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

The indictment against the defendants in this case was for misconduct as election officers at an election held in Florida for a representative to congress, in stuffing the ballot-box with fraudulent tickets, and abstracting tickets which had been voted. In impaneling the grand jury which found the indictment, four persons, otherwise competent, were excluded from the panel for the causes mentioned in section 820 of the Revised Statutes, which grounds are, in substance, voluntarily taking part in the rebellion, and giving aid and comfort thereto. The exclusion of these persons for this cause appears by an amendment of the record, made nune pro tunc, showing what took place; but no objection was taken to the indictment or proceedings on that account until after a plea of not guilty, and a conviction, when the objection was first taken on motion in arrest of judgment. The indictment was founded upon sections 5512 and 5515 of the Revised Statutes, and the constitutionality of those sections was called in question, as well as that of section 820. The judges having disagreed upon the motion in arrest of judgment, certified up the following questions for the determination of this court, namely:

(1) Whether sections 5512 and 5515 of the Revised Statutes of     the United States, on which such indictment was founded, are      repugnant to and in violation of the constitution of the      United States; (2) whether section 820 of the Revised      Statutes of the United States is repugnant to and in      violation of the constitution of the United States; (3)      whether judgment of this court could be rendered against the      defendants on an indictment found by a grand jury impaneled      and sworn under the section aforesaid; and (4) whether the      indictment aforesaid charges any offense for which judgment      could be rendered against the defendants in this court under      the constitution and laws of the United States.

The question of the validity of sections 5512 and 5515 has already been decided by this court in the cases of Siebold and Clarke, 100 U.S. 371 and 399, and was determined in favor of their validity. As to those sections, therefore, the answer must be in the negative, namely, that they are not repugnant to, nor in violation of, the constitution of the United States.

The second question, as to the constitutionality of the 820th section of the Revised Statutes, which disqualifies a person as a juror if he voluntarily took any part in the rebellion, is not an essential one in the case; inasmuch as, by pleading not guilty to the indictment and going to trial without making any objection to the mode of selecting the grand jury, such objection was waived. The defendants should either have moved to quash the indictment or have pleaded in abatement, if they had no opportunity, or did not see fit, to challenge the array. This, we think, is the true doctrine in cases where the objection does not go to the subversion of all the proceedings taken in impaneling and swearing the grand jury, but relates only to the qualification or disqualification of certain persons sworn upon the jury or excluded therefrom, or to mere irregularities in constituting the panel. We have no inexorable statute making the whole proceedings void for any such irregularities.

Chitty, in his work on Criminal Law, (vol. 1, p. 307,) says:

'It is perfectly clear that all persons serving upon the     grand jury must be good and lawful men; by which it is      intended that they must be liege subjects of the king, and      neither aliens nor persons outlawed even in a civil action;      attainted of any treason or felony; or convicted of any      species of crimen falsi, as conspiracy or perjury, which may      render them infamous. And if a man who lies under any of     these disqualifications be returned, he may be challenged by      the prisoner before the bill is presented; or, if it be      discovered after the finding, the defendant may plead it in      avoidance, and answer over to the felony; for which purpose      he may be allowed the assistance of counsel, on producing in      court the record of the outlawry, attainder, or conviction on      which the incompetence of the juryman rests.'

This is, undoubtedly, the general rule as to the manner in which objection may be taken to the personnel of the grand jury, though in this country a motion to quash the indictment may be made instead of pleading specially in abatement. The requirement of answering over to the felony in connection with the plea in abatement is for the benefit of the accused, in order that he may not be concluded on the merits, if he should fail in sustaining his special plea,-a precaution which probably would not be necessary in our practice.

By an English statute, passed in the eleventh year of Henry IV., it was declared that indictments made by persons not returned by the sheriff, or by persons nominated to him, or who were outlawed or had fled to sanctuary for treason or felony, should be void, revoked, and annulled. On this statute it was held that if any such persons were on a grand jury which found an indictment, it made the whole void, and if the matter appeared on the record, or in the proceedings of the same court, advantage might be taken of it on motion in arrest of judgment, or even on the suggestion of an amicus curice; but if it did not appear on the record of the cause, or in the records of the same court, the better opinion was that it could only be pleaded in abatement, or raised by motion to quash. Hawkins says:

'If a person who is tried upon such an indictment take no     exception before his trial, it may be doubtful whether he may      be allowed to take exception afterwards, because he hath      slipped the most proper time for it; except it be verified by      the records of the same court wherein the indictment is      depending, as by an outlawry in the same court of one of the      indictors,' etc. Hawk. bk. 2, c. 25, § 27.

In Bac. Abr. (Juries, A) it is said that the court need not admit of the plea of outlawry of an indictor, unless he who pleads it have the record ready, or it be an outlawry of the same court; and it is added, as the better opinion, that no exception against an indictor is allowable, unless the party takes it before trial. Chitty lays down the same rule. 1 Crim. Law, 307, 308. Lord Chief Justice HALE, speaking of what the caption ought to contain, among other things, says:

'It must name the jurors that presented the offense, and     therefore a return of an indictment or presentment per      sacramentum, A. B., C. D., et aliorum, is not good, for it      may be the presentment was by a less number than 12, in which case it is      not good, (H. T. 41 Eliz. B. R. Croke, No. 16, Clyncard's      Case, 654;) and it seems to me that all the names of the      jurors ought to be returned, for the party indicted may have      an exception to some or one of them, as that he is outlawed,      in which case the indictment may be quashed by plea, though      there be 12 besides without exception, for possibly that one,      who is not legalis homo, may influence all the rest, and so      vitiate the whole indictment.'

All these authorities tend to the same point, namely, that the proper mode of taking objection to the personnel of the grand jury, even under the statute referred to, when the matter does not appear of record, is by plea in abatement.

If, under the operation of so stringent a statute as that of 11 Hen. IV., the general rule was that the objection to the constitution of the grand jury must be taken before trial, and could only be taken afterwards when it appeared on the record, much more would it seem to be requisite that all ordinary objections based upon the disqualification of particular jurors, or upon informalities in summoning or impaneling the jury, where no statute makes the proceedings utterly void, should be taken in limine, either by challenge, by motion to quash, or by plea in abatement. Neglecting to do this, the defendant should be deemed to have waived the irregularity. It would be trifling with justice, and would render criminal proceedings a farce, if such objections could be taken after verdict, even though the irregularity should appear in the record of the proceedings. In most cases it could not appear in a record properly made up; but, if appearing at all, it would require (as in the present case) a special certificate of the court analogous to a bill of exceptions, or a case stated, not constituting a part of the true record. But even if it should appear upon the record as a proper part thereof, the fact of pleading to the merits and going to trial without taking the objection would also appear, and would amount in law to a waiver of the irregularity. If it could be taken advantage of on a motion in arrest of judgment, it would be a good ground of reversal on error, and all the proceedings of a long term might be rendered nugatory by admitting a person to the grand jury or excluding a person from it, without the matter being called to the attention of the court; whereas, if the objection were taken in limine, the irregularity might be corrected by reforming the panel or summoning a new jury.

These remarks apply with additional force where the objection is not to the disqualification of jurors who are actually sworn upon the panel, but to the exclusion, or excuse, of persons from serving on the panel. A disqualified juror placed upon the panel may be supposed injuriously to affect the whole panel; but if the individuals forming it are unobjectionable, and have all the necessary qualifications, it is of less moment to the accused what persons may have been set aside or excused. The present case is of the latter kind. No complaint is made that any of the grand jurors who found the indictment were disqualified to serve, or were in any respect improper persons. It is only complained that the court excluded some persons for an improper cause; that is, because they labored under the disqualification created by the 820th section of the Revised Statutes, which is alleged to be unconstitutional. It is not complained that the jury actually impaneled was not a good one; but that other persons equally good had a right to be placed on it. These persons do not complain. If their right to serve on the grand jury was improperly infringed, perhaps they might complain of being excluded. That is another matter. Or, perhaps, the defendants, if correct in their assumption that the law is unconstitutional, and that the court was governed by an improper rule in excluding persons under it, might have had the benefit of the error by moving to quash the indictment, or by pleading in abatement. But passing by these proper modes of taking the objection, they waited until they had been tried and convicted on a plea of not guilty, and then moved in arrest of judgment. We think they were too late in raising the objection.

Some importance is attached to the fact that the court followed an unconstitutional law, or one assumed to be such. We do not see that this is in anywise different from the case in which the court misconstrues the law. The result is the same: certain persons, under a misconception of the court, are excluded from the grand jury who are qualified to serve on it; but the jury as actually constituted is unexceptional in every other respect. In either case, whether the court is mistaken as to the validity of a law, or as to its interpretation, the objection relates so little to the merits of the case that it ought to be taken in the regular order and due course of proceeding.

There are cases, undoubtedly, which admit of a different consideration, and in which the objection to the grand jury may be taken at any time. These are where the whole proceeding of forming the panel is void; as where the jury is not a jury of the court or term in which the indictment is found, or has been selected by persons having no authority whatever to select them; or where they have not been sworn; or where some other fundamental requisite has not been complied with. But there is no complaint of this kind in the present case. The complaint simply relates to the action of the court in excluding particular persons who might properly have served on the jury. We do not think this vitiated all the proceedings so as to render them absolutely null and void. It might have sufficed to quash the indictment if the objection had been timely and properly made. Nothing more.

We think that this conclusion is the result not only of the English but of the better American authorities.

