller at the top than at the bottom. There was a screw upon the inside of the lower part of the     tube. When the tube was screwed down upon the burner, the top     of the tube pressed against a conical and enlarged part of      the burner near its top, and the slit was closed. When the     tube was screwed up the slit was enlarged. The defendants     claimed that the top of the tube, in connection with the      protuberant part of the burner, formed a valve, and that the      gas passed to the tip, not only through the burner, but      through the ring near the tip at the end of the      surrounding-tube in a double current, and that the device was      substantially like the burner of the complainant. The     complaint claimed that the object and the effect of this      invention was to provide a burner in which the bat-wing slit      could be enlarged or diminished at pleasure, and to consume      but a single current of gas; that the top of the tube, in      connection with the conical part of the burner, was not a      valve but a clamp; that when the burner was new or well made,      this clamp prevented the escape of gas; and that there was no      appreciable delivery of gas in a well-made burner, except      through the tip. I am of the opinion that the jury, upon this     question of fact, did not misconceive the weight of the      evidence.'

In the proofs taken in the suit against Clough, and used in this case by agreement, John F. Barker gave further testimony as to the prior use of the Horace R. Barker burners, and such testimony seems to have been understood by the court below as showing that the Horace R. Barker burner was used with the surrounding-tube raised to such a height that the horizontal line of its upper end was raised from its seat at the cone on the burner-pillar, and an additional supply of gas passed out of the top of the surrounding-tube and mingled with the gas which escaped from the burner-tip; that by screwing down the surrounding-tube so that it would impinge sufficiently against the cone, the slit would be closed; that the effect of the operation of thus raising or lowering the surrounding-tube was to increase or diminish the supply of gas; and that the surrounding-tube, considered in connection with the cone on the pillar of the burner, operated as a valve to control the flow of gas. In this view the structure and its mode of operation were held to be such as to anticipate the first claim of the Clough patent. But we are all of opinion that an erroneous view was taken of the purport of the additional testimony of John F. Barker. He was testifying in February, 1875. The question was as to what the Horace R. Barker burner was, and as to what was its mode of operation in use. In the specification of the patent of John F. Barker, issued in July, 1870, he said: 'I am aware that gas-burners have been heretofore made to give an additional supply of gas to the flame, but in those that I have seen they consisted of more pieces, and were considerably more expensive to manufacture, and in their operation the burner revolved with the tube, thus causing the flame to revolve also.' The expression 'more pieces' means more pieces than in the burner he was patenting. His burner consisted of two pieces only. The Clough burner consisted of three pieces, and in it the burner revolved with the tube. In the John F. Barker patent the burner did not revolve with the tube. The Horace R. Barker burner consisted of two pieces only, and the burner did not revolve with the tube. Therefore, the reference by John F. Barker, in his patent, to the burners which he had seen, which would give an additional supply of gas, was to the Clough burners, which it is proved he had seen; and it is impossible that he could have then understood that the Horace R. Barker burners, which also he had seen, were burners which had been used to give an additional supply of gas to the flame.

The testimony as to any additional or supplementary supply of gas in the Horace R. Barker burner amounts really to this only: that if that burner is used now in a way in which it was never designed to be used, and is not shown to have ever been used before Clough's invention, it may be made to furnish a supplementary supply of gas. Its structure was such that, to give full effect to its mode of operation, the surrounding-tube did not require ever to be raised so high as not to be in contact with the cone. As it was raised from its lowest position the slit opened, and when the slit was opened to its full extent the tube was still in contact with the cone, and there was no orifice between them. Any further raising of the tube was accidental and not a part of the law of the structure. The object of raising and lowering the tube was, by less or greater pressure on the cone, to open or close the slit in the burner. The specifications of Horace R. Barker in his rejected application, shows that the only object of his burner was to control the flow of gas through the slit in the burner, instead of controlling the flow at the cock or further back. The spring of the two parts of the burner was intended to carry them away from each other, and open the slit when the pressure of the tube against the cone was relieved, while the increased pressure of the tube against the cone closed the slit. Any raising of the tube unnecessarily high, so as to admit of a flow of gas through an orifice between the tube and the cone to the flame, cannot be regarded as amounting to an invention of what Clough invented. The structure was not designed for the same purpose as Clough's; no person looking at it or using it would understand that it was to be used in the way Clough's is used, and it is not shown to have been really used and operated in that way.

