text:
Brown v. Hiatts

APPEAL from the Circuit Court for the District of Kansas; the case being thus:

Brown filed a bill against Hiatt and wife to foreclose a mortgage, executed by the latter persons upon certain real propety in Kansas, to secure their joint and several bond for $2400, with interest, and to obtain a sale of the mortgaged premises for its payment. The case was thus:

On the 29th of May, 1860, Brown, who was then and still is a citizen and resident of Virginia, being at the time in Kansas, lent to the defendants, citizens of that State, the sum of $2000, at interest, at the rate of 20 per cent. a year, and took the bond in suit, payable in twelve months, for the amount, with the interest for the period included, making the sum of $2400, the whole drawing the stipulated interest after maturity. As security for the payment of this bond with interest, and simultaneously with its execution, Hiatt and wife made and delivered to Brown the mortgage in suit, which covers three hundred and twenty acres, in the county of Leavenworth, in that State.

With the execution of the bond, and as further or collateral security for its payment, the defendant, Hiatt, assigned to the complainant a mortgage held by him upon certain real property in Kansas, executed by one Kenyon and his wife, to secure their joint note for $800, made in December, 1858, and payable in December, 1860, with interest at 6 per cent. a year. Upon this note there was then a credit of $75.

At the same time the defendant, Hiatt, also assigned to the complainant for the like further or collateral security a judgment rendered in his favor upon the foreclosure of a mortgage against one Perkins, in the District Court of the United States for the District of Kansas, on the 6th of June, 1859, for $763, and costs. This judgment drew 7 per cent. a year. The assignment was absolute in its terms, but it is admitted to have been executed as further or collateral security for the payment of the bond in suit.

The complainant, as stated, was at the time a citizen and resident of Virginia, and soon after the completion of the transaction in question he returned to that State, carrying with him the bond and mortgage, and retained them there in his possession until September, 1865. His residence was all this time in that portion of the State which was declared by the proclamation of the President to be in insurrection against the government of the United States, and was during the entire period of the war, until the surrender of the Confederate forces by General Lee, under the domination of the Confederate government.

At the time the collaterals mentioned were assigned it was agreed, in consequence of the residence of the complainant in Virginia, that the defendant, Hiatt, should exercise such oversight over them as would be necessary to preserve them for the purposes for which they were appropriated, so that resort might be had to them if the mortgage to the complainant should prove to be insufficient security.

In April, 1861, some correspondence was had between the complainant and Hiatt respecting these collaterals, in which the complainant expressed a desire that the conveyance of any property struck off to him on a sale under the Perkins judgment, should show on its face that the property was only held as collateral security, and in which Hiatt stated that he had a prospect of paying off the mortgage to the complainant by the proceeds of work on a contract in Pennsylvania during the coming summer. No intimation was made on either side of any agreement, by which the collaterals were, under any circumstances, to be taken in satisfaction of the bond and mortgage in suit.

On the 17th of April, of that year, the Convention of Virginia passed the ordinance of secession, purporting to take the State from the Union. The proclamation of President Lincoln declaring a blockade of her ports followed on the 27th of the same month, and the war commenced. From the time of its recognition until its termination, or at least until the cessation of active hostilities, all commercial intercourse between the parties, except by special license of the government, was illegal, and by the act of Congress of July 13th, of that year, and the subsequent proclamation of the President, was expressly interdicted.

During this period of non-intercourse and early in 1863, Hiatt went to the office of the district attorney of the United States in Kansas, and stated to that officer that the complainant had large claims against persons living in the State, secured by mortgages on real property, which were subject to confiscation; and in enumerating the debtors of the complainant, stated that he himself owed that person a considerable sum of money secured by mortgage on his farm, the amount of which he could not state, but it was the amount for which the mortgage was given, and that he would much prefer paying it to the government rather than to the complainant. This was the first intimation that the district attorney had that the complainant held any claims in Kansas subject to confiscation. Upon the suggestion thus made, that officer proceeded to examine the records of the county, and found among them the record of the bond and mortgage to the complainant. He thereupon instituted proceedings for their confiscation in the District Court of the United States for the District of Kansas, under the act of Congress of March 17th, 1862. To the information the defendants appeared and filed an answer, verified by the oath of Hiatt, in which they alleged that they were not indebted and had not been indebted to the complainant since May, 1861, upon the bond and mortgage executed by them. And they set up in substance that the bond and mortgage had been paid and satisfied by the Perkins judgment, or the property purchased under it, and the Kenyon note and mortgage, pursuant to a verbal agreement made at the time the bond and mortgage were executed.

Upon the trial of this question of payment and satisfaction, Hiatt produced what purported to be a letter from the complainant which supported the averment as to the agreement mentioned. The district attorney, believing the letter to be genuine and the testimony of Hiatt in support of it trustworthy, dismissed the proceedings, and instituted other proceedings for the confiscation of the Kenyon note and mortgage. These resulted in a sale of a part of the premises covered by that mortgage, and the proceeds of the sale were paid into court. In the meantime the Perkins judgment, owing to a defective acknowledgment of the mortgage on which it was given, proved to be entirely valueless, and the property upon which it was a lien, was sold to satisfy a prior incumbrance.

The present suit was commenced in February, 1867, and the defences made to it were substantially these:

1st. That a verbal agreement was a entered into between the parties at the time the bond and mortgage were executed, by which the complainant was to take in their satisfaction, at the election of the defendants, the Perkins judgment and the Kenyon note and mortgage, and that the defendants, in 1862, made such election, which was acceded to and accepted by the complainant. The election thus made was alleged by the defendants to have been communicated to the complainant by letter, sent by mail, and his acceptance of the collaterals was alleged to have been contained in a letter received by mail, from him, in which he stated that he should henceforth hold the collaterals as his own property in satisfaction of the bond in suit. These letters were not produced by the defendants in this case, but were alleged to have been lost. And it appeared that communication by mail between that portion of Virginia in which Brown, the complainant, resided, and Kansas, ceased in 1861, and was not re-established until after the cessation of hostilities in 1865.

2d. That the right of the complainant to maintain the suit was barred by the statute of limitations of the State of Kansas, which requires a suit of this character to be brought within three years after the cause of action has accrued; and—

3d. That the Perkins judgment and Kenyon note and mortgage had become valueless, and were lost through the neglect of the complainant, and that he should, therefore, be charged with their full amount. The defendants also alleged that the debt against Kenyon was confiscated by judgment of the District Court as the property of the complainant.

The Circuit Court held that the alleged verbal agreement was not proved, and that the statute of limitations of Kansas did not run against the right of action of the complainant during the continuance of the civil war, but allowed the amount of the Kenyon note, alleged to have been confiscated by the proceedings taken for that purpose, on the demand of the complainant, and gave judgment for the balance and a decree for the foreclosure of the mortgage and sale of the premises, if the amount found due was not paid within a designated period. From this decree both parties have appealed to this court.

Messrs. Conway Robinson and E. S. Brown, for Brown; Mr. A. G. Riddle, for the Hiatts.

