text:
Forbes v. Gracey/Opinion of the Court

This was a suit brought by appellant to enjoin the collector of taxes for Story County, Nevada, from collecting a tax imposed by the law of that State upon the property of the Consolidated Virginia Mining Company, the appellant being a stockholder in the company and an alien subject of the Queen of Great Britain. The tax is, by the State statute, imposed upon the proceeds of the mine worked by the corporation, and is resisted on the ground that the title to the land from which the mineral is taken is in the United States, and is not for that reason liable to State taxation.

The case is prepared and submitted to us on printed arguments in the very last days of the term, and we are urged to decide it on the ground that it involves a question of vast interest to all the mining operations in the Pacific States, and is of vital importance to the State of Nevada, as it affects her largest source of revenue. In view of its importance we should postpone the decision until next term, if the questions presented were either doubtful or difficult of solution. We think a very few words-all we can give to the subject at this late day-will show that it is neither.

It is very true that Congress has, by statutes and by tacit consent, permitted individuals and corporations to dig out and convert to their own use the ores containing the precious metals which are found in the lands belonging to the government, without exacting or receiving any compensation for those ores, and without requiring the miner to buy or pay for the land. It has gone further, and recognized the possessory rights of these miners, as ascertained among themselves by the rules which have become the laws of the mining districts as regards mining claims. See Revised Statutes, title xxxii. chap. 6, sects. 2318-2352. But in doing this it has not parted with the title to the land, except in cases where the land has been sold in accordance with the provisions of the law on that subject. If the tax of the State of Nevada is, in point of fact, levied on this property-right of the United States, we are bon d by our previous decisions and by sound principle to hold that it is void. If, on the other hand, it is levied on property of the miner, and may be collected without affecting or embarrassing the title of the United States to property which belongs to that government, then there is no ground for interference with the processes of the State in its collection. A few extracts from the statute of Nevada, showing the nature and character of the property on which the contested tax is imposed, and the manner of its enforcement and collection, will enable us to decide whether it belongs to the one or the other of these classes. We copy here the important sections of the act of Feb. 28, 1871, imposing this tax:-- 'SECTION 1. All ores, tailings, and mineral-bearing material of whatever character shall be assessed for purposes of taxation for State and county purposes in the following manner: From the gross yield, return, or value of all ores, tailings, or mineral-bearing material of whatever character, there shall be deducted the actual cost of extracting said ores as minerals from the mine, the actual cost of saving said tailings, the actual cost of transportation of said ores, mineral-bearing material, or tailings to the place of reduction or sale, and the actual cost of such reduction or sale, and the remainder shall be deemed the net proceeds, and shall be assessed and taxed as provided for in this act: Provided, that in no case whatsoever shall the whole amount of deductions allowed to be made in this section from the gross yield, return, or value of said ore, mineral-bearing material, or tailings exceed the percentage of gross yield, value, or return of such ore, mineral, or tailings, as hereinafter specified; on all ores, tailings, or mineral-bearing material the gross yield or value of which is $12 per ton or less, the whole amount of deductions shall not exceed ninety per cent of such gross yield, return, or value; on all ores, tailings, or mineral-bearing material, the gross yield, value, or returns of which is over $12 and under $30 per ton, the whole amount of deductions shall not exceed eighty per cent of such gross yield, value, or return; on all ores, tailings, or mineral-bearing material, the gross yield, return, or value of which is over $30 and less than $100 per ton, the whole amount of deductions shall not exceed sixty per cent of such gross yield, value, or return; on all ores, tailings, or mineral-bearing material, the gross yield, return, or value of which is $100 per ton or over, the whole amount of deductions shall not exceed fifty per cent of such gross yield, return, or value: Provided, that an additional exemption of $15 per ton may be allowed on all ores, tailings, or minerals worked by the Freiburg process.

'SECT. 2. It shall be the duty of the several county assessors within this State to compare and complete quarterly, on or before the second Monday in February, May, August, and November, in each year, a tax list or assessment roll of the proceeds of the mines, alphabetically arranged, in a book furnished them by the board of county commissioners for that purpose, in which book shall be listed or assessed the proceeds of all mines in their respective counties, as provided in this act.'

'SECT. 6. Every tax levied under the authority or provision of this act on the proceeds of the mines is hereby made a lien on the mines or mining claims from which ores or minerals bearing gold or silver, or either or any other valuable metal, is extracted for reduction, which lien shall attach on the first days of January, April, July, and October of each year, for the quarter year commencing on those days respectively; and shall not be satisfied or removed until the taxes, as provided in this act, on the proceeds of the mines, are all paid, or the title to said mines or mining claim is absolutely vested in a purchaser, under a sale for the taxes levied on the proceeds of such mines or mining claims.'

'SECT. 10. The collection of the tax authorized to be lei ed under this act shall be enforced in the same manner in which the tax on any other kind of personal property is enforced and collected.'

What is this manner of enforcement is to be found in sect. 110 of a previous statute, which reads as follows:--

'At any time while the assessment roll of any quarter is in the hands of the assessor for collection, the assessor may seize upon the personal property, or so much thereof as may be sufficient to satisfy the taxes and costs, of any person, firm, corporation, association, or company who shall neglect or refuse to pay such taxes for one week after such demand of the assessor or his deputy, and shall post a notice of such seizure, with a description of the property, and the time and place whereon it will be sold, in three public places in the township or precinct where it is seized, and shall, at the expiration of five days, proceed to sell at public auction, at the time and place mentioned in the notice, to the highest bidder for cash, a sufficient quantity of such property to pay the taxes and costs incurred.'

From the first section of the statute we ascertain what it is that is taxed; namely, all the ores, tailings, or mineral-bearing material of whatever character, after deducting the actual cost of extracting said ores as mineral from the mines, and other expenses, such as transporting them to the place of reduction, &c.

From this it is clear that it is the ore after it has been separated from the bed in which it is found, and its proceeds and products, which are taxed, and not the ore or mineral in the earth. Indeed, this latter idea is not advanced by any one, and it would be preposterous.

As we construe the statutes of the United States and the recognized rule of the government on this subject, the moment this ore becomes detached from the soil in which it is embedded it becomes personal property, the ownership of which is in the man whose labor, capital, and skill has discovered and developed the mine and extracted the ore or other mineral product. It is then free from any lien, claim, or title of the United States, and is rightfully subject to taxation by the State as any other personal property is.

The truth of this proposition is too obvious to need or admit of illustration or elaboration, and, as we have already said, the pressure of business does not admit of it.

In regard to the taxing of this personal property, and the mode of collecting it by sale as provided in the section last cited, it does not seem to us that there can be any reasonable ground for asserting that the United States has any interest in the tax or in the sale of the property taxed. It is, however, urged with more show of reason that sect. 6, which makes this tax 'a lien on the mines or mining claims from which the ores or minerals bearing gold or silver are extracted for reduction,' is an interference with the right of property of the government in the lands in which the mineral remains are extracted.

An examination of the language we have quoted will show that it was carefully prepared to avoid this objection, and we think it does.

The use of the words 'mines or mining claims' is evidently intended to distinguish between the cases in which the miner is the owner of the soil, and therefore has perfect title to the mine, and those in which the miner does not have title to the soil, but works the mine under what is well known in the mining districts, and what is, as we have said, recognized by the act of Congress, as a mining claim. In the first case, the statute makes the tax a lien on the mine, because the title to the mine is in the person who owes and should pay the tax. In the other, the tax is a lien only on the claim of the miner; that is, on his possessory right to explore and work the mine under the existing laws and regulations on the subject.

In the former case, of course, the United States has no interest to be protected, and the State is at liberty to declare and enforce such a lien for her taxes. In the latter, also, such right as the i ning laws allow and as Congress concedes to develop and work the mines, is property in the miner, and property of great value. That it is so, is shown most clearly by the conduct of the mining corporation in whose interest this suit is brought, which, for the purpose of evading this tax, permits its investment in this mine, said to be worth from fifty to a hundred millions of dollars, to rest on this claim, this mere possessory right, when it could, at a ridiculously small sum compared to the value of the mine, obtain the government's title to the entire land, soil, mineral, and all. Those claims are the subject of bargain and sale, and constitute very largely the wealth of the Pacific coast States. They are property in the fullest sense of the word, and their ownership, transfer, and use are governed by a well-defined code or codes of law, and are recognized by the States and the Federal government. This claim may be sold, transferred, mortgaged, and inherited, without infringing the title of the United States. Why may it not also be made subject to a lien for taxes, and the claim, such as it is, recognized by statute, be sold to enforce the lien? We see nothing in principle or in any interest which the United States has in the land to prevent it.

We are of opinion that the decree of the Circuit Court dismissing the bill of appellant on demurrer was right. It is, therefore,

Affirmed.

MR. JUSTICE FIELD took no part in the decision of this case.

title: Forbes v. Gracey/Opinion of the Court


text: Talk:Forbes v. Gracey/Opinion of the Court

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


text:
Lippincott v. Mitchell

APPEAL from the Circuit Court of the United States for the Southern District of Alabama.

The case is stated in the opinion of the court.

Mr. J. Hubley Ashton for the appellant.

Mr. Percy Walker for the appellee.