The foregoing remarks apply equally to the Coolidge burner, which was like the Horace R. Barker burner in structure, except that in the Coolidge burner the raising of the ring against an inverted conical projection closed the slip. The Solliday burner and the Lunkenheimer burner did not contain Clough's invention. We are, therefore, brought to the conclusion that the first claim of the Clough patent is valid.

The second claim of the Clough patent is for a combination of the bat-wing burner, perforated at the base, the surrounding-tube and the tubular valve for regulating the supply of external gas to the burner, substantially as described. The specification describes the tubular valve as extending upward into the burner-tube. The view taken by the court below as to this second claim was that there was in the Horace R. Barker burner a regulation of a supplementary flow of gas, and by a valve arrangement the raising of the tube above the cone, allowing the gas to flow out of the tube, and the lowering of the tube to bear against the cone closing the orifice. The court said:

'In view of the existence of that burner, which contained the     combination of a bat-wing burner, a perforated tube in substance like that of the plaintiff's patent, and a      tubular valve for regulating the supply of external gas to      the burner, the construction of the second claim of the      plaintiff's patent must be such as to limit that claim to the      form of tubular valve which he describes, namely, one in the      iterior of the burner-tube and not forming part of the      surrounding-tube. Under this construction, the second claim     of the plaintiff's patent is not infringed.'

The defendants' burners had no tubular valve extending up into the burner-tube. In them the tubular valve formed part of the surrounding-tube, and reached or left its seat by screwing down or up the surrounding-tube. The surrounding-tube could not be permanently attached to the burner, because it carried the movable valve. In the Clough burner the surrounding-tube may be permanently attached to the burner, because the tubular valve is not carried by the surrounding-tube, but is a third and separate instrument, carried by an adjustable cylinder inserted within the burner-tube from below.

The combination of the first claim of the Clough patent being new, and, consequently, there never having been any valve arrangement applied to regulate the flow of gas in such a combination, the premises on which the decision of the court below proceeded fail. Clough is entitled to the benefit of the doctrine of equivalents as applied to the combination of the burner, surrounding-tube, and regulating-tube, covered by the second claim of his patent. The regulation in the defendants' burners was by a tubular valve on the outside of the perforation instead of on the inside, and performing its work by being screwed up or down, as in Clough's. Although in the Clough structure the burner and surrounding-tube revolve together in adjusting their position in reference to that of the tubular valve, so as to let in or turn off the supply of gas through the perforations, and although in the Clough structure the flame revolves by the revolution of the burner, and although in the defendants' burners the revolution of the surrounding-tube regulated the supply of gas through such perforation, and neither the burner nor the flame revolved, the defendants' valve arrangement must be held to have been an equivalent for that of Clough to the full extent to which that of Clough goes, involving, perhaps, patentable improvements, but still tributary or subject to the patent of Clough. It is true that that patent describes the tubular valve as being inside of the burner-tube. But Clough was the first person who applied a valve regulation of any kind to the combination to which he applied it, and the first person who made such combination, and he is entitled, under decisions heretofore made by this court, to hold as infringements all valve regulations, applied to such a combination, which perform the same office in substantially the same way as, and were known equivalents for, his form of valve regulation. The record shows that prior to the existence of the appellant's burner it was common in gas-burners to check the flow of gas out of the burner by applying an obstruction operated by a screw indifferently outside or inside of the burner. It follows, from these considerations, that the defendants infringed the second claim of the Clough patent.

The decree of the circuit court is reversed, with costs, and the cause is remanded, with directions to enter a decree for the appellant lant for an account and an injunction, as prayed in the bill, with costs, and to take such further proceedings therein as shall be in conformity with law and with the opinion of this court.


text: Talk:Clough v. Gilbert Barker Manufacturing Company/Opinion of the Court


text:
Osborne v. County of Adams in the State of Nebraska

[Syllabus on page 181 intentionally omitted]

[Statement of Case on pages 181-182 intentionally omitted]

A. H. Bowen and John H. Ames, for plaintiffs in error.

John Doniphan, for defendant in error.

HARLAN, J.


text: Talk:Osborne v. County of Adams in the State of Nebraska


text:
Osborne v. County of Adams in the State of Nebraska/Opinion of the Court

A steam grist-mill is not, in our opinion, a work of internal improvement within the meaning of the statute of Nebraska, approved February 15, 1869, which authorizes counties, cities, and precincts of organized counties 'to issue bonds to aid in the construction of any railroad or other work of internal improvement.'