Mr. Wharton, in his section on the 'Disqualification of Grand Jurors, and how it may be excepted to,' begins by stating the general rule that irregularities in selecting or impaneling the grand jury, which do not relate to the competency of individual jurors, may usually be objected to by challenge to the array, or motion to quash; and this must be before the general issue. Crim. Pl. & Pr. (8th Ed.) § 344. He then shows that in some states it has been held that objections to disqualification of individual jurors can only be taken by challenge, and not by motion to quash or by plea; but that in others the motion to quash, as well as the plea, is allowed; the latter rule being more generally followed, and being more in accordance with the English law. He then adds: 'Ordinarily, after the general issue has been pleaded  objections are too late; and when the objection goes to   the manner of drawing it should be taken by challenge to   the array. * *  * But on principle, in those cases in   which the defendant is surprised, and had no opportunity   to take exception until after the finding of the bill,   he should he allowed to take advantage of any   irregularity by plea.' Section 350.

We apprehend that the rule last stated is the correct one. But in section 353 it is added that at common law, if the objection appears of record and there be no statutory impediment, a motion in arrest of judgment may be entertained. This last position we do no not think is well sustained. As we have seen, it was by force of the statute of 11 Hen. IV. that objections might be taken after the trial in England; and the American cases referred to by Mr. Wharton do not sustain his observation. In Harden's Case, 2 Rich. 533, the motion in arrest of judgment was based on the ground that the grand jury was not such for the term at which the bill was found, and, of course, the proceedings were coram non judice. In other cases cited in support of the position, the motions were overruled. We think that the doctrine of waiver applies as well to cases where the objection appears of record as where it appears by averments; and that it applies to all cases of objection to the qualifications of jurors and to the mode of impaneling the jury; but does not apply to cases where the proceeding is wholly void by reason of some fundamental defect or vice therein. Brooke, Abr. Indict. 2; Seaborn's Case, 4 Dev. 305; Robinson's Case, 2 Parker, Crim. R. 308. In the case in Brooke, persons not legali homines were on the grand jury, and it was held that the objection ought to be pleaded before pleading to the felony. In Seaborn's Case it was held that, after conviction of murder, it was too late to take advantage of an error in constituting the grand jury, though it appeared in the record. In Robinson's Case, 2 Parker, Crim. R. 235, 308, 311, which was argued by able counsel in the supreme court of New York before Justices PARKER, WRIGHT, and HARRIS, no precept for summoning the grand jury had been issued by the district attorney to the sheriff as the law required, though the sheriff summoned them in the usual way. The court held that this omission did not affect the substantial rights of the prisoner, and that the objection could not be raised after trial and conviction. Many authorities were referred to in the opinion of the court delivered by Mr. Justice PARKER, and this general statement was then made: 'It seems to be well settled in most of the states that an objection to the qualification of grand jurors, or to the mode of summoning or impaneling them, must be made by a motion to quash or by a plea in abatement, before pleading in bar.' The subject is also discussed in Bishop, Crim. Proc. c. 60, where the same general rule is laid down; though with a reservation of some doubt as to cases where the objection appears of record. Sections 887, 888. As before stated, we think that it is the nature of the objection, rather than the fact of its appearing or not appearing on the record, which should decide whether it ought to be taken by a plea in abatement, or whether it may also be taken by motion in arrest of judgment; though, of course, it cannot be taken by such a motion unless it does appear of record.

Being satisfied that the defendants could not raise the question of the constitutionality of section 820 by motion in arrest of judgment, it is not necessary, as before observed, to express any opinion on that point. It may be proper, however, to call attention to the singular position of that section. It was originally enacted as section 1 of the act passed June 17, 1862, entitled 'An act defining different causes of challenge, and prescribing an additional oath for grand and petit jurors in the United States courts.' 12 St. 430. At that time (1862) it was no doubt a very proper and necessary law; but after the rehabilitation of the insurgent states, the proclamation of general amnesty, and the adoption of the fourteenth amendment, guarantying equal rights to all citizens of the United States, there would seem to have been no just reason for the continuance of the law, especially as by far the largest portion of white citizens in the states lately in rebellion would be disqualified under it. Accordingly, by the fifth section of the act, commonly called the 'Enforcement Act,' passed April 20, 1871, (17 St. 15,) congress, after providing that in prosecutions under that act no person should be a grand or petit juror who should, in the judgment of the court, be in complicity with any combination or conspiracy punishable by the provisions thereof, repeal the said first section of the act of 1862; and the law remained in this state until the adoption of the Revised Statutes. For some unexplained reason the revisors imported the section back again into the Revised Statutes, (as section 820,) although it had not been in force for over two years. It is probable that the fact of its repeal was overlooked by congress when the Revision was adopted, and it is to be hoped that their attention will be called to it.

In conclusion, to the third and fourth questions, certified by the court below, the answer will be in the affirmative; and it is so ordered.


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

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text: Steever v. Rickman

title: Steever v. Rickman


text: Talk:Steever v. Rickman

title: Talk:Steever v. Rickman


text:
Steever v. Rickman/Opinion of the Court

West Steever and ''Wm. S. Abert'', for appellant.

W. O. Dodd, for appellee.

WAITE C. J.

By the act making appropriations for sundry civil expenses of the government for the fiscal year ending June 30, 1884, c. 143, (St. 1882-3, p. 631,) the clerk of this court is required to pay into the treasury the fees and emoluments of his office over and above his own compensation as fixed by law, and his necessary clerk hire and incidental expenses. It is proper, therefore, that, for his protection, his fees should be paid in advance, if demanded.

Under rule 10, it is the duty of the clerk to have the record printed, and a fee has been fixed for preparing the record for the printer, indexing the same, and supervising the printing. Ordinarily this fee is to be paid, in the first instance, by the party who prosecutes the cause. If he fails to make the payment when demanded, in time to enable the clerk to cause the printing to be done in due course, he fails in the orderly prosecution of his suit, and may be dealt with accordingly. Consequently, if, through the fault of a plaintiff in error or appellant, printed copies of the record are not furnished to the justices or the parties when required in the due prosecution of the cause, the writ or appeal will be dismissed for want of prosecution, unless sufficient cause be shown to the contrary.

In the present case the record has been printed, but the clerk has not furnished the necessary copies to the justices because his fee for preparing the record for the printer, etc., has not been paid by the appellant, although demanded. As this is the first time the question has arisen, and the practice has not heretofore been authoritatively announced, it is ordered that, unless the appellant pay to the clerk, within 20 days from the entry hereof, what is due him for this fee, the appeal be dismissed for want of prosecution. If the payment is made, the clerk shall at once notify the opposite party, and the cause may thereafter be brought on for hearing under paragraph 7 of rule 26, as a case that has been passed under circumstances which do not place it at the foot of the docket.

title: Steever v. Rickman/Opinion of the Court


text: Talk:Steever v. Rickman/Opinion of the Court


text:
Oliver v. Rumford Chemical Works

On the ninth of June, 1868, reissued letters patent No. 2,979 were granted to the Rumford Chemical Works, a corporation of Rhode Island, for an 'improvement in pulverulent acid for use in the preparation of soda powders, farinaceous food, and for other purposes.' The original patent, No. 14,722, was granted to Eben Norton Horsford, April 22, 1865, for 14 years, for an 'improvement in preparing phosphoric acid as a substitute for other solid acids,' and was reissued to the Rumford Chemical Works, as No. 2,597, May 7, 1867, for an 'improvement in the manufacture of phosphoric acid and phosphates for the use in the preparation of food, and for other purposes.'

The specification of reissue No. 2,979 sets forth the mode of preparing the acid, which is a dry pulverulent acid, described as having the capacity of being intimately mixed with dry alkaline carbonates, or other sensitive chemical compounds, without decomposing them or entering into combination with them, except upon the addition of moisture or the application of artificial heat. It says:

'This requires that the phosphoric acid, or acid phosphates,     be mixed with some neutral agent, as flour or starch, gypsum,      etc., so that action of the acid shall be prevented while      dry, and shall, when moisture or heat is applied, be prompt,      thorough, and equally diffused. * * * It may, among other     uses, be mixed with dry alkaline carbonates, carbonate of      potassa, or carbonate of soda, and remain in this state      without evolution of carbonic acid until moistened or heated,      thus making it a substitute for cream tartar and tartaric      acid in the preparation of yeast powder or baking powder. * *     * It * * * is suited to be employed as the acid ingredient in      the preparation of self-raising farinaceous food. In order to     make an article possessing these qualities, and suited to      this office, it is necessary that a powder should be made      which can be not only evenly comminuted and diluted, but one      which shall have so little affinity for the moisture of the      atmosphere that it may be mixed with flour and bicarbonate of      soda in the practical preparation of self-raising flour.'

The claims of reissue No. 2,979 are four in number, as follows:

'(1) I claim, as a new manufacture, the above-described     pulverulent phosphoric acid. (2) I claim the manufacture of     the above-described pulverulent phosphoric acid, so that it      may be applied in the manner and for the purposes above      described. (3) I claim the mixing, in the preparation of     farinaceous food, with flour, of a powder or powders, such as      described, consisting of ingredients of which phosphoric      acid, or acid phosphates, and alkaline carbonates, are the      active agents for the purpose of liberating carbonic acid, as      described, when subjected to moisture or heat, or both. (4)     The use of phosphoric acid or acid phosphates, when employed      with alkaline carbonates, as a substitute for ferment or      leaven in the preparation of farinaceous food.'

