text:
United States v. Savings Bank

APPEAL from the Court of Claims.

Sections 3220 and 3228 of the Revised Statutes are as follows:--

'SECT. 3220. The Commissioner of Internal Revenue, subject to regulations prescribed by the Secretary of the Treasury, is authorized, on appeal to him made, to remit, refund, and pay back all taxes erroneously or illegally assessed or collected, all penalties collected without authority, and all taxes that appear to be unjustly assessed or excessive in amount, or in any manner wrongfully collected. . ..

'SECT. 3228. All claims for the refunding of any internal tax alleged to have been erroneously or illegally assessed or collected, or of any penalty alleged to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected, must be presented to the Commissioner of Internal Revenue within two years next after the cause of action accrued. . . .'

The material regulations prescribed by the Secretary of the Treasury applicable to this case are these:--

'Claims for the refunding of taxes erroneously assessed and collected should be presented through the collectors of the respective districts upon blank form No. 46. . ..

'The collector should keep a perfect record, in a book furnished for the purpose, of all claims presented to the commissioner, and must certify as to each claim, whether it has been before presented or not.

'Where the case of an appeal involves an amount exceeding two hundred and fifty dollars, and before it is finally decided the Commissioner of Internal Revenue will transmit the case, with the evidence in support of it, to the Secretary of the Treasury for his consideration and advisement.

For some years it has been the practice of the officers of the Treasury Department to regard appeals for refunding taxes illegally assessed and paid, when deposited with collectors, under the rules, in season to be forwarded to Washington within the two years' limitation, to have been duly presented to the commissioner according to law.

On the 10th of July, 1878, the Real Estate Savings Bank of Pittsburg, Pa., paid to the collector of internal revenue for the proper district in Pittsburg, certain internal taxes which had before that time been assessed; and on the 9th of July, 1880, it presented to the same collector, at his office, an appeal to the Commissioner of Internal Revenue, made out on the blank form prescribed by the secretary, to refund and pay back $972.69, which, it was alleged, had had been illegally assessed, and erroneously paid. This appeal was delivered to the collector in time to have reached Washington by due course of mail on the 10th of July, if t had been promptly forwarded; but it was retained until the 15th, when it was sent to the commissioner, with an indorsement by the collector that he had investigated the facts, and found the statements of the claimant were in all respects true. The papers reached the commissioner on the 17th of July, and he, on the 13th of October following, submitted them to the Secretary of the Treasury, as required by the regulations, for his consideration and advice. On the 18th of October the secretary signified to the commissioner his approval of the payment of the claim, and on the 21st the commissioner certified its allowance. On the presentation of this certificate through the accounting officers of the Treasury Department payment was refused. The certificate has never been revoked by either the secretary or the commissioner, but it is still in force so far as the action of these officers is concerned. After payment was refused, suit was brought on the certificate in the Court of Claims, where judgment was given for the claimant. From this judgment the United States appealed.

The following points are taken from Mr. Lawrence's brief:

I. The claim is barred because not presented at the office of the Commissioner of Internal Revenue in Washington within two years.

1. The statute says such claim 'must be presented to the Commissioner of Internal Revenue.' Rev. Stat., sect. 3220. The commissioner has an office 'in the Department of the Treasury' (id., sect. 319), and this 'shall be at the seat of government.' Id., sect. 233. The claim is to be 'settled and adjusted in the Department of the Treasury.' Id. 236. Effect is to be given to the words as they are, 'not importing. . . words. . . not found there.' ''Leavenworth, &c. Railroad Co. v. United States'', 92 U.S. 733, 751. A presentation at Pittsburgh is not a presentation 'in the Department of the Treasury.'

The 'treasury of the United States' is 'in the treasury building,' and there the treasurer performs his duties. Rev. Stat., sect. 3591.

Banks are required to make returns for taxation 'to the treasurer.' Id., sect. 5215.

If for the convenience of the banks a regulation is made (id., sect. 161) permitting them to make reports 'through' a sub-treasurer, are the banks relieved from the duty to still make them 'to the treasurer'?

2. The 'regulation' does not change this. It says claims 'should be presented through the collector.' 'Should' is not 'shall,' and if so, 'through' is not 'to.' This permits presentation through a collector, but contemplates presentation to the commissioner. The regulation is to be construed in harmony with the statute, which gives the claimant a right to present directly to the commissioner, but permits a collector to aid him.

3. The commissioner had no power to receive the claim after two years, and any action thereon was ultra vires. An officer cannot waive a right denied by statute. Andrae v. Redfield, 12 Blatchf. 407; United States v. McKnight, 98 U.S. 179. The claim is, as said in United States v. Kaufman (96 id. 367, 570), 'impeached for. . . mistake.' 4. The duty imposed by statute on the commissioner cannot be delegated to a collector. Delegata potestas non potest delegari.

It is the right of the claimant to have the privilege of presenting his claim at the office of the commissioner.

5. A claimant cannot impose a duty on a collector to receive a claim. Official duties are fixed by law. Ames v. Huron, L. & B. Co., 11 Mich. 147; Cooley, Const. Lim. 363, 451.

II. The allowance of the commissioner does not give a prima facie right of action. Rev. Stat., sect. 1059.

The test, whether such allowance gives such right, is this: Is it evidence of a 'promise on the part of the United States to pay' (United States v. Kaufman, supra), or an award showing a debt due; that is, does it per se so operate? If it does not, per se, impose a duty on all officers charged with duties in relation to it to make payment without examining the evidence on which iti § based, how can it be said that it is the evidence which the law requires of a right to payment? If other steps are by law required to secure payment, how can it be, Per se, prima facie evidence of a right to payment?

1. It is 'a mere step in the system of internal revenue.' House Ex. Doc. No. 27, 2d Sess. 45th Cong., p. 43.

2. The whole power of the commissioner is found in the words 'to refund and pay back.'

These had a meaning when first used in the act of June 30, 1864, c. 173. The commissioner did literally 'refund and pay back,' 'by drafts drawn on collectors of internal revenue.' This power was taken away by the third section of the act of March 3, 1865, c. 78, and the words to 'refund and pay back' became inoperative,-they ceased to have a meaning. The commissioner could no longer literally 'pay back.'

Such claim cannot be paid unless it has been 'settled and adjusted in the Department of the Treasury.' Rev. Stat., sects. 184, 187, 236, 248, 269, 277, 305, 313; McKnight's Case, 13 Ct. Cl. 302; 1 Op. Atty.-Gen. 624, 680; 2 id. 507; 10 id. 5.

The claimant must 'pursue the statutory remedy to the end.' United States v. Kaufman, supra.

3. To hold that these words authorize the commissioner to give evidence of a prima facie right of action seems objectionable. The law (Rev. Stat., sects. 989, 3226, 3227) recognizes a remedy by action against a collector. It would seem improbable that Congress intended to give a duplicate remedy by action on the allowance of the commissioner.

If the allowance of the commissioner gives prima facie right of action against the United States, it is not barred until six years (id., sect. 1069), when the government may have lost the means of impeaching it, whereas Congress seems to have intended to limit the remedy by requiring a presentation within two years to the commissioner (id., sect. 3228), and for a short period against the collector. Id., sects. 983, 3226, 3227.

The approval of the commissioner has no element of a contract. He is not authorized to contract.

4. It will enable a claimant to withdraw from the government the benefit of an examination by the proper accounting officers.

It should require clear language to produce such a result.

Whenever Congress has intended to withdraw from this supervision any class of cases, it has been done in very explicit language. Rev. Stat. sects. 48, 1089, 1911.

III. Congress having given another judicial remedy, it is to be deemed exclusive. Rev. Stat., sects. 846, 989, 3226, 3227; State v. Marlow, 15 Ohio St. 114; Commonwealth v. Garrigues, 28 Pa. St. 9; Commonwealth v. Baxter, 35 id. 263; Commonwealth v. Leech, 44 id. 332.

The Solicitor-General, Mr. William Lawrence, and Mr. John S. Blair for the United States.

Mr. George L. Douglass for the appellee.

MR. CHIEF JUSTICE WAITE, after stating the case, delivered the opinion of the court.

title: United States v. Savings Bank


text: Talk:United States v. Savings Bank

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

title: Talk:United States v. Savings Bank


text:
United States v. Savings Bank/Opinion of the Court

The objections made to the recovery are, in substance: 1, That the Court of Claims had no jurisdiction of the suit, because the claim sued for was not founded on any law of Congress, or upon contract; and, 2, That the appeal to the Commissioner of Internal Revenue was not taken within two years after the cause of action accrued, and that consequently the allowance by the officer was without any authority of law.

The first of these objections is, we think, disposed of by United States v. Kaufman, 96 U.S. 567. That case arose under sect. 3426, Rev. Stat., which is as follows: 'The Commissioner of Internal Revenue may, from time to time, make regulations, upon proper evidence of facts, for the allowance of such of the stamps issued under the provisions of this chapter, or any internal revenue act, and may have been spoiled,. . . and such allowance shall be made either by giving other stamps in lieu of the stamps so allowed for, or by repaying the amount or value, after deducting therefrom, in case of repayment, the sum of five per cent, to the owner thereof. . . .'