MR. JUSTICE SWAYNE delivered the opinion of the court.

title: Lippincott v. Mitchell


text: Talk:Lippincott v. Mitchell

title: Talk:Lippincott v. Mitchell


text:
Lippincott v. Mitchell/Opinion of the Court

This case is brought here by appeal from the Circuit Court of the United States for the Southern District of Alabama. It depends for its determination upon a branch of the local law of real property. The question involved relates to the separate estates of married women. The facts are undisputed. The premises in question were conveyed to the appellee, Nannie C. Mitchell, by deed duly executed, bearing date on the nineteenth day of March, 1868.

On the 17th of February, 1869, Nannie C. Mitchell and J. C. Mitchell, her husband, mortgaged the premises to the appellants, J. B. Lippincott & Company, to secure the payment of certain liabilities therein described. The instrument contained a power of sale. The mortgagees advertised the property to be sold pursuant to the power. She thereupon filed this bill to enjoin the sale, upon the ground that under the law of Alabama she was incompetent thus to incumber the property, and that the mortgage was, therefore, void.

The Circuit Court decreed a perpetual injunction. The mortgagees thereupon removed the case to this court by appeal.

The Code of Alabama, art. 3, sect. 2371, declares that 'all the property of the wife, held by her previous to the marriage, or which she may become entitled to after the marriage in any manner, is the separate property of the wife, and is not subject to the payment of the debts of the husband.'

Prior to the judgment of the Supreme Court of the State in 1869, in Molton v. Martin, 43 Ala. 651, it was the settled law in that State that there were two distinct kinds of separate estates, one designated equitable, and the other statutory. With respect to the former, the rule was that it was wholly independent of the statute. It was as if the statute did not exist. The rights of the husband were excluded, but the powers of the wife might be defined and limited by the instrument conveying it as was deemed proper by those concerned. If no limitation was imposed, they were regulated by the general rules of equity jurisprudence upon the subject. According to those rules, where there was no restriction, she was in effect a feme sole as to such property. Shec ould incumber or dispose of it at pleasure. The income belonged to her, and she was not bound to contribute out of it any thing for the support or benefit of the husband's family. M. Church v. Jacques, 3 Johns. (N. Y.) Ch. 77; Gun v. Samuels, 33 Ala. 201; 2 Story's Eq., sects. 1392, 1393.

She stood, with respect to such property, in the same relation to the husband as if it belonged to a stranger. She had, therefore, the same capacity as any other person who might be the owner to mortgage it for his debts. The creation of such conventional estates was sustained, because there was nothing in them contrary to law or public policy. The parties concerned were, therefore, permitted to contract as they pleased.

But where no such separate estate existed with respect to property owned by the wife at the time of the marriage, or acquired subsequently, the statute interposed and created a separate estate in her behalf, with such incidents and attributes as the legislature saw fit to prescribe. Among these were the right of the husband to control the property and receive the income without accounting for it, and the liability of the estate for articles of support and comfort procured for the use of the family suitable to its condition in life, for which the husband would have been liable according to the common law. If he survived her, and she died intestate, he was entitled, as distributee, to one-half of her personalty, and to the use and enjoyment of her real estate for life. If she survived him, the value of her separate estate was deducted from her distributive share of his personalty and her dower. But she could not mortgage the estate for her husband's benefit, and such mortgages were of no validity.

The judgment of the court in Molton v. Martin, supra, and in Glen v. Glen, 47 Ala. 204, and in Dennichand v. Berry, 48 id. 591, the two latter following and controlled by the former, abolished the distinction between the two classes of separate estates, and brought all such equitable estates, except where the legal title was vested in a trustee, within the statute.

It followed as a consequence that the wife could no more mortgage an equitable than a statutory separate estate for the husband's benefit, and that all such mortgages were void, by reason of her disability in both cases.

Such was the state of the law when the present case was decided by the Circuit Court. The conclusion reached was inevitable, whether the separate estate of the wife belonged to one class or the other, the question then being immaterial in the jurisprudence of the State. The result, as to the point under consideration, was necessarily the same in both cases.

The subject again came under the consideration of the Supreme Court of the State in 1875, in Short v. Battle, 52 Ala. 456. It was ably and elaborately examined. The court unanimously overruled the cases of Molton v. Martin, Glen v. Glen, and Dennichand v. Berry. The pre-existing state of the law was re-asserted and re-established. The statute was construed as it was construed before Molton v. Martin and the subsequent cases in harmony with that case were determined.

This construction is a rule of property of the State, and we are as much bound by it as if it were a part of the statute. It is our duty to apply the law of the State as if we were siting there as a local court, and this case were before us as such a tribunal. Leffingwell v. Warren, 2 Black, 579; Olcott v. Bynum, 17 Wall. 44.

We are thus brought to the examination of the question whether the estate to which this litigation relates belongs to the equitable or to the statutory class. If to the latter, the decree of the Circuit Court is correct; if to the former, it must be reversed.

No particular words or phrases are necessary to create an equitable separate estate. The court will examine the whole instrument, and look rather to the intent manifested than to the language employed. The creai ve intent must clearly appear. Doubts are resolved in favor of the husband's marital rights. Bish. Law of Married Women, sect. 824. In Short v. Battle, supra, the Supreme Court of the State laid down this rule: 'Where the intent to exclude the marital rights of the husband is doubtful or equivocal, or rests on speculation, the statute intervenes, and fixes the character of the estate as the separate statutory estate of the wife.'

The deed here in question purports on its face to be executed by 'Huriosco Austill, trustee for Mrs. Mary A. Marshall,' recites that the sale and conveyance were made pursuant to her written request, and then proceeds:-- 'Now, know all men by these presents, that I, Huriosco Austill, as trustee, as aforesaid, for and in consideration of the sum of $4,600, lawful money of the United States, to me in hand paid by Nannie C. Mitchell at and before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, and the said Nannie C. Mitchell, her heirs, executors, and administrators for ever, released and discharged from the same, have granted, bargained, sold, aliened, remised, released, enfeoffed, conveyed, and confirmed, and by these presents do grant, bargain, sell, alien, remise, release, enfeoff, convey, and confirm, to the said Nannie C. Mitchell, her heirs and assigns for ever, all and singular that certain lot of land situate, lying, and being in the city of Mobile, and described as follows, to wit:--

* *  *  *  *

'Together with the tenements, hereditaments, rights, members, privileges, and appurtenances unto the above-mentioned premises belonging or in any way appertaining: to have and to hold the above-granted and described premises with the appurtenances unto the said Nannie C. Mitchell, her heirs and assigns, to the sole and proper use, benefit, and behoof of the said Nannie C. Mitchell, her heirs and assigns for ever.'

If it were intended by this deed to give the wife a separate estate, it is remarkable that in the mass of redundant verbiage employed no words clearly apt for that purpose are to be found. It is remarkable, if such an intent existed, that the phrase, 'for her separate use,' or 'for her exclusive use,' or 'free from the control of her present or any future husband,' or some equivalent for one of them, was not inserted. The omission can only be accounted for upon the hypothesis that the idea of a separate estate was not in the mind of either of the parties, and that hence no instruction upon the subject was given to the draftsman of the deed. There is nothing in the record to warrant the belief that the purchase and conveyance were not intended to be such a transaction in the ordinary way, without securing to the grantee any special rights touching the property, or any right other than that of the ownership in fee-simple.

The only part of the deed which gives a shadow of support to the proposition of the appellants is the language of the habendum.

The same language is to be found in many precedents in books of forms, where, certainly, there was no purpose to create a separate estate. Thus, in Oliver on Conveyancing, an American work, in the form of a deed by an administrator, p. 290, the habendum is, 'To have and to hold the same to the said J. C. and W. W., their heirs and assigns, to their sole use and behoof for ever.' So, in the form of a deed to a corporation, id. 279, 'To have and to hold the same, with the appurtenances thereof, to the said corporation and their assigns, to their sole use and behoof for ever.' Instances to the same effect in other like works might be largely multiplied.

Such was also the ancient English form of the habendum, except that the term 'only' was used instead of 'sole.'

In Lilly's Practical Conveyancer, published in 1719, in the form of a release in fee, the habendum is, 'To have and to hold the said,' &c., 'to the only proper use and behoof of the said C. C., his heirs and assigns for ever.' And such is the modern English for. Thus, in the form of a deed of feoffment, in 4 Blythewood, 130, the habendum is, 'To have and to hold the said close,' &c., 'to the only proper use of the said [feoffee], his heirs and assigns for ever.'

We have examined the cases upon the subject, referred to by the learned counsel for the appellants, and many others, both the English and American. Some of them go to a very extreme length in one direction, and some in the other. Not a few of them are in irreconcilable conflict. To examine and discuss them in detail would unnecessarily prolong this opinion, and could serve no useful purpose. We therefore forbear to remark further in regard to them.

Without the aid of the rule of doubt recognized by all the authorities upon the subject, we have no difficulty in coming to the conclusion that the deed of Austill cannot be held to have vested in the grantee a separate estate, or any other estate than a fee-simple. When she executed the mortgage, she had, therefore, a statutory separate estate. Hence the mortgage was void.

Decree affirmed.