On the first of February, 1869, the following instrument in writing was executed and delivered by the Rumford Chemical Works to one Allen F. Morgan:

'To all people to whom these presents shall come, the Rumford     Chemical Works, a corporation transacting business in East      Providence, in the state of Rhode Island, sends greeting:      Know ye that the said corporation, in consideration of the      agreement, of even date herewith, entered into between it and      Allen F. Morgan, of Memphis, in the county of Shelby and state of      Tennessee, does hereby sell, assign, and transfer unto the      said Allen F. Morgan the right to use, within the territory      described in said agreement, Horsford's patent cream of      tartar substitute, for the purpose of manufacturing within      said territory self-raising cereal flours, with the right to      use and sell the flours so manufactured; to have and hold and      exercise such rights within the limits aforesaid, for and      during the time, and under and subject to the conditions and      limitations, named and specified in the agreement aforesaid,      of even date herewith, to which reference is hereby made as a      part hereof.'

On the same day Morgan executed and delivered to the Rumford Chemical Works the following instrument in writing:

'To all men to whom these presents shall come: Know ye that     because the Rumford Chemical Works, a corporation located at      and doing business in the town of East Providence, in the      state of Rhode Island, has licensed and granted unto Allen F.      Morgan, of the city of Memphis, county of Shelby, and state      of Tennessee, the exclusive right to manufacture, sell, and      use, during the time of five years from the date hereof, the      article known as self-raising flour, from cereals, by the use      of Horsford's patent pulverulent phosphoric acid, in the      following described territory, to-wit: Beginning at the point      where the nothern boundary of the state of Tennessee touches      the Mississippi river; thence southerly along the said river      to and including Vicksburgh; thence easterly along the line      of the Mississippi Southern Railroad to Jackson; thence      northerly along the line of the Mississippi Central Railroad      to Granada; thence north-easterly to the junction of the      eastern boundary line of Alabama with the southern boundary      line of Tennessee; thence along the eastern boundary line of      Middle Tennessee (so called) to the northern boundary line of      Tennessee, and westerly along said boundary line to the point      of beginning,-by an instrument in writing bearing even date      herewith, which is made a part of this agreement, and because      of other good and sufficient reasons moving him thereto that      he has agreed, and by these presents does covenant and agree,      to and with the aforesaid Rumford Chemical Works, that he      will immediately commence the manufacture of self-raising      flour in accordance with the written instructions furnished      by the said Rumford Chemical Works, as to proportions and      quality of flour, and that he will use all his business tact      and skill, and all other means necessary, to introduce and      sell the same, and to make the sale thereof as large as in      any way possible in the territory aforesaid during the      continuance of the license aforesaid, and no longer, and to      sell the said self-raising flour nowhere but in the territory      specified, except upon the written consent of the said      Rumford Chemical Works. And I further agree to accept in the     aforesaid license such rights as are covered by the patents      granted to Eben N. Horsford, and by him assigned to the said      Rumford Chemical Works, and to maintain them at my own cost      and expense in suits at law, whenever it shall be in my      judgment necessary so to do, and to avail myself of such      advice, counsel, and assistance as the said Rumford Chemical      Works may elect to give in said suits; and to purchase all of      the acid used in making our said self-raising flour of the      Rumford Chemical Works, or of their agents as directed; and      that in case of my failure to perform the covenants and      agreements hereby entered into, it shall be lawful for the      said Rumford Chemical Works to annul and revoke their said      license to me, and to terminate this agreement. The use of     said phosphoric acid by families for domestic purposes shall      not be construed as a violation of this agreement.'

On the twelfth of April, 1870, the patent was duly extended for seven years from April 22, 1870. On the twenty-first of May, 1870, the extended term was assigned by Horsford to the Rumford Chemical Works. Morgan died on the nineteenth of April, 1869. In July, 1869, his widow, Kate G. Morgan, was appointed administratrix of his estate. She afterwards intermarried with J. N. Payne. A suit at law was brought in 1875 in the name of the Rumford Chemical Works, for the use of J. N. Payne and his wife, Kate G. Payne, in the circuit court of the United States for the western district of Tennessee, against J. N. Oliver and others, partners constituting the firm of Oliver, Finnie & Co., to recover damages for the infringement by the defendants for the period from April 1, 1870, to February 1, 1874, of the rights of the said Kate G. Payne and her husband under said patent, by making and selling self-raising flour by the use of Horsford's patent pulverulent phosphoric acid in the territory before named. The theory of the suit was that the right of Morgan became vested in his administratrix as a personal asset, and continued under the extension, and that the suit brought would lie for infringements of such right committed prior to the expiration of the five years from February 1, 1869. The suit was tried by a jury and resulted in a verdict for the plaintiffs for $3,538.97 damages, and a judgment in their favor for that amount, with costs. To review that judgment this writ of error is brought.

B. M. Estes and H. T. Ellete, for plaintiff in error.

George Gantt, Isham G. Harris, and Thomas B. Turley, for defendants in error.

[Argument of Counsel from page 80 intentionally omitted]

BLATCHFORD, J.

title: Oliver v. Rumford Chemical Works


text: Talk:Oliver v. Rumford Chemical Works

title: Talk:Oliver v. Rumford Chemical Works


text:
Oliver v. Rumford Chemical Works/Opinion of the Court

Various questions are presented by the record, and have been discussed in argument, but there is one which goes to the foundation of the suit, and upon which our views are such as to make it unnecessary to consider any other. The court charged the jury that the interest of Morgan in the patent did not terminate at his death, but passed to his administratrix. The defendants excepted to this charge. The evidence was that Morgan died on the nineteenth of April, 1869, and the defendants asked the court to instruct the jury that the privilege conferred on Morgan by the instrument of February 1, 1869, from the Rumford Chemical Works to him, terminated at his death, and did not pass to his administratrix, and that they should find for the defendants if they believed that Morgan died on the nineteenth of April, 1869. The court refused to give such instruction, and the defendants excepted.

It is apparent that what was granted to Morgan was only the exclusive right to use, within the territory specified, the patented acid in making self-raising flour, and to use and sell in said territory the flour so made. The acid used in making the self-raising flour was all of it to be purchased from the Rumford Chemical Works or its agents. No right was granted to make the acid, or to use it or sell it otherwise than as an ingredient in the self-raising flour. The effect of the grant made by the two instruments of February 1, 1869, is subject to the provisions of section 11 of the act of July 4, 1836, (5 St. at Large, 121,) which was the statute in force at the time, and provided as follows:

'Every patent shall be assignable at law, either as to the whole interest or any undivided part thereof, by any     instrument in writing; which assignment, and also every grant      and conveyance of the exclusive right under any patent, to      make and use, and to grant to others to make and use, the      thing patented within and throughout any specified part or      portion of the United States, shall be recorded in the      patent-office within three months from the execution      thereof.'

By section 14 of the same act it was provided that damages for making, using, or selling the thing whereof the exclusive right is secured by a patent, 'may be recovered by action on the case, in any court of competent jurisdiction, to be brought in the name or names of the person or persons interested, whether as patentees, assignees. or as grantees of the exclusive right within any throughout a specified part of the United States.' Morgan was not an assignee of the entire right secured by the patent, nor of any undivided part of such entire right, nor of the exclusive interest in such entire right for the territory specified. He did not acquire the whole of the exclusive right or legal estate vested in the Rumford Chemical Works by the patent for the said territory, leaving no interest in his grantor for that territory, as to anything granted by the patent. It is well settled that a transfer of a right such as Morgan acquired is not an assignment, nor such a grant of exclusive right as the statute speaks of, but is a mere license. Curtis, Pat. (3d Ed.) § 179; Gayler v. Wilder, 10 How. 477, 494. This being so, the instrument of license is not one which will carry the right conferred to any one but the licensee personally, unless there are express words to show an intent to extend the right to an executor, administrator, or assignee, voluntary or involuntary. In Troy Iron & Nail Factory v. Corning, 14 How. 193, 216, this court said: 'A mere license to a party, without having 'his assigns' or equivalent words to them, showing that it was meant to be assignable, is only the grant of a personal power to the licensee, and is not transferable by him to another.' * In the present case there are no words of assignability in either instrument. The right is granted to Morgan alone, to him personally, with an agreement by him that he will enter on the manufacture of the self-raising flour, and that he will use all his business tact and skill to introduce and sell the flour. It is apparent that licenses of this character must have been granted to such individuals as the grantor chose to select because of their personal ability or qualifications to make or furnish a market for the self-raising flour, and thus for the acid, all of which was to be purchased from the grantor. The license was made revocable by the grantor on the failure of Morgan to perform his covenants and agreements.

We have not overlooked the fact that the privilege granted to Morgan was to continue for five years. This means no more than that he was to have it for five years, if he should live so long, and if the patent should not have expired. But it cannot have the effect to impart assignability to the privilege, or to prolong its duration beyond that of his life.