And w held that the allowance of a claim by the commissioner under this section was equivalent to an account stated between private parties, and binding on the United States, until in some appropriate form it was impeached for fraud or mistake, and that, if not paid on proper application through the accounting officers of the Treasury Department, an action might be maintained on it in the Court of Claims, because it raised an implied promise on the part of the United States to pay what might actually be due the claimant, and also because the claim therefor was founded on a law of Congress within the meaning of that term as used in defining the jurisdiction of the court. We cannot discover any material difference between the powers of the commissioner under sect. 3426, and those which he has under sect. 3220. Under sect. 3426 he is to 'allow' the claim, which is done either by giving other stamps in lieu of those that have been spoiled, &c., or by repaying the amount or value. Under sect. 3220 he is to 'refund' and 'pay back.' His payments of money in both cases must be made through the accounting officers of the Treasury Department, as he is not himself a disbursing officer. Whether his allowance is conclusive on the other officers, through whose hands it must necessarily pass before it can be paid by the treasurer, we did not then, and need not now decide. All we said then, and all we say now is, that if payment is not made by reason of the refusal of any of the officers of the department to pass or pay the claim after it has once been allowed by the commissioner, the allowance may be used as the basis of an action against the United States in the Court of Claims, where it will be prima facie evidence of the amount that is due, and put on the government the burden of showing fraud or mistake. This burden is not overcome by proving that some other officer in the subsequent progress of the claim through the department declined to do what the law or treasury regulations required of him before payment could be obtained. The fact of fraud or mistake must be established by competent evidence, the same as any other fact in issue. An allowance by the commissioner in this class of cases is not the simple passing of an ordinary claim by an ordinary accounting officer, but a statement of accounts by one having authority for that purpose under an act of Congress. Until an appeal is taken to the commissioner no suit whatever can be maintained to recover back taxes illegally assessed or erroneously paid. If on the appeal the claim is rejected, an action lies against the collector (Rev. Stat., sect. 3226), and through him, on establishing the error or illegality, a recovery can be had. If the claim is allowed, and payment for any cause refused, suit may be brought directly against the government in the Court of Claims. This, as it seems to us, is the logical result of the legislation of Congress upon the subject. A rejected claim may be prosecuted against the collector, and an allowed claim, not paid, may be sued for in the Court of Claims. To say the least, the decision of the commissioner on the appeal is sufficient to determine whether one form of remedy shall be resorted to by the claimant, or the other.

Upon the other branch of the case we are entirely satisfied with the conclusions reached by the court below, and that the lodging of the appeal made out in due form with the proper collector of internal revenue for the purpose of transmission to the commissioner in the usual course of business, under the requirements of the regulations of the secretary, was in legal effect a presentation of the appeal to the commissioner. The effect of the regulation was to designate the office of the collector of internal revenue as a proper place for the presentation of the appeal. The whole subject is so fully and satisfactorily considered in the opinion below, that we deem it unnecessary to do more than refer to what is there said.

Judgment affirmed.


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


text:
Pott v. Arthur

ERROR to the Circuit Court of the United States for the Southern District of New York.

The facts are stated in the opinion of the court.

Mr. Edward Hartley and Mr. Walter H. Coleman for the plaintiffs in error.

The Solicitor-General for the defendant in error.

MR. JUSTICE BRADLEY delivered the opinion of the court.

title: Pott v. Arthur


text: Talk:Pott v. Arthur

title: Talk:Pott v. Arthur


text:
Pott v. Arthur/Opinion of the Court

This was an action brought by James Pott, Edwin Young, and James B. Young, against Arthur, the collector of customs of New York, to recover back duties paid on books imported in August, 1874. A duty of twenty-five per cent ad valorem was exacted; whilst the plaintiffs claim that they should have been required to pay only ninety per cent of that amount, or twenty-two and a half per cent ad valorem.

As the law stood at the time, in sect. 2504, schedule M, of the Revised Statutes, a duty of twenty-five per cent ad valorem was imposed on 'books, pamphlets, blank books, &c.' But by sect. 2503 it was provided that, on the goods enumerated therein, only ninety per cent of the duties imposed by the said schedules should be levied and collected; and amongst the articles enumerated for the reduction were those contained in the following specification: 'All paper and manufactures of paper, excepting unsized printing paper, books and other printed matter, and excepting sized or glazed paper suitable only for printing paper.'

Of course the articles expressly excepted in this clause are not entitled to the proposed reduction. The question is whether, by the words used, books are excepted from the general class of articles designated as paper and manufactures of paper, intended to be benefited, or whether they are enumerated as independent articles entitled to the reduction. The plaintiffs contend that they are not embraced in the exception because they do not properly belong to the class of articles designated as 'paper and manufactures of paper;' and cannot, therefore, be excepted therefrom. A thing that is excepted, they argue, must necessarily belong to the class of things from which it is excepted. This, of course, is true, as a general proposition, but the question is whether it applies to the clause of the act in question. No man of literary culture, it is true, would call a book paper or a manufacture of paper, any more than he would designate a masterpiece of Raphael as canvas or a manufacture of canvas. By a license of speech, it is true, he might say that a particular book was mere waste paper, or rubbish, or that a particular picture was nothing but a piece of spoiled canvas; but speaking seriously, and in accordance with good usage, he would not make such an application of terms. All this, however, has little to do in construing the act in question. If Congress had reduced the duty on all manufactures of wood and leather except cutlery, we should be obliged to regard cutlery as excepted in the particular case, from the manufactures of wood and leather intended to be benefited by the law. Our duty is to get at the intent of the law: we are not responsible for its style. And in the present case the intent seems to be unmistakable. The language under consideration first appeared in the act of June 6, 1872, c. 315, and was not accompanied by the concluding exception, but read as follows: 'On all paper and manufactures of paper, excepting unsized printing paper, books, and other printed matter.' The additional exception was added in the revision. It can hardly be doubted that, as the words were used in that act, 'books and other printed matter' were included in the exception. We have no doubt that such is the intent and meaning of the same words in the Revised Statutes. In transferring the language, it is to be presumed that it was intended to transfer the sense.

Judgment affirmed.

title: Pott v. Arthur/Opinion of the Court


text: Talk:Pott v. Arthur/Opinion of the Court


text:
Heald v. Rice

ERROR to the Circuit Court of the United States for the District of California.

The case is stated in the opinion of the court.

Mr. George Hardig and Mr. John H. Boalt for the plaintiff in error.

Mr. Milton A. Wheaton for the defendant in error.

MR. JUSTICE MATTHEWS delivered the opinion of the court.

title: Heald v. Rice


text: Talk:Heald v. Rice

title: Talk:Heald v. Rice


text:
Heald v. Rice/Opinion of the Court

This was an action at law brought by Henry W. Rice against John L. Heald to recover damages for an alleged infringement of reissued letters-patent No. 6422, granted May 4, 1875, to him for improvements in steam-boilers. The original patent was No. 146,614, dated Jan. 20, 1874. The invention, as stated in the complaint, consisted, among other things, of a combination of a straw-feeding attachment with the furnace-door of a return-flue steam-boiler, for the use of straw alone as fuel, in generating steam ample for practically operating steam-engines.

The case was tried by a jury, and resulted in a verdict and a judgment for the plaintiff; to reverse which this writ of error is prosecuted.

A bill of exceptions sets out the exceptions of the defendant to the rulings of the court below, and all the evidence. The court was asked at the close of the plaintiff's testimony, and again when all the evidence on both sides had been introduced, to instruct the jury to return a verdict for the defendant; the refusal to do which, amongst other rulings, is assigned for error; and thus the whole case on the merits is brought here for review, so far as they rest upon questions of law.

The plaintiff introduced in evidence his original and reissued patents. For the purpose of comparison,-which, in view of the questions of law raised becomes important and necessary,-the specifications and claims are exhibited here in parallel columns, using one copy for both patents when they are identical, and putting all the language that is in the original and not in the reissued patent in the left-hand column in italics, and putting in the right-hand column, in italics, all the language used in the reissued patent that is not in the original.

'Supecifications forming part of letters-patent No. 146,614,     dated Jan. 20, 1874.

Reissue, No. 6422 dated May 4, 1875.

application filed

November 3, 1873,

March 17, 1875.

'To all whom it may concern:

'Be it known that I, Harvey Wood Rice, Of Haywood, Alameda     County, State of California, have invented new and useful      improvements in steam-boilers; and I do hereby declare the      following description and accompanying drawing are sufficient      to enable any person skilled in the art or science to which      it most nearly appeartains, to make and use my said invention      without further invention or experiment.

'My invention relates to certain improvements in the     construction of steam-boilers whereby

the combination of a straw-feeding device with the furnace     door of that class of boilers which are known as return-flue      boilers, by which combination I am able to provide a superior      arrangement for utilizing straw as a fuel for generating      steam.

Many attempts have heretofore been made, both in this country     and in Europe, to successfully I am enabled to utilize straw and other light substances for      fuel, so that a complete combustion of the smoke is attained,      and the danger from fire in the harvest fields, where those      boilers are more especially useful, is entirely

utilizes straw as a fuel for generating steam in steam     boilers; but these attempts have always resulted in failures      or partial failures.

When straw is fed into the furnace of an ordinary steam     boiler, it burns too quickly to do much good in heating the      water in the boiler, until a sufficient quantity of cinders      accumulates upon the grate-bars to impede the draft; and,      unless the cinders are frequently removed from between the      grate-boars, they soon accumulate to such an extent as to      choke the draft entirely and prevent combustion.

Many devices have been tried and patented for overcoming     these troubles; but, as far as I am aware, none of them have      succeeded in remedying the difficulties sufficiently to make      the straw-burning engine a practical success.

My experiments however, have developed the fact that, by      attaching a tube or box-door to the furnaces of that class of      boilers, known as return-flue boilers, in which the chimney      or stack is constructed directly above the furnace, and the      heat and products of combustion from the furnace are carried      along under the boiler and then returned back to the stack      through flues or tubes leading through the length of the      boiler, the combustion will be so complete that no sparks,      and but very little smoke, will escape from obviated; and

the chimney, and the straw will be burned freely, giving out     a high degree of heat without danger of choking the      grate-bars.

to a novel method of securing the tubes and tube-sheet within     the shell of the boiler, so that they can be at any time      easily removed for the purpose of cleaning or repairing, and      at a much less expense than is ordinarily entailed for such      work.