MR. JUSTICE STRONG dissented.


text: Talk:Lippincott v. Mitchell/Opinion of the Court


text:
Hogan v. Kurtz

ERROR to the Supreme Court of the District of Columbia.

The case is stated in the opinion of the court.

Mr. Enoch Totten for the plaintiffs in error.

Mr. J. D. McPherson and Mr. George F. Appleby for the defendant in error.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

title: Hogan v. Kurtz


text: Talk:Hogan v. Kurtz

title: Talk:Hogan v. Kurtz


text:
Hogan v. Kurtz/Opinion of the Court

Fictions in pleading in actions of ejectment in the courts of this District are abolished, and the provision is, that 'all actions for the recovery of real estate in the District shall be commenced in the name of the real party in interest, and against the party claiming to own or be possessed' of the sae. 16 Stat. 146.

Certain described parts of lot numbered 17, in square 377, according to the recorded plat of the city, were, on the 11th of June, 1870, in the possession of the defendant; and it appears that the plaintiffs, claiming to own the premises, sued the defendant on that day to recover the same, alleging that they, on the 12th of October previous, were lawfully possessed of the premises, and that the defendant then and there unlawfully entered the premises and ejected the plaintiffs therefrom, and that she has ever since and now does unlawfully detain the same, claiming both the property and the right to possess the same.

Service was made; and the defendant appeared and filed two pleas: 1. That she is not guilty in manner and form alleged in the declaration. 2. That the lot of land described is, and was at the time alleged, the property of the defendant, and that being justly entitled to the possession thereof she lawfully entered into the premises.

Issue was duly joined by the plaintiffs; and the parties subsequently went to trial, which resulted in a verdict and final judgment for the defendant. Exceptions were filed by the plaintiffs, and they sued out the present writ of error.

Six errors are assigned by the plaintiffs, as follows: 1. That the action is not barred by the limitation of twenty years, the same having been commenced since the act of Congress abolishing fictions in pleading in actions of ejectment. 2. That the court erred in admitting evidence to establish adverse possession by the defendant, the Statute of Limitations not having been pleaded. 3. That the court erred in admitting in evidence the record of the former ejectment suit, the same having been commenced before fictions in pleading in such suits had been abolished, and because the holding of the testatrix of the defendant was in subordination to the heirs. 4. That the court erred in admitting parol evidence to show that the first husband of the testatrix of the defendant, under whom she claims, was duly naturalized. 5. That the court erred in refusing the prayer of the plaintiffs, that the Statute of Limitations did not run against the four grantors of the plaintiffs who were foreigners, and resident beyond seas. 6. That the o urt erred in refusing to give the prayer of the plaintiffs, that they must recover the two-fifths of the property which belonged to their two female grantors, who, having married in 1845, could not be affected by the Statute of Limitations, it appearing that the second husband of the testatrix disclaimed all title to the premises during their coverture.

Exceptions not assigned as error will not be examined.

Prior to the passage of the act abolishing fictions in pleading in actions of ejectment, it is conceded that the limitation in such cases was twenty years; but the proposition is submitted by the plaintiffs that the act referred to converts the action, where it is brought in the name of the real party, into a writ of right, and that it extends the limitation to the same period as that which is by law allowed for remedies in that form of proceeding. Nothing of the kind is found in the language of the act, and no authorities are cited in support of the proposition, or which give it any countenance whatever. Fictions are abolished where the pleading is in ejectment; but the action of ejectment is not abolished, nor is there any provision in the act making any other alteration in the form of the action than that it shall be commenced in the name of the real party in interest, and against the owner or the party in possession. Jackson on Real Actions, 284.

State laws abolishing such fictions sometimes provide what the effect of the new provision shall be, and it is settled law that the State regulation in that regard is a rule of property which the Federal courts must follow. Miles v. Caldwell, 2 Wall. 43; Blanchard v. Brown, 3 id. 249.

Alterations of the kind, it is usually held, place the final judgment in ejectment upon the same footing as judgments in other actions; but there is no trace of authority, either in State legislation or in judicial decision, to show that the provision abolishing such fictions in the action of ejectment converts the action into a writ of right, or that the action, when commenced in the name of the real party against the owner or the party in possession, falls under any other rule of limitation than the action of ejectment when commenced in the old form, unless the statute abolishing such fictions contains some provision warranting such a construction. Barrows v. Kimball, 4 id. 403.

Beyond question, the action is still an action of ejectment, and the plaintiff must still recover on the strength of his own title, and not on the weakness of that of his adversary. Watts v. Lindsey, 7 Wheat. 161; Gilmer v. Poindexter, 10 How. 267.

Evidence to prove adverse possession in an action of ejectment is admissible though the Statute of Limitations is not pleaded in defence. McConnel v. Reed, 4 Scam. 124; Stearns on Real Actions, 241.

Ejectment cannot be maintained, unless it be brought within twenty years next after the right of entry accrued; and it follows that adverse possession in the defendant for twenty years is evidence of title in the possessor, and constitutes a good defence to the action. 1 Chitty, Pl. (16th Am. ed.) 213; Hallet v. Forest, 8 Ala. 264; Hammond v. Ridgely, 5 Harr. & Johns. 151; Jackson v. Brink, 5 Cow. 480; Briggs v. Prosser, 14 Wend. 227; Jackson v. Harder, 4 Johns. 202.

Adverse possession under a claim of right, if uninterrupted, open, visible, and notorious, may be set up in such an action, not only as a defence to the cause of action set forth in the declaration, but to show the nullity of any conveyance executed by any one out of possession. Bradstreet v. Huntington, 5 Pet. 438; Angell on Lim. (6th ed.) 386; 2 Greenl. Evid. (12th ed.), sect. 430; Hawk v. Genseman, 6 G. & R. 21.

Two objections were made to the admissibility of the record of the former ejectment suit, as follows: 1. Because the parties were fictitious, the suit having been commenced before fictions in pleading were abolished in such actions. 2. Becaue the defendant, as the plaintiffs allege, held the premises in subordination to the title of the heirs-at-law.

Sufficient has already been remarked to show that the first objection is without merit, for the reason that the record was not offered or admitted as a bar to the present suit, and also for the reason that it tended to show that the defendant claimed to hold the premises adversely to the heirs; nor is there any legal merit in the second objection, as the question whether the possession of the defendant was or was not adverse to the heirs was plainly a question of fact for the jury, and must be considered as concluded by the verdict.

By the record, it appears that the testatrix of the defendant was twice married; that her first husband immigrated here in the year 1794, married here, purchased the lot in question, and built a house on it as a family residence; that they never had any children, and that he died in 1828, leaving her surviving him; that she married a second husband, whom she survived, and died testate in 1869, devising the property to her sister, the defendant in error.

Throughout her life, subsequent to the decease of her first husband, the testatrix held actual, exclusive, continuous, visible, and notorious possession of the property, and the evidence is full to the point that the defendant, as her devisee, continued so to hold the same from the death of the testatrix to the present time. Forty-two years elapsed after the death of the first husband of the testatrix before the present suit was commenced, the plaintiffs claiming to be collateral heirs or the representatives of collateral heirs.

Where there are no descendants or kindred of the intestate to take the state, the law of descents applicable in the case provides that the estate 'shall then go to the husband or wife, as the case may be.' Spratt v. Spratt, 1 Pet. 343.

Provision is also made by a subsequent statute, that any foreigner may, by deed or will to be hereafter made, take and hold land within this District in the same manner as if he was a citizen; 'and the same lands may be conveyed by him, and be transmitted to and be inherited by his heirs and relations, as if he and they were citizens.' Same v. Same, 1 id. 344.

Beyond doubt, the first husband immigrated here from Ireland; but the record shows that he filed his declaration of intention to become a citizen July 11, 1801, six years or more after he arrived here and settled in this District. Documentary proof that he took out his second papers is wanting; and the plaintiffs contend that he could not have been naturalized when he purchased the lot in question, because three years from the time he filed his declaration of intention had not then elapsed, and they refer to the act of the 29th of January, 1795, in support of the proposition. 1 Stat. 414.

Tested by that act, the proposition would be correct; but the act of the 4th of April, 1802, provides that any alien, who was residing within the limits and under the jurisdiction of the United States before the 29th of January, 1795, may be admitted to become a citizen on due proof made to some one of the courts, previously named, that he has resided two years at least within and under Federal jurisdiction, and one year at least immediately preceding his application within the State or Territory where such court is at the time held. 2 id. 154.

Proceedings of the kind are required to be recorded; but it was proved or conceded that the records of such proceedings in this District were destroyed many years ago; and in view of that fact, and of the long period between the purchase of the property and the other evidence exhibited in the record, the court left the question whether the party was or was not naturalized to the jury, and they found the issue in favor of the defendant. Seasonable objection was made by the plaintiffs to the admissibility of the parol evidence, and they now contend that the court erred in admitting secondary evidence to prove that that party becm e a citizen.

Enough appears to show that he possessed every requisite qualification to enable him to become a citizen at any time, and that he constantly exercised rights belonging to citizens; and, in view of the great lapse of time since he acquired the property, the court here is clearly of opinion that the assignment of error must be overruled.