Mr. Justice FIELD, after stating the case, delivered the opinion of the court, as follows:

title: Brown v. Hiatts


text: Talk:Brown v. Hiatts

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

title: Talk:Brown v. Hiatts


text:
Brown v. Hiatts/Opinion of the Court

We fully concur in the conclusion of the Circuit Court that the alleged verbal agreement between the parties that the complainant should take the Perkins judgment and Kenyon note, at the election of the defendants, in satisfaction of the bond and mortgage in suit, is not proved. The existence of any agreement of the kind is positively denied by the complainant, and all the circumstances of the case show conclusively to our minds that no such agreement was ever made. In the first place the amount of both collaterals, assuming them to have been perfectly good, was, at the time the loan was made, less by several hundred dollars than the amount lent. Then the loan drew twenty per cent. interest a year while one of the collaterals bore interest only at six per cent., and the other at seven per cent. a year, so that the excess of the amount due on the loan over the amount due on the collaterals was constantly increasing. In the second place the letter which Hiatt pretends to have received from the complainant recognizing the alleged verbal agreement and accepting the election of the defendants, was not produced, and the complainant denies under oath that he ever wrote such a letter. The latter's testimony is corroborated by the fact that communication by mail, by which means Hiatt pretends to have received the letter, had long before ceased between that portion of Virginia in which the complainant resided and the loyal portion of the United States. In the third place the statements of Hiatt made to several parties at different times were inconsistent with the existence of any agreement of the kind mentioned. In 1863 he stated to the district attorney that he owed the complainant the entire amount secured by his mortgage, and this was more than a year after the pretended satisfaction of the bond and mortgage in suit. The story put forth by the defendants is contradicted by the testimony of the complainant, is intrinsically improbable, and is irreconcilable with their repeated statements to others, and with their answer to the information in the confiscation proceedings. The case well illustrates the wisdom of the rule of law and the importance of its enforcement, that parol testimony of a verbal agreement shall not be permitted to vary or contradict the terms of a written contract made at the same time. The contract here in writing shows that the Kenyon note and mortgage were assigned as collateral security. The object of the testimony was to prove that a different agreement was really made, namely, that the note should be held as such security only at the option of the defendants, and at their election could be turned over with the Perkins judgment in full payment and satisfaction of the bond and mortgage. Had an objection been taken to the admissibility of this evidence it would undoubtedly have been excluded.

We concur also with the Circuit Court in its ruling, that the statute of limitations of Kansas did not run against the right of action of the complainant during the continuance of the civil war. That statute required the action to be brought within three years after the cause of action accrued, and it constituted a rule of decision in the National courts equally as in the courts of that State. The cause of action in this case accrued on the 29th of May, 1861. At that time the civil war embraced Virginia, or at least that portion of the State in which the complainant resided.

It was held in the case of The Protector, that the war began in that State at the date of the proclamation of intended blockade of her ports by the President. That was the first public act of the executive in which the existence of war in that State was officially recognized, and to its date the courts therefore look as the commencement of the war. And so far as the operation of the statute of limitations is concerned, it was held in the same case that the war continued until proclamation was in like manner officially made of its close. That occurred on the 2d of April, 1866. The period, therefore, between the 27th of April, 1861, and the 2d of April, 1866, must be excluded in the computation of the time during which the statute has run against the right of action of the complainant on the bond and mortgage in suit, and being excluded the present suit is not barred.

It is unnecessary to go at length over the grounds upon which the court has repeatedly held that the statutes of limitation of the several States did not run against the right of action of parties during the continuance of the civil war. It is sufficient to state that the war was accompanied by the general incidents of a war between independent nations; that the inhabitants of the Confederate States on the one hand, and of the loyal States on the other, became thereby reciprocally enemies to each other, and were liable to be so treated without reference to their individual dispositions or opinions; that during its continuance all commercial intercourse and correspondence between them were interdicted by principles of public law as well as express enactments of Congress; that all contracts previously made between them were suspended; and that the courts of each belligerent were closed to the citizens of the other.

Statutes of limitation, in fixing a period within which rights of action must be asserted, proceed upon the principle that the courts of the country where the person to be prosecuted resides, or the property to be reached is situated, are open during the prescribed period to the suitor. The principle of public law which closes the courts of a country to a public enemy during war, renders compliance by him with such a statute impossible. As is well said in the recent case of Semmes v. Hartford Insurance Company, 'The law imposes the limitation and the law imposes the disability. It is nothing, therefore, but a necessary legal logic that the one period should be taken from the other.'

As the enforcement of contracts between enemies made before the war is suspended during the war, the running of interest thereon during such suspension ceases. Interest is the compensation allowed by law, or fixed by the parties, for the use or forbearance of money, or as damages for its detention, and it would be manifestly unjust to exact such compensation, or damages, when the payment of the principal debt was interdicted. The question whether interest should be allowed on such contracts during the period of war was much considered soon after the Revolution. In the case of Hoare v. Allen, decided in 1789 by the Supreme Court of Pennsylvania, it was held that interest did not run during the war on a debt owing to an enemy, contracted previously. 'Where a person,' said the court, 'is prevented by law from paying the principal, he shall not be compelled to pay interest during the prohibition.' The legislation of Congress after the commencement of the War of the Revolution, like the legislation of 1861, prohibited commercial intercourse with the inhabitants of the enemies' country, and the court observed that the defendant could not have paid the debt to the plaintiff, who was an alien enemy, without a violation of the positive law of the country and of the law of nations, and that parties ought not to suffer for their moral conduct and their submission to the laws. The decision was followed by the same court in Foxcraft v. Nagle, in 1791. Similar decisions were rendered by the Court of Appeals of Virginia and the Court of Appeals of Maryland.

The counsel for the complainant attempts to draw a distinction between those contracts in which interest is stipulated and those to which the law allows interest, and contends that the revival of the debt in the first case, after the termination of the war, carries the interest as part of the debt; while in the latter case interest is allowed only as damages for the detention of the money. We are, however, of opinion that the stipulation for interest does not change the principle, which suspends its running during war. In the first case cited, from Pennsylvania, interest was stipulated in the contract. 'A prohibition,' says Mr. Justice Washington, in Conn v. Penn, 'of all intercourse with an enemy during the war, and the legal consequence resulting therefrom, as it respects debtors on either side, furnish a sound, if not in all respects a just reason, for the abatement of interest until the return of peace. As a general rule it may be safely laid down that wherever the law prohibits the payment of the principal, interest during the existence of the prohibition is not demandable.'

Upon the third ground of defence we are unable to agree with the Circuit Court. We concur in its ruling that the complainant is not justly chargeable with any neglect in the collection of the collaterals. His residence within the Confederate States rendered it impossible for him to superintend proceedings for their enforcement. The Perkins judgment proved to be worthless in consequence of the defective acknowledgment of the mortgage, for the enforcement of which the judgment was rendered, which defect gave precedence to another mortgage, under which the property was sold and by which the proceeds were absorbed. The Kenyon note and mortgage were confiscated, and the premises, or a part of them, covered by that mortgage, were sold by the marshal, and the proceeds paid into court. That note and mortgage the complainant did not own; he held them only as collateral security for the payment of the bond of the defendants. They were owned by the defendant, Hiatt. He concocted a scheme to defraud the complainant, and invented the shallow story of an agreement with him to take the collaterals in satisfaction of the loan, although they were less than the loan in amount by several hundred dollars. By barefaced and impudent falsehood, and the production of a fabricated letter purporting to be from the complainant, he induced the district attorney to believe that the bond and mortgage of the defendants had been paid and satisfied, and that the collaterals belonged to the complainant, and as his property their confiscation was decreed. Having thus led the public prosecutor to treat his own property as belonging to another, and to be confiscated as such, he must suffer the consequences of his own folly and crime. He cannot charge the loss of the collaterals thus caused to the complainant.

It follows from the views we have expressed that the judgment and decreed of the Circuit Court must be reversed, and that court be directed to enter a judgment in favor of the complainant for the amount due on the bond in suit; such amount to be made up by adding to the principal the interest due to the date of the judgment, at the rate stipulated, deducting the period intervening between the 27th of April, 1861, and the 2d of April, 1866; and also a decree directing a sale of the mortgaged premises and the application of the proceeds to the payment of the amount found due, if such amount be not paid within such reasonable period as may be prescribed by the court. And it is

SO ORDERED.

title: Brown v. Hiatts/Opinion of the Court


text: Talk:Brown v. Hiatts/Opinion of the Court


text:
Gould v. Rees

ERROR to the Circuit Court for the Western District of Pennsylvania.