'Referring to the accompanying drawings for a more complete     explanation of my invention, Figure 1 is a perspective view,

''exposing the tube-sheet of one and of the boiler. Fig. 2 is a     longitudinal section. Fig. 3 is an end view with rear head     removed. Fig. 4 shows the tube and tube-sheet removed. Fig. 5     is an enlarged view showing the rear tube-sheet, flange and      ring''.

''of my boiler from the rear end. Fig. 2 is a sectional     elevation. Fig. 3 is a rear-end view with cap removed. Fig. 4     is a view of tubes and sheet. Fig. 5 is an enlarged view,     showing the manner of securing the tube-sheet in the shell''.

'A is the shell of my boiler, which is more especially     intended to be used for that class of engines employed in      threshing and other field work where there is straw or other      light material enough for fuel, but which has never been      satisfactorily burned without an artificial draft or blast,      and which has always been danagerous by reason of the sparks      thrown out, on account of incomplete combustion.

'In order to remedy these faults, and perfectly consume all     the smoke and sparks, I perforate my tube-sheet B B, so as to      admit one large

tube   furnace

C, near the bottom, which receives the fuel upon the grate D,     and acts at the same time as a tube and fire-box.

Any suitable feeder may be employed to supply straw to the     grate; but I have found the device patented by D. Morey, June      20, 1873, to be very suitable.

To the door of the furnace C. I. attach a straw-feeding tube,     E, through which the straw or other light fuel is fed to the      furnaces.

This tube can be constructed in the manner described by David     Morey in his patents dated February 11, 1873, and May 25,      1873, for straw-feeding attachment for furnaces, or in some other similar manner for feeding the      straw without admitting a draft of air.

'Above and around the sides of the large

tube   furnace

C, I place small or locomotive boiler tubes e e, as shown,     and these serve to return the heat and the products of      combustion to the chimney F, which is located at the front      end of the boiler and communicates with the chamber H, formed      between the flue-sheet and the head or door G. A similar      chamber H, is formed at the back end of the boiler into which      the products of combustion pass from the large

tube   furnace

C, before entering the return-flues e.

'By this construction the light fuel is throughly ignited in     its passage through the large tube, which has plenty of air      admitted for the purpose. The heat and flame will be     concentrated in returning through the small flues, and the      combustion will be so complete that no sparks and but very      little smoke will escape from the chimney, and this latter      will not even need a bonnet.

'The tube-sheets B B are made with a flange i, which is     turned outward, and these flanges are pierced so as to admit      screw-bolts or rivets g, as may be preferred. These bolts     secure the tube-sheets in their places perfectly steam and      water tight.

'Whenever, by reason of long use, there is a collection of     scale or sediment, or if the tubes of h e interior of the      boiler need repairing, the screw-bolts can be removed; or, if      rivets are used, they can be cut off, when the two      tube-sheets, with the tubes, can be removed from the shell in      a body, and repairs or cleaning can be easily effected, with      much less time and trouble than when the boilers are made in      the ordinary manner.

'The flange on the rear tube-sheet is turned so much smaller     than the interior of the shell that an iron ring, n, can be      introduced between it and the shell, the bolt passing through      it.

'When it is necessary to remove the tubes and sheets, this     ring can be taken out after removing the nuts and rivets, and      this leaves the rear tube-sheet small enough to pass any      rivets or obstructions freely when taking it out.

'By this construction I am enabled to make a boiler and     furnace in which straw can be used as a fuel with perfect      safety, and in which repairs can be easily effected.

'Having thus described my invention, what I claim, and desire     to secure by letters-patent is:--

1. The boiler A, having the furnace C, grate D, return-flues     or tubes e e, and stack or chimney B, arranged as described,      in combination with the straw-feeding furnace-door      attachment, substantially as and for the purpose described.

'2. In a horizontal steam boiler, the

large tube

furnace

C, formed with a grate D, to serve as a fire-place, in     combination with small return-flues e e, when the tubes and      tube-sheets are secured by flanges i and bolts g, so as to be      removable from the shell in a body, substantially as and for      the purpose described.'

It is admitted that there had been no infringement by the defendant of the second claim of the reissued patent, which included that feature of the improvement described, which consisted in the peculiar construction by which the tubes and tube-sheets were secured by flanges and bolts, so as to be removable from the shell in a body. This claim, therefore, is excluded from further consideration in the case.

The patents of David Morey for a straw-feeding attachment for furnaces, referred to in the specifications in the Rice original and reissued patent, consisted of an original patent, No. 135,659, dated Feb. 11, 1873, reissued as reissue No. 6420, dated May 4, 1875, and original patent No. 139,075, dated May 20, 1873.

The specifications of the latter describe the invention as relating to 'an improved furnace-door attachment, which is especially intended for facilitiating the use of straw as a fuel, especially applicable to the remvoable furnaces of threshing-machine engines; and it consists in attaching to the opening of the furnace intended for the door a tube or funnel having arranged within it a diagonal swinging valve, with its lower end turned up into a shoe, whereby the straw can be inserted into the furnace, and no sparks allowed to fly out, nor a draft of air allowed to enter.' It was also therein declared that the straw was to be fed through the tube by means of an ordinary hayfork. When the straw is pushed through the tube, the valve or door will be lifted so as to allow the straw to pass through, when it will immediately drop down and cut off the draft of cold air which would otherwise be admitted into the furnace, to the detriment of the fire. The claim of the patent was for 'the removable tube or funnel, having arranged within it the diagonal valve with its lower edge turned up, in combination with a furnace, as set forth.'

In the reissued Morey patent a revolving partition in the box or attachment is substituted for the diagonal swinging valve, suspended upon and revolving upon journals, and kept in position by means of springs. The office of the partition is to keep the box or tube closed and prevent the entrance of air after the straw has been pushed through the tube; though the specification adds that 'it is evident that by leaving the tube or box filled, so as to choke the opening through it, the partition or door can be dispensed with.' The straw is introduced into the furnace through the o pper of the box, by means of an ordinary hay-fork. The fork-load of straw is placed against the lower end of the partition and pushed through the box, the pressure turning the partition to a horizontal position to admit the hay or straw. As soon as the fork is unloaded and withdrawn, the partition is closed automatically by the springs, thus making a half revolution each time a fork-load of straw is introduced, and immediately closing again, so as to shut off the draft. The claim of the reissued patent embraced, first, 'in combination with the furnace of a threshing machine, the detachable box or tube, provided with a flaring mouth, the base of the tube projecting from the furnace at or nearly at a right angle to the front of the furnace, substantially as and for the purpose set forth;' and, second, 'in combination with the furnace of a threshing engine, the box or tube, provided with a flaring mouth, and having the partition or door, substantially as and for the purpose set forth.'

The following is a statement in the language of counsel for the defendant in error, of what he claims to be the proof, on the trial of the cause, as contained in the bill of exceptions, showing the state of the art and the history of the inventions attributed to Morey and Rice respectively:--

'For many years before the invention threshing machines had been driven by steam as a motive-power. In generating steam, portable fire-box boilers had been used. Such fire-box boilers were about like the ordinary locomotive boliers in common use. They had a fire-box furnace and a number of tubes or flues passing from one end to the other through the water in the boiler. The fire and products of combustion passed from front to rear through such tubes of flues, and thence out through a smoke-stack placed at the end of the boiler farthest from the furnace.

'Wood or coal was used for fuel with such fire-box boilers. During all this time it had been a great desideratum to substitute straw as fuel, in place of wood and coal. In California, in most grain districts, wood and coal were very expensive, and were inconvenient on account of having to be transported to the harvest fields, and from place to place in the fields as the threshing machine was moved from one spot to another, as one section of the field was threshed and another about to be commenced. The transportation of the wood and coal for fuel required teams and men at a time when all were needed in the harvest fields for other purposes. At the same time, where the threshing was done, there was always an accumulation of straw which was of no value, and which the farmers were glad to burn to get it out of the way.

'With the portable engines and boilers then in use straw could not be successfully used as fuel. Steam could be raised with it while the engine was not working; but when the engine was put to work the steam would run down. In 1872 David Morey attempted to accomplish the desired object by attaching straw-feeding attachments to the fire-box boilers then in use with wood or coal for fuel. He experimented with one in Watsonville, and believed from that experiment that his efforts were successful. He took out two patents early in 1873 for his inventions. . . . He made his experiment in Watsonville in 1872, after the threshing season was over for that year.

'He was anxious to introduce his supposed invention, and desired to exhibit it to the large dealers in agricultural implements in San Francisco. He accordingly went to San Francisco and looked for a place to try his invention at which it would be convenient for the merchants to attend. Rice had a machine-shop at Haywards, and also had threshing engines which he had for many years used in the harvest fields during the threshing season. He had at his place two portable engines with return-flue boilers, and one with a fire-box boiler; one of the engines with return-flue boilers was used for running the machinery in his shop, when not in the field during the threshing season.

'Morey went to Rice and requestd the privilege of attaching his straw-feeder to one of Rice's boilers, and exhibiting its operation. Rice readily consented and assisted in making the attachment and test. Morey wished to attach the straw-feeder to Rice's fire-box boiler; but Rice insisted on attaching it to the return-flue boiler. It was attached to the return-flue boiler; a test of it was made, and an exhibition given, by getting up steam and running the machinery in the shop with it. The test and exhibition gave satisfactory results as far as they went, as Morey's experiment had previously done when made with the same straw-feeder attached to fire-box boiler in Watsonville. ''No one learned from the test and exhibition at Haywards whether there was any advantage in substituting the return-flue boiler for the fire-box boiler or not. Rice was the only man that thought the return-flue boiler was the better for the purpose''.