Suppose that is so, still the plaintiffs contend that the court erred in refusing the prayer of the plaintiffs that the Statute of Limitations did not run against the four grantors of the plaintiffs who were foreigners and residents beyond seas.

Persons beyond seas, it is admitted by the defendant, are within the exceptions contained in the Statute of Limitations originally applicable in this District. Grant that, still the defendant contends that the case is controlled by the more recent act of Congress, which provides that all exceptions in favor of parties beyond the District of Columbia, which may, by existing laws, be replied or relied on in any action or proceeding brought in said District, 'are hereby repealed and abrogated,' with a saving clause for pending actions, and such as should be brought within three years from the passage of the act. 13 Stat. 532.

Passed as that act was five years before the present suit was commenced, it is clear that the plaintiffs are not within the saving clause, and that the prayer for instruction was properly refused.

Two of the grantors were females resident abroad, and the record shows that they were married in 1845; and the plaintiffs contend that the court erred in refusing the prayer of the plaintiffs that they must recover the two-fifths of the property which belonged to their two female grantors, who, having been married at the time mentioned, could not be affected by the Statute of Limitations.

Attempt to take their case out of the operation of the rule applied to the other four grantors is made upon the ground that the second husband of the testatrix disclaimed the title during their coverture, but the better opinion is, that his disclaimer did not in any manner affect the possession and claim of the wife, and such, it would seem, must have been the finding of the jury. Concede that, and it follows that the Statute of Limitations commenced to run seventeen years before the marriage of the two grantors, which brings their case within the established rule, that, when the statute has begun to run, it will continue to run without being impeded by any subsequent disability. Angell on Lim. (6th ed.), sect. 477; Currier v. Gale, 3 Allen, 328; Smith v. Clark, 1 Wils. 134; Demorest v. Wynkoop, 3 Johns. Ch. 138; Eager v. Com., 4 Mass. 132.

Disabilities which bring a party within the exceptions of the statute cannot be piled one upon another, but a party claiming the benefit of the exception can only avail himself of the disability existing when the right of action first accrued. Mercer's Lessee v. Selden, 1 How. 37.

Possession of an adverse character, and decidedly hostile to the claim of the heirs-at-law, was maintained by the testatrix of the defendant for more than forty years, claiming to own the premises in her own right; and the court here is inclined to concur with the court below, that the question whether or not her first husband was ever naturalized is a matter of no consequence, as her possession was not affected by that consideration. No such disability attached to the testatrix; and the evidence is beyond dispute, that she was capable of acquiring an interest in the premises by any of the methods known to the laws of the District.

Abundant proofs are exhibited in the record to show that she had been in the possession of the property from the decease of her first husband to the time of her own death, claiming to own it in her own right, and renting it and using it under a claim that it was her own property. Such a possession so evidence usually affords a presumption that the occupant claims the property, and where it is adverse, open, vs ible, and continuous for twenty years, it is sufficient evidence of title to toll the real owner's right of entry, unless he can prove that he was within some one of the exceptions contained in the Statute of Limitations, even in a jurisdiction where those exceptions are still in force.

Better proof to show that persons claiming title to the premises were notified that her possession was adverse and hostile to their claim can hardly be imagined than what is exhibited in the case before the court. Thirty years before the present suit was commenced, a common-law action of ejectment was instituted for the same premises, in which the father and the grantors of the plaintiffs were described as the lessors of the fictitious plaintiff in the suit, and it appears that the suit was defeated by the testatrix of the defendant, aided by her second husband, then in full life.

Viewed in any light, we are all of the opinion that there is no error in the record.

Judgment affirmed.

title: Hogan v. Kurtz/Opinion of the Court


text: Talk:Hogan v. Kurtz/Opinion of the Court


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Cochrane v. Deener (94 U.S. 780)

APPEAL from the Supreme Court of the District of Columbia.

The case is stated in the opinion of the court.

Submitted on printed arguments by Mr. Walter S.C.ox, Mr. Charles F. Blake, and Mr. Rodney Mason for the appellant, and by Mr. A. L. Merriman and Mr. Howard C. Cady for the appellee.

MR. JUSTICE BRADLEY delivered the opinion of the court.

title: Cochrane v. Deener (94 U.S. 780)


text: Talk:Cochrane v. Deener (94 U.S. 780)

title: Talk:Cochrane v. Deener (94 U.S. 780)


text:
Cochrane v. Deener (94 U.S. 780)/Opinion of the Court

This is a suit in equity, instituted in the Supreme Court of the District of Columbia for injunction and relief against an alleged infringement of various patents belonging to the complainants. The bill was dismissed, and the complainants have appealed.

The patents sued on are six in number, originally five, granted to the appellant Cochrane on the 13th of January, 1863, and numbered respectively 37,317, 37,318, 37,319, 37,320, and 37,321. They all related to an improved method of bolting flour, the first being for the general process, and the others for improvements in the different parts of the machinery rendered necessary in carrying on the process. Three of the original patents, Nos. 37,317, 37,318, and 37,321, were surrendered, and reissues taken in 1874, which reissues were numbered 5,841, 6,029, and 6,030, the first being for the process, and the other two for portions of the machinery. Reissue 6,029, being in place of the original patent numbered 37,321, was also subsequently surrendered, and two new reissued patents substituted therefor, numbered 6,594 and 6,595.

The case has been mainly argued on the question of infringement, the defendants using a bolting apparatus constructed according to letters-patent issued to Edward P. Welch in April, 1873, for improvements upon machines patented to Jesse B. Wheeler and Ransom S. Reynolds, which, as well as the process employed, they contend, are radically different from the apparatus and process of Cochrane.

A preliminary question is raised with regard to the jurisdiction of the court below to hear the case on a bill in equity, before a determination of the rights of the parties in an action at law.

The powers of the Supreme Court of the District of Columbia in patent cases are the same as those of the circuit courts of the United States. See Revised Statutes relating to the District of Columbia, sects. 760, 764.

The circuit courts were first invested with equity jurisdiction in patent cases by the act of Feb. 15, 1819, which declared that these courts should have 'original cognizance, as well in equity as at law, of all actions, suits, controversies, and cases arising under any law of the United States, granting or confirming to authors or inventors the exclusive right to their respective writings, inventions, and discoveries; and upon any bill in equity, filed by any party aggrieved in any such cases, should have authority to grant injunctions, according to the course and principles of courts of equity,' &c.

This law was substantially re-enacted in the seventeenth section oft he patent law of July 4, 1836, and the fifty-fifth section of that of July 8, 1870, special powers to assess damages in equity cases being also conferred by the latter act.

Before the act of 1819 was passed, the circuit courts had cognizance of actions at law brought to recover damages for the infringement of patents, but not of suits in equity in relation thereto, unless the parties happened to be citizens of different States. Phillips on Pat. 379; Livingston v. Van Ingen, 1 Paine, 54; Sullivan v. Redfield, id. 447. Under that act and the subsequent acts in which it became incorporated, bills in equity for injunction, discovery, and account have constantly been sustained, frequently without any previous action at law. As said by Mr. Justice Grier, in a case decided at the circuit, 'It is true that, in England, the chancellor will generally not grant a final and perpetual injunction in patent cases, when the answer denies the validity of the patent, without sending the parties to law to have that question decided. But even there the rule is not universal: it is a practice founded more on convenience than necessity. It always rests in the sound discretion of the court. A trial at law is ordered by a chancellor to inform his conscience, not because either party may demand it as a right, or that a court of equity is incompetent to judge of questions of fact or of legal titles. In the United States, the practice is by no means so general as in England.' Goodyear v. Day, 2 Wall. Jr. 296. Subsequently, in the case of Sickles v. Gloucester Manufacturing Co., 3 id. 196, the same judge said: 'The courts of the United States have their jurisdiction over controversies of this nature by statute, and do not exercise it merely as ancillary to a court of law.' And, after quoting the statute, he proceeds: 'Having such original cognizance,. . . the courts of the United States do not, in all cases, require a verdict at law on the title, before granting a final injunction, or concede a right to every party to have every issue as to originality or infringement tried by a jury.'

The position of Mr. Justice Grier is undoubtedly true, that whether a case shall be first tried at law is a matter of discretion, and not of jurisdiction; and in this matter the courts of the United States, sitting as courts of equity in patent cases, are much less disposed than the English courts are to send parties to a jury before assuming to decide upon the merits.

But the counsel for the defendants suggest that the Revised Statutes have not preserved in entirety the previous enactments on this subject, but have omitted the vesting of original cognizance in the circuit courts sitting as courts of equity in patent cases. From a careful consideration, however, of all the sections of the Revised Statutes on the subject, we think that no intention is evinced to make any change in the law. The original enactments are separated into distinct parts, and somewhat condensed; but the substance of them is retained. By sect. 629, the circuit courts are invested with jurisdiction, among other things, 'Ninth, of all suits at law or in equity arising under the patent or copyright laws of the United States.' And, by sect. 4921, it is declared, that 'the several courts vested with jurisdiction of cases arising under the patent laws shall have power to grant injunctions according to the course and principles of courts of equity,' &c., following precisely the language used in the act of 1870, the last previous revision of this branch of the law. The grant of jurisdiction is as broad and general as it could well be, and the mode of exercising it is prescribed in precisely the same terms as in previous statutes.

