text:
Ames v. State of Kansas Johnston Kansas Pacific Railway Company/Opinion of the Court

The right of removal under section 640 of the Revised Statutes, because the Kansas Pacific Railway Company was a corporation organized under the laws of the United States, is not insisted upon in this court, and the only questions presented for our consideration are: (1) Whether the suits are of a civil nature at law or in equity, arising under the laws of the United States; and (2) whether, if they are, they can be removed under the act of March 3, 1875,c. 137, (18 St. 470,) inasmuch as they were brought by a state to try the right of a corporation and its directors to exercise corporate powers and franchises within the territorial jurisdiction of the state.

Under the first of these questions it is claimed, in behalf the state, (1) that the suits are not of a civil nature, because they are proceedings in quo warranto; and (2) that they do not arise under the laws of the United States.

In Kansas the writ of quo warranto, and the proceeding by information in the nature of quo warranto, have been abolished, and the remedies which were obtainable at common law in those forms are had by civil action. Dass. Comp. Laws, § 4192; Code, § 652. Such an action may be brought in the supreme court when 'any person shall usurp, intrude into, or unlawfully hold or exercise any public office, or shall claim any franchise within this state, or any office in any corporation created by authority of this state,' or 'WHEN ANY ASSOCIATION OR NUMBER OF PERSOns shall act within this state as a corporation without being legally incorporated,' or when any corporation do or admit [omit] acts which amount to a surrender or a forfeiture of their rights as a corporation, or when any corporation abuses its power, or exercises powers not conferred by law. Dass. Comp. Laws, § 4193; Code, § 653. By the Code of Civil Procedure, Dass. Comp. Laws, § 3525, Code, § 4, 'An action is an ordinary proceeding in a court of justice by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.' Section 3527, Code, § 6: 'Actions are of two kinds,First, civil; second, criminal.' Section 3528, Code, § 7: 'A criminal action is one prosecuted by the state as a party, against a person charged with a public offense, for the punishment thereof.' Section 3529, Code, § 8: 'Every other action is a civil action.' Section 3531, Code, § 10: 'The distinction between actions at law and suits in equity, and the forms of all such actions and suits, heretofore existing, are abolished; and in their place there shall be, hereafter, but one form of action, which shall be known as a civil action.'

The original common-law writ of quo warranto was a civil writ, at the suit of the crown, and not a criminal prosecution. Rex v. Marsden, 3 Burr. 1817. It was in the nature of a writ of right by the king against one who usurped or claimed franchises or liberties to inquire by what right he claimed them, (Com. Dig. 'Quo Warranto,' A,) and the first process was summons. Id. C. 2. This writ, however, fell into disuse in England centuries ago, and its place was supplied by an information in the nature of a quo warranto, which, in its origin, was 'a criminal method of prosecution, as well to punish the usurper by a fine for the usurpation of the franchise as to oust him, or seize it for the crown.' 3 Bl. Comm. 263. Long before our revolution, however, it lost its character as a criminal proceeding in everything except form, and was 'applied to the mere purposes of trying the civil right, seizing the franchise, or ousting the wrongful possessor; the fine being nominal only.' 3 Bl. Comm., supra; The King v. Francis, 2 Term R. 484; Bac. Abr. tit. 'Information,' D; 2 Kyd, Corp. 439. And such, without any special legislation to that effect, has always been its character in many of the states of the Union. Com. v. Browne, 1 Serg. & R. 382; People Richardson, 4 Cow. 102, note; State v. Hardie, 1 Ired. 48; State Bank v. State, 1 Blackf. 272; State v. Lingo, 26 Mo. 498. In some of the states, however, it has been treated as criminal in form, and matters of pleading and jurisdiction governed accordingly. Such is the rule in New York, Wisconsin, New Jersey, Arkansas, and Illinois, but in all these states it is used as a civil remedy only. Atty. Gen. v. ''Utica Ins. Co.'' 2 Johns. Ch. 377; People v. Jones, 18 Wend. 601; State v. ''West Wisconsin Ry. Co. 34 Wis. 213; State v. Ashley'', 1 Ark. 279; State v. Roe, 2 Dutch. 217. This being the condition of the old law, it seems to us clear that the effect of legislation like that in Kansas, as to the mode of proceeding in quo warranto cases, is to relieve the old civil remedy of the burden of the criminal form of proceeding with which it had become incumbered, and to restore it to its original position as a civil action for the enforcement of a civil right. The right and the remedy are thus brought into harmony, and parties are not driven to the necessity of using the form of a criminal action to determine a civil right. This has been the construction put upon similar laws in other states. State v. McDaniel, 22 Ohio St. 361; Central & G. R. Co. v. Taylor, 5 Colo. 42; ''Com. Bank of Rodney v. State'', 4 Smedes & M. 490, 504. These suits are therefore of a civil nature.