Rees used Gould in an action at law for an alleged infringement of a patent for improvement in steam engines, dated January 24th, 1860.

The claims of the patent were as follows:

'Having thus described the nature, construction, and operation of my improvement, what I claim as my invention and desire to secure by letters-patent of the United States is:

'First. The flanges i on the reversing crank or arm b, and the projection t on the cam-rod e, when used for the purpose of guiding the hooks 1 and 2 into their proper position on the wrists 3 and 4 of the reversing crank or arm b, as herein described and set forth.

'Second. The use of the link m, or its equivalent, when used in connection with the cam-rods f and g, reversing crank or arm b, and the crank or arm l, as herein described and for the purpose set forth.

'Third. The use of the connecting rods o and g, or their equivalents, when used in combination with the link m, cam-rod e, and levers p and r, as herein described and for the purpose set forth.'

Numerous exceptions were taken by the defendant to certain rulings of the court, and also to certain instructions to the jury, but this court passed mainly upon the principle involved in the second and third specifications of error, which were in these words:

'2d. The court below erred in instructing the jury in reply to the fourth point of law presented by the counsel of the defendants below, which point was in the following words:

"That when a combination of mechanical devices is claimed, it is not infringed by the use of a combination differing substantially in any of its parts, and that the omission of one essential feature or element of the combination as claimed avoids the patent.'

'The charge of the court below to said fourth point being as follows:

"If the jury believe that the mechanical devices used by Rees, although differing in mechanical form or construction, are equivalent to those patented and used in the combination patented to produce the same result, it is an infringement of the patent. And this, although there is an omission of one of the features of the combination. It is the ordinary device resorted to by those who design to infringe, and who have been unsuccessful in their experiments to produce a desired result. The law secures to the patentee the right to the use of his machine, provided it consists of a new combination, although composed of parts well known and in common use."

'3d. The court erred in instructing the jury in reply to the sixth point of law presented to him by the defendants' counsel, which point was in the following words:

"That the first claim of the plaintiff's patent, in the following words, to wit: 'I claim the flanges i, on the reversing crank or arm b, and the projection t, on the cam-rod e, when used for the purpose of guiding the hooks 1 and 2 into their proper position on the wrists 3 and 4 of the reversing crank or arm b, as described and set forth,' is for a combination of the arm b, having flanges i, with the cam-rod e having a projection t, and is not infringed by the use of either of the elements of the combination without the other, nor by the use of the arm b if without the flanges i; or of the cam-rod e without the projection t.'

'The charge of the court to said sixth point being as follows:

"The use of the combination is an infringement, and the omission of one of the elements and the substitution of another mechanical device to perform the same function will not avoid the infringement. All the elements of the machine may be old, and the invention consists in a new combination of those elements whereby a new and useful result is obtained. Most of the modern inventions are of this latter kind, and many of them are of great utility and value."

Verdict having gone under these rulings for the plaintiff, the defendant brought the case here.

''Mr. G. H. Christy, for the plaintiff in error. No counsel appeared on the other side''.

Mr. Justice CLIFFORD delivered the opinion of the court.

title: Gould v. Rees


text: Talk:Gould v. Rees

title: Talk:Gould v. Rees


text:
Gould v. Rees/Opinion of the Court

Patentable inventions may consist entirely in a new combination of old ingredients whereby a new and useful result is obtained, and in such cases the description of the invention is sufficient if the ingredients are named, the mode of operation given, and the new and useful result is pointed out, so that those skilled in the art, and the public may know the nature and extent of the claim and what the parts are which co-operate to produce the described new and useful result.

Damages are claimed by the plaintiff for the alleged infringement of certain letters-patent, and he instituted for that purpose an action of trespass on the case against the defendant to recover compensation for the alleged injury.

Letters-patent were granted to the plaintiff on the twenty-fourth of January, 1860, for a new and useful improvement in steam engines, described in the specification as 'a new and useful mode of operating and handling' such machines, which consists, as the patent states, in so arranging and constructing the cranks or arms of the lifters and cam-rods of puppet-valve engines that they may be operated and handled with ease and speed, by means of levers and connecting rods, the whole being arranged and constructed in the manner described in the specification.

Very minute description of the various parts of the mechanism of the invention is given in the specification, and in order to enable others skilled in the art to make and use the invention, the patentee proceeds, with much detail, to describe its construction and operation, but in the view taken of the case by the court it will not be necessary to enter into those details in the present investigation of the controversy between these parties.

Process was issued, and being served, the defendant appeared and pleaded as follows: (1.) That he was not guilty. (2.) That the plaintiff was not the original and first inventor of the improvement described in the letters-patent, and tendered an issue to the country, which was joined by the plaintiff.

Besides the two pleas pleaded, he also gave notice in writing that he would give evidence under the general issue to prove that the alleged invention was well known and generally used in steamboats navigating the Western waters long anterior to the alleged date of the plaintiff's invention. Subsequently the parties went to trial, and the jury, under the instructions given by the court, returned their verdict for the plaintiff, and the defendant excepted to certain rulings and to the instructions of the court, and sued out a writ of errr and removed the cause into this court.

Enough has already been remarked to show what the general nature, construction, and operation of the improvement is without entering more into the details of the description, as given in the specification, except to reproduce the claims of the patent as made by the patentee. They are as follows: First. The flanges on the reversing crank or arm, and the projection on the cam-rod, when used for the purpose of guiding the hooks into their proper position on the wrists of the reversing crank or arm, as described and set forth in the descriptive portion of the specification. Second. The use of the link, or its equivalent, when used in connection with the cam-rods, reversing crank or arm, and the other crank or arm, as therein described and for the purpose therein set forth. Third. The use of the connecting rods, or their equivalents, when used in combination with the described link, cam-rod, and levers, as therein described and set forth.

Argument to show that each of the claims is for a combination of ingredients is unnecessary, as the statement of the respective claims is sufficient to establish the affirmative of the proposition; nor is it necessary to add anything to show that all of the ingredients of the respective claims are old, as the specification does not contain a word to justify the theory that the patentee ever pretended that he had invented anything except the several combinations described in the three claims of his letters-patent.

Exceptions were taken by the defendant to certain rulings of the court, as well as to several of the instructions given by the court to the jury, and all or nearly all of those rulings and instructions are assigned for error in this court, but in the view of the case taken by this court, it will not be necessary to examine more than one of the exceptions, which is the one calling in question the instruction defining the rights of a patentee where the invention consists, solely in a combination of old ingredients, as the proposition of law given to the jury in that instruction is clearly erroneous, and of a character which entitles the defendant to a reversal of the judgment and to a new trial.

Evidence was introduced on both sides, and the defendant requested the presiding justice to instruct the jury that when a combination of mechanical devices is claimed, the patent is not infringed by the use of a combination differing substantially stantially in any of its parts, and that the omission of one essential feature or element of the combination as claimed avoids the infringement, repeating that request in respect to each of the three claims of the patent, and the bill of exceptions shows that the presiding justice refused to give the instruction as to any one of the three claims, and that he instructed the jury in respect to the second claim that the use of the combination is an infringement, and that the omission of one of the elements and the substitution of another mechanical device to perform the same function will not avoid the infringement, adding what undoubtedly is correct, that the elements of the machine may be old and the invention consist in a new combination of old elements whereby a new and useful result is obtained.

Just exception cannot be taken to the last paragraph of the instruction, but the preceding clause, which asserts that the omission of one of the elements and the substitution of another mechanical device to perform the same function will not avoid the infringement, cannot be sustained, as the principle as there stated, without any qualification, is not correct, and when given, as the instruction was, without any explanation, it was well calculated to mislead the jury.