The case of Township of Burlington v. Beasley, 94 U.S. 312, is not, as supposed by counsel, an authority for a different conclusion. That case arose under a statute of Kansas which empowered municipal townships in that state to issue bonds 'for the purpose of building bridges, free or otherwise, or to aid in the construction of railroads or water-power, by donation thereto, or the taking of stock therein, or for other works of internal improvement.' The bonds there in suit were issued to aid in the construction and completion of, and to furnish the motive power for, a steam custom grist-mill. It was held that the statute, reasonably interpreted, embraced a grist-mill operated by steam, as well as one run by water-power; that, since municipal aid was authorized for 'the construction of * *  * waterpower,' the phrase 'other works of internal improvement,' in the Kansas statute, might be fairly construed as embracing works of the same class, and consequently as embracing a steam grist-mill. The court was somewhat influenced, as plainly appears from its opinion, by decisions of the supreme court of Kansas, particularly that of Com'rs of Leavenworth Co. v. Miller, 7 Kan. 479.

The present case is different. The only work of internal improvement specially described in the Nebraska statute is that of a railroad, and we are not justified by anything in Township of Burlington v. Beasley, or in the decisions of the courts of Nebraska, in holding that a steam or other kind of grist-mill is of the class of internal improvements which municipal townships in that state were empowered, by the statute in question, to aid by an issue of bonds.

For these reasons we adjudge that the bonds issued by the county commissioners in behalf of Juniata precinct, in Adams county, Nebraska, in aid of the construction of a steam grist-mill in that precinct, are unauthorized by the act of February 15, 1869; and as authority for their issue is not claimed to exist under any other statute, they must be held to be without binding force against the precinct.

The judgment is, consequently, affirmed.

This case affirms S.C.. 7 FED. REP. 441.


text: Talk:Osborne v. County of Adams in the State of Nebraska/Opinion of the Court


text:
Independent School-Dist of Steam-Boat Rock v. Stone

''Geo. G. Wright'', for plaintiff in error.

C. C. Nourse and B. F. Kauffman, for defendant in error.

HARLAN, J.


text: Talk:Independent School-Dist of Steam-Boat Rock v. Stone


text:
Independent School-Dist of Steam-Boat Rock v. Stone/Opinion of the Court

On the first day of July, 1880, the board of school directors of Independent School-district of Steam-boat Rock, Hardin county, Iowa, issued in its name 30 bonds, each for $500, and bearing interest at the rate of 10 per cent. per annum. Each bond recited that it 'is issued by the board of school directors by authority of an election of the voters of said school-district held on the thirty-first day of July, 1869, in conformity with the provisions of chapter 98 of Acts Twelfth General Assembly of the state of Iowa.' The statute, referred to in the bonds, authorized independent school-districts to borrow money, within a prescribed limited as to amount, for the purpose of erecting and completing school-houses, by issuing negotiable bonds, provided the loan was previously sanctioned by a majority of all the votes cast at an annual or special meeting of the electors, of which meeting the same notice should be given as required by law in case of the election of officers of such districts, and which notice should state the amount proposed to be raised by a sale of bonds.

When the bonds were issued the assessed value of the property of the district, as shown by the last assessment immediately preceding the issue of the bonds, was $47,986, and the indebtedness of the district was $425, with no money in its treasury.

The constitution of Iowa declares that 'no county, or other political or municipal corporation, shall be allowed to become indebted in any manner, or for any purpose, to an amount in the aggregate exceeding 5 per centum on the value of the taxable property within such county or corporation, to be ascertained by the last state and county tax lists, previous to the incurring of such indebtedness.' The largest indebtedness, therefore, which the plaintiff in error, consistently with the fundamental law of the state, could have had, when these bonds were issued, was 5 per cent. on $47,986. Consequently, the bonds now in suit, constituting one issue, and aggregating $15,000, must be held to have been made without authority of law, and, upon well-established principles, are not enforceable obligations against the district, unless it is estopped by recitals in the bonds from showing, as against a bona fide purchaser, the value of its taxable property as disclosed by the last state and county tax lists previous to the creation of the debt.