'Morey then licensed the firm of Treadwell & Co. to make and sell his invention. The exhibitions of Morey had created a belief that straw could be used for fuel in generating steam for running threshing machines, and that very season (1873) many of the heaviest firms in San Francisco, and Morey himself, used and exercised their means and abilities to make the invention practically successful. Hawley & Co. tried it; Baker & Hamilton tried it; Treadwell & Co. tried it; and Morey tried it. Some of the partners or engineers of each of the said firms had witnessed the exhibition with the return-flue boiler at Haywards. Yet each of said firms and Morey himself made all their subsequent tests in the season of 1873 with fire-box boilers, and they all failed. They all gave up the invention after testing it that season, and believed that their tests and experiments had proved that straw could not be successfully used for fuel in generating steam for funning threshing machines. Not one of them thought for a moment that anything could be gained by substituting the return-flue boiler for the fire-box boiler. All of them worked and experimented with the fire-box boiler; and when they found it impossible to make that do the work with the straw-feeding attachment, they believed that they had exhausted the subject by proving that it was impossible to utilize straw for fuel, as desired, by any possible means. Yet they had all seen or thoroughly understood all that was shown or proved by the test and exhibition with the return-flue boiler at Haywards in the previous month of March.

'Rice alone believed in the advantages of a return-flue boiler combined with the straw-feeding attachment. Rice alone went into the harvest fields with the return-flue boiler and straw-feeding attachment, and it proved entirely successful. Rice did not know at the time what the other parties were doing, neither were they informed of what Rice was doing. Rice's operations in the threshing season of 1873 were in different sections of the country from where the other parties were experimenting. While all the other parties were by their experiments with fire-box boilers proving that straw could not be utilized for fuel as desired, Rice alone proved that it could be so utilized, by substituting the return-flue boiler for the fire-box boiler. Rice was the first and only one that suggested the combination of the return-flue boiler with the straw-feeding attachment, and he was the only one that tested and proved its advantages; and except for this individual and independent idea and action of Rice, there is no reason for supposing that the great advantages of using straw for fuel in the harvest fields would have been enjoyed to-day.'

It further appears from the testimony of Rice that he considered the main principle of his invention to be combining the arrangement, patented by Morey, with the return-flue boiler. He supposed at first that his invention covered the boiler itself, though he found afterwards that it was not new, but was on the contrary well known as the Cornish boiler. The main difficulty he claimed to overcome by his invet ion, was in preventing air from being admitted when the straw was fed into the furnance. He says, 'I took his [Morey's] tube, and attached it to this boiler [the return-flue boiler], and it was a success.' The act of invention he specified to consist in 'combining the two together.'

The contention on the part of the defendant in error is set forth in the language of his counsel in argument, as follows:--

'Applying the rules of law to the Morey and Rice patents, and (admitting Morey's patent to be valid) the following are the extent and limits of their respective inventions; viz., Morey discovered that by attaching a straw-feeding tube with a door in it to prevent a draft of air through it, to portable locomotive or fire-box steam-boilers, straw could be used with them for fuel more effectively than it could be without such tube. The combination of a straw-feeding tube which would prevent a draft of air through it, with portable steam-boilers, was Morey's invention. The discovery that a draft of air must not be admitted between the top of the fire and the bottom of the boiler was his discovery. All of Morey's discoveries and inventions, however, were insufficient to make portable steam-boilers adequate to the one great task which it was so desirable for them to perform; viz., that of running threshing machines with only straw for use as fuel.

'Rice began his discoveries and invention where Morey left off. Morey's patents were both issued before Rice had given the subject a thought. Rice discovered that by tearing out the inside of the boiler, which he found in Morey's combination, and by adding to the combination C, and the return flues e e. the large tube C, to serve as a furnace and the return-flues, that he obtained a combined machine which was a very great improvement over Morey's. Rice's combination may have and probably did include Morey's combination; but it included more viz., the large tube or furnace C, and the return flues e e.

* *  *  *  *

'In this case Morey's patents were for combining strawfeeders with portable steam-boilers generally. Rice discovered that by substituting one particular kind of portable stem-boiler which no one else had used for the steam-boilers which had been used, that he had a better combination than was ever before made,-a combination which did better work than any others, and had within it a new and better mode of operation than any others. It burned all of the straw put in it, while the others would not. It did not choke up with partly-burned straw and cinders, while the others would. It caused the heat and flame of the fire to pass twice through the length of the boiler, while in the others the heat and flame passed but once through the length of the boiler.

* *  *  *  *

'It is to be noticed that the Morey patents describe and claim only the combination of the straw-feeding device with the furnace of a boiler. His patents stop at the furnace-door. They do not go into the boiler beyond the furnace.

'Rice's patent, on the other hand, begins at the furnace-door where Morey's stop, and goes beyond into the boiler, adding new elements.'

The bill of exceptions contains fourteen exceptions to as many rulings of the court during the trial; but in argument all the points raised by them were reduced and classified by counsel for the defendant under three heads, as follows:--

1. That the reissued letters-patent to Rice, on which the action was founded, were for an invention different from that described in the original, and was therefore void.

2. That the invention described and claimed in the first claim of the plaintiff's reissued patent, which alone was material to the controversy, was anticipated and covered by the letters-patent granted to Morey.

3. That if, after the Morey patents were issued, there was any invention in the combination claimed in the Rice reissued patent, then, in fact, it is to be attributed to Morey himself, and not to Rice.

I. The first question for our determination is that raised as o the identity of the invention intended to be described in the original and reissued patents to Rice, upon the answer to which the validity of the latter, so far as this suit is concerned, depends.

In cases of reissues of patents, inoperative or invalid by reason of a defective or insufficient specification, or by reason of the patentee claiming as his own invention or discovery more than he had a right to claim as new, it is imperative that the new patent, when issued, shall be for the same invention, and that no new matter shall be introduced into the specification, when, as in the present case, there is a drawing with reference to which the invention is described.-(Rev. Stat., sect. 4916.)

The principles for determining the validity of reissued patents have been discussed and formulated so repeatedly and so recently in this court that it is necessary at present only to refer to James v. Campbell, supra, p. 356; Miller v. Brass Company, supra, p. 350; Burr v. Duryee, 1 Wall. 531; and Powder Company v. Powder Works, 98 U.S. 126.

In the present case the question of the identity of the invention in the original and reissued patents is to be determined from their face by mere comparison, notwithstanding what was said in Battin v. Taggert (17 How. 74), and consistently with Bischoff v. Wethered (9 Wall. 812), according to the rule laid down in Seymour v. Osborne (11 Wall. 516), and Powder Company v. Powder Works, supra. That is, if it appears from the face of the instruments that extrinsic evidence is not needed to explain terms of art, or to apply the descriptions to the subject-matter, so that the court is able from mere comparison to say what is the invention described in each, and to affirm from such mere comparison that the inventions are not the same, but different, then the question of identity is one of pure construction, and not of evidence, and consequently is matter of law for the court, without any auxiliary matter of fact to be passed upon by a jury, if the action be at law.

The question arises in the present record, upon an exception of the defendant below to the refusal of the court, after the plaintiff had read in evidence the original patent, to sustain an objection to the introduction in evidence of the reissued letterspatent, on the ground that they were void for want of identity in the invention; and also upon the refusal of the court to instruct the jury, both after the close of the plaintiff's case and after all the evidence was in, to return a verdict for the defendant.

Looking, therefore, to the original patent, nothing can be more clear than that the supposed invention described in it is nothing more or less than the return-flue boiler itself. The patent is for a new and useful improvement in steam-boilers. The specification begins by declaring that the invention relates to certain improvements in the construction of steam-boilers, whereby, the inventor says, 'I am enabled to utilize straw and other light substances for fuel, so that a complete combustion of the smoke is attained, and the danger from fire in harvest fields, where these boilers are more especially useful, is entirely obviated.' It also relates, as is said, to a novel method of securing the tubes and tube-sheets within the shell of the boiler. Reference is them made to the accompanying drawings for a more complete explanation of the invention. He refers to the shell of the boiler, which he says is more especially intended to be used for that class of engines employed in threshing and other field-work where there is straw or other light material enough for fuel, but which has never been satisfactorily butned without an artificial draft or blast, and which has always been dangerous by reason of the sparks thrown out, on account of incomplete combustion. It was, 'in order to remedy these faults and perfectly consume all the smoke and sparks,' he continues, that 'I perforate my tube-sheets, so as to admit one large tube near the bottm, which receives the fuel upon a grate and acts at the same time as a tube and fire-box.' Then occurs this sentence: 'Any suitable feeder may be employed to supply straw to the grate; but I have found the device patented by D. Morey, June 20, 1873, to be very suitable.' He then proceeds with the description of the tubes and the return tubes conducting to the chimney in front, and the communicating chamber between the flue-sheet and the boilerhead, and the similar chamber at the back-end of the boiler, into which the products of combustion pass from the large flues before entering the return-flues. 'By this construction,' the specification continues, 'the light fuel is thoroughly ignited in its passage through the large tube, which has plenty of air admitted for the purpose. The heat and flame will be concentrated in returning through the small flues, and the combustion will be so complete that no sparks and very little smoke will escape from the chimney, and this little will not even need a bonnet.' This is followed by a description of the device for removing the tubes and tube-sheets from the shell in a body for repair or cleaning, which is not material. The inventor then adds: 'By this construction I am enabled to make a boiler and furnace in which straw can be used as a fuel with perfect safety, and in which repairs can be easily effected,' and concludes: 'Having thus described my invention, what I claim and desire to secure by letters-patent is: In a horizontal steam-boiler, the large tube, C, formed with a grate, D, to serve as a fire-place, in combination with small return-flues, e e, when the tubes and tube-sheets are secured by flanges, i, and bolts, g, so as to be removable from the shell in a body, substantially as and for the purpose set forth.'

