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 use of the soap. The popular impression is that the soap is used for the purpose of softening the beard, in which condition it is supposed to be most easily cut. This is a mistake. The soap is used, not to soften the beard, but to produce exactly the opposite effect—namely, to make the hair stiff and brittle, so that they will present a firm and resisting surface to the razor. A hair, as is well known, is a tube composed of a hard fibrous substance, growing from a bulb or root, which secretes an oily matter. This oil works its way up through the hair, and by permeating all parts, renders the hair soft and pliable. Now in this natural oily condition, it is very difficult to cut the hair with a razor, and it becomes even more difficult if the beard be made still softer by the application of hot water. Many do this, and it is no wonder they find shaving difficult. When this is done, the hairs become soft and limp, and the razor will either slip over them entirely, or else cut partly

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 into them, bend them back and slice them lengthwise, all the while pulling and straining them at the roots, and making the process of shaving most painful. Now soap has the opposite effect. It contains either alkali, potash or soda, which when applied to the beard in the form of lather, unites with the oil of the hair, neutralizing it and removing it, and renders the hairs hard stiff and brittle—in which condition they may be easily and readily cut. For the sake of cleanliness, the face should, of course, be washed previous to shaving in order to remove any dirt or grit from the beard, which might dull the razor; but before applying the lather, the face should be well dried with a towel.

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

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 To make the lather, see that the soap is placed in the cup according to previous directions. Fill the cup with water, allowing it to stand for a few seconds, then pour the water out. Usually sufficient water to make the lather will adhere to the cup, soap and brush. Now with the brush, mix thoroughly, using a combined stirring and churning motion, until a good thick lather appears. The more the brush is rubbed over the soap the thicker the lather becomes. A great deal depends upon having the lather just right. If it is thin and watery, you will

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 have poor success in shaving. The more creamy it is, the better will be the effect of the alkali in stiffening the beard. Some of the poorer qualities of soap produce lather very quickly, sometimes half filling the cup, but it will be found thin and without lasting qualities, so that by the time one side of the face has been shaved, the lather is all gone from the other. A good soap will produce a thick creamy lather that will last throughout the entire process of shaving.

Put the lather on with the brush, covering every part of the face that you intend to shave. Then with the fingers rub it thoroughly into the beard until the lather has had sufficient time to stiffen the hairs. Next to having the razor in perfect condition, this is the most important thing to do; for it is impossible to shave easily unless the face is well lathered and the lather thoroughly worked into the beard. Go over the face once more with the brush, in order to spread

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 the lather evenly, and then begin shaving at once, before the lather has time to dry. Should it dry while you are shaving, wet the brush slightly and apply fresh lather. If you prepare your face in accordance with these instructions, a keen razor will slip over the face so easily that shaving will become a real pleasure.

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 If you are a young man, just beginning to shave, it is important that you commence right. It is quite as easy to learn the right way as the wrong way. Do not entertain the idea that it is a difficult matter for one to shave himself—for there is nothing difficult about it when you know how. You may have previously tried and failed, but if you will now follow the instructions contained in this book, there is no reason why shaving may not be performed without further difficulties.

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The accompanying illustration shows the position in which the razor should be held. It will be observed that the handle is thrown well back past the heel. The first three fingers rest on the back of the blade, with the little finger over the crook at the end, and the thumb on the side of the blade, near the middle. In this position, with the handle acting as

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 a balance, the razor will be under perfect control, and there will be little danger of cutting oneself. This position can be maintained throughout most of the process of shaving, although it may be necessary to change it slightly while shaving certain parts, as for instance the neck, under the jaw. But whatever the position, endeavor to have the razor at all times under perfect control. The position here indicated, is the one we should certainly advise the beginner to adopt, but if a man, from long continued use has formed the habit of holding the razor in a different way, any change will prove difficult and may not be advisable.

Owing no doubt largely to individual temperament, there is considerable variation in the manner of using the razor, with different persons. Some find a long slow stroke best, while others make it short and quick. Each man must suit the stroke to his own convenience.

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 But certain principles are applicable to everybody. In the first place you should begin with a slow even stroke, gradually increasing it as you gain better control of the razor. Speed will develop naturally with practice.

Hold the razor quite flat upon the face. Do not pull the razor directly down against the beard, but hold it obliquely to the direction of movement. In general shave in the direction of the growth of the beard, like this: Shaving against the growth pulls the hairs and thus irritates the skin, and if the beard is heavy and wiry the edge of the blade is quite liable to catch in the hairs and be deflected inward and cut the face.

The mirror should hang between two windows if possible, so that when you look into it the light will fall directly

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 both sides of your face. You will then be able to get a good reflection of either side. Remove the collar. To prevent soiling the shirt, place a towel around the neck in an easy, comfortable manner, pinning it at the side.

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 Most men who shave themselves seem to think that when they have removed the beard, they have nothing further to do. This is a great mistake. They undervalue the importance of a proper treatment of the face. A quick and easy way of caring for the face after shaving, is to remove the lather by a thorough washing, then to apply either witch hazel, bay rum or some other good face lotion, and to follow this with a small quantity of talcum powder, evenly applied. This is probably about all that the average man will usually find time to do.

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 In order, however, to keep the skin in a healthful condition, a little more elaborate treatment should occasionally be given. We recommend the following: Wash the face thoroughly to free it from the lather, and then apply a steaming hot towel, as hot as can be borne. The heat and moisture draw the blood to the face, open the pores, and set up a healthful action of the skin. Next apply witch hazel, and finally give the face a thorough massage. There is no other treatment so beneficial to the skin. With many persons the flow of blood to the face and scalp is very sluggish, because of enfeebled or slow heart action; and in consequence, the many small arteries and capillaries become clogged. Massage stimulates the circulation, and brings the blood from the inner centers to the surface, filling the many minute capillaries just underneath the skin, thus producing a tonic effect, which gives the skin renewed vigor and health.

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If a man cuts himself while shaving, it is usually due to certain causes that are easily avoidable. The principal causes are six in number:

First—Attempting to shave with a dull razor.

Second—Using a sharp pointed razor.

Third—Shaving with a razor that is too hollow ground, so that the edge springs and bends on the face.

Fourth—Holding the razor improperly.

Fifth—Shaving upward against the growth of the beard.

Sixth—Shaving in too great a hurry.

If you will avoid these mistakes and exercise proper care, you will seldom cut yourself. But when you do, it will be well to know how to treat the wound. If it be slight, the bleeding may sometimes be checked by using pressure. Covering the fingers with a towel, simply press the cut together. If this does not stop the

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 flow, use an astringent. The styptis pencils, made especially for this purpose, are the best, and may be obtained at any store

where barbers' supplies are kept. In case you should not have the pencils, alum may be used. In any event do not be discouraged, for such accidents sometimes happen to the best barbers.

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text: Cartoon portraits and biographical sketches of men of the day/C. E. Mudie


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 Some men almost always experience burning and irritation of the skin after shaving. To such, we wish to offer some suggestions, which we hope will greatly benefit, if not entirely prevent the trouble.

The most common cause of irritation is undoubtedly a dull razor. If the razor is keen and sharp, the hairs will yield readily to the blade and no irritation will be produced. But if the blade is dull, instead of cutting the hairs easily, it passes over some, slices other lengthwise, and pulls and strains at the roots

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 of all. This necessitates scraping the face over and over again, in order to get a clean shave, and the result is an irritation that perhaps continues until you are ready to shave again. Thus the tender parts of the skin are kept in a state of continual irritation. The remedy is of course, to see that the razor is always keen and sharp.

Another cause that may be mentioned, is chafing of the neck by the collar. If the edge of the collar is worn and rough, and comes in contact with the tender skin, it is sure to make it sore.

Too close shaving is a frequent cause, and those who are troubled in this way will do well to shave over the face but once.

Some of the cheap toilet waters are adulterated, and contain ingredients which undoubtedly produce a bad effect on the skin. In using bay rum or other face lotions, use only the best. If much trouble is experienced, we should advise the use of pure distilled witch hazel,

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text: Portal:Charles Edward Mudie

title: Portal:Charles Edward Mudie


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United States v. Boisdoré/Dissent McLean

Mr. Justice McLEAN.

In the opinion of a majority of the court, the grant in this case is rejected, for a want of certainty in its calls. As I cannot agree with this view, I will state, in few words, the grounds of my dissent.