The argument on behalf of defendants in error, briefly stated, is this: That the law invested the school board with authority to execute bonds for the purposes for which those in suit were issued, within the limit, as to amount, prescribed by the constitution and the statute passed in conformity therewith; that that board, when issuing the bonds, were under a duty to determine, and necessarily did determine, whether the aggregate indebtedness of the district, thus increased, was in excess of 5 per centum upon the value of the taxable property of the district, as shown by the last state and county tax lists; consequently, it is contended, the recitals in the bonds should be regarded as a declaration by the board, upon which bona fide purchasers could rely, of its determination that the taxable property of the district, as thus ascertained, was of value sufficient to justify the proposed indebtedness of $15,000.

Waiving any discussion of the question, whether the constitutional provision that the amount of the taxable property should be 'ascertained by the last state and county tax lists,' did not compel every purchaser, at his peril, to obtain from that source the necessary information, and did not preclude him from relying upon the representations of district officers as to what those lists disclosed, we are of opinion that the recitals in the bond do not necessarily nor distinctly import any determination of that question by the district officers invested with authority, under certain circumstances, to issue the bonds. Had the bonds recited that they were issued by authority of the election of July 31, 1869, and in conformity with the provisions of the statute referred to, there would, in view of some of the decisions of this court, be more force in the argument in behalf of the defendant in error. Town of Coloma v. Eaves, 92 U.S. 484; Town of Venice v. Murdock, Id. 494; Converse v. City of Fort Scott, Id. 504; Marcy v. Township of Oswego, Id. 638; Com'rs v. Bolles, 94 U.S. 104; Com'rs v. Junnay, Id. 204; Buchanan v. Litchfield, 102 U.S. 278. And we should then be obliged to decide whether, in view of the constitutional provision, a false recital by the school board as to the value of the taxable property would conclude the district as between it and a bona fide purchaser for value; for, in such case, since the statute itself contains substantially the same limitation upon indebtedness by independent school-districts as is prescribed by the state constitution for county or other political or municipal corporations, a distinct recital that the bonds were issued in conformity with the statute, would fairly import a compliance with the constitution. But the recitals do not, as we have said, necessarily import a compliance with the statute or the fundamental law of the state upon that subject.

They necessarily imply nothing more than that the bonds were issued by authority of the electors, and that the election was held in conformity with the statute. The statute may have been pursued as to the notice required to be given of the time and place of the election, and as to the manner in which the will of the voters was to be ascertained, and yet it may have been disregarded in respect of the limit it imposed upon district indebtedness. The declaration, thefefore, that the election was held in conformity with the statute does not with sufficient distinctness imply that the indebtedness voted was less than 5 per cent. on the value of the taxable property of the district, as shown by the state and county tax lists.

This construction of the words employed in the bonds is pronounced by counsel for the defendant in error to be too narrow and technical. It may be a strict construction, and such, it seems to the court, ought to be the rule when it is proposed, by mere recitals upon the part of the officers of a municipal corporation, to exclude inquiry as to whether bonds, issued in its name, were made in violation of the constitution and of the statute, of the provisions of which all must take notice. Numerous cases have been determined in this court, in which we have said that where a statute confers power upon a municipal corporation, upon the performance of certain precedent conditions, to execute bonds in aid of the construction of a railroad, or for other like purposes, and imposes upon certain officers-invested with authority to determine whether such conditions have been performed the responsibility of issuing them when such conditions have been complied with, recitals, by such officers, that the bonds have been issued 'in pursuance of,' or 'in conformity with,' or 'by virtue of,' or 'by authority of' the statute, have been held, in favor of bona fide purchasers of value, to import full compliance with the statute, and to preclude inquiry as to whether the precedent conditions were performed before the bonds were issued. But in all such cases, as a careful examination will show, the recitals fairly imported a compliance, in all substantial respects, with the statute giving authority to issue the bonds. We are unwilling to enlarge or extend the rule, now established by a long line of decisions. Sound public policy forbids that we should do so. Where the holder relies for protection upon mere recitals, they should, at least, be clear and unambiguous, in order to estop a municipal corporation, in whose name such bonds have been made, from showing that they were issued in violation, or without authority, of law.