Mere formal alterations of a combination in letters-patent do not constitute any defence to the charge of infringement, as the inventor of a combination is as much entitled to suppress every other combination of the same ingredients to produce the same result, not substantially different from what he has invented and caused to be patented, as the inventor of any other patented improvement. Such inventors may claim equvalents as well as any other class of inventors, and they have the same right to suppress every other subsequent improvement, not substantially different from what they have invented and secured by letters-patent, but they cannot suppress subsequent improvements which are substantially different from their inventions, whether the new improvement consists in a new combination of the same ingredients or of some newly-discovered ingredient, or even of some old ingredient performing some new function, not known at the date of the letters-patent, as a proper substitute for the ingredient withdrawn. #fn-s-s *  *

Unquestionably the withdrawal of one ingredient in a patented combination and the substitution of another which was well known at the date of the patent as a proper substitute for the one withdrawn, is a mere formal alteration of the combination; and if the ingredient substituted per forms substantially the same function as the one withdrawn it would be correct to instruct the jury that such a substitution of one ingredient for another would not avoid the charge of infringement.

Grant all that, and still it is clear that the concession will not support the charge of the court, as it is equally clear that if the combination constituting the invention claimed in the subsequent patent was new, or if the ingredient substituted for the one withdrawn was a newly discovered one, or even an old one performing some new function, and was not known at the date of the plaintiff's patent, as a proper substitute for the ingredient withdrawn, it would avoid the infringement, as a new combination or a newly-discovered ingredient substituted for the one omitted, or even an old one performing a new function not known at the date of the plaintiff's patent as a proper substitute for the one withdrawn, would not be an equivalent for the ingredient omitted within the meaning of the patent law; nor could it be successfully claimed as such by the plaintiff in order to support the charge of infringement. Such an alteration is not a mere formal alteration, as the difference between the two improvements is such that the new combination would be the proper subject of a patent and consequently would avoid the charge of infringement in a case like the one supposed by the court.

Unexplained, the theory assumed by the court warranted the jury in finding for the plaintiff, though the defendant in constructing his machine omitted one of the ingredients of the plaintiff's combination and substituted another in its place to perform the same function, whether the ingredient substituted for the one omitted was or was not newly discovered, or was or was not well known at the date of the plaintiff's patent as a proper substitute for the one omitted from the combination constituting the plaintiff's invention.

Bon a fide inventors of a combination are as much entitled to equivalents as the inventors of other patentable improvements; by which is meant that a patentee in such a case may substitute another ingredient for any one of the ingredients of his invention if the ingredient substituted performs the same function as the one omitted and was well known at the date of his patent as a proper substitute for the one omitted in the patented combination. Apply that rule, and it is clear that an alteration in a patented combination which merely substitutes another old ingredient for one of the ingredients in the patented combination is an infringement of the patent, if the substitute performs the same function and was well known at the date of the patent as a proper substitute for the omitted ingredient, but the rule is otherwise if the ingredient substituted was a new one, or performs a substantially different function, or was not known at the date of the plaintiff's patent as a proper substitute for the one omitted from his patented combination.

Where the defendant in constructing his machine omits entirely one of the ingredients of the plaintiff's combination without substituting any other, he does not infringe, and if he substitutes another in the place of the one omitted, which is new or which performs a substantially different function, or if it is old, but was not known at the date of the plaintiff's invention as a proper substitute for the omitted ingredient, then he does not infringe. #fn-s-s-s *  *  *

Tested by these principles, as the instruction in question must be, it is plainly erroneous, as it warranted the jury in finding for the plaintiff, whether the ingredient substituted for the one omitted was new or old, or whether the one substituted was or was not well known at the date of the plaintiff's patent as a proper substitute for the omitted ingredient.

JUDGMENT REVERSED AND A NEW VENIRE ORDERED.

title: Gould v. Rees/Opinion of the Court


text: Talk:Gould v. Rees/Opinion of the Court

title: Talk:Gould v. Rees/Opinion of the Court


text:
Railroad Company v. Johnson

In error to the Supreme Court of Errors of Connecticut.

Johnson sued the Norwich and Worcester Railroad Company on certain coupons for interest attached to bonds, made by the said company A. D. 1860. When the coupons fell due, the amount was tendered in the legal-tender notes of the United States, issued under the act of Congress of February 25th, 1862, and the several acts in addition thereto, and they were refused. The State court rendered judgment that this tender was not good, and that the plaintiff should receive the amount with interest in the gold and silver coin of the United States. This writ of error was brought to reverse that judgment.

''Mr. J. Halsey, for the plaintiff in error. No opposing counsel''.

Mr. Justice MILLER delivered the opinion of the court.

title: Railroad Company v. Johnson


text: Talk:Railroad Company v. Johnson

title: Talk:Railroad Company v. Johnson


text:
Railroad Company v. Johnson/Opinion of the Court

In accordance with the principles settled by this court in the cases of Knox v. Lee, and Parker v. Davis, which were affirmed in Dooley v. Smith, the tender was a good and valid one, and the judgment for coin is erroneous, and must be reversed.

It is, therefore, ordered that the judgment of the Supreme Court of Errors of Connecticut be, and the same is hereby, REVERSED, and the cause remanded to that court for further proceedings

IN CONFORMITY WITH THIS OPINION.

I think it my duty to express my dissent from the judgment just announced, for the reasons stated in the opinion of the court in Hepburn v. Griswold, and in the dissenting opinions in Knox v. Lee, and Parker v. Davis.

My brothers CLIFFORD and FIELD concur in this dissent.


text: Talk:Railroad Company v. Johnson/Opinion of the Court


text:
Pelham v. Way

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

An act of Congress, approved July 17th, 1862, and entitled 'An act to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes,' among other things, provided, 'that if any person within any State or Territory of the United States other than those named as aforesaid after the passage of this act, being engaged in armed rebellion against the government of the United States, or aiding or abetting such rebellion, shall not, within sixty days after public warning and proclamation duly given and made by the President of the United States, cease to aid, countenance, and abet such rebellion, and return to his allegiance to the United States, all the estate, property, money, stocks, and credits of such person, shall be liable to seizure as aforesaid, and it shall be the duty of the President to seize and use them as aforesaid, or the proceeds thereof;' and further, 'that to secure the condemnation, and sale of any such property, proceedings in rem shall be instituted in the name of the United States,' in the District Court; and that the proceeding shall conform as nearly as may be to proceedings in admiralty and revenue cases; 'and if said property, whether real or personal, shall be found to have belonged to a person engaged in rebellion, or who has given aid or comfort thereto, the same shall be condemned as enemies' property.'

The President of the United States, by proclamation duly made on the 25th day of July, A.D. 1862, issued public warning to all persons contemplated by the said provision, and the sixty days therein specified expired on the 23d day of September, A.D. 1862.

This act had twice at least been the subject of construction in this court. It came up once in Pelham v. Rose, where this court took a distinction between the evidence of a credit and the credit itself; and held that when the debtor had given to his creditor a promissory note, and that note was in existence, and the thing proceeded against, it was necessary to the legal service of any monition that the marshal should seize and take it into his possession and control. The corollary was, that when the note, at the commencement of and during the pendence of proceedings to confiscate was beyond the jurisdiction of the marshal, there was no due service and no confiscation.

The same statute came up for consideration at a later date in Miller v. United States.

In that case a libel had been filed under the act to confiscate railroad stocks belonging to a rebel, and the notice, instead of being served on the owner, was served on the officers of the railroad company.