That the records present cases arising under the laws of the United States we do not doubt. The attorney general was instructed by the legislature to institute proceedings against the Kansas Pacific Company 'for an abandonment, relinquishment, and surrender of its powers and duties as a corporation to the consolidated company,' and against the consolidated company 'for usurping, seizing, holding, possessing, and using the franchise and privileges, powers and immunities of the Kansas Pacific Railway Company of Kansas.' The whole purpose of the suits is to test the validity of the consolidation. The charge is of an unlawful and wrongful consolidation, and from the beginning to the end of the petition against the Kansas Pacific Company there is not an allegation of default that does not grow out of this single act. It is, indeed, alleged that the company has not, since the consolidation, made its proper reports, and has not appointed agents on whom process can be served, and has established its general offices out of the state, but no such averments are made as to the consolidated company, and it is apparent that these specifications are relied on only as incidents of the main ground of complaint. That the validity of the consolidation, so far as the state is concerned, rests alone on the authority conferred for that purpose by the acts of congress is not denied. If the acts of congress confer the authority, the consolidation is valid; if not, it is invalid. Clearly, therefore, the cases arise under these acts of congress, for, to use the language of Chief Justice MARSHALL in Osborn v. U.S. Bank, 9 Wheat. 825, an act of congress 'is the first ingredient in the case,-is its origin,-is that from which every other part arises.' The right set up by the company, and by the directors as well, will be defeated by one construction of these acts and sustained by the opposite construction. When this is so, it has never been doubted that a case is presented which arises under the laws of the United States. Cohens v. Virginia, 6 Wheat. 379; Gold Washing & Water Co. v. Keyes, 96 U.S. 201 Railroad Co. v. Mississippi, 102 U.S. 140.

We come now to the question whether a suit brought by a state in one of its own courts, against a corporation amenable to its own process, to try the right of the corporation to exercise corporate powers within the territorial limits of the state, can be removed to the circuit court of the United States, under the act of March 3, 1875, c. 137, if the suit presents a case arising under the laws of the United States. The language of the act is, 'any suit of a civil nature * *  * brought in any state court, *  *  * arising under the constitution or laws of the United States,' may be removed by either party This is broad enough to cover such a case as this, unless the language is limited in its operation by some other law, or by the constitution. The statute itself makes no exception of suits to which a state is a party. Article 3, § 1, of the constitution, provides that 'the judicial power of the United States shall be vested in one supreme court, and in such inferior courts as the congress may from time to time ordain and establish.' Section 2. 'The judicial power shall extend to all cases, in law and equity, arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers and consuls; * *  * to controversies between two or more states; between a state and citizens of another state; *  *  * and between a state, or the citizens thereof, and foreign states, citizens or subjects. * *  * In all cases affecting ambassadors, other public ministers, and consuls, and those in which a state shall be party, the supreme court shall have original jurisdiction. In all the other cases before mentioned, the supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the congress shall make.'

Within six months after the inauguration of the government under the constitution, the judiciary act of 1789, c. 20, (1 St. 73,) was passed. The bill was drawn by Mr. Ellsworth, a prominent member of the convention that framed the constitution, who took an active part in securing its adoption by the people, and who was afterwards chief justice of this court. Section 13 was as follows: 'That the supreme court shall have exclusive jurisdiction of all controversies of a civil nature, where a state is a party, except between a state and its citizens: and except also between a state and citizens of other states or aliens, in which latter case it shall have original but not exclusive jurisdiction. And shall have exclusively all such jurisdiction of suits or proceedings against ambassadors, or other public ministers, or their domestics, or domestic servants, as a court of law can have or exercise consistently with the law of nations; and original, but not exclusive, jurisdiction of all suits brought by ambassadors, or other public ministers, or in which a consul or vice-consul shall be a party.' The same act, also, by section 9, gave the district court jurisdiction exclusively of the courts of the several states of suits against consuls or vice-consuls, except for certain offenses, and by section 25 conferred upon the supreme court appellate jurisdiction for the review, under some circumstances, of the final judgments and decrees of the highest courts of the states in certain classes of suits arising under the constitution and laws of the United States.