The allusion to the mode of supplying straw to the grate is merely casual and incidental. Any suitable feeder may be employed, it is said; the inventor adds: 'but I have found the device patented by D. Morey, June 20, 1873, to be very suitable.' In what respect this device has been found to be very suitable is not mentioned, nor is it hinted that there are not many others quite as good. No attempt is made to explain what is needed in a feeder to make it suitable, nor any hint that any of the advantages described as resulting from the operation of the machine depend in any degree upon the character of the feeder. For aught that may be inferred from what is said concerning it, there need be nothing peculiar in the mode of supply, except what is rendered necessary by the character of straw as a fuel in lightness and bulk, and a supposed convenience on that account of supporting it, as it is pushed into the furnace. There is certainly no suggestion that it is considered important much less necessary in supplying this fuel, to do it in such manner and by means of such device as will prevent the introduction of a draft of cold air between the top of the fuel and the bottom of the boiler, while in the act of replenishing the supply. Neither the mode of feeding the fuel, nor any device for doing it, is made any part of the described invention; nor is either referred to, in any way, as performing any useful or essential function in the operation of the machine described. Every desired advantage which it is expected to accomplish is referred expressly to the boiler itself, and its structure and internal arrangement. As is well said by counsel for plaintiff in error, on this point: 'What he sought was complete combustion of the straw by making the products of combustion pass through the boiler twice before they were allowed to escape into the chimney, and the office of the feeder was not auxiliary to the combustion, but preliminary to it. It supplied the straw. It did not burn it. It is true that a Morey tube is shown in the drawing as attached to the front of his engine; but that does not make it part of his invention, any more than a set of wheels and axles would have become part of it if the drawing had represented his boiler as mon ted on running gear.'

If we turn now to the reissued patent, we find that the patentee declares that, 'my invention relates to the combination of a straw-feeding device with the furnace-door of the class of boilers which are known as return-flue boilers, by which combination I am able to provide a superior arrangement for utilizing straw as a fuel for generating steam.' He then refers to the failure of previous attempts to utilize straw as fuel for generating steam, and gives as the reason, that 'when straw is fed into the furnace of an ordinary steam-boiler, it burns too quickly to do much good in heating the water in the boiler, until a sufificient quantity of cinders accumulates upon the grate-bars to impede the draft, until a sufficient quantity of reinoved from between the grate-bars they soon accumulate to such an extent as to choke the draft entirely and prevent combustion.' He then adds that his experiments have developed the fact that, by attaching a tube or box door to the furnaces of that class of boilers known as return-flue boilers, the combustion will be so complete that no sparks and but very little smoke will escape from the chimney, and the straw will be burned freely, giving out a high degree of heat without danger of choking the grate-bars.

He then gives a description, with reference to the drawings, which are the same as those attached to the original specifications. In that description, differing in that respect from the former one, he inserts: 'To the door of the furnace C, I attach a straw-feeding tube E, through which the straw or other light fuel is fed to the furnaces;' and changes the sentence in reference to the character of the straw-feeder, so as to read as follows: 'This tube can be constructed in the manner described by David Morey in his patents dated Feb. 11, 1873, and May 25, 1873, for straw-feeding attachment for furnaces, or in some other suitable manner, for feeding the straw without admitting a draft of air.' The first claim of the reissued patent reads thus: 'The boiler A, having the furance C, grate D, return flues or tubes e e, and stack or chimney B, arranged as described, in combination with the straw-feeding furnace-door attachment, substantially as and for the purpose described.'

It appears, then, from the mere reading of the two specifications, that the invention described in the first is for the return-flue boiler; while that described in the second, abandoning the claim for the boiler itself, is for a particular mode of using it, with straw as a fuel, by means of an attachment to the furnace-door for that purpose. It might well be that Rice was entitled to patents for both, separately, or to one for both inventions. But it is too plain for argument that they are perfectly distinct. A patent, consequently, originally issued for one cannot lawfully be surrendered as the basis for a reissue for the other. They are as essentially diverse as a patent for a process and one for a compound, as in the case of Power Company v. Power Works (98 U.S. 126), where the reissued patent was avoided, although the original application claimed the invention both of the process and the compound. The case comes directly within the principle held in James v. Campbell, supra, that a patent for a machine cannot be reissued for the purpose of claiming the process of operating that class of machines; because, if the claim for the process is anything more than for the use of the particular machine patented, it is for a different invention.

II. The second principal objection to the validity of the Rice reissued patent is, that it is anticipated by the Morey patents. We are of opinion that it also is well taken.

Morey's reissued patent of May 4, 1875, covers distinctly and expressly a combination of the furnace of a threshing engine with a detachable box or tube provided with a flaring mouth, the base of the tube projecting from the furnace at or nearly at a right angle to the front of the furnace, the office of which is to furnish means for the u pply of straw as fuel to the furnace in such manner as to prevent the entrance of air after the straw has been pushed through the tube; which may be effected either by means of a movable partition, for which a separate claim is made, or without it by merely having the tube or box filled, so as to choke the opening through it, with successive supplies of straw.

It applies to every description of threshing engines and boilers, whether fire-box or return-flue. It is true that it does not specify either class, but it embraces both by its language; and in its application to both it operates in precisely the same manner, and with precisely similar effect. If there is any superiority in the return-flue boilers used with this attachment as a straw burner, over the fire-box boiler, when used in the same way, the superiority is due, not to any difference in the straw-feeding attachment, nor in the mode of its operation, nor to any new feature of the combination, but merely to the superiority of the return-flue boiler itself. And it does not militate against the validity of Morey's patent, or limit the extent and effect of its application, to concede what is claimed, that he was not aware, at the time of his invention, of the superior value of its application to return-flue boilers over fire-box boilers, or that the discovery of that superiority is attributable to Rice. That application of it is within the scope and provision of Morey's invention, whether it had been tested by his experience, or was anticipated by his foresight or not. If, at the date of Morey's invention, return-flue boilers had not been known, but had been subsequently invented, his patent, as applied to them, would still have prevailed against any new claimant; for the new application does not produce any new effect. It is only the occasion which is new; the use itself is merely analogous. Hall's Paten (1 Web. P. C. 97), where the flame of gas was used instead of an argand lamp for singeing lace, is pressed upon us as authority for a different conclusion upon this point; but the decision of Lord Abinger in Losh v. Hague (id. 202), and his comments upon Hall's Patent, show that it has no application here.

There was no patentable invention in Rice's adaptation. The return-flue boiler, it is admitted, was old. The Morey attachment had been already invented. The idea and principle of its operation, in adapting boilers to the use of straw as a fuel, was the essence of his invention. Rice, it is confessed, discovered nothing more than that, for such purpose, a return-flue boiler was better than fire-box boilers, which were the only kind that had then been used.

'But this,' in the language of Mr. Justice Nelson in Hotchkiss v. Greenwood (11 How. 248, 266), 'of itself, can never be the subject of a patent. No one will pretend that a machine made, in whole or in part, of materials better adapted to the purpose for which it issused than the materials of which the old one is constructed and for that reason better and cheaper, can be distinguished from the old one; or, in the sense of the patent law, can entitle the manufacturer to a patent. The difference is formal and destitute of ingenuity or invention. It may afford evidence of judgment and skill in the selection and adaptation of the materials in the manufacture of the instrument for the purposes intended, but nothing more.' Hicks v. Kelsey (18 Wall. 670) affirms this case.

The same principle was applied in Stow v. Chicago, supra, p. 547.

The case would not be altered if we suppose that at the date of Morey's patent there had been also a valid patent outstanding in a stranger for the return-flue boiler. On that supposition, could it for a moment be contended that Rice could secure for himself a valid patent for the combination as an improvement on both? What invention could he claim? He uses Morey's device precisely as Morey's patent contemplated, and the Cornish boiler exactly as it was designed it should be used. And in the combination a ch operates separately, producing its own results. There was no inventive resource drawn upon to bring them together. Could not the owners of the patents for the straw-feeding attachment and the return-flue boiler unite their machines and work them together, in defiance of a claim for the combination? To ask the question is to answer it. Yet the case supposed does not differ from the case as it exists; for the public owned the right to the Cornish boiler, and was entitled to every use to which a patentee owning it might lawfully apply it.

On the trial of the cause below, Morey's patent seems to have been treated in the charge of the court as if it were a patent for a combination of a straw-feeding attachment with the furnaces of boilers other than those with return-flues, and that Rice added to the combination the new element of the return-flues with a new and important result. But this view, in our opinion, is not justified by the true construction of the patents. If Morey's patent is for a combination, it is a combination of the straw-feeding attachment with all boilers for generating steam, when it is desired to use straw for fuel, and therefore includes the very combination claimed by Rice. And if it is for the straw-feeding attachment as an independent device, but to be used in boilers for generating steam, when straw is to be used as fuel, then the application of it to the return-flue boilers, although these were not actually known to the inventor, is merely a new and analogous use of an old device, operating in the very manner intended by its inventor, and the use of which, in the new application, involved no invention, and could not therefore be the subject of a patent.