The court held that the service was good. It said:

'The act of Congress made it the duty of the President to cause the seizure of all the estate, property, money, stocks, credits, and effects of the persons described, and in order to secure the condemnation and sale of such property after its seizure, directed judicial proceedings in rem to be instituted. It contemplated that every kind of property mentioned could be seized effectually in some mode. It had in view not only tangible property, but that which is in action. It named stocks and credits; but it gave no directions respecting the mode of seizure. It is, therefore, a fair conclusion that the mode was intended to be such as is adapted to the nature of the property directed to be seized, and in use in courts of revenue and admiralty. The modes of seizure must vary. Lands cannot be seized as movable chattels may. Actual manucaption cannot be taken of stocks and credits. But it does not follow from this that they are incapable of being seized, within the meaning of the act of Congress. Seizure may be either actual or constructive. . . . Garnishment almost everywhere exists. What is that but substantial attachment. It arrests the property in the hands of the garnishee, interferes with the owner's or creditor's control over it, subjects it to the judgment of the court, and therefore has the effect of a seizure. In all cases where the garnishee is a debtor, or where the garnishment is of stocks, it is effected by serving notice upon the debtor or corporation. A corporation holds its stock as a quasi trustee for its stockholders. The service of an attachment, though it is but a notice, binds the debt or the stock in the hands of the garnishee from the time of the service, and thenceforward it is potentially in 'gremio legis.' The statute declares that proceedings to confiscate shall conform, as nearly as may be, to proceedings in admiralty or revenue cases. Now, it is legitimate in certain proceedings in courts of admiralty, to attach credits and effects of such an intangible nature that they cannot be taken into actual possession by the marshal, and the mode of attachment is by notice, dependent upon statutory enactment.'

The court accordingly held that the confiscation and sale had made a valid transfer of the stock.

Under this already mentioned act of Congress, of July 17th, 1862, the United States, in 1863, filed a libel of information in the District Court for the District of Indiana, 'against the following described credits and effects of Henry Pelham,. . . that is to say, one promissory note dated March 1st, 1862, for the sum of $7000, and due four years after date, executed by Lewis Pelham to Henry Pelham.' Lewis Pelham was still in Indiana, and within the jurisdiction of the marshal; but Henry Pelham was in Kentucky, outside of the marshal's jurisdiction, and had the note with him there. The libel, after reciting the act of July 17th, 1862, and making other proper recitals, alleged that 'by force of the said statute, and the public warning of the President of the United States, the said estate, credits, and effects of him, the said Henry Pelham, so described as aforesaid, became and were forfeited to the United States, and that the same were liable to be condemned as enemies' property.'

The writ of monition stated that a libel had been filed by the district attorney against 'one promissory note,' and commanded the marshal 'to attach the note, and to detain the same in your custody until the further order of the court concerning the same,' and 'to give due notice to all persons claiming the same,' &c.

The marshal made return, on the back of the writ, as follows:

'May 2, 1863.

'In obedience to the within warrant, I have arrested the property within-mentioned, and have cited all persons having or pretending to have any right, title, or interest therein, as by the said warrant I am commanded to do.

'D. G. ROSE,

'Marshal.'

A summons was at the same time issued against Lewis Pelham, the maker of the note, which was served on him by the marshal, and he appeared and answered, admitting the facts alleged in the libel.

The fact of a publication of notice to all other parties in interest was proven, and a decree of condemnation was made, and a writ of venditioni exponas issued to the marshal, who returned that he had offered for sale the promissory note, and sold it to Lewis Pelham for $3000.

Hereupon, the rebellion being suppressed, Henry Pelham sued the sureties of the marshal (he being dead), in the District Court for the District of Kentucky, for damages alleged to have accrued by the marshal's false return in the case. The declaration alleged a false return 'to a writ of monition in a libel by the United States against the following described credits and effects of Henry Pelham,. . . that is to say, one promissory note for $7000, executed by Lewis Pelham to the said Henry.' It was an admitted fact in the case that the note was, from the issuing of the monition in the proceedings for confiscation, till, and at the time of the return to the monition by the marshal that he had arrested the same, outside of the jurisdiction of the said District Court, and not within the territorial limits of the State of Indiana; but, on the contrary, was, during all that time in the possession of the said plaintiff in the State of Kentucky, where he resided.

The plaintiff requested the court to instruct the jury as follows:

'If the jury find, from the evidence, that the allegations of the declaration are true, they will find for the plaintiff, and assess his damages in the amount of the note, with interest thereon from maturity.'

The court refused to give this instruction, and, on the contrary, charged that under the conceded facts in the case, the plaintiff was entitled to no more than nominal damages.

A verdict was rendered accordingly, and the refusal to charge as requested, and the charge as given, were now assigned for error.

Messrs. Coburn, Dye, and Harris, for the appellants; Mr. I. B. Niles, contra.

Mr. Justice STRONG delivered the opinion of the court.

title: Pelham v. Way


text: Talk:Pelham v. Way

title: Talk:Pelham v. Way


text:
Pelham v. Way/Opinion of the Court

That the errors assigned are unfounded is very plain, if the record of confiscation in the District Court is not a bar to the recovery by the plaintiff of the debt formerly due to him from Lewis Pelham, and which was evidenced by the note dated March 1, 1862. The decree in that case is doubtless conclusive of all matters then adjudicated upon, and, as it was a proceeding in rem, the subject is to be ascertained from the record, from the information, the monition, and from the marshal's return. If they show that the 'credit,' or the debt due from Lewis Pelham to the plaintiff, was attached, and if the decree was upon the title to that credit, the plaintiff has been divested of his interest therein, and divested in consequence of the marshal's false return. On the other hand, if the information, the monition to the marshal, his return, the decree of the court, and the marshal's sale, all relate to another subject, not to the 'debt' or 'credit,' then the plaintiff has not been divested of the credit, and he has sustained no appreciable injury in consequence of the falsity of the marshal's return. Undoubtedly a debt or a credit was capable of seizure under the confiscation acts, and of subsequent condemnation and sale. This we ruled in Miller v. The United States, and we then showed how property in action could be seized and brought within the jurisdiction of the court. But the question here is whether the debt was seized, or whether the subject of the seizure, and the consequent libel, was only an evidence of the debt, a thing capable of actual manipulation and delivery. That it was the latter an inspection of the record, and the decision of this court in Pelham v. Rose, sufficiently establish. The libel was against a promissory note, particularly describing it, and it was that, not the debt of which it was evidence, that was claimed to have been forfeited. The monition was against the promissory note, and nothing else. The marshal was commanded to attach the note and detain the same in his custody. It made no allusion to any right in action. The marshal's return was that he had arrested the property (described in the monition). The decree of the court was that the note should be exposed to sale, and the sale was of the property mentioned in the libel and in the decree. Plainly, a debt is distinguishable from any instrument of evidence of the debt. This was the view taken of the case in Pelham v. Rose. The language of this court then was as follows: 'In the case at bar a visible thing capable of physical possession, is the subject of the libel It is the promissory note of Pelham which constitutes the res against which the proceeding is instituted, and not a 'credit,' or debt, which the note is supposed by the defendant's counsel to represent.' For this reason it was held that to effect its seizure it was necessary for the marshal to take the note into his actual custody and control. That case determined that the arrest returned by the marshal was not a seizure of the debt, and consequently the debt was not confiscated. It follows that the plaintiff has shown no injury sustained by him which entitles him to more than nominal damages.

JUDGMENT AFFIRMED.

title: Pelham v. Way/Opinion of the Court


text: Talk:Pelham v. Way/Opinion of the Court

title: Talk:Pelham v. Way/Opinion of the Court


text:
Reybold v. United States

APPEAL from the Court of Claims; the case being thus:

Reybold, owner of the steamer Express, chartered her to the government under a charter-party, whereby it was agreed

'That the vessel now is and shall be kept and maintained tight, stanch, strong, and well and sufficiently manned, victualled, tackled, apparelled, and ballasted, and furnished in every respect fit for merchant service at the cost and charge of her owner. And when laden shall proceed, with the first good opportunity, to such ports and places as ordered and directed by the quartermaster of the United States.

'The war risks to be borne by the United States; the marine risks to be borne by the owner.'