The petition to the Governor-General for the grant represents that Louis Boisdoré, "being desirous to form a plantation or cow-pen in the vicinity of the Bay of St. Louis, at the place commonly called Achoucoupoulous," &c., that he may be enabled to employ all his negroes thereon, and to support a large stock of cattle, prays, "in consideration of what is above expressed and stated, and of the benefit which will result to the capital from a large cow-pen, such as that he had commenced to establish at and near said place, to grant him the parcel of land which may be vacant at the above-mentioned place known by the name of Achoucoupoulous, to commence at the plantation of Philip Saucier, and to run therefrom to the Bayou of Mosquito Village, formerly inhabited by Mr. Loisser, and extending in depth to Pearl River, that he may be enabled to form with facility the above-mentioned plantation and cow-pen for the whole of his family," &c., and is dated 1st April, 1783.

On the 26th of April, 1783, Governor Miro, resident at New Orleans, answers the application by saying: "It appearing to me that the grounds and reasons stated by the petitioner are well founded, in relation to the utility and advantages which will result to the capital from the establishment of a cow-pen in those places which are badly adapted to cultivation, the surveyor of the Province, Don Carlos Laveau Trudeau, shall establish Louis Boisdoré on the tract of land which he solicits in the antecedent memorial, situated at the place commonly called Achoucoupoulous, the front thereof to commence from the plantation of Philip Saucier, and inhabitant of said place, and running to the Bayou of Mosquito Village, and extending in depth to Pearl River, should the same be vacant, and cause injury to no one of the surrounding settlers, either in the front or the depth thereof; whose proceedings shall be made out and signed by him with the before-mentioned persons, and sent to me to furnish the party interested with a title in form."

This tract of land seems never to have been actually surveyed. On the 4th of April, 1808, Gilberto Guillemard applied to the Intendant-General at Pensacola for an order of [p98] survey, representing that Trudeau, the surveyor, by reason of the expense and his pressing duties, had not executed the survey, and a request is made that Pintado, the present surveyor, may mark out the boundaries, &c. The application was granted, but Pintado, instead of making an actual survey, marked out a figurative plan by which the distances could be ascertained. He says: "Two years having elapsed without being able, from the emergency of my business, to attend personally to make out the boundaries, and to make the survey required; and not having at the said place a deputy to execute the same; and that the heirs claiming the same may have an authentic document issued in their favor from which may be made appear the right of property and ownership which to the said lands they have and hold in virtue of the said grants; and also the shape and figure which the said tract of land ought to have," &c.

The boundaries, as above designated by Pintado, are shown by a plat in the case. It is true, that the above proceeding in relation to the survey took place after the surrender of Louisiana to the United States, which terminated all foreign power over the territory, but the proceeding shows that there was no forfeiture under the Spanish government, for the want of a survey, or on any other ground; and it also shows that the places called for in the grant were deemed sufficiently certain by Pintado, the Surveyor-General, to make the survey.

What was the nature of the title given by Miro, the Governor-General, to Boisdoré? He petitioned the Governor for a "grant" of the land at the place named, for the purposes stated. The Governor, admitting that "the grounds and reasons stated by the petitioner were well founded, and that his proposal was advantageous to the capital," directed the surveyor of the Province, Don Carlos Laveau Trudeau, to establish the petitioner on the land he solicits, designating the boundaries, &c. If there be sufficient certainty in the boundaries called for, there can be no doubt that the grant of the Governor separates the land from the public domain, and that, in every view, constitutes property under the treaty with France. There were no conditions expressed upon the face of this grant. The consideration is named, but not as a condition.

The petition which is referred to in the grant constitutes a part of it. The vicinity of the Bay of St. Louis, the place known by the name of Achoucoupoulous, the plantation of Saucier as the beginning point called for, "and to run therefrom to the Bayou of Mosquito Village, and extending in depth to Pearl River";—all these calls are identified, and shown by parol evidence and the maps which are in the case. [p99] And the great question is, whether, from the calls of the grant, the survey can be executed. These calls are clear and specific. They are the plantation of Philip Saucier, on the Bay of St. Louis, the rivulet or Bayou of the Village of Mosquitos, in the district called Achoucoupoulous, and extending in depth to Pearl River. All these calls are proved to exist, and they are more special than nine tenths of the calls in the Spanish grants which have been confirmed.

Pintado, by his figurative plan embracing those calls, seems to have had no difficulty in directing how the survey should be made. And he was the Surveyor-General of the Province under the Spanish government, and may be presumed to have been well acquainted with the Spanish laws and usages on the subject of surveys. Morales, who sanctioned the grant in 1808 by ordering the survey, was Intendant-General, and had the same powers to grant land as the Governor-General previously had, and he was distinguished for his general intelligence and high capacity to represent his sovereign in the important duties which were committed to him. The grant was also sanctioned by Juan Lozado, the fiscal minister pro tem., to whom the petition of Guillemard in behalf of Boisdoré's representatives was referred, and who recommended that the survey be made.

L. Bringier, a witness, states, "that he has been a surveyor for upwards of thirty years, and for more than twenty-five years Surveyor-General of the State of Louisiana, during which period he has had the records of Spanish surveys in his charge, and had frequent occasion to refer to them, and survey lands in conformity to them; that he understands the Spanish language; and he says that he agrees with Pintado as to the mode of running the lines of the survey. He thinks the description of the grant is sufficient to enable a surveyor to make an accurate survey of it," &c.

Elihu Carver, who says that he is a practical surveyor, on being asked how he would survey a Spanish concession which calls for two points as the front upon the sea-shore or a water-course, and calls to run in depth to another water-course for quantity, answers "that he would run from one of the first points back to the watercourse a distance equal to the front given, thence direct to the last point in the front." He says that he has surveyed many Spanish claims, and, except one, he never found the boundaries all round. That he does not pretend to be sufficiently acquainted with the Spanish customs and usages to pronounce upon the claim in question.

B. A. Ludlow states, that he is a practical surveyor, and has held the office of Surveyor-General for the district south of Tennessee. He has examined the survey of Boisdoré, and be- [p100] lieves the survey to be practicable, provided the plantation of Philip Saucier and the Bayou of Mosquito Village can be identified. "The survey should be made," he says, "by finding a straight line between the above-mentioned points, and raising perpendiculars upon said line, at its extremities, extending back to Pearl River," &c. "Exceptions to this rule," he says, "sometimes occur by watercourses or the lines of other claims causing a deviation," &c. He says he is familiar with the seashore which constitutes the front of the Boisdoré claim. From his general knowledge of the country, he can see no material difficulty in making the survey of the claim, &c.

A. Downing has been many years a practical surveyor, and has held the office of Surveyor-General of the public lands for the State of Mississippi. He says, "the phrase in the grant to Boisdoré, "the front thereof to commence from the plantation of Philip Saucier," and "running to the Bayou of Mosquito Village," is not sufficiently definite to enable a surveyor to fix upon a beginning point or corner; both the beginning point and the front line seem to be left to the discretion of the surveyor, and it is questionable whether any two surveyors would settle upon the same point for a beginning. I certainly could not adopt the view of Pintado, the Spanish Surveyor-General, for in the diagram filed in the case, and to which he refers in his instructions, he places what should be the most easterly front corner on the back line of the Saucier plantation." And he says the side line "from the mouth of the Bayou of the Mosquito Village, at right angles from a base line between the front corners, would, apparently for several miles, range close along and parallel with the east margin of Pearl River, and consequently conflict with the uniform practice of the location and survey of grants upon all navigable streams and shores."

This is the substance of the evidence in the case in relation to the calls in the grant. And it must be remarked, that all the witnesses, with the exception of Downing, think that the calls of the grant are sufficient to enable a surveyor to mark out the boundaries. Downing supposes that no two surveyors would agree on the beginning corner, or as to the second point and lines called for. But in this he is mistaken. In the first place, the Spanish authorities who held the calls of the grant sufficient are Miro, the Governor-General who issued it, and Morales, the Intendant-General, Trudeau and Pintado, surveyors-general, and Lozado, the fiscal minister. These, when connected with the statements of the above witnesses, would seem to leave little doubt as to the sufficiency of the calls of the grant.