Respect for the supreme court of Tennessee induces us to say that we have carefully examined the opinion of that court in Oliver v. Morgan, 10 Heisk. 322. That was a suit brought by the widow and administratrix of Morgan against Oliver, Finnie & Co., in a court of the state, to recover compensation under an agreement made between him and them, February 15, 1869, and which was to continue till April 1, 1870, whereby he was to prepare self-raising flour for them under the license to him from the Rumford Chemical Works, and they were to pay him so much a barrel. In that suit it was held that Mrs. Morgan could recover not only for the time prior to Morgan's death, but for the subsequent time, and that the license to Morgan vested in him an interest which passed, at his death, to his personal representative. The proceedings in that suit are made a part of the record on this writ of error; but the suit in the circuit court was tried wholly on the view that the question as to the construction of the instruments of February 1, 1869, was an open one, and was a question of general law, and not one as to a rule of property, and that there was nothing in the former suit which, as res adjudicata, could be binding between the parties in this suit as an estoppel. There is nothing in the pleadings which raises the question of such an estoppel. The lower state court having, in the prior suit, rendered a judgment for the plaintiff, the supreme court of the state, while giving the interpretation before mentioned of the rights of Morgan, reversed the judgment for errors in other respects, and awarded a new trial. Afterwards there was, in the lower court, a verdict by consent, followed by a judgment for the plaintiff, for a less sum than the amount of the first verdict and judgment. Moreover, the present suit is one in a court of the United States, brought under the provisions of an act of congress, for the infringement of letters patent. The former suit arose out of a contract between Morgan and Oliver, Finnie & Co., and was brought to recover damages for the breach of that contract. Under these circumstances, the question as to the rights of Morgan under the patent must be regarded as one to be passed upon in this suit as an original question, as if there had been no former suit. Giving to the opinion of the supreme court of Tennessee that consideration which is due to the force of reasoning in the views which it announces, we are unable to concur in the construction it gave to the license to Morgan. Accordingly, the judgment of the circuit court is reversed, with direction to award a new trial.


text:
Town of South Ottawa v. Perkins Supervisors of Kendall County/Dissent Waite

MR. CHIEF JUSTICE WAITE, with whom concurred MR. JUSTICE CLIFFORD, MR. JUSTICE SWAYNE, and MR. JUSTICE STRONG, dissenting.

I am unable to agree to the judgment which has been rendered in this case. There is no doubt but that the construction which the courts of Illinois have uniformly given the Constitution of the State is binding upon us as a rule of decision. The difference between me and the majority of my brethren is as to the construction that has been given, not as to its effect when ascertained. After a careful consideration of all the cases to which our attention has been directed, I am forced to the conclusion that the question has been made by the courts of Illinois one of fact and not of law. The majority of this court think it has been made one of law. Such a construction might and probably would be more logical; but our duty is to ascertain what has been decided, not what should have been.

The case of Spangler v. Jacoby, 14 Ill. 297, is the first of a long series of cases in which this question has been considered; and, so far as I have been able to discover, little has been done since, except to reaffirm and apply what was there decided.

Looking, then, to that case, we find that prima facie an act enrolled, signed by the speakers of the two houses, approved by the governor, deposited in the office of the Secretary of State, and published under his superintendence among the laws certified by him, is a valid law. The language of the court is: 'The act in question was signed by the speakers of the two houses, and it received the assent of the executive. Prima facie, therefore, it became a law.' Afterward, in Illinois Central Railroad Co. v. Wren, 43 id. 79, it is said, 'The laws certified by the Secretary of State, and published by the authority of the State, must be received as having passed the legislature in the manner required by the Constitution, unless the contrary clearly appears.' And, again, no longer ago than last year, in Larrison v. Peoria, Atlanta, & Decatur Railroad Co., 77 id. 18, 'If we find a law signed by the speakers of the two houses, and approved by the governor, we must presume that it has been passed in conformity to all the requirements of the Constitution, and is valid until the presumption is overcome by legitimate proof.'

This law was enrolled; signed by the speakers of the two houses; approved by the governor; deposited in the office of the Secretary of State; published by him with the requisite certificate among the laws passed at the session of the legislature in 1857; acquiesced in by the people of the State as a valid law for more than thirteen years after its publication; accepted and acted upon by the inhabitants of South Ottawa in October, 1866, when they voted under it for a subscription to the stock of the railroad company, and authorized the issue of the bonds of the township in payment; recognized as a valid and existing law by the legislature of the State, March 27, 1869, and April 20, 1869, when laws were passed referring to it as in force, and amending it; and finally acted upon by the officers of the township, when, in obedience to the vote of the inhabitants, they subscribed to the stock of the railroad company, and issued the bonds authorized by the act in payment.

In this condition of things the courts were bound to take judicial notice of it as a law in force. This was expressly decided in Illinois Central Railroad Co. v. Wren, supra, where it was said, 'Although we take judicial notice of all acts of the legislature signed by the governor and found in the office of the Secretary of State, and although for some purposes we may take judicial notice of the legislative journals, yet it is not our province, at the suggestion or request of counsel, to undertake to explore these journals for the purpose of ascertaining the manner in which a law duly certified went through the legislature and into the hands of the governor. If counsel say the journal shows a law to have been passed without calling the yeas and nays, let them make the requisite proof of that fact by means of the legislative journals, and introduce the proof into the record.' And again, during the same year, 1867, in Grob v. Cushman, 45 id. 124, where the question was as to the jurisdiction of the La Salle County Court, in a case which was brought before the Supreme Court for examination upon a writ of error, this language is used: -

'It is insisted that the La Salle County Court did not have jurisdiction of the subject-matter of this cause; that the act of the legislature under which the jurisdiction is claimed never became a law in the mode prescribed by the Constitution. And counsel, in their argument, refer to the journals of the house in support of this position. On the trial below, no evidence from the journals was introduced. But it is now urged, that, as they are public records, the court will take judicial notice of them, and not require them to be embodied in the evidence. It is true that they are public records, but it does not follow that they will be regarded as within the knowledge of the courts, like public laws. Like other records and public documents, they should be brought before the courts as evidence. But when offered, they prove their own authenticity. Until so produced, they cannot be regarded by the courts.'

Both these cases were decided two years before the bonds now in suit were issued.

Later, in 1871, in the case of The People v. De Wolfe, 62 id. 253, an application was made for a mandamus requiring a justice of the peace to issue an execution upon a judgment recovered before him. In his return, he stated that the act under which he assumed jurisdiction when he gave the judgment had never in fact been constitutionally passed, and gave the particulars of his claim in that behalf. In delivering the opinion, the court clearly considered the question presented as one of fact, for they say:--

'It appears by the return, which is not travered, and is to be taken as true, &c. . . . Our decision is predicated solely upon the state of facts as set forth in the return in this case, without an inspection of the journals of the Senate, and we pass upon the validity of the act in question no further than as affects the present application in view of the admitted facts in the case.'

It is difficult to see what could be done to manifest more clearly the determination of the court to make the question whether a prima facie statute had been constitutionally passed one of fact, to be established by 'legitimate proof' when a contest arises. This may operate to give an apparent statute effect under one state of circumstances, and not under another; but with that we have nothing to do. Our duty is ended when we have discovered and complied with the rule which the appropriate tribunal has established.

Under the operation of this rule the plaintiff below made out his case, when he proved the execution of his bonds and put them in evidence; and, in the absence of proof by the defendant, he was entitled to his judgment, even though the law might not have been constitutionally passed: because it was no part of the duty of the court 'to explore the journals for the purpose of ascertaining the manner in which a law duly certified went through the legislature.'

The question then is, whether, under the circumstances of this case, the defendant can be permitted to make the proof. This does not depend upon the construction of the Constitution, but upon the general principles of commercial law applicable to the Constitution as construed. The issue is made upon the fact of the passage of the law. Prima facie it was passed, and it was apparently in force. Both parties acting upon this prima facie case, and supposing it to be true in fact, have become bound: one has borrowed and the other lent. The lender has performed his part of the contract and delivered the money, and the simple question to be determined now is, whether, under such circumstances, the borrower can refuse to pay, because, upon further investigation, he has ascertained that the legislative journals do not contain the necessary evidence to establish the fact of the due enactment of the law. Reverse the case. Suppose the town had subscribed for the stock and paid the subscription, could the railroad company keep the money and refuse to issue the stock because, after the transaction, it had ascertained that a vote had not been taken by ayes and noes in one of the houses upon the final passage of the bill? Certainly not; and the reason is obvious. Under such circumstances, the law estops the party from asserting the falsehood of that which appears to be true. This rule has, from the beginning, been applied here to this class of cases. It was first stated in Commissioners of Knox County v. Aspinwall, 21 How. 545, where, using the language of Ch. B. Jervis in Royal British Bank v. Tarquand, 6 El. & Bl. 527, it was said:--

'We may now take it for granted that the dealings with these companies are not like dealings with other partnerships, and that the parties dealing with them are bound to read the statute and the deed of settlement. But they are not bound to do more. And the party here, on reading the deed of settlement, will find, not a prohibition from borrowing, but a permission to do so on certain conditions. Finding that the authority might be made complete by a resolution, he would have the right to infer the fact of a resolution authorizing that which, on the face of the document, appeared to be legitimately done.'

It is unnecessary to refer to the numerous cases which have come up since. While some of them have gone further than the English court did in that from which the quotation was made, none have fallen short of it. We need not go further in this. The purchasers of these bonds were bound to read the statute under which they were issued, but they were not bound to do more. Finding it upon the statute-book, apparently in force, they had the right to infer that it was actually in force, and govern themselves accordingly.

It must be remembered that this is not a case of construction. The question is not whether a law admitted to be in force confers the necessary power, but whether a law which does confer the power, and is apparently in force, can be shown not to have been in fact passed according to the requirements of the Constitution, after parties have acted upon the faith of it and changed their condition. When the question is one of construction alone, all parties stand upon an equal footing, and each can judge for himself. If a mistake occurs, it is one of law and not of fact. Here it is one of fact. The bonds on which this suit is brought are prima facie valid; and, as between these parties, I think the law will not admit the testimony offered to show that they are void. In the absence of proof they stand. The question is one of evidence. It is not whether the law was passed, but whether testimony can be introduced to show that it was not. I think it cannot. To admit it would ignore a principle of commercial honor upon which we have made a long line of decisions. I am not prepared to do so. If the courts of Illinois had been willing to take judicial notice of the legislative journals in determining what the law of the State is, there might be some propriety in requiring the people to do so. But when the courts make the question of overcoming a prima facie law one of fact, I think the people may do the same thing, and bring to their protection the same principles of estoppel which govern them in other cases. For these reasons I dissent from the opinion which has just been read.