On the 20th and 21st of January, 1865, the vessel was at Washington; the Potomac River being then frozen over from bank to bank; the ice eight inches thick; and the channel alone, in which, nevertheless, masses of ice were floating, kept open by the current and by the passage of vessels. In consequence of this condition of the river, the navigation was suspended except by government steamers and the ferry-boats. On the 20th of January, the master received an order from the quartermaster to take certain men and horses on board and proceed 'to-morrow morning' to a place called City Point.

Previous to giving this order, the quartermaster, in answer to his inquiries, was informed that the vessel was sheathed with iron, and was of capacity to take the men, horses, &c., by the captain, who made no objection to the order, because, as he testified, 'he considered it imperative as a military order, and as such obeyed it; though if he had considered he could have used his judgment, he would not have left the wharf, as he did not consider it safe.'Having taken the men and horses on board on the 20th, he set off on the following morning for City Point.

While the vessel was crossing the river, her hull was crushed by heavy cakes of ice, and she filled and sank. The injury in sinking did not arise from any defect in the vessel or any fault on the part of her officers or crew. The Court of Claims found as conclusions of law:

1. That the peril was within the term 'marine risks,' and therefore to be borne by the owner.

2. That the charter-party placed the steamer in the military service of the United States in a time of war, and that the term was to be construed in reference to that service, and included risks from perils of the sea and seasons incident to that service, and its exigencies.

3. That the steamer, being in the military service, was subject to military orders necessary for the proper performance of the service.

It accordingly gave its decree for the United States. And from that decree the owner of the vessel appealed.

Mr. E. Fitch, for the appellant:

The master and crew were the servants of the owners, who appointed, paid, and subsisted them; and under a right interpretation of the charter-party, the master was to see to and control the navigation of the vessel and direct her motions. The quartermaster could indeed order and direct the freight to be carried and the ports and places at which it should be delivered; in other words, control the destination and employment of the vessel. But the owners maintained the right to say what was the right mode of her navigation.

Now, whether the state of the weather and the condition of the water are suitable for the commencement of the voyage, it appertains to the office of master of the vessel to determine. 'The master must commence his voyage without delay as soon as the weather is favorable. . . . But he must on no account sail out during tempestuous weather.' So say all the codes. Indeed, by most of the ancient marine ordinances the master is required before he hoists sail to consult his mate, pilot, and others of the crew, as to the wind and weather. But by the law of England, or by our law, the entire management of the ship is intrusted to the master.

In the present case the order of the quartermaster deprived the master of the steamer of the right to judge whether the 'good opportunity' mentioned in the charter-party existed. It defined and specified the time for the commencement of the voyage. To-morrow morning was the point of time named for the departure of the vessel, without regard to the state of the weather or the condition of the river. The departure of the vessel at that time, in face of apparent danger, was an unskilful and negligent act of navigation, for which the United States and not the owners are responsible.

The order of the quartermaster was a military order, issued by a military officer of the United States 'acting in discharge of his official duty' in time of war. Obedience to it could not be refused.

But the United States are estopped from alleging that the master should not have obeyed it. They cannot be permitted to complain because the master did what they, by their duly authorized agent, commanded him to do. His act was their act, for he was acting within the scope of his authority. Nor can the fact, that the master obeyed without objection, relieve them from the responsibility of the order and its consequence. To object was no part of his duty.

It cannot be said that the master acquiesced, in the proper sense of the word, in the order given. His opinion was not asked, nor was he consulted in regard to the dangers to be encountered in making the voyage. He was asked in regard to the condition and capacity of his vessel, and to these inquiries he made true answers. But the voyage was not made the subject of negotiation or consultation between him and the quartermaster. The order was given, and received and obeyed, as a military order simply, imperative in its terms and admitting no question.

By the term 'marine risk,' as used in the charter-party, was evidently intended such risk from marine dangers and perils as the vessel would be subjected to while making her voyages under and in pursuance of the contract; that is, while controlled and navigated by the master and crew chosen by the owners. It was not intended that the United States could substitute some other person, by them chosen, in place of the master, and still continue the responsibility for the marine risk upon the owners. Nor was it intended that they could override the judgment of the master by military command, and cast upon the owners the risk from marine perils thereby incurred.

Mr. G. H. Williams, Attorney-General, and Mr. C. H. Hill, Assistant Attorney-General, contra.

Mr. Justice DAVIS delivered the opinion of the court.

title: Reybold v. United States


text: Talk:Reybold v. United States

title: Talk:Reybold v. United States


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

This case is in only one particular different from that of Morgan v. United States, decided at the last term. Both were contracts of affireightment, with stipulations that the United States should bear the war risk and the owners the marine risk. The hiring in each case was for a particular purpose, the transportation of troops and munitions of war from place to place, as the necessities of the service might require; and although the United States were empowered to direct the manner of loading the vessels and their points of destination, yet the owners restained the control and management of them, and agreed to keep them in good repair and fit for the service in which they were engaged. In each case the loss sued for was occasioned by the perils of the sea, and in both the effort has been, notwithstanding the express terms of the contract that the owners were their own insurers against such risks, to shift the responsibility upon the United States.

It was insisted in Morgan's case that the owners were relieved and the government chargeable, because the master was compelled to proceed to sea by the peremptory order of the quartermaster, when, in his judgment, expressed to that officer, the state of the wind and tide rendered it hazardous to do so, but we held, as in several previous cases, that if this were so, it was outside of the contract-a tortious act of the officer-and, therefore, not within the jurisdiction of the Court of Claims.

In the present case the master made no objection to the order requiring him to proceed on his voyage, and this constitutes the only difference between the two cases. This difference, however, instead of helping the cause of the claimant, makes the justice of the defence still clearer. It was the business of the master to know whether the navigation of the river was dangerous or not, and naturally, he would be better informed on such a subject than a quartermaster of the United States. How are we to know, in the absence of proof, that the order would have been given, or, if given, not withdrawn, had the master stated that in his opinion, in the state of the river, it was unsafe to attempt to make the voyage? Why not speak of the danger when he told the quartermaster, in reply to an inquiry on the subject, prior to the order being given, that his vessel was sheathed with iron and had capacity to take the men and horses to City Point? This was the time to have spoken, as the object of the inquiry was plainly to ascertain whether or not the boat, if she had the requisite capacity, was in a condition to withstand the masses of ice which were floating in the channel of the river. It is very clear that, upon the information which was given, in the absence of any objection to the proposed voyage, the officer of the government had the right to suppose, in the judgment of the master, it could be safely undertaken. It is no excuse to say that the master at the time knew it was unsafe to leave the wharf, but said nothing, because he considered the order a military one, and as such to be obeyed. It is true, by the terms of the contract of affreightment, he was subject to the orders of the quartermaster, but this contract did not require him to sail out of port during such tempestuous weather as would necessarily jeopardize the safety of his boat.

If obedience to an order given under such circumstances had been demanded, after proper objection, it would have been a tortious act on the part of an officer of the government.

In such a case, if relief is to be afforded, it must come from Congress, for the Court of Claims has no power to entertain a suit based on a consideration of this character.

If, however, the master chose to obey the order without objection, and in the course of the voyage the steamer commanded by him is lost or injured by a peril of the sea, her owners can have no just cause of complaint against the government, and must abide the consequences of their stipulation.

In every aspect of the case the judgment of the Court of Claims should be

AFFIRMED.