[p101] Upon this question we must not forget that we are acting upon a Spanish grant, and are governed by Spanish laws, usages, and customs. And if such a grant were valid under the Spanish government, and there has been no forfeiture of the right, we are bound by the plighted faith of our own government to sustain the grant. And in administering this foreign law, we must ascertain and regard the usages under it, in the acquisition of titles to land. This is a universal principle, respected by all courts, in the administration of justice. Parol evidence must be heard to establish those usages, in addition to what may appear from the action of the local tribunals. In the States of Virginia, Kentucky, Tennessee, North Carolina, Pennsylvania, and in a large district of country in Ohio, the usages in making entries and surveys of lands constitute the laws of the respective States, the usage of each State differing more or less from that of the others. One instance only will be named as peculiar, perhaps, to Kentucky and Ohio. The holder of a warrant for one thousand acres locates it, and in his survey includes fifteen hundred acres of land, more or less, and yet his survey is held valid. This, to one wholly unacquainted with such a rule of decision, would be thought unreasonable, and might be disregarded; and yet it is a rule of property which no court can reject.

To establish entries under this system parol evidence is always heard, as to the calls made, and the objects called for, &c. And although the survey may deviate from the calls of the entry, it is held valid, if it interfere with no prior rights. This rule of decision, so firmly established in our own country, should be applied with an enlarged liberality when acting on land titles acquired under a foreign government, of whose language and usages we have comparatively but little knowledge. The act of Congress of the 26th of May, 1824, revived and applied to these titles by the act of the 17th of June, 1844, under which we exercise jurisdiction, provides that a claimant under "any French or Spanish grant, concession, warrant, or order of survey, legally made, granted, or issued before the 10th of March, 1804, by the proper authorities, to any person resident in the Province of Louisiana," &c., "which might have been perfected into a complete title, under and in conformity to the laws, usages, and customs of the government under which the same originated, had not the sovereignty of the country been transferred to the United States, may file his petition," &c. And the proceeding is required "to be conducted according to the rules of a court of equity," &c.; and the court is authorized "by a final decree to settle and determine the question of the validity of the title, according to the law of nations, the stipu- [p102] lations of any treaty, and proceedings under the same, the several acts of Congress in relation thereto, and the laws and ordinances of the government from which it is alleged to have been derived," &c.

I will refer to some cases where grants similar to the one under consideration have been held valid by this court. In the United States v. Percheman, 7 Peters 54, the petitioner asked "two thousand acres of land in the place called Ockliwaha, situated on the margin of St. John's River." Governor Estrada says, "I do grant him the two thousand acres of land which he solicits, in absolute property, in the indicated place." The survey of this land was not executed until the 20th of August, 1819, after the treaty of cession. The title was confirmed by this court.

In the case of the United States v. Clarke, 8 Peters, 446, the petitioner solicited a grant of the quantity of land which the Governor of Florida had thought proper to assign to the water-mills, equivalent to five miles square; which lands he solicits "on the western part of St. John's River, above Black Creek, at a place entirely vacant, known by the name of White Spring." In the grant it is declared, "A title shall be issued comprehending the place and under the boundaries set forth in the petition." This was also confirmed.

In the case of the United States v. Levi, 8 Peters, 479, the grant was "for twenty-five thousand acres of land, south of the place known by the name of Spring Garden, in this form: twelve thousand acres of them, adjoining the lake or pond called Second, and known by the name of Valdes, and the remaining thirteen thousand acres on the pond farther above the preceding, known by the name of Long Pond, the whole west of the River St. John." The survey was executed on the 2d of August, 1819. This court confirmed the title. Another grant in the same case was for "seven thousand four hundred acres, lying on a stream running from the west, and entering the River St. John, and called in English the Big Spring, about twenty-five miles south of St. George's Lake, one of the fronts of the said tract to be on St. John's River, and to be divided in two parts by the stream aforesaid." This survey was made on the 5th of April, 1821. The title was confirmed.

In the same case another grant, which was confirmed by this court, was for eight thousand acres, being part of a larger parcel containing ten thousand acres, &c., "five thousand of them in a hammock to be found five or six miles east of Spring Garden, and the remaining five thousand west of the River St. John, contiguous to a creek called Black Creek, near Fleming's Island and the pond called Doctor's Lake."

[p103] Another grant in the same case was confirmed for "twenty thousand acres," described as lying "in the hammocks known under the names of Cuscowillo and Chachala, situate west of the place of the River St. John's where there was a store of the house of Panton, Leslie, & Co., and about thirty miles from it."

Similar citations might be made from any of our reports of the last fifteen or twenty years, but the above are sufficient to show the course of the Spanish authorities in granting lands, and the decision of this court upon such grants. Many of the surveys, it will be observed, were made under Spanish authority, after Florida was ceded to the United States.

The reader, if any one shall read the above citations and the grant of Boisdoré, will be struck with the much greater certainty in the calls of his grant, than in the calls of any one of the grants above stated. And yet they were confirmed, and his is rejected for want of certainty. By virtue of what law this greater certainty is now required in the calls of a grant I am not able to determine. In my own mind I am assured it cannot be under the Spanish law. And I am greatly mistaken if our decision on Spanish titles must not rest on Spanish law.

The tract claimed is said in the argument to be large. Of what importance is that to a court which deals with established principles? In this respect we can exercise no discretion. If the claim of Boisdoré was property under the Spanish government, it is protected by the treaty. That it was so considered under the usages and acts of the Spanish government, to my mind, is clear. I therefore dissent from the judgment of the court.


text:
Author:Dave Monahan

Works

 * Porky's Preview (still under copyright)

title: Author:Dave Monahan


text:
Hotchkiss v. Greenwood/Dissent Woodbury

Mr. Justice WOODBURY dissented.

I feel obliged to dissent from my brethren in this case. It is chiefly, however, in regard to the manner in which some of the facts were submitted to the jury; but, involving as it does an important principle in the practice under our patent system, it may be useful to explain the grounds of my dissent.

It is agreed, that in July, 1841, John G. Hotchkiss and two others obtained a patent for what they described as 'a new and useful improvement in making door and other knobs of all kinds of clay used in pottery, and of porcelain.'

The first question of law which arises on the record is, whether the patent covered merely the knob, the bulbous handle, or included also the shank or spindle, and the mode of fastening it to the handle.

The charge of the judge at the trial, as drawn up in the exceptions, seems to have proceeded on the ground that the patent and invention covered both the knob and mode of fastening. Whether this was a correct construction does not, however, seem to be very material, when we consider the instructions given to the jury in other respects; and that they were equally applicable to the bulbous handle alone, or the handle with its dovetail hollow, or the handle and the shank combined.

If both parties acquiesced below in the idea that the patent was not only for such a knob, but the combination of such a knob with the shank in the mode described, and the charge was predicated on that view, it is, perhaps, not allowable here to take a different position.

In order to understand clearly what is deemed objectionable in the course pursued below, it may be noticed that the chief grounds of objection to the patent thus construed below seem to have been, that the invention was not original, nor of a character to be patentable.

The statement in the bill of exceptions is in some respects obscure. But the substance of the instruction on this, as set out there, is, that if the invention had been made before or was now confined, 'so that the knob of clay or porcelain is the mere substitution of one material for another,'-'the material being in common use and no other ingenuity or skill being necessary to construct the knob than that of an ordinary mechanic acquainted with the business,-the patent is void,' &c.

The counsel for the plaintiffs next requested the court to proceed further, and charge the jury, that, 'if the said knob of clay or porcelain so attached were an article better and cheaper than the knob theretofore manufactured of metal or other materials, the patent was valid.' But the court did not give any such instruction. In this, I think, was the chief error. From the record I feel bound to believe that evidence was offered on both sides as to the originality and utility of the knob, and its mode of combination with the shank. It would seem, then, to have been the duty of the court below to instruct the jury, that it was their province to decide not only on which side the evidence preponderated, but if the invention was cheaper and better than what preceded it, that protection should be given to it as patentable.

In either view, considered as an invention of the knob alone, or the knob and handle combined, the chief question is still the same, whether proper instructions as to its being patentable, and all the proper instructions which the circumstances required, were given.