In the present case, we see no special reason for sending the case to a court of law or to a jury for trial. There are no such issues depending upon the credibility of witnesses, or on the intricacy of machinery, as to make the case susceptible of easier solution or greater certainty as to the truthb efore such a tribunal than it admits of when presented to the consideration of a chancellor. It would, perhaps, be desirable if all cases of this sort could be referred to a commission of intelligent experts and practical men to report their opinion thereon, with their reasons, for the final action of the court. A proceeding of this kind was probably in the mind of Congress in passing the act of Feb. 16, 1875, authorizing a reference to a jury of five persons. Neither courts nor ordinary juries are perfectly adapted to the investigation of mechanical and scientific questions. The court below, however, exercised its discretion to decide the case upon its merits, without the aid of a jury of any sort, and their action is not a ground of appeal. If we were convinced, however, that the case was not properly decided, and could not be properly decided without such a reference, we might undoubtedly, in the exercise of our own discretion, remand it to the court below for that purpose. But we see nothing in the questions raised which require that such a course should be adopted.

The principal patent sued on in this case was granted on the 21st of April, 1874, being a reissue of a patent granted to William F. Cochrane on the 6th of January, 1863. The original patent was numbered 37,317, and the reissue 5,841. The alleged invention is for a process in manufacturing flour. The patentee, in his specification, says: 'The object of my invention was to increase the production of the best quality of flour; and my improvement consisted in separating from the meal first the superfine flour, and then the pulverulent impurities mingled with the flour-producing portions of the middlings-meal, so as to make 'white' or 'purified' middlings, which, when reground and rebolted, would yield pure white flour, which, when added to the superfine, would improve the quality of the flour resulting from their union, instead of deteriorating its quality, as had heretofore been the case when the middlings flour was mingled with the superfine.' The process employed for producing the result here indicated is then described. It consists in passing the ground meal through a series of bolting-reels clothed with cloth of progressively finer meshes, which pass the superfine flour and retard the escape of the finer and lighter impurities; and, at the same time, subjecting the meal to blasts or currents of air introduced by hollow perforated shafts furnished with pipes so disposed that the force of the blast may act close to the surface of the bolting-cloth; the bolting-chest having an opening at the top for the escape of the air, and of the finer and lighter particles therewith, through a chamber where the particles are arrested, whilst the floor and sides of each compartment of the chest are made close, so as to prevent the escape of the air in any other direction than through the said opening. By this means, the superfine flour is separated, and the fine and light specks and impurities, which ordinarily adhere to the middlings and degrade the flour produced therefrom, are got rid of; and when the middlings are now separated from the other portions of the meal, they are white and clean, and capable of being reground and rebolted, so as to produce superfine flour equal in quality and even superior to the first instalment.

This is the process described; but the patentee claims that it is not limited to any special arrangement of machinery. He admits the prior use of currents of air in the interior of the reels, introduced by means of hollow, perforated shafts, for the purpose of keeping back the speck, and increasing the quantity of superfine flour; but not for purifying the middlings preparatory to regrinding. His improvement, therefore, does not consist in using drafts and currents of air, but in the process as a whole, comprising the application of the blast, and the carrying off of the fine impurities, whereby the middlings are purified preparatory to regrinding after being separated from the other parts.

The defendants e ny that they use this process. They purity the middlings of the flour, as before stated, by means of machines constructed according to letters-patent issued to Edward P. Welch, in April, 1873, for improvements upon machines patented to Jesse B. Wheeler and Ransom S. Reynolds.

In this process, reels are not used for purifying the middlings, but a flat and slightly inclined vibrating screen or sieve is sued for the purpose; over which the ground meal is passed, and whilst passing is subjected to currents of air blown through a series of pipes situated close underneath the screen; which currents pass up through the screen and through an opening at the top of the chest into a chamber, carrying with them the finer and lighter impurities, whereby the middlings are rendered clean and white, and capable of neing reground into superfine flour. The bolting-chest is made tight and close on all sides except the opening at the top, so that the currents of air may be forced to escape by that exit.

Now, except in the use of a flat sieve or screen in place of reels, it is difficult to see any substantial difference between these two methods. The defendants use, in addition, brushes, which revolve on the under side of the screen, so as to keep the meshes thereof constantly clean and free; but this is merely an addition, which does not affect the identity of the two processes in other particulars. We have substantially the same method of cleaning the middlings preparatory to regrinding by means of currents of air passed through them whilst being bolted, and whilst being confined in a close chest or chamber, said chamber having an opening above for the escape of said currents of air and the impurities with which they become loaded. The middlings being thus purified are reground and rebolted, producing a superfine flour of superior grade,-a new, useful, and highly valuable result.

The use of a flat screen instead of a revolving reel for bolting and cleaning the middlings is a mere matter of form. It may be an improved form, and, perhaps, patentable as an improvement; but it is at most an improvement.

The forcing of the air-currents upward through the screen and film of meal carried on it and against the downward fall of the meal, instead of forcing them through the bolting-cloth in the same direction with the meal, is also a mere matter of form, and does not belong to the substance of the process. The substantial operation of the currents of air in both cases is to take up the light impurities and bear them away on the aggregate current through the open fiue, and thus to separate them from the middlings. This, too, may be an improvement on Cochrane's method; but it is only an improvement.

The defendants admit that the process has produced a revolution in the manufacture of flour; but they attribute that revolution to their improvements. It may be as they say, that it is greatly due to these. But it cannot be seriously denied that Cochrane's invention lies at the bottom of these improvements, is involved in them, and was itself capable of beneficial use, and was put to such use. It had all the elements and circumstances necessary for sustaining the patent, and cannot be appropriated by the defendants, even though supplemented by and enveloped in very important and material improvements of their own.

We do not perceive that the patent of Cogswell and McKiernan, if valid at all as against Cochrane (a point which will be more fully considered hereafter), affects the question in the least. That patent is not at all for the process which Cochrane claims. If valid, and if, in using his process, Cochrane is obliged to use any device secured to Cogswell and McKiernan, it does not detract in the slightest degree from his own patent. One invention may include within it many others, and each and all may be valid at the same time. This only consequence follows, that each inventor is precluded from using inventions made and patented prior to his own, except by license from the owners thereof. His invention and his patet are equally entitled to protection from infringement, as if they were independent of any connection with them.

That a process may be patentable, irrespective of the particular form of the instrumentalities used, cannot be disputed. If one of the steps of a process be that a certain substance is to be reduced to a powder, it may not be at all material what instrument or machinery is used to effect that object, whether a hammer, a pestle and mortar, or a mill. Either may be pointed out; but if the patent is not confined to that particular tool or machine, the use of the others would be an infringement, the general process being the same. A process is a mode of treatment of certain materials to produce a given result. It is an act, or a series of acts, performed upon the subject-matter to be transformed and reduced to a different state or thing. If new and useful, it is just as patentable as is a piece of machinery. In the language of the patent law, it is an art. The machinery pointed out as suitable to perform the process may or may not be new or patentable; whilst the process itself may be altogether new, and produce an entirely new result. The process requires that certain things should be done with certain substances, and in a certain order; but the tools to be used in doing this may be of secondary consequence.

The machine patents come next to be considered.

As to number 6,030, which is a reissue of the original patent number 37,318, the defendants clearly infringe, at least, the last claim, which is in these words: 'In combination with the screen incased in a chest, the perforated blast-pipe and the suction-pipe, arranged to operate on opposite sides of the screen, substantially as set forth.'

As to the patent next in order, namely, the original patent number 37,319, which relates specially to the use of what the patentee calls the pump for introducing the meal into the chest and reels, whilst the valve arrangement used by the defendants may be an equivalent in the general combination with the said pump described by Cochrane, yet, taken by themselves, as separate pieces of machinery, they are not the same, and the use of the one is not an infringement of a patent for the other. Curtis, sect. 332; Foster v. Moore, 1 Curtis, C. C. 279. Nor can we perceive that the defendants infringe the next patent, number 37,320, which is for certain combinations of machinery, including the bolting-reels, dead-air chambers therein, slotted shaft, and reciprocating board for discharging the meal, &c., which it is unnecessary to describe more particularly.

The two remaining patents, numbered 6,594 and 6,595, being reissues of original patent number 37,321, are for combinations of essential parts of the machinery required for bolting flour and purifying the middlings according to the general process described in the first patent. The principal claim of the original patent was for the condensing or collecting chamber, through which the currents of air, on leaving the bolting-chest, make their escape, and where they leave the fine particles with which they become loaded. This claim, it is said, was found to be too broad, inasmuch as a collecting chamber, somewhat similar, had been used in another connection, though not in the combinations presented in Cochrane's bolting process. The original patent, therefore, was surrendered, and the two patents now under consideration were issued in place thereof, claiming the use of the collecting chamber in combination with the various material parts of the bolting apparatus. The reissue, number 6,594, contains three claims, and number 6,595, one claim.