It thus appears that the first congress, in which were many who had been leading and influential members of the convention, and who were familiar with the discussions that preceded the adoption of the constitution by the states, and with the objections urged against it, did not understand that the original jurisdiction vested in the supreme court was necessarily exclusive. That jurisdiction included all cases affecting ambassadors, other public ministers, and consuls, and those in which a state was a party. The evident purpose was to open and keep open the highest court of the nation for the de termination, in the first instance, of suits involving a state or a diplomatis or commercial representative of a foreign government. So much was due to the rank and dignity of those for whom the provision was made; but to compel a state to resort to this one tribunal for the redress of all its grievances, or to deprive an ambassador, public minister, or consul of the privilege of suing in any court he chose having jurisdiction of the parties and the subject matter of his action, would be, in many cases, to convert what was intended as a favor into a burden.

Acting on this construction of the constitution, congress took care to provide that no suit should be brought against an ambassador or other public minister except in the supreme court, but that he might sue in any court he chose that was open to him. As to consuls, the commercial representatives of foreign governments, the jurisdiction of the supreme court was made concurrent with the district courts, and suits of a civil nature could be brought against them in either tribunal. With respect to states, it was provided that the jurisdiction of the supreme court should be exclusive in all controversies of a civil nature where a state was a party, except between a state and its citizens, and except, also, between a state and citizens of other states or aliens, in which latter case its jurisdiction should be original, but not exclusive. Thus the original jurisdiction of the supreme court was made concurrent with any other court to which jurisdiction might be given in suits between a state and citizens of other states or aliens. No jurisdiction was given in such cases to any other court of the United States, and the practical effect of the enactment was therefore to give the supreme court exclusive original jurisdiction in suits against a state begun without its consent, and to allow the state to sue for itself in any tribunal that could entertain its case. In this way states, ambassadors, and public ministers were protected from the compulsory process of any court other than one suited to their high positions, but were left free to seek redress for their own grievances in any court that had the requisite jurisdiction. No limits were set on their powers of choice in this particular. This, of course, did not prevent a state from allowing itself to be sued in its own courts or elsewhere in any way or to any extent it chose.

The judiciary act was passed on the twenty-fourth of September, 1789, and at the April term, 1793, of the circuit court of the United States for the district of Pennsylvania, an indictment was found against Ravara, a consul from Genoa, for a misdemeanor in sending anonymous and threatening letters to the British minister and others with a view to extort money. Objection was made to the jurisdiction for the reason that the exclusive cognizance of the case belonged to the supreme court on account of the official character of the defendant. The court was held by WILSON and IREDELL, justices of the supreme court, and PETERS, the district judge. Mr. Justice WILSON, who had been a member of the convention that framed the constitution, was of opinion 'that although the constitution vests in the supreme court an original jurisdiction, in cases like the present, it does not preclude the legislature from exercising the power of vesting a concurrent jurisdiction in such inferior courts as might by law be established.' Mr. Justice IREDELL thought 'that, for obvious reasons of public policy, the constitution intended to vest an exclusive jurisdiction in the supreme court upon all questions relating to the public agents of foreign nations. Besides, the context of the judiciary article of the constitution seems fairly to justify the interpretation that the word 'original' means exclusive jurisdiction.' The district judge agreed in opinion with Mr. Justice WILSON, and, consequently, the jurisdiction was sustained. U.S. v. Ravara, 2 Dall. 297.

On the eighteenth of February, 1793, just before the indictment against Ravara in the circuit court, the case of Chisholm v. Georgia, 2 Dall. 419, was decided in the supreme court, holding that a state might be sued in that court by an individual citizen of another state. The judgment was concurred in by four of the five justices then composing the court, including Mr. Justice WILSON, but Mr. Justice IREDELL dissented. This decision, as is well known, led to the adoption of the eleventh article of amendment to the constitution, which provides that the judicial power of the United States shall not be construed to extend to a suit against a state by a citizen of another state, or by a citizen or subject of a foreign state. It is a fact of some significance, in this connection, that although the decision in Chisholm's Case attracted immediate attention, and caused great irritation in some of the states, that in Ravara's Case, which in effect held that the original jurisdiction of the supreme court was not necessarily exclusive, seems to have provoked no special comment. The efforts of the states before congress assembled, and of congress afterwards, were directed exclusively to obtaining such amendments in the constitution of the United States as will remove any clause or articles of the said constitution which can be construed to imply or justify a decision that a state is compellable to answer in any suit by an individual or individuals in any court of the United States.' Resolve of the legislature of Mass. Sept. 27, 1793.