Now, on the point as to the invention being patentable, the direction virtually was to consider it not so, if an ordinary mechanic could have made or devised it; whereas in my view the true test of its being patentable was, if the invention was new, and better and cheaper than what preceded it. This test, adopted by the Circuit Court, is one sometimes used to decide whether the invention for which a patent has been obtained is new enough or distinguished enough from a former invention to prevent it from being an infringement, and to justify a new patent for it, and not, as here, whether it is valuable or material enough per se to be protected by any patent.

Whenever the kind of test adopted below is used otherwise than to see if there has been an infringement or not, it is to ascertain whether the invention is original or not, that is, whether it is a trifling change and merely colorable or not. Webster on Sub. Mat. 25; Curtis on Patents, §§ 6, 7; 2 Gallis. C. C. 51; 1 Mason, C. C. 182. But it is impossible for an invention to be merely colorable, if, as claimed here, it was better and cheaper; and hence this last criterion should, as requested by the plaintiffs, have been suggested as a guide to the jury.

Then, if they became convinced that the knob in this case, by its material, or form inside, or combination with the shank, was in truth better and cheaper than what had preceded it for this purpose, it would surely be an improvement. It would be neither frivolous nor useless, and, under all the circumstances, it is manifest that the skill necessary to construct it, on which both the court below and the court here rely, is an immaterial inquiry, or it is entirely subordinate to the question, whether the invention was not cheaper and better. Thus, some valuable discoveries are accidental rather than the result of much ingenuity, and some happy ones are made without the exercise of great skill, which are still in themselves both novel and useful. Such are entitled to protection by a patent, because they improve or increase the power, convenience, and wealth of the community.

Chancellor Kent has truly said (2 Kent's Comm. 371), 'The law has no regard to the process of mind by which the invention was accomplished, whether the discovery be by accident or by sudden or by long and laborious thought.' See also Earle v. Sawyer, 4 Mason, C. C. 1, 6; Crane v. Price, Webster's Pat. Cases, 411.

In this last case, Chief Justice Tindall goes quite as far as Chancellor Kent, and says: 'In point of law, the labor of thought or experiment and the expenditure of money are not the essential grounds of consideration on which the question whether the invention is or is not the subject-matter of a patent ought to depend. For if the invention be new and useful to the public, it is not material whether it be the result of long experiments and profound research, or whether by some sudden and lucky thought or mere accidental discovery.'

So in Earle v. Sawyer, 4 Mason, 1, the doctrine settled is, that 'a combination, if simple and obvious, yet if entirely new, is patentable. And it is no objection to it, that up to a certain point it makes use of old machinery.' And Justice Story says, in so many words: 'It is of no consequence whether the thing be simple or complicated, whether it be by accident or by long, laborious thought, or by an instantaneous flash of the mind, that it was first done.' 'The law looks to the fact, and not the process by which it is accomplished.' (p. 6.)

It is thus apparent to my mind that the test adopted below for the purpose to which it was applied, and which has just been sanctioned here, has not the countenance of precedent, either English or American; and, at the same time, it seems open to great looseness or uncertainty in practice.

But it has been urged here, that this invention was merely applying clay and porcelain to a new purpose, and that merely a new purpose, in our patent system, is not entitled to protection. 2 Story, 190, 412; Losh v. Hague, Webster Pat. Cas. 207; Curtis on Patents, 87. The meaning of this rule, however, as eviscerated from all the cases is, that the application of an old machine or old composition of matter before patented to a new object, or what is termed a double use, does not entitle one to a patent connected with this new object; because then there is no new machinery or new combination of old parts, as in merely applying a patent grist-mill to a new purpose of grinding plaster.

But it is entirely different if you apply an old earth, or old mechanical power, or old principle in physics, to a new object. There is then a new form adopted, or a new combination for the purpose. And though the elementary material be old, or the elementary principle operating be old, it being difficult to discover a new substance or new elementary principle, yet there is a new shape and consistency and use given, or a new modus operandi, which, if cheaper and better, benefits the world and deserves protection and encouragement.

If these are the effects, however small the skill or ingenuity required to imitate them, they are not excluded from the aid of the laws by either principles or precedents. They are not mere double uses of a previous machine or composition; but a double or additional form or composition of an article for a new purpose.

There is a new manufacture, as here of clay into knobs, or knobs with a dovetail hollow combined with a shank. The books are full of such slight changes in structure, composition, or mode of application, which were novel, and better in their results, and therefore upheld, and were not and could not be regarded merely as the application of an old machine to new purposes. Beside the new material and the new mode of fastening, when the results as here are considerably improved, they suffice to make the invention patentable. (Webster on the Sub. Matter, 29, 30.) These are then all required by the strictest law, viz. 'diversity of method' and 'diversity of effect.' Phillips on Patents, 122.

Here, the new material for a knob, instead of former materials, was more durable than wood, was cheaper than iron, and very beautiful to the eye, instead of looking coarser. Its structure to receive a dovetailed shank and secure it by fused metal, rather than by a hole through and a screw at the end, appears to have been highly important; and if embraced in the patent, as was probably considered in the court below, furnished an additional reason for instructing the jury to consider whether the knob in controversy was not cheaper and better than what preceded it.

The precedents are quite full on this, and some of them in all respects nearly in point. Similar to this was the hot blast, substituted for the cold in making iron, and a patent for it upheld. Neilson's Case, Webster, P. C. 14. The blast was still air, but in a different condition, leading to new and useful results. So the use of the flame of gas to finish cloth rather than the flame of oil. Webster, P. C. 99. So steel plates used instead of copper in engraving. Kneass v. Schuylkill Bank, 4 Wash. C. C. 9, 11. That very closely resembles the present case.

So pit-coal, substituted for charcoal in making iron, has been deemed patentable (Webster, P. C. 14); and anthracite for bituminous coal (273.) There are also some strong opinions beside these decisions in favor of a change in metal for an instrument being alone sufficient for a patent, if more useful or cheaper. See Webster on Sub. Matter, 25, note, and Curtis on Patents, § 8. (Phillips on Patents, 134, if there be any contrivance connected with it.) Indeed, why should it not be sufficient? A new mode of operating or a new composition to produce better results is the daily ground for a patent. All which the act of Congress itself requires is that the invention be for 'any new and useful improvement on any art, machine, manufacture, or composition of matter,' &c. 5 Stat. at Large, p. 119, § 6. Must it not then be considered such an improvement, if operating with new materials both cheaper and more durable?

Who cannot realize that, since the improved modes of cutting, boring, and shaping, the substitution of iron for wood in many manufactures might not often be a gain in strength and durability, quite beyond any difference in expense, and be justly patentable? Who, too, would not deem it material to gain by the use of wood or leather, or a cheap metal, instead of gold and silver, for some manufacture or mechanical purpose, when it can be done with increased benefit as well as cheapness. And why is not he a benefactor to the community,and to be encouraged by protection, who invents a use of so cheap an earth as clay for knobs, or in a new form or combination, by which the community are largely gainers?

On the whole case, then, it seems to me that justice between these parties, as well as sound legal principle, requires another trial on instructions upon some points omitted, and instructions in some other respects different in law from what were given in this instance at the first trial.

title: Hotchkiss v. Greenwood/Dissent Woodbury


text:
Wikisource:WikiProject Translation

WikiProject Translation is a proposed interlingual collaboration among various language Wikisources. The goals are to organize existing translations, and to contribute new ones in collaborative wiki fashion where they would do the most good.

Proofreading
Translation can be used to mark the progress of a translation of a work, or of a smaller unit of a work. Each translation should be proofread by one native speaker, and one speaker of the original language. An idea has been proposed to modify the ProofreadPage extension to deal with translations.

Interwiki Collaboration
Wikiproject Translation at other language Wikisources go here.
 * Feel free to ask questions or leave comments in English at Russian Wikisource's Babylonian Scriptorium.
 * A Wikiproject translation in it.wikisource has been up since 2007. Feel free to ask questions or leave comments at the local scriptorium. The project deals mainly with interwiki collaboration and already existing translations.
 * A Wikiproject translation has been created on fa.wikisource. We are currently trying to decide to which way we should go.
 * A Wikiproject translation has existed since the very beginning in es.wikisource (2005). It's not that active anymore, but anyway, feel free to ask any of the participants whatever you want.
 * A Wikiproject translation exists in fr.wikisource, and the works here.