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


text:
Page:Dictionary of National Biography volume 59.djvu/36

 occasionally employed in painting tradesmen's signs, till these were prohibited by act of parliament in 1762. A whole-length portrait of Shakespeare by Wale, which hung across the street outside a tavern near Drury Lane, obtained some notoriety owing to the splendour of the frame and the ironwork by which it was suspended. The whole was said to have cost 500l., but it had scarcely been erected when it had to be removed, and the painting was sold for a trifle to a broker. Wale acquired a thorough knowledge of perspective by assisting John Gwynn [q. v.] in his architectural drawings, especially in a transverse section of St. Paul's Cathedral, which was engraved and published in their joint names in 1752. But his principal employment was in designing vignettes and illustrations on a small scale for the booksellers, a large number of which were engraved by Charles Grignion (1717–1810) [q. v.] Among the chief of these were the illustrations to the ‘History of England,’ 1746–7; ‘The Compleat Angler,’ 1759; ‘London and its Environs described,’ 1761; ‘Ethic Tales and Fables,’ Wilkie's ‘Fables,’ 1768 (eighteen plates); Chamberlain's ‘History of London,’ 1770; Goldsmith's ‘Traveller,’ 1774. He also published numerous plates in the ‘Oxford Magazine’ and other periodicals. He exhibited ‘stained drawings,’ i.e. designs outlined with the pen and washed with indian ink, and occasionally larger drawings in watercolours, at the exhibitions of the Society of Artists in Spring Gardens, 1760–1767, and designed the frontispiece to the catalogue in 1762.

He became one of the original members of the Society of Artists of Great Britain in 1765 and of the Royal Academy in 1768, and was the first professor of perspective to the academy. He exhibited drawings of scenes from English history, and occasionally scriptural subjects, described as designs for altar-pieces, from 1769 to 1778, when his health failed, and he was placed upon the Royal Academy pension fund, being the first member who benefited by it. He continued to hold the professorship of perspective, though he gave private instruction at his own house instead of lecturing; and in 1782, on the death of Richard Wilson, he became librarian. He held both offices till his death, which occurred on 6 Feb. 1786 in Castle Street, Leicester Square. His portrait appears in Zoffany's picture of the Royal Academy in 1772, engraved by Earlom.

[Sandby's Hist. of the Royal Academy, i. 86; Edwards's Anecd. of Painters, p. 116; Redgrave's Dict. of Artists.]

WALEDEN, HUMPHREY (d. 1330?), judge, was a ‘king's clerk’ on 8 Feb. 1290, when he was appointed to the custody of the lands of Simon de Montacute, first baron Montacute [q. v.], in the counties of Somerset, Devon, Dorset, Oxford, and Buckingham, and on 16 Jan. 1291 to the custody of the lands of the late Queen Eleanor (Pat. Rolls, pp. 341, 468). He was among the clergy who submitted to Edward early in the course of his struggle with Archbishop Robert Winchelsey [q. v.], receiving letters of protection on 18 Feb. 1297 (ib. p. 236). On 23 Sept. 1299 he received a commission of oyer and terminer (ib. p. 474), and on 1 April 1300 was appointed with three others to summon the forest officers to carry out the perambulations of the forests in Somerset, Dorset, and Devonshire (ib. p. 506); but on 14 Oct. others were appointed, as Humphrey and some of his colleagues were unable to attend to the business (ib. p. 607). Humphrey was appointed a baron of the exchequer on 19 Oct. 1306, but he only retained his office till the following July (, Hist. of the Exchequer, ii. 46, 325). In December 1307 he is mentioned as going beyond seas with Queen Margaret (Pat. Rolls, p. 25). The temporalities of the archbishopric of Canterbury were committed to him during Winchelsey's absence in 1306 (8 June 1306 to 26 March 1307 only; see Close Rolls, Edw. II, 1307–13, p. 85). He acted as justice in 1309, 1310, 1311, and 1314 (Pat. Rolls, pp. 239, 255, 329, 472; Parl. Writs, pt. ii. p. 79, No. 5), in this last year to try certain collectors and assessors of aids, and was summoned to do military service against the Scots on 30 June 1314. In 13 Edward II (1319–20) he received a grant of the stewardship of various royal castles and manors in eleven counties, among which was the park of Windsor and the auditorship of the accounts. He is mentioned also as steward to the Earl of Hereford, and seems to have been appointed, at his desire, one of the justices to take an assize in which he was interested (Rot. Parl. i. 398 b). On 31 March 1320 he was summoned to give the king counsel on certain matters within his knowledge (Close Rolls, p. 226), and on 30 March 1322 received instructions to choose, with two others, suitable keepers of the castle of the ‘king's contrariants’ in certain of the southern and eastern counties (ib. p. 435). On 18 June 1324 he was appointed one of the barons of the exchequer (Parl. Writs, ii. 257, Nos. 138–9). He was summoned among the justices and others of the council to the parliament at Westminster by prorogation from 14 Dec. 1326 on 7 Jan.


text: Salomons v. Graham

title: Salomons v. Graham


text: Talk:Salomons v. Graham

title: Talk:Salomons v. Graham


text:
Salomons v. Graham/Opinion of the Court

MOTION by Mr. T. J. Durant to dismiss a writ of error to the Supreme Court of Louisiana, taken on assumption that the case fell within the 25th section of the Judiciary Act, quoted supra, p. 3. The case, as it appeared from some recitals and other evidences in the record, was thus:

The State of Louisiana, on the 22d March, 1866, made a contract with one Nixon, public printer, to pay him in cash monthly, certain prices for printing to be done by him. He did the work. The State, however, paid him in cash but part of what it owed him. The balance was paid in State warrants, then much depreciated, though finally redeemed by the State. These warrants Nixon had to sell at large discounts, in order to comply with his contract to the State.

In December, 1870, the people of Louisiana ordined by their constitution that the debt of the State should not be increased so as to exceed $25,000,000.

This constitution being in force, the legislature, in March, 1871-reciting the contract with Nixon above mentioned, the kind of payments made-a part State warrants, 'which he was compelled to receive, or get nothing at all'-his sale of them, and his losses: and reciting that 'the good faith of the State required that it should make good the losses by him thus incurred'-passed an act, there being no moneys at the time in the treasury unappropriated, appropriating to him $50,331, 'to reimburse him for the loss and discount suffered by him by reason of the premises stated, and of the failure of the State to pay him in cash, as required by its contract with him.' And the auditor of public accounts, one Graham, was required to issue his warrant for the amount. This the auditor refused to do; and Nixon, having sold his claim to one Salomons, Salomons applied to one of the State courts of Louisiana for a mandamus. The auditor and the attorney-general of Louisiana appeared, and showed for cause that the constitution of Louisiana forbade the act required, for that the said constitution prohibited the increase of the debt of the State beyond $25,000,000; and that the debt already exceeded that amount before the passage of the act in favor of Nixon. The Supreme Court of the State where the case finally came, gave judgment, refusing the mandamus. The ground was that the State had settled with Nixon; that the appropriation made by the act of March, 1871, was the creation of a debt, and not the mere recognition of one existing at the time of the constitutional amendment, and unaffected by it, and that there having been no moneys in the treasury when the appropriation was made to answer it, the act increased the debt of the State above $25,000,000, and was unconstitutional and void. From this judgment of the Supreme Court of Louisiana the relators took this writ of error.

Mr. J. J. Key, against the motion to dismiss, argued that the contract of the State of March 22d, 1866, with Nixon, having been in force prior to the declaration of the constitution of Louisiana, made in December, 1870, and that contract not having been rightly performed-being in fact a still existing contract, as the act of March, 1871, showed-the constitution of Louisiana violated the 10th section of the 1st article of the Constitution of the United States, which declares that no State shall pass any law impairing the obligation of contracts. The new constitution of Louisiana was such a law. The case, he argued, thus came within the 2d clause of the 25th section.

No question as to the repugnance of the constitution of Louisiana to the Constitution of the United States was made in the Supreme Court of the State, or decided by that court; nor is it easy to see how such a question could be made. The main question argued and decided was whether an act of the legislature increasing the debt of the State when it already exceeded $25,000,000, was repugnant to the constitution of the State. The court held that it was. This decision involved no Federal question.