NOTE.-At a subsequent day of the term, counsel for the plaintiffs in error moved the court for further instructions in these cases to the court below. MR. JUSTICE BRADLEY, on behalf of the court, said: 'We do not think any further directions necessary in these cases. We hold that the estoppel set up by the plaintiff below should not be allowed, but that the defendant should be permitted to show the invalidity of the act relied on by the plaintiff. We recognize the construction of the Constitution of Illinois adopted by the State court, to the effect that a law is void if not passed by the requisite majority, and so entered on the journal. We also hold the existence of a law to be a judicial question, to be decided by the court, though framed in form as an issue of fact. It follows that the court below, on retrying the case, must itself be satisfied whether the law in question was or was not constitutionally passed, and the vote entered on the journals, and instruct the jury accordingly. The evidence, or means of ascertaining this fact, must be such as is legally applicable to such a case according to the laws of Illinois. But, strictly speaking, the issue is more properly referable to the court than to a jury. That it may be so framed the judgment will be amended, directing the court below to award in each case a venire de novo, or to allow the parties to amend their pleadings, as they shall be advised, in order to refer the trial of the issue to the court instead of the jury.'


text: Talk:Oliver v. Rumford Chemical Works/Opinion of the Court


text:
Porter v. Lazear

D. T. Watson, for plaintiff in error.

No counsel for defendant in error.

 * GRAY, J.

title: Porter v. Lazear


text: Talk:Porter v. Lazear

title: Talk:Porter v. Lazear


text:
Porter v. Lazear/Opinion of the Court

This is an action by the assignee in bankruptcy of S. B. W. Gill to recover the purchase money of land of the bankrupt sold by the plaintiff to the defendant.

In the case stated by the parties the following facts were agreed: On the twenty-eighth of November, 1877, Gill, upon petition of his creditors. was adjudged a bankrupt by the district court of the United States for the western district of Pennsylvania, and the plaintiff was afterwards appointed assignee of his estate, which included two lots of land in Pittsburgh. On the twenty-seventh of May, 1878, the assignee, pursuant to an order of the district court, and for the purpose of raising money to pay the bankrupt's debts, sold these lots by public auction to the defendant for the sum of $465, subject to the lien of a certain mortgage for $2,550; but the order of the court directed, and the advertisement thereof stated, that all other liens and incumbrances should be discharged by the sale. At the time of the commencement of the proceedings in bankruptcy the bankrupt had a wife, who is still living, and who claims a right of dower in the land. The sale having been confirmed absolutely by the district court, the assignee thereupon executed and tendered a deed of the land to the defendant, and demanded payment of the purchase money, which was refused, by reason of the incumbrance of the right of dower. It was agreed that if the court should be of opinion that the right of dower of the bankrupt's wife was divested by the bankruptcy proceedings and sale, judgment should be entered for the plaintiff for the sum of $465, with interest and costs; otherwise, judgment for the defendant. Upon the case stated the supreme court of Pennsylvania gave judgment for the defendant, and the plaintiff sued out this writ of error.

The single question is whether a wife's right of dower is barred by an assignment in bankruptcy and a sale by the assignee in bankruptcy under order of the court. By the law of England, which is our law in this respect, except so far as if has been changed by statute, the wife's right of dower is no part of the estate of the husband, and is not affected by proceedings in in bankruptcy against him. Squire v. Compton, Vin. Abr. 'Dower, G.' pl. 60; Smith v. Smith, 5 Ves. 189. If it is barred in this case, it must be either by force of the provisions of the recent bankrupt act, or by reason of the nature of the right of dower under the local law of Pennsylvania. But, under the provisions of the bankrupt act, all that passes to the assignee by the assignment in bankruptcy, or that can be sold by direction of the court, is property or rights of the bankrupt, or property conveyed by the bankrupt in fraud of creditors, unless, indeed, a person holding a mortgage or pledge of, or lien upon, property of the bankrupt elects to release the same. Rev. St. §§ 5044-5046, 5061-5066, 5075; St. June 22, 1874, c. 390, § 4; Donaldson v. Farwell, 93 U.S. 631.

The law of Pennsylvania as to the liability of the right of dower to be taken for the debts of the husband is certainly, in some respects, peculiar.

An act passed in 1705, 'for taking lands in execution for payment of debts,' provided that all lands of a cebtor, having no sufficient personal estate, should be liable to be seized and sold upon judgment and execution obtained against him; and that, in case of default in payment of any debt secured by mortgage of real estate, the mortgagee might, by writ of scire facias, obtain execution to be levied by sale of the mortgaged premises. 1 Dall. Laws Pa. 67-71. Another act passed in the same year, 'for the better settling of intestates' estates,' while recognizing a right of dower in the widow, 'which dower she shall hold as tenants in dower do in England,' authorized the administrator, in case of insufficiency of the personal estate, to sell and convey the lands of the deceased, including the rights of the widow therein, for the payment of his debts. Id. Appendix, 43-45.

It was established by judicial decisions in Pennsylvania, upon the construction and effect of these statutes, before the beginning of the publication of reports, that the wife's right of dower could be taken and sold on execution upon a judgment recovered against the husband, or upon scire facias on a mortgage executed for valuable consideration by him alone, or under a devise by him for the payment of his debts. Howell v. Laycock, cited in 2 Dall. 128, and 4 Dall. 301, note; Graff v. Smith's Adm'rs, 1 Dall. 481, 484; Scott v. Crosdale, 2 Dall. 127; S.C.. 1 Yeates, 75; Mitchell v. Mitchell, 8 Pa. St. 126; Blair County Directors v. Royer, 43 Pa. St. 146.

The grounds of those decisions have been explained by two of the most eminent judges of Pennsylvania.

In Kirk v. Dean, 2 Binn. 341, 347, Chief Justice TIGHMAN said:

'It may be proper to take notice of deeds of mortgage of the     husband's property. It is understood that by such deeds the     wife may be barred of dower, though she was no party to the      conveyance. But this depends on another principle, in which     the law of Pennsylvania differs from the common law. The     right of creditors prevails against the right of dower. A     purchaser under an execution against the husband takes the      land discharged of dower; and the only mode of proceeding on      a mortgage, with us, is to sell the land by an execution. We     have no court in which the equity of redemption can be      foreclosed.'

In Helfrich v. Obermyer, 15 Pa. St. 113, 115, Chief Justice GIBSON said:

'Land is a chattel for payment of debts only when the law has     made it a fund for that purpose. It then has undergone a     species of conversion, so far as may be necessary to the      purpose of satisfaction, which extinguishes every derivative      interest in it which cannot consist with the qualities it has      been made to assume. Thus, a judgment, or a mortgage, binds     it and converts it; and it is seized as personal property on      a fieri facias, which commands the sheriff to levy the debt off the defendant's      goods and chattels. We readily, comprehend how a sale on a     judgment, a mortgage, or an order of the orphans' court,      passes the land freed from dower; but the reason is not so      obvious why a sale under a testamentary power, created in      good faith, for the benefit of creditors, should do so. It is     because the law makes a decedent's land a fund for payment of      his debts by giving the creditors a lien on it, which might      be enforced by judicial process, and would extinguish the      widow's dower in it. It would come to the same thing in the     end, and she is consequently not injured by a process      substituted by the husband to produce exactly the same      result.'

It thus appears that the right of dower in Pennsylvania does not differ in nature of extent from the right of dower at common law, except so far as the local law has made it a chattel for the payment of debts of the husband, either by converting it into personalty, in his life-time, by virtue of the effect attributed by that law to a judgment recovered against him or a mortgage executed by him, either of which could only be enforced in that state by a levy of execution in common form; or by giving his creditors, after his death, a lien upon the whole title in the land.

The state court has accordingly constantly held that, with these exceptions, the right of dower is as much favored in Pennsylvania as elsewhere; that the old decisions are not to be extended, and that neither an absolute conveyance by the husband, nor an assignment by him for the benefit of creditors, whether executed voluntarily or under a requirement of the insolvent law of the state, impairs the wife's right of dower. Kennedy v. Nedrow, 1 Dall. 415, 417; Graff v. Smith and Kirk v. Dean, above cited; Killinger v. Reidenhauer, 6 Serg. & R. 531; Riddlesberger v. Mentzer, 7 Watts, 141; Keller v. Michael, 2 Yeates, 300; Eberle v. Fisher, 13 Pa. St. 526; Helfrich v. Obermyer, above cited; Worcester v. Clark, 2 Grant, 84.

In Worcester v. Clark, just cited, it was held that the sale of a bankrupt's real estate by his assignee under the bankrupt act of August 19, 1841, c. 9, did not divest the widow's right of dower. It is true that the decision was put upon the ground that the right of dower was saved by the proviso, inserted in the second section of that act, that 'nothing in this act contained shall be construed to annul, destroy, or impair any lawful rights of married women which may be vested by the laws of the states respectively, and which are not inconsistent with the provisions of the second and fifth sections of this act;'and that the judge delivering the opinion said that, were it not for that proviso, he should have no difficulty in holding that a sale in pursuance of a decree in bankruptcy would, like a sheriff's sale by virtue of either a judgment or a mortgage, bar dower. But the decision is significant as evidence that by the law of Pennsylvania a right of dower is 'a lawful right, valid by the law of the state,' and as treating the question whether it was divested by proceedings in bankruptcy as depending upon a true construction of the bankrupt act. Upon this question of construction we are not bound by the opinion of the state court, and have no hesitation in disapproving the dictum, and in holding that the proviso relied on was not in the nature of an exception to or restriction upon the operative words of the act, but was a mere declaration, inserted for greater caution, of the construction which the act must have received without any such proviso, and that the omission of the proviso in the recent bankrupt act does not enlarge the effect of the assignment or of the sale in bankruptcy, so as to include lawful rights which belong not to the bankrupt but to his wife.