Collaborations

 * Translation of the Month

Works undergoing translation

 * Translation of Mo Zi (Chinese -> English)
 * Translation of De Regimine Principum, Ad Regem Cypri (Latin -> English)
 * Translation of George the Monk (Greek -> English)

Participants
Users interested in participating can sign up here.

(Igbo->English)
 * O.J.S. (talk) 21:11, 10 January 2011 (UTC)
 * Eliyak T · C 06:28, 11 January 2011 (UTC) (Hebrew -> English)
 * D.H (talk) 09:01, 11 January 2011 (UTC) (German -> English)
 * John Vandenberg (chat) 10:37, 11 January 2011 (UTC)
 * Dovi (talk) 13:37, 11 January 2011 (UTC) (if and when there is time... :-)
 * Timeastor (talk) 08:21, 12 January 2011 (UTC) (Russian -> English; I am mostly doing poetry translations on an inspiration. )))
 * Pedram.salehpoor (talk) 11:25, 12 January 2011 (UTC)
 * Orthorhombic (talk) 23:29, 18 January 2011 (UTC)
 * Sapcal22 (talk) 22:50, 3 February 2011 (UTC)
 * Cekli829 (talk) 12:20, 2 September 2011 (UTC)
 *  Božidar  11:53, 11 February 2013 (UTC)
 * —Clockery Fairfield (talk) 08:47, 6 July 2013 (UTC) (Malayalam -> English)
 * Adamw (talk) 05:02, 23 September 2013 (UTC) (from es, it)
 * WikiBronze (talk) 23:36, 24 March 2014 (UTC) (Turkish -> English, Greek -> English)
 * Coccico2345 (talk) 12:00, 2 July 2014 (UTC) (English -> French, Russian -> English)
 * Akwugo (talk) 11:17, 12 January 2023 (UTC)
 * عُثمان (talk) 22:56, 17 July 2023 (UTC)
 * Alien333 (what I did and why I did it wrong ) 18:20, 27 December 2023 (UTC) (English <-> French), possibly

Resources

 * Wikimedia Meta has some sort of translation framework in place for multilingual messages, including templates and volunteers.
 * meta:Template:Translation2
 * Side-by side view
 * WikiProject Wiki Bible
 * Open Mishnah Project and related Judaism works
 * WikiProject Relativity
 * Most active WS's:
 * French
 * German
 * English
 * Spanish
 * Italian
 * Polish
 * Russian
 * Wikisourcers seem to have higher-than average multilingualism.
 * Category:Wikisource translations will show possibly interested people (page histories).

Ideas

 * Each WS will need a WikiProject Translation page
 * Page will be divided into sections by language
 * Perhaps a main project page should be located at old/main WS
 * Each WS will need some categories:
 * Category:Wikisource translations from xx language
 * maintaining interwiki links between translation and source is important
 * IRC channel?
 * Occasional simultaneous announcements across all wikis
 * First will be seeking participants in project
 * Second will announce project formally
 * Identify critical works in popular languages:English, French, German, Spanish
 * Featured texts
 * User boxes
 * These will categorize users as "Category:Wikisource translators to xx language" and " .. from xx language" (hidden cats)
 * Use mw:Extension:Translate

From IRC

 * BirgitteSB: Infrastructure: Translation: namespace?
 * Jayvdb: Small units of text
 * BirgitteSB: pages may not be best for translators
 * Eliyak: what about pages separated by wiki headers on a single page
 * sDrewth: DoubleWiki (<=>) to show original in edit screen
 * Only validated texts
 * Adapt ProofreadPage extension
 * BirgitteSB: make Translation: namespace automatically give side-by side with original
 * sDrweth:Would be nice to have a DJVU with copyable text layer
 * Jayvdb: have collaborative translation projects for single works to multiple languages
 * Birgitte: de.ws is likely to have texts needing original translations to English

es:Wikisource:Proyecto:Traducciones fr:Wikisource:Traductions

title: Wikisource:WikiProject Translation


text:
Clements v. Berry/Dissent Catron

Mr. Justice CATRON.

By rule of court made when only one term was held in the year for the Districts of Tennessee, the United States Circuit Court adopted a rule requiring a copy of the declaration to be sent out with the writ, in all cases of suits on written agreements for the payment of money, where the plaintiff desires to obtain judgment at the return term. If a copy of this declaration is served with the writ on the defendant thirty days before the court commences, then the defendant is required to plead before the first day of the term; and if he fails to do so, it is the duty of the clerk to enter judgment by default at his office. This fact he reports to the court in all cases. And then such further time is given for making up the pleadings as may be deemed proper by the court itself; thus extending the time usually three days. But at March term, 1848, only two additional days to plead were allowed.

This office judgment has no force in itself, further than to speed the final judgment. It stands over, like other causes, triable on an issue. When it is reached on the docket in due course, a jury inquires of damages; or if the sum be certain, then a regular and binding judgment is entered of record by the court.

An execution is uniformly awarded in terms by the final judgment, and to which the execution on its face refers, by a brief recital.

To this award of execution the fieri facias relates, and binds personal property of the defendant.

The United States courts are governed by the State laws creating a lien; and the State laws are settled by uniform adjudications that the lien attaches by a final judgment and award of execution. From that time defendant's property is in custody of the law. Johnson v. Ball, 1 Yerger, 292.

In this case there is no allegation of fraud. The debtor transferred his property to a trustee honestly and fairly, according to the face of this record. By the law of Tennessee, the deed of trust took effect the moment it was delivered to the register to be recorded. It was his duty by express law to indorse on the deed the exact time of delivery. After that, all liens were cut off. This was done before the judgment was rendered. It matters not whether defendant parted with his property on the day the judgment was rendered, or on a subsequent day, as he was divested of it the moment the trustee delivered the deed to be recorded. If it was otherwise, and the execution related to a judgment by default (which might remain unconfirmed for months), all executions or final judgments, where a default had been entered, would bind from the first day of the term, and overreach sales made by retail dealers to an alarming extent; a doctrine unknown and altogether inadmissible in the State of Tennessee, or elsewhere, so far as I know.

The Supreme Court of Tennessee (to revise whose decision this writ of error is prosecuted) laid down the law correctly, as I think, in its opinion in this cause, and I am of opinion that the judgment ought to be affirmed. And I am instructed to say for my brother Nelson, who heard the cause, but is now absent, that this is his opinion also.

title: Clements v. Berry/Dissent Catron


text:
Moore v. Brown/Dissent Taney

Mr. Chief Justice TANEY.

Upon the statements and admissions contained in this record, the question certified for the decision of this court is a very norrow one; but at the same time one of much nicety and difficulty. It is admitted that the defendants had possessed the land in dispute by actual residence thereon for the term of seven years next preceding the commencement of this suit. And if they had paid the taxes during that time, it is very clear that they were protected by the act of limitations of 1839, and the deed would in that case have been admissible in evidence. For the suit appears to have been instituted in 1848, and more than seven years had then elapsed after the passage of that act. But the case as stated is silent as to the payment of taxes; and it does not appear whether they were or were not paid by the defendants, or by any other person. The rights of the parties, therefore, according to the statement as certified, must be governed by the act of limitations of 1835, and not of 1839.

The act of 1835 is loose and ambiguous in its language, and open to different interpretations. Expounded literally, it might seem to mean that a party who had a valid title on record should be protected in his possession after the lapse of seven years. This certainly was not the meaning of the legislature, because a good title of record needed no protection from a statute of limitations. It is obvious that one of the main objects of the law was to protect the possession of persons who purchased upon the faith of conveyances made by the public officers of the State, who were authorized to sell and convey; but whose deeds, from some mistake or error of judgment on their part, were sometimes not valid, and conveyed no title to the purchaser. The law was made for a new country, where the purchasers of small tracts of land were mostly immigrants, unacquainted with the laws regulating sales and conveyances of real property; and many of them unacquainted even with the language in which the laws were written. Skilful and experienced conveyancers were not to be found in every part of the country, from whom they might take counsel. And they would naturally and fairly rely upon conveyances made by the officers of the State, purporting to be made in the execution of their official duty. It was manifestly the object of the law to protect the possessions of persons of this description, and by that means induce an agricultural population to settle in the State; and its loose and inaccurate language ought to be interpreted in the same spirit. It gave to the original owner seven years to assert his title. And if he chose for that period of time to acquiesce in the sale, and to suffer the purchaser and those claiming under him to possess and improve the land as their own, he was barred by his laches. And it undoubtedly also intended to prevent persons from prying into titles and searching for legal defects in older possessions, for the purposes of speculation, where the party holding them had honestly bought and paid his money, and the original owner had for seven years acquiesced in the sale.