III. In fact, it is very apparent from the testimony on the part of the plaintiff, that the actual application of the Morey straw-feeding attachment to the return-flue boiler, at Rice's establishment, was a demonstration made by Morey himself of the practical operation of his device; intended to show what he had already proved by previous trials with fire-box boilers, to his own satisfaction, that he had invented an arrangement for applying the principle by which straw could be made useful as a fuel for steam-boilers, that principle being to prevent the introduction of a draft of cold air while feeding the supply. He showed this to Rice by the trial at the establishment of the latter, on one of his own return-flue boilers. Rice, by subsequent experience or previous knowledge, it matters not which, perceived the advantages of the return-flue boiler over the fire-box boiler for such a use. That was his sole discovery, and constitutes the basis of the claim for his patent. The marvel is that he should have succeeded in persuading Morey that he had given all its value to the invention of the former, and obtained from him the conveyance of his patent for a consideration dependent upon the result of this litigation.

The court below, in its rulings upon objections to the introduction of the reissued patent of Rice, in its refusals to charge the jury as requested by the defendant, and in its charge as given, took views of the validity of the patent, on which the case of the plaintiff rested, which are opposed to those expressed in this opinion, and which necessarily resulted in the verdict and judgment against the defendant. For these errors the judgment must be reversed, with directions to grant a new trial; and it is

So ordered.

MR. JUSTICE GRAY did not sit in this case nor take any part in deciding it.

title: Heald v. Rice/Opinion of the Court


text: Talk:Heald v. Rice/Opinion of the Court

title: Talk:Heald v. Rice/Opinion of the Court


text:
The New International Encyclopædia/Herwarth von Bittenfeld, Karl Eberhard

HERWARTH VON BITTENFELD, hĕr'värt fṓn bĭt'ten-fĕlt, (1796-1884). A Prussian general. He was born at Grosswerther in Prussia, and entered the army in 1811. He gained his first laurels in the War of Liberation, especially in the battle of Leipzig. In 1848 he commanded the First Regiment of

the Guards. During the war with Denmark in 1864 he acquired fame through his daring crossing of the Sound and capture of the isle of Alsen. In the campaign of 1866 he was in command of the right wing of the army which advanced into Bohemia. He bore the brunt of the fighting at Hühnerwasser and Münchengrätz, and contributed materially to the victory of Sadowa. On the outhreak of the war of 1870 he was appointed governor of the Rhenish Provinces, and in the next year he was raised to the rank of general-field-marshal.


text:
Britton v. Niccolls

ERROR to the Circuit Court of the United States for the Southern District of Mississippi.

The facts are stated in the opinion of the court.

Mr. James Lowndes and Mr A. H. Handy for the plaintiff in error.

Mr. William L. Nugent for the defendant in error.

MR. JUSTICE FIELD delivered the opinion of the court.

title: Britton v. Niccolls


text: Talk:Britton v. Niccolls

title: Talk:Britton v. Niccolls


text:
Britton v. Niccolls/Opinion of the Court

The defendant in the court below is the surviving partner of the firm of Brt ton & Koontz, which was engaged in the banking business at Natchez, in the State of Mississippi, in 1874 and 1875. The plaintiff in the court below, Niccolls, was at that time a citizen of Illinois, and the present suit is brought by him to recover damages from the surviving partner of the firm for its neglect to present for payment to the maker, at their maturity, two promissory notes sent to it for collection, by reason of which the liability of a responsible indorser was released.

The facts in the case are briefly these: In April, 1874, the plaintiff was the holder of a promissory note of one John I. Lambert for $3,666.66, dated at Natchez, April 24, 1872, and payable to his order two years after date, with interest at the rate of eight per cent per annum. The note was indorsed by three parties besides the payee,-J. M. Reynolds, John Flemming, and J. S. Everet. Flemming's indorsement was without recourse to him; the other indorsements were without any such restriction upon the liability of the parties.

In April, 1874, the plaintiff caused this note, to be sent, through a banking-house in Bloomington, Illinois, to the firm at Natchez for collection. The only instructions accompanying it were that it was to be collected if paid, and if not paid on presentment it was to be protested and notice of non-payment sent to the indorsers.

In April, 1875, the plaintiff was the holder of another note of the same maker, identical in amount, date, and terms with the first, except that it was payable in three years after date; and it was indorsed in like manner by the same indorsers. This note matured on the 27th of that month. Some days previously the plaintiff sent it to the firm at Natchez, with instructions to collect it if paid, and if not paid to have it delivered to a protesting officer for protest, and to give notice to the indorsers.

No information as to the residence of the maker was given to the firm with the notes; nor does it appear that either member of it had, then or subsequently, any knowledge on the subject. The plaintiff himself was ignorant of it. He resided, in fact, on his plantation, twelve or fifteen miles from Natchez; he had no domicile or place of business in that city. The notes not being paid at their respective maturities,-the first one on the 27th of April, 1874, and the second one on the 27th of April, 1874,-before the close of banking hours on those days, were handed by the firm to a notary-public of the county, with instructions to demand payment of them, and if they were not paid to protest them and send notice of non-payment to the indorsers. No other directions were given. The notary knew that the maker resided on his plantation, and had no place of business in the city; but he inquired for him at the post-office, the city hall, and the court-house,-three of the most public places there,-and, not finding him, protested the notes for non-payment, and gave notice thereof to the indorsers.

The plaintiff soon afterwards brought suit against the maker and also against the indorser, Everet, which proceeded to judgment and execution; but nothing was obtained from the parties. Suit was also brought against Reynolds, the first indorser, in which judgment passed for the defendant, on the ground that due presentment of the notes to the maker and demand of payment had not been made at their maturity, by reason of which the indorser was released from liability. It is admitted that if judgment had been rendered against Reynolds, the money due upon the notes might have been collected upon execution. The plaintiff thereupon brought the present action.

The notary testified that, in his endeavors to make presentment of the notes for payment, he had acted upon his own opinion as to his duty, without instruction from the firm; and because he considered that the notes, being dated at Natchez, and no place of payment being stated, the place of presentment was, in law, at Natchez, and not at the marker's domicile outside of the city.

The surviving partner, Britton, testifid that it was always the custom of the firm, when it had notes for collection, whether its own or those belonging to others, to send through the post-office a notice of their amount and of the date of their maturity to the proper parties, a reasonable time before the notes became payable, and if payment was not made at their maturity, to place them in the bands of a notary for presentment and protest; that this course was pursued with respect to the notes in question; that Koontz, the deceased partner, who, it would seem, took special charge of the business of protesting paper left with the firm for collection, when that was necessary, had inquired of several persons coming into the banking-house as to the residence of the maker of the notes, and on one occasion left the house for the express purpose of trying to ascertain it, and returned stating that he had not succeeded; and that 'the notary would have to comply with the law in such cases, and present at several of the most public places.' He also testified that he was 'certain that Koontz made diligent efforts to ascertain Lambert's (the maker's) place of residence, and that they were unsuccessful.'

Upon the facts and testimony as stated, the defendant, among other things, requested the court to instruct the jury, in substance: that if the bankers had no knowledge of the residence or place of business of the maker, and were unable, after diligent inquiry in the city of Natchez, to ascertain the same, and thereupon, at the maturity of the notes, handed them to a notary-public for the purpose of having presentment made thereof to the maker for payment, and of having them protested in case of non-payment and notice thereof given to the indorsers, then the bankers were not liable for negligence in performing the duties intrusted to them, nor for failure of the notary to discharge the duties required of him with respect to the demand of payment.

We do not give the precise language of the instruction asked, but only its substance and purport. The court refused it, and instructed the jury, in substance: that if it was the duty of the bankers to perform such acts as the law required to charge the indorsers upon the notes, which were to present them to the maker for payment on their last days of grace respectively, and upon non-payment to give notice thereof to the indorsers; and that the bankers were not exonerated from this duty by the delivery of the notes to the notary for their performance, unless it was within a reasonable time for him to present the notes to the maker, and to demand payment, on the days they respectively became due, at his residence or place of business. To the refusal of the instruction asked, and to those given, an exception was taken. The plaintiff recovered judgment for the amount due on the notes, and the case is brought here for review.

The notes being dated at Natchez, the presumption of law, in the absence of other evidence on the subject, is that that was the place of residence of the maker, and that he contemplated making payment there. The duty of the bankers as collecting agents was, therefore, to make inquiry for his place of business or residence in that city, and if he had either to make there the presentment of the notes, but if he had neither to use reasonable diligence to find him for that purpose; or if the employment of a notary-public for that object was sanctioned by the usage of bankers, or by the law as declared by the courts of the State, instead of making the presentment and demand personally, they could have placed the notes in his hands for the performance of that duty. As it turned out that the maker had neither domicile nor place of business in the city, and was absent at the time from it, no demand upon him there was possible, nor was that essential to charge the indorsers.

The law on this subject we consider to be well settled, as will be seen by an examination of the numerous adjudged cases as to what constitutes due presentment and demand of payment of commercial paper, and what will excuse boh. The only point upon which we find any marked difference of opinion in them respects the liability of the collecting bankers for the manner in which the notary, to whom the notes are delivered for presentment and protest, discharges his duty.