The first claim of reissue number 6,594 is for the collecting chamber (used for the purpose aforesaid) in combination with the bolter, air-pipes, and valves for feeding and delivering the meal without allowing the air to pass therewith. Now, although the defendants use a flat bolter instead of a reel, and use different kinds of valves for feeding and delivering the meal without allowingt he air to pass, yet they employ the combination of devices described in this claim. They use the collecting chamber for the same purpose as that pointed out in the patent, and use it in connection with a bolter, air-pipes, and valves for feeding and delivering the meal without allowing the air to pass therewith, each effecting the same separate purpose, and all combined effecting the same general purpose, which the like parts are intended to accomplish in Cochrane's bolting apparatus. Though some of the corresponding parts of the machinery, designated in this combination, are not the same in point of form in the two bolting apparatuses, and, separately considered, could not be regarded as identical or conflicting, yet having the same purpose in the combination, and effecting that purpose in substantially the same manner, they are the equivalents of each other in that regard. The claim of the patent is not confined to any particular form of apparatus, but (in regard to the valves, for example) embraces generally any valves for feeding and delivering the meal without allowing the air to pass through. We are of opinion, therefore, that the combination here claimed is infringed by the apparatus used by the defendants.

It is unnecessary to make a separate examination of the other claims embraced in the two patents under consideration. They are all susceptible of the same observations which we have made with regard to the first claim. In our opinion, the defendants do infringe them.

But a question is raised with regard to Cochrane's priority of invention. A patent was granted on the 12th of June, 1860, to Mortimer C. Cogswell and John McKiernan for improvements in ventilated bolting-chests, which, it is contended, antedates and nullifies Cochrane's apparatus as patented to him in the original patent 37,321, and in the two reissues thereof before mentioned. This patent (of Cogswell and McKiernan) we have examined, and find that it does contain five of the elements embraced in those reissues; namely (besides the bolting-chest and bolter, which are always used), it contains the perforated air-pipe extending inside of the bolting-reel, the fan for producing a blast of air therein, and a collecting-chamber for arresting the flour carried off by the blast. The purpose was simply to cool the meal and keep the bolting-cloths dry. The flour which collected in the chamber was returned to the chest. The parts contained in this apparatus are those which are patented in combination in Cochrane's reissue 6,595, which was separated, it is said, from reissue 6,594 on account of this patent of Cogswell and McKiernan. The combinations patented in reissue 6,594 embrace other parts not contained in Cogswell and McKiernan's patent; and the defendants contend that this reissue is void, as not being sustained by the original patent 37,321.

The latter position, we think, is untenable. Cochrane's apparatus, as exhibited in his model, and described in his original patent, and in the series of patents taken out at the same time, all having relation to the same general process, and referred to in patent 37,321, contained all the parts which go to make the combination claimed in reissue number 6,594. We see no reason, therefore, why such reissue was not properly granted to him by the Patent Office, the claim being, in fact, a much narrower one than that of the original patent.

The same observations apply to reissue number 6,595. But, as to that, as before stated, the particular elements of the combination claimed in it are found in Cogswell and McKiernan's machine; and if this is entitled to the precedency over Cochrane's, reissue number 6,595 is void. He contends that it is not entitled to such precedency; but that, in fact, Cogswell and McKiernan surreptitiously obtained a patent for his invention. We have examined the evidence relating to this matter, and are satisfied that the improvement claimed by Cochrane was his invention; that Cogswell and McKiernan obtained their knowledge of it from him; and that thee is nothing connected with their patent which ought to invalidate the reissued patent in question.

A French patent, dated 27th of September, 1860, granted to one Perigault, is also referred to as anticipating the combinations in these patents. But it being shown that Cochrane's invention was actually made before that date, the point was not pressed in the argument. By the act of 1870, a foreign patent, in order to invalidate an American patent, must antedate the invention patented.

Our conclusion is, that the patent for the process, being reissue number 5,841, and the several reissued patents for combinations of mechanical devices, numbered respectively 6,030, 6,594, and 6,595, are valid patents, and are infringed by the defendants; and that the other two patents named in the bill of complaint, numbered respectively 37,319 and 37,320, are not infringed by the defendants.

Decree reversed, and cause remanded with directions to enter a decree for the complainants, and to proceed therein in conformity with this opinion.

MR. JUSTICE CLIFFORD, with whom concurred MR. JUSTICE STRONG, dissenting.


text: Talk:Cochrane v. Deener (94 U.S. 780)/Opinion of the Court


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Cochrane v. Deener (94 U.S. 780)/Dissent Clifford

MR. JUSTICE CLIFFORD, with whom concurred MR. JUSTICE STRONG, dissenting.

I dissent from the opinion and judgment of the court in this case, for the following reasons:-- 1. Because the mechanical means employed by the respondents to effect the result are substantially different from those described in the complainants' patent.

2. Because the process employed by the respondents to manufacture the described product is materially and substantially different from the patented process employed by the complainants.

3. Because the respondents do not infringe the combination of mechanism patented and employed by the complainants. Prouty v. Ruggles, 16 Pet. 341; Vance v. Campbell, 1 Black, 428; Gill v. Wells, 22 Wall. 26.

4. Because the respondents do not infringe the process patented by the complainants, the rule being, that a process, like a combination, is an entirety, and that the charge of infringement in such a case is not made out unless it is alleged and proved that the entire process is employed by the respondents. Howe v. Abbott, 2 Story, C. C. 194; Gould v. Rees, 15 Wall. 193.


text: Talk:Cochrane v. Deener (94 U.S. 780)/Dissent Clifford


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Davis v. Indiana

ERROR to the Supreme Court of the State of Indiana.

The case is stated in the opinion of the court.

Submitted on printed arguments by Mr. Ralph Hill for the plaintiff in error, and by Mr. S. Stansifer, contra.

MR. JUSTICE MILLIER delivered the opinion of the court.

title: Davis v. Indiana


text: Talk:Davis v. Indiana

title: Talk:Davis v. Indiana


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Davis v. Indiana/Opinion of the Court

The Congress of the United States, in the act admitting Indiana as a State, declared that every sixteenth section of a township, according to the legal subdivisions of the public lands lying within that State, should be appropriated for the use of schools within the township.

An act of the legislature of the State, prior to 1854, directed that the money derived from these sixteenth sections should be mingled with school moneys, derived from taxation and various other sources, into a common fund, and should be apportioned among the counties of the State, according to an enumeration of the pupils in each county. As this might have resulted in the diversion of some of the money derived from the congressional grant to the schools of other townships than that in which the land lay, it was, in a proper suit, declared by the Supreme Court of the State to be invalid. State v. Springfield Township, 6 Ind. 83.

An act was accordingly passed, in March, 1855, providing anew for the distribution of this common fund, which contained this proviso: 'That in no case shall the congressional township fund be diminished by such distribution, and diverted to any other township.'

Under this act, while the whole fund derived from the interest on the proceeds of the sale of these lands, or the rent of them if unsold, could not be diminished or diverted to schools in other townships, the common fund arising from other sources was so distributed as to q ualize the whole among the schools of all the counties; that is, if a township had an ascertained sum arising from the sixteenth section, it received none of the school fund derived from other sources until all other townships had received from those other sources an amount which made them equal to that sum, having regard to the number of pupils, as ascertained by the legal census.

The same township of Springfield brought another suit to test the validity of this act; and the Supreme Court of Indiana having affirmed it, 7 Ind. 636, the township brought the case to this court, on the ground that the act of the legislature was in conflict with the act of Congress. This court, while holding that it was the intent of the act of Congress that the money arising from the sixteenth section should be used only for schools within the congressional townships where the section lay, was of opinion that the proviso we have cited from the Indiana statute sufficiently protected the right of the people of the township, and that it was competent for the legislature of Indiana to place the people of other townships on an equality with them in regard to educational means, out of funds of the State derived from other sources, and that in so doing they did not violate the conditions of the trust on which the State received those lands. Springfield Township v. Quick, 22 How. 56.

There seems to have been no further trouble in this matter, until, by an act of the legislature of 1873, the school trustee, who was treasurer of the township, and who had previously collected and distributed the money arising from this school section, was directed to pay all the money so received by him into the treasury of the county. The present plaintiff in error refused to do this, and, being sued by the proper county officers for the money in his hands, set up in defence that the act requiring him to do so was void.

The ground on which this proposition is supported by counsel is, that there is no provision of law in Indiana by which this money, when paid into the county treasury, can be withdrawn, or if withdrawn, can be applied to the use of schools in the proper congressional township.

It is not contended by counsel that the legislature of Indiana could not provide as it might deem best for the custody of this money, nor is it argued that a similar power could not be exercised as to the proper officer to make distribution of it, and direct its expenditure. The whole argument rests on the assumed results of the Indiana statutes, that while the school trustee, who is treasurer of the school board, was by the law, as it stood prior to 1873, authorized to collect and distribute the fund, he is now directed to pay it into a treasury where it cannot, by law, be distributed as the act of Congress requires. It is, therefore, argued that this amendatory law is void, and that the trustee has still the right to collect and distribute the money, and cannot be made to pay it into the county treasury.