It is true that the case before us admits that it appears by the recitals in the deed of the auditor that the notice of the sale was not as long as the law required. And it is said that every person is presumed to know the law, and that every one who afterwards purchased under this title must therefore be presumed to have known that this deed was void.

Undoubtedly, as a general principle, every one is chargeable with a knowledge of the law in civil as well as criminal cases. This, however, is a legal presumption which every one knows has no real foundation in fact, and has been adopted because it is necessary as a general rule for the purposes of justice. And laws are therefore often passed to protect persons who have acted in good faith in matters of property from the consequences of their ignorance of law. Thus, laws confirming defective and void deeds for real property have frequently been passed in some of the States; and their validity has been recognized by this court. Limitation laws in regard to suits for real estates are founded upon the same principle. For if the title papers of the party in possession are all legally executed, and made by persons who had the right to convey, he does not need the protection of an act of limitations. The act before us was evidently and especially intended to protect purchasers from the consequences of their ignorance of the law. And with this object in view, it could make no difference whether the legal defect was shown by the recitals in the deed, or appeared in any other way. The buyer would be as easily and naturally misled by his want of legal information in either case. And the law itself certainly draws no distinction between ignorance of the law in one respect and ignorance in another. And if every legal defect in the title papers of a purchaser in possession, as they appear on the record, may be used against him after the lapse of seven years, the law itself is a nullity, and protects nobody.

To a person not well skilled in all the details of the tax laws of the State, this deed upon the face of it appears to be good. It was made by a public officer authorized to sell for taxes. From his official station and duties, he would be presumed to be familiar with the tax laws in all their minute details. And he recites what he had done; states the notice given, as if it was the notice the law required; and professes to convey to the purchaser a valid title in due form. Almost every one, not perfectly acquainted with the different tax laws which had been passed, would rely upon it. And I think it is one of those defective conveyances by a public officer, which the law of 1835 intended to protect after a possession of seven years.

It is said in the argument, and a judicial decision is quoted to support it, that the limitation is confined to cases where the title upon the record appears to be a valid legal title until a better one is produced. If that be the construction of the law, it protects the purchaser where, by the mistake of the officer, land has been sold upon which no taxes were due, provided the deed upon the face of it appears to be valid, and refuses to protect him where the taxes were actually due and the land liable, provided an error in the proceedings appears in the recitals in the deed. In other words, it bars the recovery of the innocent owner whose land has been wrongfully sold, and protects the defaulter. Such could hardly have been the intention of the legislature. And in my opinion the language of the law does not justify this construction. Indeed, if it be as contended for in the argument, then a mere oversight in reciting the date of the notice or date of the sale deprives the purchaser and those claiming under him of the protection of this law, although the taxes were due, and the sale regularly and fairly made. For the error will appear in the recorded instrument, and consequently it is not a good and valid title on record. And this may have been the case in the deed before us.

The consideration paid at the tax sale is indeed so small, as to create doubts of the fairness of the transaction. But that question is not open in this court upon the point certified. The statement in the record does not impute bad faith to either of the parties to this sale, and moreover the present defendants were not the original purchasers. For aught that appears in the statement, they purchased for a full consideration, and without any actual knowledge or suspicion of a defect in the title, and have therefore strong equitable considerations to support them in claiming the protection of this statute of limitations.

I am sensible, however, as I have already said, that the construction of this statute is by no means free from difficulty. But as I do not concur in the interpretation given to it by a majority of my brethren, and the decision of the question certified may affect wider interests than those immediately involved in this suit, I have felt in my duty to state the grounds on which I dissent.

title: Moore v. Brown/Dissent Taney


text:
Moore v. Brown/Dissent Catron

Mr. Justice CATRON.

My objections to hearing this case are so strong, that I deem it proper to state them. This court stands exposed to impositions by fictitious cases more than other courts do, for several reasons. We have adopted it as a rule of practice, that third persons cannot be heard to prove before us that a case pending on our docket is feigned, and a decision sought at our hands intended alone to affect other men's rights, by combination of the parties of record.

In the case of Patterson v. Gaines, the attempt was made, but refused, because the persons applying to dismiss the case, were no parties of record, and had no right to be heard.

This of necessity throws us on the case itself, as here presented by the record, to ascertain whether it is fictitious. It is a case made on a certificate of division; and as those divisions of opinion are usually granted of course, on facts agreed by the parties, and as they have been ordinarily granted without examination on part of the court, by way of concession, if requested by both sides, (as is the case here,) we are very liable to be imposed on; certainly more so than other judicial tribunals, where certified cases are not allowed; and as the consequences here involved are uncommonly great, it is proper to observe unusual care to guard against imposition.

The consequences of our decision will be apparent from the following facts.

Military bounty lands were located and granted in Illinois for services rendered in the war of 1812, with Great Britian, in the name of each soldier, as it stood on the muster-roll. This grant enures to the benefit of his heir by act of Congress. The United States caused the lands to be located and patented in a body, exceeding three millions of acres, in what is known as the military tract in that State, which fronts on the Mississippi River, and is unsurpassed in fertility by any equal body of land on this continent.

The land in controversy is situated in this district, and is designated as the south half of section thirty-five, in township twelve north, of range one west of the fourth principal meridian.

Most of these grants remained without ostensible owners for many years, and have furnished, and continue to furnish, a great source of speculation. On them the tax laws of Illinois operated, and a great portion of them have been sold for taxes. This is a prominent part of the history of Illinois. It was stated in discussion of the case of Bruce v. Schuyler (4 Gilman, 249), that eight millions of dollars worth had been thus sold, up to 1847. And, taking the State throughout, a much greater quantity than this, no doubt, is held under tax sales, and auditor's deeds, like the one before us. It conforms to the act of 1826, which prescribes a form, and applies to deeds founded on previous and subsequent tax sales. Auditor's deeds, in the military tract, are the most usual title. Under this state of things, that section of country has been settled and highly improved by a large population; cultivators confidently relying on these deeds as valid titles.

The Supreme Court of Illinois held, in the case of Garrett v. Wiggins, 1 Scammon, 335, that the act of 1829, declaring auditor's deeds, standing alone, as evidence of a good title, did not apply to sales made previous to the passing of that act. And the deed of Wiggins, not having been supported by extraneous proof that the land had been legally advertised for sale, was declared to have been made without authority, and was rejected. It follows, that all deeds founded on tax sales made before 1829 are void 'on their face,' when standing alone. They must be supported by the act of limitations, or fall to the ground; and this support we are asked to withdraw by our decision, proceeding on a case made up under the following circumstances.

On the cause being taken up for trial in the Circuit Court, plaintiff introduced his title, regularly derived from the United States. He admitted, by special agreement, that the defendants were in possession when the suit was brought. They then offered to prove that they had been seven years in possession, holding under a connected title derived from a public officer, authorized by law to sell the land for non-payment of taxes, and, as the first link in their chain of title, offered a deed made by the auditor, which is set out. To its introduction the plaintiff objected, on the ground that, by reference to the face of the deed, 'and the law as it stood' when the sale was made, (to wit, 'An Act entitled An Act for levying and collecting a tax on land, and other property,' approved February 18, 1823,) it appeared that the sale for non-payment of taxes had been made by the auditor 'at an earlier day than he could, according to law, possibly do; and so it occurred as a question, whether said deed was admissible in evidence for the purpose, and in the connection for and in which the defendants offered it, the objection aforesaid notwithstanding: on which question the opinions of the judges were opposed.'

This is the case certified for our opinion. The parties agreed to the facts, made the case, and conjointly moved for a certificate of division. It was especially the act of the defendants, as on their right to make defence we are asked to pass judgment.

It is agreed, that they held under a void deed; that it was not made according to law, and void on its face. They addmit that the auditor did an act which he could not possibly do as auditor. Thus, the defendants by this agreement made the worst case for themselves that they could make, and the best case for their adversary that could be made up, for the purpose of having a decision against the defendants on the act of limitations. This is manifest, and not open to dispute. No power is left to this court to inquire whether the auditor had, or had not, authority to sell for taxes due in the years 1821 and 1822, by advertising in advance of October 1, 1823, for three weeks, and selling afterwards, in December, when the eighty-two days required by the act of 1823 had expired from the first advertisement.