The result is that, so far as this case depends upon the construction of the bankrupt act of the United States, this court is of opinion that there is nothing in that act, or in the proceedings under it, to bar the wife's right of dower in lands of which her husband was seized during the coverture; and that, so far as it depends upon the law of Pennsylvania, the decision of the supreme court of that state in this case, reported in 87 Pa. St. 513, is in accord with all the previous adjudications of that court, and is strong, if not conclusive, evdence against the plaintiff in error.

It may be added that this decision is in conformity with one made 12 years ago by Judge CADWALADER in the district court of the United States for the eastern district of Pennsylvania. In re Angier, 10 Amer. Law Reg. (N. S.) 190; S.C.. 4 N. B. R. 619.

Judgment affirmed.

title: Porter v. Lazear/Opinion of the Court


text: Talk:Porter v. Lazear/Opinion of the Court


text:
Laver v. Dennett

John F. Swift, for appellant.

R. E. Houghton and Frank W. Hackett, for appellees.

MATTHEWS, J.

title: Laver v. Dennett


text: Talk:Laver v. Dennett

title: Talk:Laver v. Dennett


text:
Laver v. Dennett/Opinion of the Court

This appeal is from a decree dismissing the complainant's bill, and the record discloses the following as the facts material to the determination of the controversy:

The appellees, in 1870, being British subjects, were owners     of letters patent of the United States bearing date January      4, 1870, granted to one Dennett, for the term of 17 years      from August 13, 1863, for an improvement in the construction      of concrete arches for building. On November 2, 1870, they     entered into a written contract with the appellant, an      architect, then residing in Albany, New York, but at the time      of filing this bill a citizen of California. By this contract     the appellees granted to the appellant, his executors,      administrators, and assigns, during the residue of the      unexpired term of the letters patent, 'full and free liberty, license, and authority to      make, use, and sell, or vend to others to be sold,' the said      invention within the divisions of the United States, as      thereinafter specified, or one or more of them, in the manner      and according to the provisions and agreements thereinafter      contained, and upon the payment of the sums of money as      therein provided, and not otherwise. For the purposes of the     license the territory of the United States was divided into      four districts, named, A, B, C, and D, respectively, and a      royalty of 10 shillings sterling per square of 100 square      feet was to be paid for all work actually done under the      patent, and which, from certain specified dates, it was      agreed should amount to an annual minimum sum of  500, and      not to be payable in excess of an annual maximum sum of      1,000 in each of such divisions. It was also stipulated that     the appellant might surrender the license at any time upon      giving six months' notice, and that the appellees might      revoke it upon any default of the appellant after 30 days'      notice. It appears that this contract was entered into after     many conversations between the parties, and after a draft      agreement had been prepared, and submitted to the appellant      for examination. Upon his suggestion it was amended and     finally executed.

Various unsuccessful efforts appear to have been made by the     appellant while at Albany, and after his removal to San      Francisco, and also by one Fuller, who acted as his agent at      Albany, to introduce the patent; and some correspondence took      place between the parties in regard to its progress and      prospects. This correspondence, as well as the negotiations     which led to the execution of the contract, was conducted on      the part of the appellees by Frederick Ingle; and it was to      him that the following letter was addressed by the appellant:

'SAN FRANCISCO, April 26, 1873.

'Frederick Ingle, Esq., 5 Whitehall, London, England:

'DEAR SIR: It now turns out, just as Mr. Fuller and myself     are about to close negotiations for the sale of your      patent-right, that I have no power to sell. Will you,     therefore, send me the proper papers from your firm, stating      that you will not grant licenses to any one else in the      United States? I inclose you an eminent legal opinion     thereon. Mr. Fuller had arranged for the sale of     Massachusetts, which includes Boston; but we wait for your      proper authority, which must be exclusive, or no value can be      attached to the license I hold. Of course I am aware of the     understanding which I have stated your firm would not go back      on, but then the parties purchasing hold that it is not      exclusive. In like manner I am unable to close with parties     here for section D. I have had so much trouble with this      matter, and now that it appeared to be in a good way to be      productive of profit, this annoyance arose. You can, however,     remedy it in the way prescribed.

'Yours, very truly,

AUGUSTUS LAVER.

'P. S. Send the papers to Mr. Fuller, at Albany, and then he     will send me duplicates.

A. L.'

This letter seems to have been received by Ingle, and in     reply he sent by cable the following:

'MAY 6, 1873.

'Fuller, Architect, Albany, New York:

'Dennett will alter agreement, giving Laver exclusive right.

'ROBERT DENNETT & CO.'

Fuller had evidently written a letter to Ingle, to the same     effect, about the same time, for, although it is not      contained contained in the record, Ingle's reply to it,      written the day he sent the cable message, was produced and      read in evidence. In this letter, dated May 5, 1873, he says,     referring to the objection to the terms of the license, that      'there is no objection on our part to alter it in any way to      suit the requirements of the case.' He adds: 'You will bear      in mind that this lease was granted to Mr. Laver to pay as an      annual royalty. If it had been proposed then to purchase out     and out, I dare say the terms to the exclusive right would      have been more precise; at any rate, our intention was for      Mr. Laver to have the exclusive right, (in all our      negotiations,) and when the document was signed we looked upon it as so      settled, unless he elected to throw it up before certain      dates for the respective sections as specified in the      agreement. He had the document to examine before signing it,     and could have made the objection then. At any rate you will,     I think, give us credit for having faithfully carried out      both the letter and spirit of the agreement. We have had many     applications from parties for permission to work the patent      in the United States since October, 1870, the date of our      agreement, but have had to reply in each case that our      arrangements as to licensing were made. * *  * I shall write      to our solicitor, Mr. Van Santvoord & Hauff, of Times      Building, Park Row, New York, and instruct him to get      whatever you require with regard to the specification. I     don't know in what respect it is incomplete. The agreement     can be altered to give any parties who propose to purchase      the most absolute rights, on payment of the purchase money of      section B.' He then proceeds, in answer he says to a request      to that effect, to give the prices for each division, upon an      out and out purchase of a gross sum; and referring to Laver's      statement that Fuller was on the point of completing the      negotiations for division B, he says: 'To faciliate      completion of the matter, had you not better write to or see      Mr. Van Santvoord, whom we will instruct to give you as much      assistance as he can. We could not, of course, undertake any     litigation in respect of infringements, after we had disposed      of our rights for a fixed sum.' He says, further: 'Our wishes      have always been to give him exclusive rights, and I thought      that the agreement expressed as much before you raised the      question. At any rate we are willing to alter it to faciliate     your negotiations. The question is, how is it to be done? One     plan is for us to send power of attorney out to Mr. Van      Santvoord, and tell him to alter the agreement and sign for      us. Another, and I think a preferable plan, is to write to     him to prepare two fresh copies of agreement, distinctly      giving Laver exclusive rights, and referring to the old      agreement, which will be thereby canceled. He will them let     you see the alterations. One copy must be sent to Laver for signature, and another to us,     and on the return you and Van Santvoord can exchange them. You must clearly understand, however, that we shall not     consent to any other alterations, or to introduce any fresh      clauses.'

On May 9, 1873, Ingle wrote to the appellant as follows:

'DEAR SIR: Yours of twenty-ninth Mrach came duly to hand,     with inclosures, and I delayed answering it for a week or      two, as I was expecting to hear from Mr. Fuller. I have now     heard from him, and you no doubt know to what effect. He     complains of the agreement not giving you exclusive rights. I     think it expressed enough for the purpose contemplated at the      time, and you were satisfied with it. At any rate, we     intended to give you exclusive rights, and have in all good      faith acted up to that intention, inasmuch as we have refused      many offers of agency since October, 1870, the date of our      agreement with you. I suppose Mr. Fuller will send you the     letter I wrote him in reply; at any rate I will write him by      this post a line requesting him to do so; then you will see      exactly what I propose to do. I may say that I have also by     this post instructed Mr. Van Santvoord, our solicitor in New      York, to prepare full agreements, giving you exclusive      rights, and send them to each of us to be resigned and      exchanged; when this is done they will supersede the others,      and I hope will be sufficient for Mr. Fuller's purpose.

'Speaking generally, our view with regard to this matter is     this, (I mean Dennett's and my own,) that we gave you a      liberal margin of time to make preliminary arrangements, and      asked for only a moderate royalty on each section. You had     the option of holding or abandoning up to certain dates. If     you had decided to surrender, we should have been losers of      two years of valuable time, and should have had all our work      to begin over again. As you elected to keep the patent-right,     you could hardly expect us to forego the just claims for      which we stipulated, after such very liberal reservations in      your favor. We do not suppose for a moment that you expect     this. We do not wish to press you hardly in the matter, but     it is really time now that some tangible return was made to      us; of course, if the section B is sold at once, and the      money paid over, as we hope it will be, we forego any claim      for royalties already due on that section.'

wrote to their solicitors in New York, giving  instructions in reference to drawing up a fresh   agreement, giving the appellant the exclusive rights   which he required; but that neither the appellant nor   Fuller, his agent, communicated with the solicitors on   the subject. It was not until November 3, 1873, that  appellant wrote to Ingle refusing to sign any new   agreement, and claiming that the defect in the original   agreement had resulted in the loss of the sale of the   patent in Massachusetts for the price of $30,000, and   intimating that, in con sequence thereof, the appellant   was entitled to trest the whole matter as at an end. On  October 12, 1874, the appellees, having in the mean   time, by further correspondence, insisted upon their   rights under the contract, and demanded payment of the   royalties which had accrued, brought an action in the   circuit court of the United States for the district of   California, against the appellant, to recover the amount   due on account thereof. And on September 3, 1875, the  appellant filed this bill in equity in the same court,   in which it was claimed that, by reason of the mistake   in omitting from the contract a grant of the exclusive   right to the appellant to use and sell the said   invention under the said patent, the said indenture was   not the agreement of the appellant, and that in   November, 1873, because of said defect, he had   surrendered said invention and indenture, and all his   rights thereto and thereunder, to the appellees. The  bill prayed that the indenture be ordered to be   canceled, as executed by mistake, and that the appellees   be perpetually restrained and enjoined from the   prosecution of the action at law upon it.