For the reasons given we are of opinion that, in the present action on the bonds, judgment should have been entered upon the special verdict for the district. To what extent, if any, the district may be held responsible, in some other form of proceeding, is a question not now before us, and as to which we express no opinion. The judgment is reversed, with directions to render judgment upon the special verdict for the district.


text: Talk:Independent School-Dist of Steam-Boat Rock v. Stone/Opinion of the Court


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Schwed v. Smith

On the twenty-sixth of January, 1880, Schwed & Newhouse confessed a judgment in the circuit court of Jackson county, Missouri, against themselves, and in favor of Henry Heller, for $9,512.50. Execution was at once issued on this judgment, and levied by Bailey, sheriff of the county, on a stock of goods.

On the twelfth of February, 1880, William Smith & Co. had a suit pending in the same court, in their favor, against Schwed & Newhouse for the recovery of $3,829.71, and William C. Greene & Co. another suit for the recovery of $1,012.93. In both the suits attachments were issued and levied on the same goods taken under the execution in favor of Heller, and then in the hands of the sheriff. Smith & Co. and Greene & Co. thereupon began a suit in the same court against Schwed, Newhouse, Heller, and the sheriff, the object of which was to set aside the judgment in favor of Heller on the ground that it was confessed without any consideration, and for the purpose of conering up the property of Schwed & Newhouse, and hindering and delaying creditors in the collection of their debts. This suit was afterwards removed to the circuit court of the United States for the western division of the western district of Missouri. Afterwards judgments were rendered in the attachment suit; that in favor of Smith & Co. being for $4,174.38, and that in favor of Greene & Co. for $1,104.09. In the mean time other creditors of Schwed & Newhouse got attachments and judgments against them, to-wit, the Seth Thomas Clock Company for $1,518.49, the E. N. Welch Manufacturing Company for $455.58, and F. Quayle for $356. The attachments in these cases were also levied on the goods in the hands of the sheriff. All the later attaching creditors were admitted as parties to the original suit begun by Smith & Co. and Greene & Co. to set aside the judgment in favor of Heller, and in proper time a supplemental bill was filed in which all the attaching creditors appeared as complainants, setting up the recovery of their respective judgments. Pending the suit the property levied upon was sold, and the proceeds, being $7,405.55, paid into the registry of the court. At the final hearing a decree was rendered declaring the judgment confessed in favor of Heller void as against the attaching creditors. From this decree Schwed, Newhouse, Heller, and Bailey, the sheriff, took an appeal, which the appellees now move to dismiss on the ground that the value of the matter in dispute between the appellants and the several appellees is less than $5,000.

Mayer Sultzberger, for appellants.

''Jas. S. Botsford'', for appellees.

WAITE, C. J.

It is impossible to distinguish this case in principle from Seaver v. Bigelows, 5 Wall. 208, where an appeal by creditors who had joined in a suit to set aside a fraudulent conveyance by their debtor was dismissed because the amounts found due the appellants, respectively, were less than our jurisdictional limit. In delivering the opinion of the court, Mr. Justice NELSON said:

title: Schwed v. Smith


text: Talk:Schwed v. Smith

title: Talk:Schwed v. Smith


text:
Schwed v. Smith/Opinion of the Court

'The judgment creditors who have joined in this bill have     separate and distinct interests, depending upon separate and      distinct judgments. In no event could the sum in dispute of     either party exceed the amount of their judgment. * *  * The      bill being dismissed, each fails in obtaining payment of his      demands. If it had been sustained, and a decree rendered in     their favor, it would only have been for the amount of the      judgment of each.'

In the present case, the judgment creditors did succeed, and, in effect, each recovered a decree against Heller, setting aside his judgment so far as it affected them individually. Had they been defeated they could not have appealed, because, although allowed in equity to join in their suit, they had 'separate and distinct interests depending on separate and distinct judgments,' as well as separate and distinct attachments. But if the decree is several as to the creditors, it is difficult to see why it is not as to their adversaries. The theory is, that, although the proceeding is in form but one suit, its legal effect is the same as though separate suits had been begun on each of the separate causes of action.

The appeal in Seaver v. Bigelows was from a decree against the creditors, but, in deciding the case, the court, in express terms, adopted the analogous practice in admiralty, where, under certain circumstances, separate and distinct causes of action may be united in one suit, and in that practice it has always been held that the shipowner cannot unite the separate decrees against him in a suit to make up the amount necessary for our jurisdiction on appeal. That question has been fully considered at the present term in Ex parte Baltimore & Ohio R. Co. ante, 35. Although the effect of the decree is to deprive Heller in the aggregate of more than $5,000, it has been done at the suit of several parties on several claims, who might have sued separately, but whose suits have been joined in one for convenience and to save expense.