The 26th section of the act declares, that the first sale of lands made by the auditor shall take place in December, 1823; at what time in December, the act does not provide. It depends on a true construction of the law. But the agreement cuts off all power of inquiring as to what the true construction of the law is; it concludes the question, and forces us to hold that the auditor sold without authority, and that his deed is void on its face; whereas the deed recites, that the land had been sold 'in conformity with all the regulations of the several acts in such cases made and provided.' It refers to no one particular law, and is fair on its face; nor could any man, not learned in the law, suppose to the contrary. Certainly not Illinois farmers, many of whom do not even read or speak our language.

In the next place, a written argument is furnished to us by the plaintiff, coming from Illinois, presenting his case in the most cogent manner, on which it is submitted; whereas, the defendants make no appearance here by counsel, set up no defence, but give the plaintiff every advantage he may desire, or can possibly have. As I have never known a real contest thus conducted, my mind is led to the conclusion, that this is a fictitious proceeding, intended to open a door for speculation, and to affect the rights of others, and that it ought not to be acted on by this court. But as a majority of my brethren are unwilling to dismiss the case, and have proceeded to decide the question whether a deed purporting to be founded on a tax sale, and which is void on its face (when compared with that law), furnishes color of title, I of course acquiesce, and will briefly examine that question.

For the purpose of arriving at a proper construction of the act of limitations of Illinois, the previous legislation of that State must be taken into consideration, so far as it can be done, from the meagre information we have been enabled to collect. From this legislation, so far as it is ascertained, it appears that the auditor was bound by law to make deeds to purchasers at tax sales, according to the prescribed form given by the act of 1826. These deeds were ordered to be recorded. The one before us is in the prescribed form, and stood duly recorded when the act of limitations was passed.

The act requires actual residence on the land for seven years, under a connected title deducible of record from the State, or from the United States, or from any public officer authorized by the laws of the State to sell lands for the non-payment of taxes.

This act is peculiar in its terms, and was made under peculiar circumstances. It was unquestionably made, as it seems to me, to protect actual settlers and cultivators, whose titles were liable to exception, against speculators and others having better titles, but who should neglect to avail themselves of their legal advantage within the time limited. In order to make a successful defence, it was necessary for these defendants to prove a seven years' residence on the land, under a connected title deducible of record from the State of Illinois, or from some public officer acting for the State, authorized to sell for non-payment of taxes. The auditor was such officer. He acted for the State; and a title in all respects emanating directly from the State is exhibited in support of a seven years' possession. A connection with a patent from the United States is equally clear. The land was assumed to be sold by force of lien for taxes due; such sale carried the true owner's title throughout, including the patent, regardless of the fact in whose name the land was advertised and sold. So the laws of Illinois expressly provide. No further connection of title can exist; nor does the act of limitations require more. But to avoid its force, an attempt is made to introduce an exception not found in the act, which of necessity comes to this, that if the deed is void for legal defect, or for a defect which depends on evidence, a link in the chain of title is wanting.

If it be true that the purchaser under a tax sale and deed is bound to ascertain the law, and if the deed is found to be void when tested by the law, and the acts done under it, no connection can be established, nor protection had, under the act of limitations; then the statute is a mere delusion, as it can only be resorted to where there is a good title.

The act was not thus idly made. It has no reference to titles good in themselves, but was intended to protect apparent titles, void in law, and to supply a defence where none existed without its aid. Its object was repose. It operates inflexibly, and on principle, regardless of particular cases of hardship. The condition of society, and protection of ignorance as to what the law was, required the adoption of this rule. This is plainly so. It was not to be expected that immigrants into a new country like Illinois, who came there seeking lands for homes, were capable of judging what complicated revenue laws required to be done to make a valid tax sale. If they found a title of record from a public officer, such as the auditor was, having general power to sell for non-payment of taxes, they were authorized to believe such title a good one, and to purchase under it. And it would be bad policy, and unjust, after the land had been improved by their labor, and increased in value perhaps twenty-fold, during a long possession, to turn them off, even by a meritorious owner, if he did not come in time. And still worse policy would it be, to leave them open to speculating purchasers, buying up doubtful titles over their heads, under the act of 1845, which allows of such purchases in Illinois. Harassment and ruin inflicted on the unsuspecting many, by the well-informed and unscrupulous few, must be, as it ever has been, the consequence of stripping cultivators of the soil of their titles by unfavorable and strained constructions; and therefore acts of limitation have at all times been liberally construed to protect cultivators in homes where their families were, and had usually grown up. And as the act of Illinois applies to actual residents, and to no others, it is entitled to a liberal construction. The one contended for is, that he who takes title by deed of record, or under one claiming by deed of record, made by a public officer with general power to sell for non-payment of taxes, is bound to know the law authorizing the officer to sell and convey; and if he fails to ascertain the law by negligence, he is held to knowledge that power was wanting, if such be the fact; that, purchasing with presumed knowledge, his title is taken in bad faith; his deed is tainted with fraud, and is no deed, but is as blank paper; and being so, a link in the chain of title is wanting, and the statute cannot apply, for want of connection of title.

This is the sum and substance of the reasoning employed on behalf of plaintiff to reject the application of the statute. Now, is this a liberal construction? Is it not in effect a repeal of the statute, and the most harsh construction that can be given to it? As, if this assumption be true, no possible conveyance made by a public officer, which is void because the requisite forms of law have not been complied with, can be maintained. All must equally fall, if not good in themselves, when compared with the law, and the acts required by law to be done before the sale is made.

We have been referred to various decisions which are supposed to support this doctrine, and especially to that made by the Court of Appeals in Kentucky in 1820, in the case of Skyles v. King, 2 A. K. Marsh. 385. This case has had controlling influence in our investigations; by far more than all others. It was this. The elder patent was made to King. Skyles claimed and held under a younger patent, and seven years' adverse possession. He was defendant. The statute of Kentucky declares, that to form the bar there shall be 'a connected title in law or equity, deducible of record from the Commonwealth.' On a trial before a jury, it was insisted that, by the terms of the act, it applied to the elder patent set up by plaintiff; that with his patent there must be connection to form a bar. And so the Circuit Court held the true meaning of the act to be, and so instructed the jury. But the Court of Appeals thought otherwise, and reversed the judgment, holding that the act meant a title tested by its own face; that is, commencing with the younger patent, and connecting with that, regardless of the elder and adversary title; that the act had no reference to the elder patent. There, the first link (the younger patent) was void, and this plainly appeared of record, as all patents in Kentucky are recorded; it follows, that, if that decision is adopted as a true construction of the Illinois statute, the case before us must be decided for the defendants; as here the first title paper offered by them is in the same condition as the younger Kentucky patent.

The cases in this court of Patton's Lessee v. Easton, 1 Wheat. 476, and of Walker v. Turner, 9 Wheat. 541, are also relied on as in point. The latter one is clearly so. It held that a void sheriff's deed was no deed, and could not be given in evidence as a link in the chain of title, nor be upheld by seven years' adverse possession, under the act of limitations of Tennessee, which required a title by grant, or deed of conveyance founded on a grant, to form a bar; and which was construed to require connection of title. This court followed the supposed settled construction of the courts of Tennessee on their own statute. But this was a mistake, there not being any such settled construction.

In 1832, the case of Green v. Neal, 6 Peters, 291, again brought before this court the same question on the Tennessee act. At that time, all controversy was settled by a decision of the Supreme Court of Tennessee, in the case of Gray and Reeder v. Darby's Lessee, Martin & Yerger, 396, which held that a sheriff's sale and deed, made pursuant to a void judgment, in a case where no jurisdiction existed in the court entering such judgment, was a sufficient connection of title; that to hold otherwise would be requiring a good connected title, and a virtual repeal of the statute. This decision was followed in the case of Green v. Neal; and all the former cases decided by this court on the Tennessee act, holding that a void deed broke the connection, were overruled, and are of no authority anywhere. They merely followed a supposed settled construction in the first two cases, and a settled one in the last case of Green v. Neal. And so we would now be bound to follow the settled construction of the courts of Illinois, if any such existed, on the statute before us.