The chief, if not the only, instance in which it is alleged the defect in the license actually operated to the injury of the appellant, is the loss of the sale of the patent for the New England states; and as to that the proof wholly fails. The only witness examined on the subject is the appellant himself, who knew nothing of it, except as he learned it from Fuller, his agent; and his evidence, being hearsay, cannot be regarded. The parties with whom the negotiations took place, and who, it is said, refused to proceed after discovering the defect in the license, are not examined nor even named. Fuller, the agent of the appellant, who personally conducted the negotiation, is not examined as a witness at all; and in his letter to Ingle of June 23, 1873, gives an entirely different account of the reasons for the loss of the sale. He there says:

'Your decision not to protect the patent renders it     valueless, even if it could not be infringed. The duration of     the patent is so short no parties would dream of paying large      sums for it. Acting as Mr. Laver's attorney, I did the best I     could to dispose of it for New England states. That is now     abandoned unless the patent can be extended.'

There is no proof of fraud or misrepresentation on the part of the appellees, and all charges to that effect in the bill are substantially withdrawn by the appellant in his testimony.

It is claimed, however, on the part of the appellant, that he has a strict right in equity to the relief prayed for in his bill, on the ground that no contract was ever in fact entered into, the minds of the parties never having met upon the same terms. But there is no foundation for such a contention. The minds of the parties did meet. There was in fact an actual agreement, the terms of which were perfectly well understood by both parties. They acted upon that understanding from the time the instrument was executed; and when the appellant first discovered that it did not have the legal effect intended, and gave notice to appellees accordingly, there was no controversy between them on the subject. The common intention was at once admitted and the necessary correction promptly offered. There was, no doubt, a mistake, but it was in the instrument which undertook to express the agreement, and not in the agreement itself. It did not relate to any matter of fact which was the basis of the contract, an error in regard to which would be fundamental, and therefore fatal, but affected only the document which professed to express, but did so incorrectly, the actual intention of both parties. It is equally wide of the mark to say, as it was argued, that the contract has failed by reason of the failure of the consideration. The appellant cannot say that he did not acquire something by reason of the license, although his right was not, as it was intended to be, exclusive. But, so far as appears in the case, he had the same benefits and advantages he would have enjoyed if the instrument had contained the exclusive grant it was supposed to secure; for the parties on both sides acted upon that construction, and, as we have already shown, no actual loss is proven to have arisen to the appellant by virtue of the defective assurance.

That the instrument imperfectly expressed the agreement of the parties was not the exclusive fault of the appellees. It was the duty of the appellant to have discovered the error before executing the contract. He did not, in fact, find it out until after two years from its date; and then, applying for its correction, failed to avail himself of the offer of the appellees, promptly made, in response to his demand to execute a corrected agreement.

The only equity which the appellant could claim was to have the mutual mistaken in the language of the instrument corrected, until some default had occurred on the part of the appellees. But they were in no default. They offered to make the correction as soon as they had notice of the mistake; but the appellant declined to accept it. After the further lapse of more than six months, he insisted on his right to put an end to the agreement itself. This he was in no position to do. His delay to assert such a claim, if his right had been otherwise better founded, constituted such laches as would, at least, greatly weaken his title to relief, if it did not amount to a bar; and coupled with the loss to the appellees of the value of their own rights under the patent, which cannot be restored, would make it inequitable, as against them, to absolve the appellant from the legal obligation of his contract.

We see no ground in the facts of the case for the application of the principles and authorities invoked by the appellant as a warrant to grant him the relief for which his bill prays. The decree is accordingly affirmed.

title: Laver v. Dennett/Opinion of the Court


text: Talk:Laver v. Dennett/Opinion of the Court


text:
King v. Gallun

This was a bill in equity brought by Wendell R. King, the appellant, against August Gallun and Albert Trostel, to restrain them from infringing letters patent No. 152,500, dated June 30, 1874, granted to the appellant for certain improvements in baled plastering hair.

The invention and its advantages are thus set forth in the specification:

'It is found that the wants of the trade in plastering hair require it to be compressed for transportation in packages of from three to five bushels; this amount of hair forms a package of a good size to conveniently handle, weighing from twenty to forty pounds. The trade unit for the article of plastering hair is always the bushel; it is sold by the bushel or by the multiple thereof.

'Heretofore this hair has been packed in a mass of a certain number of bushels baled together, varying in amount as the order required, so that when received the retail dealer was compelled to parcel out the same and weigh it to suit his customers. This is a disagreeable and difficult thing to do, as the hair is dirty and matted together, and after it is once removed from the case into which it has been compressed by a baling press, is bulky and not easy to reduce again to a convenient package. For this convenience of the trade I propose to form the hair in small bundles of one bushel each, and unite several bundles into a bale of a convenient size for transportation.

'I first place a bushel of hair into a paper sack loosely, or only so far packed as may be readily done by hand; several of these one-bushel packages are then placed side by side in a baling press. I use for this purpose the baling press heretofore patented to me; they are thus compressed forcibly together, so that the bale produced will be a compact, firm bale, occupying only about one-fifth of the original bulk; the paper bags which still envelop the individual bushels of the bale keep said bushels separate, and serve at the same time to protect the hair.

'The bale, after being compressed, is tied in the usual way, and is then in shape for transporation without further covering, although it may be desirable, if the bale is to be sent a long distance, to envelop it in a stout sacking Hair baled thus may be separated by the retail dealer into bushel packages, each of which remains compressed into a small size, and is in convenient condition to handle.'

The claim was as follows:

'Having thus described my invention, I claim as an article of manufacture the bale B, of plasterers' hair, consisting of several bundles, A, containing a bushel each by weight, inclosed or incased in paper bags or similar material, and united, compressed, and secured to form a package, substantially as specified.'

The defense was want of novelty in the alleged invention, and that the same was not patentable.

The circuit court dismissed the bill, and from its decree the complainant has appealed.

L. L. Coburn, for appellant.

Joshua Stark, for appellees.

WOODS, J.

title: King v. Gallun


text: Talk:King v. Gallun

title: Talk:King v. Gallun


text:
Author:Alexander Tilloch Galt

Works

 * Canada: 1849 to 1859 (1860)
 * Report of the Minister of Finance on the Reciprocity treaty with the United States (1862)
 * The Memorial of the Chamber of commerce of St. Paul, Minnesota, and report of Congress, U.S. (1862)
 * Civil Liberty in Lower Canada (1876)
 * Church and State (1876)
 * The Canadian Tariff (1879)
 * The Future of the Dominion of Canada (1881)

Speeches

 * On Introducing the Budget of 1862 (1862)
 * Speech in the Chamber of Commerce, Manchester (1862)
 * On the Proposed Union of the British North American Provinces (1864)
 * On bringing down the Financial Statement (1864)
 * On Supply in Committee of the Whole (1865)
 * On Introducing the Budget of 1866 (1866)
 * On the Failure of the Commercial Bank (1867)
 * On Prohibition (1867)
 * The Relations of the Colonies to the Empire: Present and Future (1883)

Letters

 * The Saint Lawrence and Atlantic Railroad (1847)
 * Letter to Senator James Ferrier on the Political Situation (1875)

Works about Galt

 * , (1920), by Oscar Douglas Skelton
 * , (1920), by Oscar Douglas Skelton

title: Author:Alexander Tilloch Galt


text:
King v. Gallun/Opinion of the Court

We are of opinion that the patent of complainant does not describe a patentable invention. The claim is for an article of manufacture, to-wit, a bale of plasterers' hair consisting of several bundles inclosed in bags, and compressed and secured to form a package. It is evident that the patent does not cover any improvement in the quality of the hair. Its qualities are unchanged. It does not cover the packing of the hair into parcels, or the size, shape, or weight of the parcels, nor the compression of the parcels separately. Nor does it cover the material of the bags which constitute the outer covering of the parcels. Complainant claims none of these things as secured by his patent. The packing of hair and other articles in parcels of the same shape, size, and weight, and the compression of the several parcels, has from time immemorial been in common use. Neither does complainant contend that his patent covers a single parcel or package of hair. All, therefore, that the patent can cover is simply an article of manufacture resulting from the compression and tying together in one bale of several similar parcels or packages of plasterers' hair. The object of this invention is thus set out in the specification: 'For the convenience of the trade'-that is to say, to enable the retail dealer more easily to parcel out the hair in quantities to suit his customers,-'I propose to form the hair in small bundles of one bushel each, and with several bundles into a bale of convenient size for transportation.' The invention and the object to be accomplished by it are thus seen to be contained within narrow limits.