In the State of New York the doctrine obtains that bankers, to whom notes are intrusted for collection are responsible for the failure of agents employed by them in the presentation of the notes to the maker and in protesting them when not paid, though the agents are notaries exercising a public office and especially charged with the performance of such duties. In the case Allen v. Merchants' Bank of New York, it was decided by the Court of Errors of that State that the liability of the bank extended to any neglect of duty by which any of the parties to a bill are released, whether arising from default of its own officers or servants, or its correspondents at a distance, or agents employed by them. Previously a more limited liability was supposed to rest upon a collecting bank. In that case the bill was drawn in New York upon parties in Philadelphia and placed in the defendant's bank of the former city for collection, and by it forwarded to a bank in Philadelphia. The latter bank handed it to a notary to present for acceptance. He presented it, but omitted to give notice of its non-acceptance, by which a responsible indorser was released. The action was against the collecting bank to recover the amount of the bill, and was brought in the Superior Court of the city of New York, where the jury was charged that the defendant was, upon general principles of law, independently of any custom or usage, or of any agreement express or implied, only bound to transmit the bill to Philadelphia in due time to some competent agent; and that it was not liable fore his negligence or omission in giving notice of its non-acceptance. Judgment having passed for the defendant, the case was taken to the Supreme Court of the State, and was there affirmed. That court, speaking through Mr. Justice Nelson, said that 'a note or bill of exchange left at a bank and received for the purpose of being sent to some distant place for collection, would seem to imply, upon a reasonable construction, no other agreement than that it should be forwarded with due diligence to some competent agent to do what should be necessary in the premises. The language and acts of the parties fairly import so much, but nothing beyond it. The person leaving the note is aware that the bank cannot personally attend to the collection, and that it must therefore be sent to some distant or foreign agent,' and that there seemed to be nothing in the natural of the transaction which could reasonably imply an assumption for the fidelity of the agent abroad. 15 Wend. (N. Y.) 482. The case being carried to the Court of Errors, the decision of the Supreme Court was reversed, and the doctrine declared that the bank was responsible for all subsequent agents employed in the collection of the paper. 22 id. 215. The reversal was by a vote of fourteen senators against ten; Chancellor Walworth, who composed a part of the Court of Errors in cases appealed from the Supreme Court, voting with the minority and giving an opinion for affirmation of the judgment. Senator Verplank delivered the prevailing opinion. The decision has since been followed in New York, and its doctrine, we believe, has been adopted in Ohio. But in the courts of other States it has been generally rejected and the views expressed by the Supreme Court approved.

In Dorchester and Milton Bank v. New England Bank, it was held by the Supreme Court of Massachusetts that when notes or bills, payable at a distant place, are received by a bank for collection, without specific instructions, it is bound to transmit them to a suitable agent at the place of payment, for that purpose; and that when a suitable sub-agent is thus employed, in godd faith, the collecting bank is not liable for his neglect or default. In giving its judgment the court referrd to the ruling in Allen v. The Merchants' Bank, and observed that it was opposed to a number of decisions of great authority, and, in its opinion, was not well founded in principle; that if the bank in that case acted in good faith in selecting a suitable sub-agent where the bill was payable, there was no principle of justice or public policy by which the bank should be made liable for his neglect or misfeasance. 1 Cush. (Mass.) 177.

In the Supreme Courts of Connecticut, Maryland, Illinois, Wisconsin, and Mississippi, the doctrine of the Supreme Court of New York in the case reversed, and of the Supreme Court of Massachusetts in the case cited, has been approved and followed. In the New York case, in the Court of Errors, it was conceded that the general liability of the collecting bank might be varied and limited by express agreement of the parties, or by implication arising from general usage; and in some of the cases in other States, proof of such general usage of bankers in the employment of notaries was permitted, and a release thereby asserted from liability of the bank for any neglect by them. Thus in Warren Bank v. Suffolk Bank, (10 id. 582), a note left with the latter bank for collection had been placed at the close of banking hours with a notary-public for presentment and protest, and by his negligence in presenting the paper to the maker the liability of an indorser was released. The bank was thereupon sued. On the trial, proof was offered to show that in Boston, where the case arose, it was the invariable usage of banks, when notes were sent for collection by other banks, to keep them for payment until the close of banking hours on the day they became payable, and if not then paid to put them into the hands of a notary-public for demand on the maker and protest; and that the defendant had pursued that course. The court below decided that, if there were negligence on the part of the notary, the evidence was immaterial, and that the usage did not constitute a defence. The Supreme Court reversed this decision, and held that the evidence was admissible. 'It would, we think,' said the court, 'have authorized the jury to find an implied agreement or assent to the employment of a sub-agent or notary-public for the purposes of making a demand on the maker, requiring only in the collecting bank due diligence and care in selecting the notary, or a general usage binding certainly those who were conversant of it. It is no sufficient answer to this to say that it was not absolutely necessary to employ a notary in a case like the present to certify to the demand and protest. If this was the well-established course of business, and known to the plaintiffs when they sent to the defendants this note for collection, they must be bound by it.' The court also said, that when the nature of the business in which an agent is engaged requires for its proper and reasonable execution the employment of a sub-agent, the principal agent is not responsible for the default of the sub-agent, provided a proper one by selected; and it was of opinion that, if the usage of the banks authorized the employment of a sub-agent holding an official character, it then became a case of sub-agency, with its incidents.

In the case at bar there was no proof of any general usage of bankers at Natchez as to the employment of notaries-public in the presentment and protest of notes left with them for collection. But we have before us the decisions of the Supreme Court of Mississippi, and they are of equal potency to limit the liability of the bankers for the negligence of the notary. We can look into those decisions to ascertain what the law is in that State, and how far it has modified what would otherwise be deemed the general law on any particular subject. By them we are informed that it is the settled law of the State, that 'a bank receiving commercial paper, as an agent for collection, properly discharges its duties, in case of non-payment, by placing the paper in the hands of a notary-public to be proceeded with in such manner as to charge the parties to it, and secure the rights of the real owner; and that the bank is not liable in such cases for the failure of the notary to perform his duty.' This is the language used by that court in Bowling v. Arthur (34 Miss. 41); and in support of it Tiernan v. Commercial Bank of Natchez (7 How. (Miss.) 648), and of Commercial Bank of Manchester v. Agricultural Bank (7 S. & M. 592), are cited. And the court adds, that these cases decide that the notary is the sub-agent of the holder, through the bank, and as such is liable to him; and it is satisfied that the rule declared in them is correct.

By a statute of Mississippi notaries are authorized to protest promissory notes as well as bills of exchange, and they are required to keep a record of their notarial acts in such cases; and the record is admissible in evidence in the courts of the State just as though the notary were present and interrogated respecting the matters recorded. And it was decided in the case of Bowling v. Arthur, that, under the statute, it is a part of the duty of the notary, when protesting paper, to give all notices of dishonor required to charge the parties to it.

Judged by the law of Mississippi, the bankers, Britton and Koontz, discharged their duty to the plaintiff when they delivered the notes, received by them for collection, to the notary-public. There is no question as to his habits or qualifications. He was not connected in business with the bankers, nor employed by them except in his official character. What more could they have done, as intelligent and honest collecting agents, desirous of performing all that was required of them by the law, ignorant, as they were, of the residence of place of business of the maker of the notes, and having unsuccessfully made diligent inquiry for them? Had they known that the maker resided on his plantation, without the city limits, in time to make the demand upon him, it might, perhaps, have been incumbent upon them to forward the notes there for presentment. It is not necessary to express any opinion on this head, for the only question is whether, on the knowledge they possessed, they discharged their whole duty. For the reasons stated we are of opinion that they did all that the law required of them.

The notary, it is urged, was aware of the residence of the maker; but we do not perceive how this could affect the liability of the bankers. We are not prepared to say that even with this knowledge he was bound, receiving the paper at the close of banking hours, to go out of the limits of the city to present it to the maker. He took the paper to inquire for the maker in the city, not outside of it, and to make presentment if he were found. If his knowledge of the residence of the maker could have required him to leave the city, so it would have done had the maker resided one hundred miles distant instead of twelve or fifteen. But on this head we are not called upon to express an opinion. It is enough here that the notary was not, in this matter, the agent of the bankers. He was a public officer whose duties were prescribed by law; and when the notes were placed in his hands, in order that such steps should be taken by him as would bind the indorsers if the notes were not paid, he became the agent of the holder of the notes. For any failure on his part to perform his whole duty he alone was liable; the bankers were no more liable than they would have been for the unskilfulness of a lawyer of reputed ability and learning, to whom they might have handed the notes for collection, in the conduct of a suit brought upon them.

The fact that in the action against the indorser, Reynolds, judgment passed in his favor, on the ground that due presentment and demand of payment had not been made of the maker, can have no weight in this case. The bankers were not parties to that action, had no control over its management, and are not bound by the judgment rendered. If the plaintiff was not satisfied with that judgment, he should have appel ed from it. The rulings of the court in that case are not authority in this.

It follows from these views that the instruction refused should have been given, and that the instructions given should have been refused. The judgment, must, therefore, be reversed, and the cause remanded for a new trial; and it is

So ordered.

MR. JUSTICE HARLAN concurred in the judgment.

MR. JUSTICE GRAY did not sit in this case.


text: Talk:Britton v. Niccolls/Opinion of the Court


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United States v. Babbitt (104 U.S. 767)

APPEAL from the Court of Claims.

Lawrence S. Babbitt reported at the Military Academy at West Point as a candidate for admission, June 11, 1857, and was admitted as a conditional cadet on the first day of the following month. He received his warrant as a cadet, Feb. 6, 1858. He was graduated from that institution July 1, 1861, and commissioned a second lieutenant of artillery June 24 of that year. He has served continuously in the army ever since. The accounting officers, in computing his longevity pay, held that his period of service commenced from the date of his commission as such second lieutenant, while he claimed that he should be credited also with the time he remained at the academy. He brought suit against the United States to recover the difference in his pay between the sum which they allowed and that to which he would have been entitled had they adopted his manner of stating the account.

The seventh section of the act of June 18, 1878, c. 263 (20 Stat. 145), is as follows: 'That on and after the passage of this act, all officers of the army of the United States who have served as officers in the volunteer forces during the war of the rebellion, or as enlisted men in the armies of the United States, regular or volunteer, shall be, and are hereby, credited with the full time they may have served as such officers and as such enlisted men, in computing their service for longevity pay and retirement.'