My opinion, therefore, is, that it ought to be certified to the Circuit Court, that the auditor's deed should be admitted in evidence, and that it furnishes color of title on which the act of limitations could operate.

title: Moore v. Brown/Dissent Catron


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Gill v. Oliver's Executors/Dissent Woodbury

Mr. Justice WOODBURY.

I object to the form of the judgment to be entered in this case, rather than to the results of it to the parties. By dismissing the writ of error for want of jurisdiction, as is done here, the judgment in the State court is left in full force; whereas, in my view, this court has jurisdiction, and should affirm the judgment in the State court, thus leaving it, as the other course does, in full force, but on different grounds. The consequence to the parties, by pursuing either course, differs so little, that it does not seem necessary to go into any elaborate exposition of the reasons for this dissent, and I shall therefore content myself with stating only the general grounds for it.

All that seems indispensable to give jurisdiction to us in this class of cases is, that the plaintiff in error should have set up, in support of his claim in the State court, some right or title under a treaty or doings by authority from Congress, and that it should be overruled by the State court. See the twenty-fifth section of the act of 1789 (1 Stat. at Large, 85), and various decisions under it, including Owings v. Northwood's Lessee, 5 Cranch, 348, and Smith v. Maryland, 6 Cranch, 304; 2 Howard, 372. Here the appellant set up in his bill a claim to money under a treaty with Mexico, and an award under it by commissioners appointed by an act of Congress, and the State court, in his opinion, overruled his claim. This, in my view, gives jurisdiction to us, whether the State court decided right or wrong. See Armstrong v. Athens County, 16 Peters, 285; Miller v. Nichols, 4 Wheat. 311. The very object of the writ of error is to ascertain whether they did decide right or wrong, and the jurisdiction to make this revision of their opinion arises not from its error, but its subject-matter; the latter being a claim set up under some United States authority. Neilson v. Lagow, 7 Howard, 775.

The next and only remaining inquiry for me, supposing that we have jurisdiction, is, whether the State court formed a right conclusion in overruling the claim set up by the appellant. I think they did. So far as it rested on authority under the United States, it is by no means clear that they overruled it improperly. The claim, so far as regards the enforcement of the treaty with Mexico, does not seem to have been overruled in terms by the State court. That court did not decide that the treaty was corrupt or illegal, or in any way a nullity, when they held that the original contract violated the laws of neutrality. So far, too, as regards the award made by the commissioners, that the Baltimore Mexican Company and their legal representatives had a just claim under the treaty for the amount awarded, it was not overruled at all.

It is not manifest, then, that any thing really in the treaty or in the award, set up by Gill, the plaintiff, was actually decided against, but only something he claimed to be there;-that when the appellants claimed that he, rather than others, was legally entitled to one ninth of the sum awarded to the Baltimore Mexican Company, the State court seems to have overruled that. But in doing this, they must still have held the treaty itself to be valid, and the award of the commissioners under it to be valid, or they could not have decreed this share of the fund to Oliver's executors, as they appear to have done expressly by the record.

All must concede, that the State court speaks in its language against the Mina 'contract' alone as illegal, and in terms do not impugn either the treaty or the award; and it is merely a matter of inference or argument that either of these was assailed, or any right properly claimed under them overruled. But it is true the court held that Oliver's executors, rather than the appellant, were entitled to the fund furnished by Mexico, and long subsequent to Mina's contract; but in coming to that conclusion, they seem to have been governed by their views as to their own laws and the principles of general jurisprudence. The treaty or award contained nothing as to the point whether Gill or Oliver's executors had the better right to this share, but only that the Mexican Company and their legal representatives should receive the fund. This last the court did not question.

But who was the legal representative of Lyde Goodwin's share? Who, by insolvencies, sales, or otherwise, had become entitled to it?

That was the question before the court, and the one they settled; and in deciding that, they overruled the claim of Gill to be so, by virtue of any authority in the treaty or award; and in saying that the fund should go to Oliver's executors, as best entitled, rather than Gill, they did it under their own State laws.

It is a general rule for the State tribunals, and not the commissioners, to settle any conflict between different claimants; and the usage, when disputes exist, is not for commissioners to go further than act on the validity of the claim, and decide besides the superior rights of one of the claimants. Frevall v. Bache et al., 14 Peters, 95; Comegys v. Vasse, 1 Peters, 212; Sheppard v. Taylor et al., 5 Peters, 710.

It is true, that the opinion given in the State court in support of its judgment is not entirely free from some grounds for misconception, yet the judgment itself appears right, and, if erroneous, resting as it does wholly on the State laws, it is not competent for us, under this writ of error, to reverse it. We can reverse it only when wrong, and wrong, too, for deciding improperly against some claim under a United States law or treaty.

This, I think, it has not done. In short, the whole real truth appears to be, that the State court considered the Mina contract in 1817 as a violation of the neutrality act of 1794; and therefore, when Lyde Goodwin failed in the same year, and went into insolvency, that his share in the contract, being illegal and void, could not then pass to his creditors, or his trustee in their behalf. But when the Mexican government, about 1825, adopted the contract, and acknowledged its liability to pay those entitled, the court seems to have thought that their obligation was virtually a new one. It occurred after the insolvency, and hence seems supposed not to have passed to the creditors, any more than did new property subsequently acquired. (See Insolvent Act of 1805, ch. 110, § 2.) Consequently, the commissioners held that the creditors and their trustee were not entitled to its benefits. Goodwin could and did legally assign to Oliver his new rights and new guarantees, for his share from Mexico. These last, though growing out of the original Mina purchase, were not a violation of the act of 1794,-were honorable, though not compellable, and were not deemed illegal either by Mexico or the government of the United States, or the commissioners, or the State court.

Again, under the State laws doubts seemed to arise, (in deciding on which was the proper claimant,) whether the original trustee was not duly appointed in 1817, and could not legally assign this claim, if it passed to him then or afterwards, as he attempted to pass it to Oliver, rather than considering it as belonging to, or vesting in, Gill, the appellant, who was not appointed trustee till 1825, and then in a manner somewhat questionable. (4 Gill & Johns. 392.) That, however, was likewise a point arising exclusively under the State laws, and which we are not authorized to decide in this writ of error.

It is for reasons like these, that, in my opinion, the judgment in the State court, so far as it related to any claim set up and supposed to be overruled under any authority derived from the United States, is within our jurisdiction; but that the State court did not improperly overrule any such claim so set up, and hence that the judgment in the State court ought to be affirmed.


text:
Hogg v. Emerson (52 U.S. 587)/Dissent Catron

Mr. Justice CATRON.

To the opinion just delivered I dissent. I think the letters patent are for a single improvement on the steam-engine, and that the schedule has added two distinct inventions in addition; the one on the paddle to a wheel propelling machinery or a vessel of any kind in the water; and the second in applying the power of the shaft to turning a capstan by means of a cogwheel. These two claims are entirely independent of the improvement claimed in the letters patent actually granted; this is for inventing a piston and shaft which turn a wheel without employing a crank. And as this controversy depends on a supposed infringement of the improved paddle (which, in my judgment, is not covered by the letters), I therefore think that the suit cannot be maintained on the face of the letters.

Secondly, if these three distinct improvements had been claimed and granted in the letters, and described in the schedule, then the patent would be void, as I think, because no more than one invention, distinct and disconnected from others, can be granted in the same letters. Such is the construction that has been given to the legislation of Congress at the Patent-Office, and is supposed by me to be the correct one. If three independent inventions can be patented and monopolized together, so any number may be; by this means, the grant may cover many fictitious claims, with some valid ones, which latter will stand protected; so that little or no risk will be run by obtaining a grant for that which is not new; and by this mode of proceeding at the Patent-Office, fictitious claims may cover and assume to monopolize the ordinary implements now in use on the farm and in the workshop, and, yet more than is now the case, harass the public with fictitious and ill-founded claims to make and sell exclusively things in daily and extensive use. Although the claim may be fictitious, still this does not protect the public from harassment, as usually men using cheap implements cannot afford to litigate in the United States courts. It would be far better to allow the claim, unjust as it is, and pay the patentee his fraudulent demand, than incur the expense of a suit, which the patentee or his assignee may well afford to prosecute.


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