In deciding whether the patent covers an article, the making of which requires invention, we are not required to shut our eyes to matters of common knowledge, or things in common use. Brown v. Piper, 91 U.S. 43; Terhune v. Phillips, 99 U.S. 592; Ah Kow v. Nunan, 5 Sawy. 552.

The subdivision and packing of articles of commerce into small parcels for convenience of handling and retail sale, and the packing of these small parcels into boxes or sacks, or tying them together in bundles for convenience of storage and transportation, is as common and well known as any fact connected with trade. This well-known practice is applied, for instance, to fine-cut chewing and fine-cut smoking tobacco, to ground coffee and spices, oatmeal, starch, farina, desiccated vegetables, and a great number of other articles. This practice having been common and long known, it follows that there is nothing left for the patent of complainant to cover but the compression of the bale formed of several smaller parcels. Can this be dignified by the name of invention? When the contents of the smaller parcels are such as to admit of compression into a smaller compass, the idea of compressing the bale of the smaller parcels for transportation and storage would occur to any mind. There is as little invention in compressing a bale of several parcels of hair tied up together, as in compressing one large parcel of the same commodity. But it is perfectly well known that the compression of several packages of the same thing into larger packages or bundles is not new, and that it has long been commonly practiced. Packages of wool, feathers, and plug tobacco have been so treated. The case of plug tobacco is a familiar instance. The plugs are formed so as to retain their identity and shape, the outer leaves of the plug forming at the same time a part of the plug as well as its covering. The plugs, after being so put up as to preserve their identity under pressure, are, as is well known, placed in a frame and subjected to pressure, and reduced to a smaller and compact mass, which is then boxed up and is ready for market. This is done in part for convenience in handling, transportation, and storage. When the box is opened by the retail dealer, the plugs can be taken out separately and sold. This method of treating plug tobacco would suggest to every one the compression into a bale of distinct packages of plasterers' hair, and leaves no field for invention in respect to the matter to which the patent of complainant relates.

In view of the facts to which we have referred, which are of common observation and knowledge, we are of opinion that the article of manufacture described in the specification and claim of the complainant's patent does not embody invention, and that the patent is for that reason void.

In support and illustration of our views, we refer to the following cases decided by this court: Hotchkiss v. Greenwood, 11 How. 248; Phillips v. Page, 24 How. 167; Brown v. Piper, 91 U.S. 37; Terhune v. Phillips, 99 U.S. 592; Atlantic Works v. Brady, 107 U.S. --; [S.C.. 2 SUP. CT. REP. 225;] Slawson v. Grand Street, etc., R. Co. 107 U.S. --; [S.C.. 2 SUP. CT. REP. 663.]

The patent of complainant cannot be sustained by the authority of the case of Smith v. Goodyear Dental Vulcanite Co. 93 U.S. 486, where the court said: 'The invention is a product or manufacture made in a defined manner. It is not a product alone, separate from the process by which it is created.' In that case the invention was the product of a new process applied to old materials. In this case it is the product of an old process applied to old materials.

Judgment affirmed.

title: King v. Gallun/Opinion of the Court


text: Talk:King v. Gallun/Opinion of the Court


text:
Hewitt v. Campbell

L. S. Henkle, for appellant.

W. E. Edmonston, for appellee.

HARLAN, J.

title: Hewitt v. Campbell


text: Talk:Hewitt v. Campbell

title: Talk:Hewitt v. Campbell


text:
Hewitt v. Campbell/Opinion of the Court

Counsel for appellant states the theory of the bill to be that Campbell was not the bona fide purchaser of the lots described, or of either of them, although he holds them by conveyances absolute upon their face; that he was only the broker of Burgess; and that the conveyances were made to him in that capacity, for the purpose of enabling him to raise money upon them for the use of Burgess, less reasonable charges for any services in that behalf rendered. The bill was dismissed by the court below in special term, and that order was affirmed in general term.

The record discloses a serious conflict in the testimony of witnesses, and the court below might well have dismissed the bill upon the sole ground that the complainant had failed to establish the facts upon which he based his claim for relief, and which must have been established lished before any relief could be granted. The decree must, therefore, be affirmed. It is so ordered.

title: Hewitt v. Campbell/Opinion of the Court


text: Talk:Hewitt v. Campbell/Opinion of the Court


text:
County of Green v. Conners

Henry C. Young, for plaintiff in error.

''Jas. S. Botsford and R. G. Ingersoll'', for defendant in error.

BRADLEY, J.

title: County of Green v. Conners


text: Talk:County of Green v. Conners

title: Talk:County of Green v. Conners


text:
County of Green v. Conners/Opinion of the Court

Nearly every point in this case has already been decided by this court in the cases of County of Callaway v. Foster, 93 U.S. 567; County of Scotland v. Thomas, 94 U.S. 682; County of Henry v. Nicolay, 95 U.S. 619; County of Schuyler v. Thomas, 98 U.S. 169; County of Cass v. Gillett, 100 U.S. 585; City of Louisiana v. Taylor, 105 U.S. 454; and County of Ralls v. Douglass, 105 U.S. 728. In the case last cited we referred to the previous cases, and to the cases in Missouri which they followed, and said:

'Such being the condition of the law on this subject down to     April, 1878, we do not feel inclined to reconsider our former      rulings, and follow the later decisions of the supreme court      of the state in State v. Garroutte, 67 Mo. 445, and State v.     Dallas Co. Ct. 72 Mo. 329, where this whole line of cases     was substantially overruled. The bonds involved in this suit     were all in the hands of innocent holders when the law of the      state was so materially altered by its courts. In our opinion     the rights of the parties to this suit are to be determined      by the law as it was judicially construed to be when the      bonds in question were put on the market as commercial paper. Douglass v. Pike Co. 101 U.S. 687.'

From the views thus expressed we are not disposed to swerve.

One point taken in the present case may not have been presented in any of the cases cited, to-wit, that the rights, privileges, and franchises of the Kansas City & Cameron Railroad Company were not expressly declared to pass over to the company with which it might become consolidated by the law authorizing such consolidation. This law was passed March 11, 1867, and declared as follows:

'It shall be lawful and competent for said company to make     such arrangement with any other railroad company to furnish      equipments, and to run and manage its railroad, as it may      deem expedient and find necessary, or to lease the same, or      to consolidate it with any other company upon such terms as      may be deemed just and proper.'

In the 'finding of facts' made by the court it is, among other things, found as follows:

'That under the provisions of an act of the general assemby     of the state of Missouri, approved May 11, 1867, entitled,      etc., the said corporation, then known as the Kansas City &      Cameron Railroad Company, on the twenty-first day of      February, in the year 1870, was consolidated with the      Hannibal & St. Joseph Railroad Company, and all the rights, privileges, franchises,      and property of said Kansas City & Cameron Railroad Company      were, by said consolidation, transferred to the Hannibal &      St. Joseph Railroad Company, which then and thereby became      the owner of and possessed of the same.'

If only a sale of the road to another company had been authorized and made, then it might very plausibly have been contended that the purchasing company took and held it under its own charter only, without the franchises and privileges connected with it in the hands of the vendor company; but 'consolidation' is not sale, and when two companies are authorized to consolidated their roads, it is to be presumed that the franchises and privileges of each continue to exist in respect to the several roads so consolidated. This point was considered in the case of Tomlinson v. Branch, 15 Wall. 460, and Branch v. City of Charleston, 92 U.S. 677, and was decided in accordance with this view. This being so, the authority given to consolidate, 'upon such terms as may be deemed just and proper,' would include the power to transfer to the consolidated company the franchises and privileges connected with the road, if the law itself did not have that effect; and the court has found that this was done. We think, therefore, that the point is not well taken.

The judgment of the circuit court is affirmed.


text: Talk:County of Green v. Conners/Opinion of the Court


text:
Haskins v. St. Louis S. E. Railway

F. E. Williams, for appellant.

No counsel for appellee.

WAITE, C. J.

title: Haskins v. St. Louis S. E. Railway


text: Talk:Haskins v. St. Louis S. E. Railway

title: Talk:Haskins v. St. Louis S. E. Railway


text:
Haskins v. St. Louis S. E. Railway/Opinion of the Court

We have no jurisdiction in this case. The appellee has not appeared and has never been served with a citation. The decree was entered on the fourteenth of June, 1879, and at the foot of the entry is the following: 'Petitioner prays an appeal, which is granted upon bond and security being given, according to law, within thirty days.' A copy of what purports to be an appeal bond, filed on the third of July, 1879, is found in the transcript, but there is no evidence that it was ever approved or taken as good and sufficient security by the court, or any justice or judge thereof. A commissioner of the circuit court has certified that he knew the obligors to be good and responsible for any cost that might accrue in the cause, but that is not enough. Section 1000 of the Revised Statutes requires the justice or judge signing the citation to take the security. This power cannot be delegated to the clerk or to a commissioner. O'Reilly v. Edrington, 96 U.S. 726. If the appeal is allowed in open court the security may be taken by the court and no citation is necessary; but if the security is not given until after the term is over, a citation must be issued and served. Sage v. Railroad Co. 96 U.S. 715. Unless an appellee voluntarily appears, we cannot proceed against him if the record does not show affirmatively that he has been brought within our jurisdiction by proper notice.

The appeal is dismissed for want of jurisdiction.


text: Talk:Haskins v. St. Louis S. E. Railway/Opinion of the Court


text:
City of Opelika v. Daniel

John T. Morgan, for plaintiff in error.

S. F. Rice, for defendant in error.

WAITE, C. J.

title: City of Opelika v. Daniel


text: Talk:City of Opelika v. Daniel

title: Talk:City of Opelika v. Daniel