The motion to dismiss is granted.

title: Schwed v. Smith/Opinion of the Court


text: Talk:Schwed v. Smith/Opinion of the Court


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Fraser v. Jennison

H. M. Duffree and Edwards Pierrepont, for plaintiffs in error.

''Wm. Jennison'', for defendants in error.

WAITE, C. J.

title: Fraser v. Jennison


text: Talk:Fraser v. Jennison

title: Talk:Fraser v. Jennison


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Fraser v. Jennison/Opinion of the Court

The defendants in error filed in the probate court of Wayne county, Michigan, a paper purporting to be the will of Alexander D. Fraser, and asked that it be admitted to probate. The court appointed a time and place for the hearing, and gave the general notice required by law to all persons interested. In due time Ellis Fraser, Alexander Fraser, Elizabeth Calvin, Sophia Redden, Mary Calvin, Francis P. Fraser, and John Fraser, heirs at law of the decedent, appeared and jointly gave notice of their intention to contest the probate 'on the grounds that the said Alexander D. Fraser was not, at the date of the alleged execution thereof, of sound mind and memory; that he, at that time, did not have mental capacity to make a will; that the said paper was procured to be executed by undue influence; and that the same was not executed and attested in the manner required by said statute.' Alexander Fraser, one of the contesting heirs, was a citizen of Illinois, and Francis P. Fraser, another contestant, a citizen of Iowa. All the other contestants were citizens of Michigan, as were the appellees who were named executors of the will. At the time and place appointed the proponents and contestants appeared, and after a hearing the will was admitted to probate and letters testamentary granted to the appellees. By the laws of Michigan the order for the probate of a will, as long as it remains unreversed, is conclusive evidence of the due execution of the will, (Comp. Laws Mich. 1871, p. 1374, § 4341,) but any person aggrieved by such an order may appeal to the circuit court of the county by filing in time a notice to that effect with the judge of probate, with his reasons therefor, and also an appeal bond. Id. p. 1562, § 5216. Notice of the appeal must be given to the adverse party, and copies of the proceedings in the probate court filed in the circuit court. Section 5218. After the case gets to the circuit court, that court is required to 'proceed to the trial and determination of the question according to the rules of law, and if there shall be any question of fact to be decided, issues may be joined thereon under the direction of the court, and a trial thereof had by a jury.' Section 5220. The circuit court may make such order or decree as the judge of probate ought to have made, and remit the case to the probate court for further proceedings. Section 5226.

After the order admitting this will to probate was entered, Alexander Fraser and Francis P. Fraser, who were not citizens of Michigan, appealed to the circuit court, as did also the other contestants. The two appeals were in form separate, but they were taken at the same time and on the same grounds. They were filed in the circuit court together, and the same order was entered in both for allegations of objections to the will and for notice to the proponents. Under this order the same issues were joined at the same time in both appeals, and the appellants in both demanded jury trials. The papers filed in the two appeals were substantially copies of each other, except as to the names of the appellants.

As soon as the issues were joined, Alexander Fraser and Francis P. Fraser, citizens of states other than Michigan, filed their petition for the removal of the cause to the circuit court of the United States for the proper district. In their petition for removal they made no reference to any other contestants than themselves, nor to any other appeal than their own. The state court refused the removal, and thereupon the petitioning appellants filed in the circuit court of the United States a copy of the record in the circuit court of the state, so far as it related to them, but which failed to show that any persons except themselves had united in the contest. The cause having been docketed in the circuit court of the United States, the proponents of the will appeared and moved to remand, filing with their motion an affidavit showing that the record presented by the petitioners was defective. The court thereupon issued a certiorari to bring in the whole record, 'including the record of all the appeals taken from the order of the probate court * *  * admitting the will to probate, by whomsoever instituted.' In obedience to the command of this certiorari, a copy of the whole record was certified to the circuit court of the United States, and, the foregoing facts appearing therefrom, the order to remand was granted. From that order Alexander Fraser and Francis P. Fraser brought this writ of error.

The objections to the removal insisted on here are: (1) That a proceeding in a state court for the probate of a will is not removable; (2) that if such a proceeding is removable, the application in the present case should have been made to the probate court prior to the hearing there, and that it comes too late after the appeal from that court to the circuit court of the state; and (3) that the requisite citizenship of the parties does not exist.