The Supreme Court of Indiana, in the opinion, which is a part of the record in this case, have decided that the school laws of that State do authorize the auditor of each county to distribute the school fund in the county treasury to the different townships in the county, and that in doing so he is bound by the proviso we have already cited, which preserves to each congressional township the funds arising from the sale of the sixteenth section; and they also decide that the money paid into the county treasury by the school trustee, arising from that section, is a part of the fund which the auditor is to apportion, subject to that proviso. That court, as it will be seen, construes the statute of its own State in a manner which this court has already decided to be in harmony with the act of Congress; and we are asked by counsel to decide that the Supreme Court of Indiana, in thus construing the statute, is in error; and to make a construction of it, by which it will conflict with the act of Congress, and be, therefore, void,m erely that one officer may have distribution of the fund instead of another.

Our convictions should be very clear before we do this, even if we have the right to do it, which may admit of some question.

Fortunately, we concur in the view of these laws taken by that court.

The school laws of the State are voluminous and complex, and are all referred to in the briefs. A full examination of them is unnecessary here.

Sect. 118 provides that—

'The auditor of each county shall, on, &c., make apportionment of the school revenue to which his county may be entitled, to the several townships, towns, and cities of his county, which apportionment shall be paid to the school treasurer of each township and incorporated city or town by the county treasurer; and, in making the apportionment and distribution thereof, the auditor shall ascertain the amount of the congressional-township school revenue belonging to each city, town, and township, and shall so apportion the other school revenue for tuition to each city, town, and township, as near as may be, according to the enumeration of children therein: Provided, however, that in no case shall the income of the congressional-township fund, belonging to any congressional township, or part of such township, be diminished by such apportionment, or diverted or distributed to any other township, and report the amount apportioned to the State superintendent of public instructions, verified by affidavit.'

We have here the proper authority for the apportionment and distribution of the school fund in the county treasury which shall be paid to the school treasurer of each township. This school treasurer is the very officer who has collected and paid this fund into the treasury of the county under the amendment of 1873.

The argument is that this section only applied to the school fund from other sources, and could not apply to this, because it was not payable into the county treasury when the section was enacted.

But let us suppose that the legislature had by statute increased the fund in the county treasury from other sources, as by giving to it some penalty for violation of a new statute, would it require an express provision to authorize the auditor to apportion that with what the treasurer was receiving before? The question answers itself. The fund-the whole fund in the county treasury devoted to the use of schools-was to be apportioned, and if the fund arising from the sixteenth section becomes a part of it, it must be distributed. And the statute carefully provides, that, in making that distribution, the appropriation of the sixteenth section to the schools of the township shall be strictly observed.

It is unnecessary to protract the argument, for we fully concur with the opinion of the Supreme Court of Indiana construing their own statute.

Judgment affirmed.

title: Davis v. Indiana/Opinion of the Court


text: Talk:Davis v. Indiana/Opinion of the Court


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Melendy v. Rice

ERROR to the Supreme Court of the State of Iowa.

Rice sued Melendy and others in the Marshall County, Iowa, District Court, for wrongfully and forcibly entering his store and carrying away goods. Melendy justified as marshal of the United States for the district of Iowa, claiming that he seized the goods as the property of Clark & Freer, bankrupts, under a provisional warrant of seizure issued from the Bankrupt Court after the adjudication in bankruptcy. Rice claimed that he purchased the property from Clark & Freer before their bankruptcy. Melendy insisted that the sale was in fraud of the bankrupt law; and the case turned upon the single question whether Rice, when he purchased, had reasonable cause to believe that Clark & Freer were insolvent. The trial below was by a referee, and he found in favor of Rice. Minutes of the testimony taken by the referee were filed with his report. In accordance with the practice in Iowa, a judgment was entered in vacation by the clerk, such as was recommended by the referee. At the next term, a motion was filed to set aside the report of the referee and vacate the u dgment which had thus been entered, and, among other causes assigned, was one to the effect that the referee erred in finding from the testimony that Rice, when he purchased, did not have reasonable cause to believe that Clark & Freer were insolvent. This motion was overruled, and the judgment affirmed as entered.

From this judgment of the District Court an appeal was taken to the Supreme Court of the State, where the same finding was assigned for error. That court affirmed the judgment below. A rehearing was then had, with the same result. The case is now here upon a writ of error issued under sect. 790, Rev. Stat., and there is the same assignment of error.

Mr. George G. Wright for the plaintiff in error.

Mr. Thomas J. Henderson, contra.

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

title: Melendy v. Rice


text: Talk:Melendy v. Rice

title: Talk:Melendy v. Rice


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Melendy v. Rice/Opinion of the Court

Whenever the judgment of the highest court of a State is brought here for the re-examination of some decision of a Federal question, we must consider the question as it comes to us from that court. This record shows that the question below was whether a finding of fact by a referee should be set aside because not sustained by the evidence. Upon writs of error to the courts of the United States, we cannot be called upon to decide such a question, because the finding of the court below as to facts is conclusive upon us. Norris v. Jackson, 9 Wall. 127; Insurance Company v. Sea, 21 id. 160. But in Iowa a different practice prevails, and our rule has been so far, and only so far, relaxed as to permit the Appellate Court to set aside a judgment of an inferior court, because against the weight of the evidence, when there is no evidence whatever to support it, or when there is such an absence of evidence that it may be presumed to have been given through the influence of passion, prejudice, or favor. Rice v. Melendy, 41 Iowa, 400; Wilson v. B. & M. R. Railroad Co., 33 id. 592; Starker v. Leese & Mahone, id. 595; Pearson v. Minturn, 18 id. 37; Bellamy et al. v. Doud, 11 id. 255. The judgment must be clearly and manifestly wrong.

Applying even this relaxed rule to the present case, we are satisfied that the judgment of the Supreme Court of the State ought not to be reversed. The question is one of preponderance of testimony alone. It certainly cannot be said there is no evidence in the case to support the finding, and, after three judgments of affirmance in the courts below, hardly any thing short of that would justify a reversal here.

Judgment affirmed.

title: Melendy v. Rice/Opinion of the Court


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


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American Bridge Company v. Heidelbach

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

The facts are stated in the opinion of the court.

Submitted on printed arguments by Mr. Wallace Pratt and Mr. C. B. Lawrence for the appellant, and by Mr. R. Crozier, contra.

MR. JUSTICE SWAYNE delivered the opinion of the court.

title: American Bridge Company v. Heidelbach


text: Talk:American Bridge Company v. Heidelbach


text:
American Bridge Company v. Heidelbach/Opinion of the Court

The controversy in this case has arisen out of a mortgage executed by the Kansas and Missouri Bridge Company to the appellees, as trustees, to secure the payment of the principal and interest of certain bonds issued by the mortgagor and described in the mortgage.

Besides the bridge of the company, the mortgage included 'the rents, issues, and profits of said bridge, as far as the same are not required to pay the necessary expenses of keeping in repair and operating said bridge, which rents, issues, and profits,' it was declared, 'are hereby pledged to the payment of said interest as it matures, and to the establishment of a sinking fund for the redemption and payment of the principal of said bonds,' &c. It was further provided, that, if the interest were in default for six months, the trustees, upon the written request of the holders of one-half of the outstanding bonds, might take possession of the mortgaged premises, manage and operate the bridge, and receive and collect all rents and claims due and to beo me due to the company.

The interest upon the bonds being in default, the trustees, on the 25th of November, 1874, filed their bill, wherein, among other things, they set forth that there was in the hands of the company a certain amount of money which ought to be applied upon the mortgage and certain claims due to the company, the proceeds of which ought to be applied in like manner. The bill prayed accordingly.

The appellant, the American Bridge Company, held a judgment for $15,435.88 and costs against the Kansas and Missouri Bridge Company, upon which an execution had been returned nulla bona. On the 11th of December, 1874, the judgment creditor filed a bill claiming priority of payment out of the money and the proceeds of the claim above mentioned. It appears that there is a sufficient fund to meet the demand awaiting below the termination of this litigation.

It cannot be denied that the return of the execution, the filing of the bill, and the service of process, gave the judgment creditor a lien upon the fund in question which must prevail, unless the mortgagees have shown a paramount right to it. Miller v. Sherry, 2 Wall. 249; 2 Barb. Ch. Pr. (2d ed.) 157, note 13. The question as to the right claimed by the trustees is conclusively settled against them by Galveston Railroad v. Cowdrey, 11 Wall. 459, and Gilman et al. v. Illinois & Missouri Telegraph Co., 91 U.S. 603.

Both these cases, as regards this point, present exactly the same legal aspect as the case before us. It is unnecessary to reproduce at length what was said in those adjudications.

In this case, upon the default which occurred, the mortgagees has the option to take personal possession of the mortgaged premises, or to file a bill, have a receiver appointed, and possession delivered to him. In either case, the income would thereafter have been theirs. Until one or the other was done, the mortgagor, as Lord Mansfield said in Chinnery v. Black, 3 Doug. 391, was 'owner to all the world, and entitled to all the profit made.'

The mortgage could have no retrospective effect as to previous income and earnings. The bill of the trustees does not affect the rights of the parties. It is an attempt to extend the mortgage to what it cannot be made to reach. Such a proceeding does not create any new right. It can only enforce those which exist already. The bill of the trustees is as ineffectual as if the fund were any other property, real, personal, or mixed, acquired by the mortgagee aliunde, and never within the scope of the mortgage.

Decree reversed, and cause remanded with directions to enter a decree in conformity to this opinion.


text: Talk:American Bridge Company v. Heidelbach/Opinion of the Court


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Town of East Lincoln v. Davenport

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

The facts are stated in the opinion of the court.