WRIT DISMISSED.

title: Salomons v. Graham/Opinion of the Court


text: Talk:Salomons v. Graham/Opinion of the Court


text: Oelrichs v. Spain

title: Oelrichs v. Spain


text: Talk:Oelrichs v. Spain

title: Talk:Oelrichs v. Spain


text:
Oelrichs v. Spain/Opinion of the Court

APPEAL from the Supreme Court for the District of Columbia, a court (as is said, infra, p. 219) of general jurisdiction, the case being thus:

On the 9th of November, 1842, the Bank of the United States was the owner of $500,000 of the bonds of the then independent Republic of Texas, a government, at that time, of bad pecuniary credit. Owing W. S. Wetmore $50,000, the bank assigned these bonds, with arrears of interest on them, to him as a security for the debt. In July, 1845, the Republic became one of the United States, under the name of the State of Texas, and immediately certain holders of its bonds became urgent that Congress should assume the payment of them, principal and interest. Among these holders was General James Hamilton, a person of some political influence in his day, and who had been instrumental in procuring the admission of Texas into the Union. As the Bank of the United States would gain largely if the United States did so assume the debt, Hamilton applied to its trustees-the bank having itself failed, and assigned its effects-urging them to employ him to have it done; and the trustees, in October, 1845, agreed with him that if he would devote his 'best efforts, time, and means to the great object of securing the recognition and payment of these claims,' and if his efforts should be successful, they would allow him a commission of ten per cent. for the service so rendered. This agreement was limited, by its terms, to two years. However, Hamilton having labored successfully, this provision as to time was not insisted on. The trustees communicated the agreement fully to Wetmore, September 16th, 1850, without mentioning the original limitation, and directing him to 'hold subject to the order of Hamilton, one-tenth of any sum over and above his claim against the said bonds.' Wetmore acknowledged the receipt of this order, and promised to hold the bonds accordingly.

Through his, Hamilton's, efforts, largely, Congress, by an act of 9th September, 1850, did assume the payment of this debt, and authorized a five per cent. stock of the United States to be issued in lieu of the bonds of Texas; the act requiring, however, that before the stock of the United States should be issued, the holders of the Texas bonds should 'first file at the Treasury of the United States, releases of all claims against the United States for said bonds.'

The amount finally paid, June 3d, 1856, in behalf of the claim held by Wetmore, was $817,720

Wetmore having paid himself his own debt, paid the residue of the nine-tenths to the trustees of the bank. This left in his hands, as trustee for Hamilton, the remaining one-tenth, or 81,772

A considerable time before this money was payable by the United States, Hamilton, who had long been pecuniarily embarrassed, directed Wetmore, by written orders, which Wetmore accepted, to pay out of it, when received,

with interest from certain dates; so much being due by him, Hamilton, for money borrowed of these persons respectively.

It seemed to be admitted by all, as unquestionable, that the trustees of the Bank of the United States were, in virtue of some agreement of an admitted priority, entitled to receive of this 81,772

Leaving as Hamilton's true one-tenth, $69,720 58In this state of things-and when if Wetmore had been allowed to distribute the one-tenth of Hamilton, or his one-tenth less the bank's last-named deduction, it would have paid Hill, as well as Wetmore and Corcoran & Riggs, all in full-one Spain filed a bill against Wetmore, Corcoran, & Riggs, and the trustees of the bank, Hill not being by name made a defendant, charging that Wetmore had the $81,772.08 as the property of Hamilton, and that he, Spain, had an assignment of the whole fund made by Hamilton at an early date. The bill then alleged that Wetmore, disregarding this earlier assignment, pretended to hold the fund, subject to certain other alleged assignments of later date; the bill specifying that to Wetmore himself, and those to Corran & Riggs, Hill, and the trustees of the bank-and alleging that Wetmore meant to apply the fund to the payment of these last 'said recited claims,' and that the secretary was about to pay to Wetmore the said sum of $81,772.08. Asserting thus a superior equity, the bill then prayed: 'That the said Wetmore, his assignees, aiders, and abettors, may be enjoined and restrained from receiving the sum of $81,772, being the one-tenth of the three certificates,' &c. Subpoenas were prayed against all these parties, and that the representative of Hill (Hill himself being now dead), should be made defendant when discovered. An injunction was granted 'as prayed for.' A bond, in the penalty of $15,000, signed by a certain J. F. May and Henry May, in favor of Wetmore, Corcoran & Riggs, and the trustees of the bank, but not by name in favor of Hill, was filed. The writ of injunction was issued on the 31st of May, 1856, directed to Wetmore, Hamilton, Corcoran & Riggs, and the trustees of the bank. It recited the filing of the bill and its object. The restraining clause was in these words:

'You, the said W. S. Wetmore, your assignees, aiders, and abettors, are hereby restrained and enjoined from asking for or receiving the sum of $81,772.08, being the one-tenth part of the bonds or certificates,' &c.

This writ was served on Wetmore, and Corcoran & Riggs. From that time, until the dissolution of the injunction, here inafter mentioned, the money laid idle in the Treasury of the United States. Answers were filed by Wetmore, Corcoran & Riggs, the trustees of the bank, and by the representative of Hill.

On motion of the defendants, it was subsequently thus ordered:

'It appearing to the satisfaction of the court that there is not sufficient security to indemnify the defendants for their costs and damages, &c.; it is ordered that the complainant file a bond in the penalty of $20,000, conditioned to pay the defendants such costs and damages as they may respectively sustain.'

Prior to this the complainant had released his injunction as to the sum of $12,051, improperly enjoined, and this had been paid by Wetmore to the bank, and ''a release of the injunction bond executed by the trustees of the bank. The form of that release did not appear in the record''.

The second bond, ordered as above-mentioned to be filed, was filed, executed by Spain and Oelrichs. This, by consent of the parties, was ordered to stand in lieu of the bond previously filed, reserving the right of the obligees to have recourse to the original bond for interest theretofore accrued. The obligees named in this bond were Wetmore, and Corcoran & Riggs, but not Hill by name. The bond recited the injunction issued by the court to restrain the collection of the money mentioned in the writ; it recited also that certain portions of the money so enjoined had been released and paid over. The condition was:

'That if the said Spain, &c., shall prosecute the writ of injunction to effect, and pay as well the costs, damages, and charges that shall occur in said Circuit Court in Washington County, as all costs, damages, and charges that shall be occasioned by said writ of injunction, and shall in all things obey such order and decree as the said court shall make in the premises, then the obligation to be void and of no effect, otherwise to remain in full force and effect.'

The cause being heard it was decreed, on the 19th February, 1861, 4 years 8 months and 16 days after the injunction had issued -1. That the legal title to the fund was from the 9th November, 1849, and still is in Wetmore.

2. That from the 16th September, 1850, when the trustees of the bank notified to him their arrangement with Hamilton, and he accepted it, Wetmore held the legal title of the one-tenth as trustee of the fund.

First, to pay himself, with interest, the loan of $2,

Third, to pay Hill, with interest from 9th March, 1852, 33,

From this decree Spain alone appealed. At the December Term, 1863, this court affirmed the decree with costs.

Pending the appeal, there being no supersedeas and the decree having dissolved the injunction, the treasury paid to Wetmore, on 20th March, 1861, the sum remaining due on the one-tenth, $69,720.60.

There had been previously paid to the bank, the sum improperly enjoined, to wit: 30th March, 1859, the pro rata on $12,051.48.

The sum they paid to Wetmore was in three drafts, intended to represent the interests of the parties as settled by the decree, to wit:

For Wetmore,..................... $4,333

" Corcoran,..................... 30,000

" Hill,......................... 35,386

$9,475

Deduct the amount they received upon the bond given in behalf

of the James River and Kanawha Company,. 5,000

$12,557

Deduct the amount received on the Butler bond,. 2,500

$9,475

From this was deducted the amount they received upon

bond given in behalf of the James River and

$12,557

Deduct the amount received on the Butler bond,. 2,500

title: Oelrichs v. Spain/Opinion of the Court


text: Talk:Oelrichs v. Spain/Opinion of the Court