In the view we take of the case it is necessary to consider only the last of these objections.

In Michigan, on an appeal from the order of a probate court admitting a will to probate, there is but one main issue, to-wit, 'whether the paper propounded is or is not a will. There may be more or less minor issues included, but they all belong to the same inquiry, and cannot be presented separately.' Hathaway's Appeal, 46 Mich. 328; [S.C.. 9 N. W. REP. 435;] People v. Wayne Co. 39 Mich. 198. The only thing the appellate court can do is to determine the main issue, and certify its judgment to the probate court. The contest in this case was begun by citizens of Michigan jointly with citizens of Illinois and Iowa against other citizens of Michigan. There was but a single proceeding, and that between all the contestants on one side and all the proponents on the other. There was but one judgment, and that against all the contestants. From the very nature of the proceeding there could have been no other. Either all the contestants must succeed or all fail. They were all heirs at law, and whether the will was established or set aside, it would affect them all alike and in the same right.

Neither was the position of the parties or the nature of the contest changed because two appeals were taken by the contestants instead of one. By the operation of the two appeals the controversy was transferred from the probate to the circuit court, and it stood in the circuit court just as it did in the probate court, with all the contestants actively participating in the contest on one side and all the proponents on the other. It is unnecessary to consider what would have been the effect of an appeal by the citizens of Illinois and Iowa alone, for the citizens of Michigan were not content to leave the case in that position, but followed it to the circuit court themselves in the character of appellants. Unless, therefore, there was in the proceeding, as it stood in the circuit court of the state, a separate controversy, which was wholly between citizens of different states, and which could be fully determined between them, there could not, according to the rule established in the Removal Cases, 100 U.S. 457, and Blake v. McKim, 103 U.S. 336, be any removal to the circuit court of the United States under the act of March 3, 1875, c. 137, (1 Supp. Rev. St. 173.)

But the plaintiffs in error insist there was such a separate controversy, and that they were entitled to a removal under the rulings in Barney v. Latham, 103 U.S. 205. To this we cannot agree. As has already been seen, the contest, when begun, was joint and presented but one issue for trial. To entitle a party to a removal under the second clause of the second section of the act, there must exist in the suit a separate and distinct cause of action, on which a separate and distinct suit might properly have been brought, and complete relief afforded as to such cause of action, with all the parties on one side of that controversy citizens of different states from those on the other. Hyde v. Ruble, 104 U.S. 408. To say the least, the case must be one capable of separation into parts, so that, in one of the parts, a controversy will be presented with citizens of one or more states on one side and citizens of other states on the other, which can be fully determined without the presence of any of the other parties to the suit as it has been begun. Such is not this case. As was said by the supreme court of Michigan in this very contest, when an application was made for a mandamus to compel the circuit court to set aside an order consolidating the two appeals, 'the probate of every will, whether in the original or appellate tribunal, must always be single and complete in one hearing. It would be absurd to have such proceedings severed, so that the will might be held good as to one class of contestants, and bad as to another. No matter how many different persons may appeal, they can only raise one issue, and there can be but one trial of that issue, which is to determine the question of will or no will. * *  * There can be no such thing as a determination of testacy or intestacy, which binds one appellant and does not bind the rest. The controversy includes all interests that the law recognizes for any purpose and binds all.' For these reasons it was held that all of the several claims of appeal were merely appearances in a single and indivisible proceeding, which could not be severed for any purpose. The mandamus asked for was refused, the court remarking that the order for consolidation was entirely unnecessary, and undoubtedly made out of abundant caution. This seems to be conclusive of the question now under consideration. The contest was joint when it was begun. It was joint after the two appeals were taken, and is not separable for any purpose. Although, in form, separate issues were joined in the appeals, in reality they were but one, and were capable of but one trial.

The order remanding the cause is affirmed.

title: Fraser v. Jennison/Opinion of the Court


text: Talk:Fraser v. Jennison/Opinion of the Court


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United States v. Lee Kaufman

Solicitor General Phillips and W. Willoughby, for plaintiff in error.

''S. F. Beach, Leigh R. Paige, Wm. J. Robertson, Francis L. Smith, and W. D. Shipman'', for defendant in error.

MILLER, J.

title: United States v. Lee Kaufman


text: Talk:United States v. Lee Kaufman

title: Talk:United States v. Lee Kaufman