Submitted on printed arguments by Mr. J. M. Palmer for the plaintiff in error, and by Mr. S. M. Cullom for the defendant in error.

MR. JUSTICE HUNT delivered the opinion of the court.

title: Town of East Lincoln v. Davenport


text: Talk:Town of East Lincoln v. Davenport

title: Talk:Town of East Lincoln v. Davenport


text:
Town of East Lincoln v. Davenport/Opinion of the Court

The question is as to the legality of certain bonds issued by the town of East Lincoln, bearing date of the second day of April, 1873.

The case shows that the plaintiff below was the bona fide owner of the coupons sued upon. Questions of form merely, or irregularity, or fraud, or misconduct on the part of the agents of the town, cannot, therefore, be considered. Whether the supervisor of the town signed the bonds during the midnight hours, whether he delivered them at about daylight on the morning of April 2, 1873, and whether he immediately left the town to avoid the service of an injunction, are matters not chargeable to the owner of the bonds. The supervisor was not his agent, but the agent of the town, and if there has been misconduct on his part, the town rather than a stranger must bear the consequences. There must be authority in the town to issue the bonds by the statuteso f the State. If this cannot be found, the holder must fail; if it exists, he is entitled to recover.

It is denied that a subscription was made by the town to the stock of the Havana, Mason City, Lincoln, and Eastern Railway Company; and it is found as a fact by the judge who tried the action, that 'no subscription was ever made by the town of East Lincoln on the books of' the railway company.

The bonds recite that they are issued in pursuance of the authority given at an election by the voters of said town, held on the thirty-first day of May, 1870, in pursuance of the authority of two several statutes referred to in said bonds.

The fifth section of the act of March 27, 1869, amendatory of the act of March 9, 1867 (both statutes are referred to in the bonds), prescribes the manner in which the election shall be held, and the record shows that, on the thirty-first day of May, 1870, an election was held under said act, and that a majority of the legal voters attending and voting at said election voted in favor of a subscription of $60,000 to the capital stock of the said company. That section provides 'that if a majority of the legal voters of such town,. . . voting at such election, shall be in favor of such subscription, then it shall be deemed and held that said town. . . has taken stock in said railroad company according to the proposals made in said petition to said clerk.'

We are aware of no legal restriction upon the power of the legislature to declare what shall amount to a subscription to stock in an incorporated company, or what shall be the evidence that the party proposing to take the stock has completed the contract on its part. It may require such evidence to be in writing upon the books of the company, under the authority of the officers of the town, or it may authorize it to be done by an order or resolution of the county court, or it may authorize an engagement to take stock to be made by parol, or, as in the case before us, it may provide that the expressed wish of the voting majority of its inhabitants, at a legally convened townmeeting, shall amount to a subscription, or shall be deemed and held to be a taking of the stock of the company. Nugent v. The Supervisors, 19 Wall. 241.

We think the statute intended to make a majority vote of the legal voters of the town who voted at such an election an equivalent to and substitute for a subscription upon the books of the company.

The subscription thus authorized has been accepted by the successors of the said corporation, and, so far as the record shows, by the original corporation.

In our opinion, the subscription thus made was valid.

If valid as a subscription to the original incorporation, has it lost its force and vitality in consequence of the changes which have taken place in the organizations concerned in this transaction? The corporation known as the Havana, Lincoln, and Champaign Railroad Company was organized under the act of March 9, 1867, creating a company to construct a railroad from Ipava, in Fulton County, to Havana, Lincoln, Clinton, and Champaign, and from the latter place to some point on the Toledo, Wabash, and Western Railway. The corporation was authorized to unite or connect with any other railroad then or thereafter running east and west, and full power was given to lease, purchase, and make all such contracts as would secure the object of such connection. The act of March 27, 1869, amended that act by changing the name of the company to Havana, Mason City, Lincoln, and Eastern Railway Company.

By the acts of Feb. 21, 1861, and Feb. 16, 1865, the Monticello Railroad Company was chartered, with power to build a road from Champaign, by the way of Monticello, to Decatur, all in the State of Illinois. It was authorized to transfer all its stock, property, immunities, and franchises to any other corporation whose line intersected its road, and who would complete the same. On the twenty-eighth day of June, 1872, this company and the other above mentioned entered into articles of consolidai on, merging the two companies into one, whcih was invested with all the powers, franchises, rights, immunities, property, and privileges of either or both of the former companies, and transferring all contracts and obligations, certificates, bonds, &c. The consolidation was made with all the forms and solemnities required by law. The consolidated company assumed the name of one of the companies,-the Havana, Mason City, Lincoln, and Eastern Railway Company.

On the 20th of July, 1869, still another corporation, chartered to construct a railroad from Danville to Pekin, was consolidated with the Indianapolis, Crawfordsville, and Danville Railroad Company, under the name of the Indianapolis, Bloomington, and Western Railway Company.

In its course to the eastern boundary of the State of Illinois, this road passed through Urbana and Champaign City, two places mentioned in the former charters named.

By the seventh section of its charter, this corporation was given power to unite or connect itself with any other railroad company in the State, and to lease or purchase such other roads, and to 'become vested with all the rights and franchises of such road so leased or purchased, in the right of way, maintenance, and construction thereof.'

On the twenty-eighth day of June, 1872, the consolidated company known as the Havana, Mason City, Lincoln, and Eastern Railway Company entered into an arrangement with the Indianapolis, Bloomington, and Western Railway Company, by which there was transferred to the latter the railroad rights of way of said consolidated company, together with all demands, moneys, subscriptions, things in action, privileges, immunities, credits, rights, choses in action, especially naming the subscriptions, of which the one in question is a part. Certain covenants and agreements on the part of the grantee are set forth, of which the completion of the road from Havana to White Heath within two years was one; and, upon failure so to complete, it was agreed that the road should revert to its former owners. The stockholders of each company were made stockholders in the new, to the same amount as in the old, company.

This contract was carried into effect without delay, the roads were consolidated and completed, as therein provided for; and assuming that, as the successor and assignee of the Havana and Mason City Company, the Indianapolis, Bloomington, and Western Railway Company was entitled to the completion of the contract of subscription made by the election before described, the supervisor of the town of East Lincoln did, on the 2d of April, 1873, deliver the town bonds for the amount of such subscription, and receive a certificate of stock in the latter company to the same amount.

We hold this action to have been warranted both by a fair construction of the statutes and by the decisions of this court. Every substantial result contemplated for the benefit of the towns by the subscription made has been accomplished. A continuous line of railway, crossing the State of Illinois from east to west, beginning at Havana, on the Illinois River, and reaching Danville, on its eastern border, has been completed, and is in operation. This part of the road is as nearly in a direct course to the east as it could well have been made; and, commencing at Havana, running easterly, terminates at a point originally contemplated, and then connects with roads leading to the east and to the north and south.

The statutes we have referred to indicate that the legislature supposed that such consolidation and agreement as were here made might be necessary. If the company first organized could not of itself build the road, it might combine with any intersecting or connecting road from which it could hope for aid. The arrangement with the Monticello road promised fairly, and, so far as we can discover, was of service in obtaining the completion of the road.

If the first arrangement did not affect the purpose of finishing the road, an arrangement, by way of sale or otherwise, to still anothr company was authorized. Thus the transfer to the Bloomington, Indianapolis, and Western Railway Company was made, and by means of it the great object-the building of a connecting and operating railroad from Havana to the eastern boundary of the State-was attained.

All this was provided for in the charter of the original company, to which the town subscription was made, and the subscription was made with the knowledge of the town that new organizations might be made, and that the subscription was liable to be transferred to and its stock to become that of another company. The statutes were no doubt in accordance with the public wish at the time of their passage, the evident principle being to give every facility and aid, by the means suggested, to obtain a line of completed railroad to the eastern boundary of the State. Subsequent events have given more prominence to the question of paying the bonds than it then had.

The case falls directly within Nugent v. The Supervisors, supra, which holds that a subscriber is released from his subscription by a subsequent alteration of the organization and purposes of the company only when the alteration is a fundamental one, not contemplated either by the charter of the company or the general statutes of the State. The statute authorizing the alteration of the charter in that case closely resembled the statute we have above quoted in relation to the roads in question.

To the same general effect are County of Callaway v. Foster, 93 U.S. 567, and County of Scotland v. Thomas, supra, p. 682. The decision in Harshman v. Bates County, 92 U.S. 569, does not interfere with this principle. The distinction is clearly shown by Mr. Justice Bradley, who pronounced the opinion in each of the last two cases. The like remarks are applicable to Marsh v. Fulton, 10 Wall. 677, and they show that that decision does not affect the questions here discussed.

Judgment affirmed.


text: Talk:Town of East Lincoln v. Davenport/Opinion of the Court


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Sullivan v. Portland and Kennebec Railroad Company

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

The facts are stated in the opinion of the court.

Submitted on printed arguments by Mr. A. G. Stinchfield for the appellant, and by Mr. James W. Bradbury for the appellee.

MR. JUSTICE SWAYNE delivered the opinion of the court.


text: Talk:Sullivan v. Portland and Kennebec Railroad Company