The Court of Claims announced a decision adverse to the claimant; but for the reasons stated in the opinion of this court judgment was rendered in his favor. The United States appealed, and assign for error that the court erred in computing the plaintiff's service, and should have excluded therefrom the time he was a cadet at West Point.

The Solictor-General for the United States.

Mr. William Penn Clarke for the appellee.

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

title: United States v. Babbitt (104 U.S. 767)


text: Talk:United States v. Babbitt (104 U.S. 767)


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United States v. Babbitt (104 U.S. 767)/Opinion of the Court

The question presented to the court below on the trial of this case was, whether in the computation of longevity pay for an officer of the army of the United States, under the provisions of sect. 7 of the act of June 18, 1878, c. 263 (20 Stat. 145), his period of service as a cadet at West Point was to be taken into account. The court decided it was not, and an elaborate opinion to that effect was filed; but the record shows that, after the decision was announced, a pro forma judgment was rendered, with the consent of the Attorney-General, in favor of the claimant. This is stated in the judgment to have been done because the case was one of a class, and the claimant, if judgment should be given against him, could not appeal. In Pacific Railroad v. Ketchum (101 U.S. 289), we decided that when a decree was rendered by consent, no errors would be considered here on an appeal which were in law waived by such a consent. In our opinion, this case comes within that rule. The consent to the judgment below was in law a waiver of the error now complained of. For this reason the judgment below must be affirmed; and it is

So ordered.


text: Talk:United States v. Babbitt (104 U.S. 767)/Opinion of the Court


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Blair v. Gray

ERROR to the Circuit Court of the United States for the Northern District of Illinois.

This was an action at law by Blair. The declaration alleges that a policy of insurance was issued by the Republican Life Insurance Company of Chicago on the life of his intestate, who died while the policy was in full force and effect; that proof of death and the d justment of the loss were duly made, but that the company failed to pay any part of the sum due by the terms of the contract.

The declaration also avers that Gray, the defendant, was a stockholder of the company to the amount of $10,000, of which he had actually paid in only $2,000; and that under the sixth section of the charter, which is set out in the opinion of this court, he is, to the amount of his unpaid stock, liable to the plaintiff.

The court sustained a demurred to the declaration, and Blair sued out this writ.

Mr. E. A. Otis for the plaintiff in error.

Mr. Francis Kales, contra.

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

title: Blair v. Gray


text: Talk:Blair v. Gray

title: Talk:Blair v. Gray


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Blair v. Gray/Opinion of the Court

The charter of the Republic Life Insurance Company of Chicago contains the following section:--

'SECT. 6. The real and personal property of each individual     stockholder shall be held liable for any and all liabilities      of the company, to the amount of stock subscribed and held by      him and not actually paid in. In all cases of losses exceeding the means of the     corporation, each stockholder shall be held liable to the      amount of unpaid stock held by him.'

The defendant, Gray, subscribed $10,000 to the capital stock of the company. He has paid only $2,000 on his subscription, and still owes the company for the rest. Under the foregoing section of the charter some appropriate action for the benefit of creditors may undoubtedly be maintained against him for the recovery of this unpaid balance, if the losses of the company are in excess of its means.

This suit was at law by a policy-holder of the company, against the defendant as a stockholder, to recover an amount claimed to be due on the policy. There is no averment in the declaration to the effect that the losses of the company, or its liabilities, exceed its assets. The case stands on demurrer to the declaration. Without, therefore, determining whether, under the decisions of the courts of Illinois, if it appeared that there was a deficiency of assets, an action like this might be maintained, we affirm the judgment below, because we are all of opinion that, until such contingency arises, a creditor cannot sue a stockholder to enforce this liability.

Judgment affirmed.

title: Blair v. Gray/Opinion of the Court


text: Talk:Blair v. Gray/Opinion of the Court

title: Talk:Blair v. Gray/Opinion of the Court


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Poppe v. Langford

MOTION to dismiss a writ of error to the Supreme Court of the State of California.

Langford, the substituted plaintiff in an action of ejectment, against Poppe, in the District Court of the Fifth Judicial District of California, for the County of San Joaquin, recovered judgment for a tract of land in that county. The only real question involved in the case, and passed upon by the SupremeCourt of the State to which an appeal was taken, is stated in the opinion of this court.

Mr. C. T. Botts and Mr. James D. Coleman in support of the motion.

Mr. C. R. Greathouse and Mr. A. Chester, contra.

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

title: Poppe v. Langford


text: Talk:Poppe v. Langford

title: Talk:Poppe v. Langford


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Poppe v. Langford/Opinion of the Court

It is clear we have no jurisdiction in this case. All the court below decided was, that in California the title of the true owner of lands is extinguished by an adverse possession under color of right for the length of time which would be a bar to a recovery in ejectment. This is not a Federal question. All that was said about sect. 1007 of the Civil Code of California was unnecessary and not required in the determination of the cause.

Motion granted.

title: Poppe v. Langford/Opinion of the Court


text: Talk:Poppe v. Langford/Opinion of the Court


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Loudon v. Taxing District

APPEAL from the Circuit Court of the United States for the Western District of Tennessee.

The firm of J. & M. Loudon, of which James A. Loudon, the appellant, is the surviving partner, entered in the year 1867 into several contracts with the city of Memphis to pave certain streets and alleys and part of the wharf and public landing. The city was directly liable for a portion of the work, and gave its negotiable notes therefor. It failed to meet them at maturity, and the firm e covered four judgments thereon, Nov. 4, 1871, aggregating $64,613.18. These judgments were, as the notes had been, put in the hands of parties from whom the firm borrowed money, for the use of which it was compelled to pay exorbitant interest, to meet its engagements, the city having failed to make payment.

For another portion of the work the owners of the adjoining property were liable, and the city guaranteed the payment. The owners did not pay the assessments, and the city failed to make good its guaranty. In May, 1872, the Supreme Court decided that the law pursuant to which the contracts were made that provided for charging upon the owners of the abutting property the cost of paving streets, was unconstitutional.

The firm and the city agreed Sept. 16, 1872, that the amount due from the property-holders-for a part of which, however, the city was not responsible-amounted to $45,367.89, and that the city should execute to the firm forty-five six-per-cent coupon bonds of $1,000 each, due thirty years after date. This was done, the city paying in cash $367.89. It was further agreed, that of the tax of one per cent on the assessed value of the property within the city, subject to taxation, three tenths of the sum levied for the year 1872 should be set apart to pay the judgments due the firm.

The city bonds were worth but fifty per cent of their face value, and that was the only amount which the firm realized from such of them as it sold.

In the tax levy for 1874 no provision was made for the payment of the judgments, and nothing has been paid thereon since January of that year. The firm was compelled to sell two of them at an exorbitant rate of discount.

The bill prays that the contract of September, 1872, so far as it interferes with a recovery by the complainant of the debt of $45,000, for which the bonds of the city were accepted, be set aside and vacated; that the city may be decreed to pay all that in justice and equity is due to him by reason of the exorbitant interest the firm was compelled to pay to raise money in consequence of the refusal of the city to meet its engagements, and also by reason of the money lost by the sale of the judgments; that accounts for the purpose of ascertaining the amounts so due may be taken and stated, and the city compelled by proper process to pay it. The bill also prays for general relief. The city answered, and the cause was heard on the pleadings and proofs. A decree was rendered that Loudon was entitled to a specific performance of the agreement entered into in September, 1872; and that, for the payment of the balance due him on the judgments not disposed of by him, the city should set apart and appropriate three tenths of the amount that may be collected from the tax theretofore or thereafter levied as the tax for the then present or the following years, and should also pay the costs.

Each party prayed an appeal. That of the city was, for a failure to comply with, the rules, dismissed at a former term.

The General Assembly of Tennessee repealed, in 1879, the charter of Memphis. The legislation relating thereto and to the establishment of taxing districts will be found in Merriweather v. Garrett, 102 U.S. 472. On motion of Loudon, the taxing district of Shelby County was substituted in place of the city.

Mr. William M. Randolph for the appellant.

Mr. Isham G. Harris and Mr. C. W. Heiskell for the taxing district.

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

title: Loudon v. Taxing District


text: Talk:Loudon v. Taxing District

title: Talk:Loudon v. Taxing District


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The New International Encyclopædia/Herwegh, Georg

HERWEGH, hĕr'vắ K, (1817-75). A German poet. He was born at Stuttgart; was educated there and at Maulbronn, forsook theology, which he had begun to study, for literature, and returned to Stuttgart, where he coöperated in Lewald's Europa. In 1841 he was living in Switzerland and published Gedichte eines Lebendigen (last ed. 1896), political poetry full of the unrest, the dissatisfaction with the existing conditions, and the uncertainty as to what should take its place, that marked the period. These fervent effusions became immensely popular, so that when, after a short trip to Paris, Herwegh journeyed through Germany in 1842, he was greeted with enthusiasm everywhere. King Friedrich Wilhelm IV. gave him an audience, and assured him that he liked nothing better than an energetic opposition. But the young man overstepped all the bounds of conventionality in a letter to the King, and was hurried out of Prussia. At Zurich he found no pleasant reception, and he took up his abode in Paris, and wrote a second volume of Gedichte eines Lebendigen (1844). In this his republican tendencies were more plain than ever, but his inspiration seemed weaker. He translated all of Lamartine into German (1843-44). After the Revolution of February, 1848, Herwegh made several attempts to carry out his republican ideas by invading Baden at the head of a legion of German and French workingmen, but was defeated by the Württemberg troops, and escaped only through the bravery of his wife. Thereafter he lived in retirement in Paris, and later in Zürich and at Lichtenthal, near Baden-Baden. The most important work of his later years was the translation of many of Shakespeare's plays. Consult Marcel Herwegh, Briefe von und an Georg Herwegh (Zurich, 1896).