In Marbury v. Madison, 1 Cranch, 137, decided in 1803, it was held that congress had no power to give the supreme court original jurisdiction in other cases than those described in the constitution, and Chief Justice MARSHALL, in delivering the opinion, used language, on page 175, which might, perhaps, imply that such original jurisdiction as had been granted by the constitution was exclusive; but this was not necessary to the determination of the cause, and the chief justice himself, fterwards, in Cohens v. Virginia, afterwards, in Cohens v. Virginia, in that opinion as dicta, in which (page 401) 'the court lays down a principle which is generally correct, in terms much broader than the decision, and not only much broader than the reasoning with which that decision is supported, but in some instances contradictory to its principle.' In concluding that branch of the case, he said, 'the general expressions in the case Marbury v. Madison must be understood with the limitations which are given to them in this opinion,-limitations which in no degree affect the decision of that case or the tenor of its reasoning.'

In Cohens v. Virginia, the question was whether the supreme court had appellate jurisdiction for the review of the final judgment of the highest court of a state in a suit between a state and one of its own citizens, arising under the laws of the United States, and the language of the opinion in that case is to be construed in connection with the general subject then under consideration. The same is true of Osborn v. U.S. Bank, 9 Wheat. 737, where the question was whether the circuit courts of the United States had jurisdiction of suits by and against the United States Bank.

In U.S. v. Ortega, 11 Wheat. 467, the question was for the first time directly presented to this court whether our original jurisdiction was necessarily exclusive, but it was not decided, because the suit was found not to be one affecting a public minister.

In Davis v. Packard, 7 Pet. 276, the court of errors of New York had decided that the character of consul did not exempt Davis, the plaintiff in error, from a suit in a state court; and, in reversing a judgment to that effect, this court said, speaking, in 1833, through Mr. Justice THOMPSON, all the other justices concurring, that, 'as an abstract question, it is difficult to understand on what ground a state court can claim jurisdiction of civil suits against foreign consuls. By the constitution, the judicial power of the United States extends to all cases affecting ambassadors, other public ministers, and consuls, etc. And the judiciary act of 1789 gives to the district courts of the United States, exclusively of the courts of the several states, jurisdiction of all suits against consuls and vice-consuls, except for certain offenses mentioned it the act.'

In Cohens v. Virginia, 6 Wheat. 397, Chief Justice MARSHALL said: 'Foreign consuls frequently assert, in our prize courts, the claims of their fellow subjects. These suits are maintained by them as consuls. The appellate power of this court has frequently been exercised in such cases, and it has never been questioned. It would be extremely mischievous to withhold its exercise. Yet the consul is the party on the record.'

Such having been the action of the courts of the United States in construing this provision of the constitution, the question of the exclusiveness of the jurisdiction in cases affecting consuls was, in 1838, directly presented to Chief Justice TANEY on the circuit in the case of Gittings v. Crawford, Taney, Dec. 1, and, after reviewing all the cases in elaborate opinion, he says, (page 9:) 'The true rule in this case is, I think, the rule which is constantly applied to ordinary acts of legislation in which the grant of jurisdiction over a certain subject-matter to one court does not, of itself, imply that that jurisdiction is to be exclusive. In the clause in question there is nothing but mere affirmative words of grant, and none that import a design to exclude the subordinate jurisdiction of other courts of the United States on the same subject-matter.' Afterwards, Mr. Justice NELSON, in the case of St. Luke's Hospital v. Barclay, 3 Blatchf. 265, in 1855, and in Graham v. Stucken, 4 Blatchf. 50, in 1857, decided the same question in the same way. In the course of his opinion in the last case, (page 52,) he uses this language, pertinent to the particular phase of the question which we are now considering: 'Again, the grant of original jurisdiction to the supreme court is the same in the cases * *  * 'in which a state shall be a party' as in the case of a consul. Those cases are controversies (1) between two or more states; (2) between a state and citizens of another state; (3) between a state and foreign states; and (4) between a state and citizens or subjects of foreign states; that is, aliens. Now, if the grant of original jurisdiction be exclusive in the supreme court in the case of a consul, it is equally exclusive in the four cases above enumerated; for the grant is in the same clause and in the same terms. And yet in the thirteenth section of the judiciary act, already referred to, it is provided that the supreme court shall have exclusive jurisdiction, etc., where a state is a party, etc., except between a state and citizens of other states, or aliens, in which latter case it shall have original but not exclusive jurisdiction. According to the argument the whole of the exception would be unconstitutional, as the cases mentioned should have been vested exclusively in the supreme court.' Following these decisions we have held at the present term, in Bors v. Preston, ante, 407, that consuls may be sued in the circuit courts of the United States in cases where the requisite citizenship exists.

In view of the practical construction put on this provision of the constitution by congress at the very moment of the organization of the government, and of the significant fact that from 1789 until now no court of the United States has ever in its actual adjudications determined to the contrary, we are unable to say that it is not within the power of congress to grant to the inferior courts of the United States jurisdiction in cases where the supreme court has been vested by the constitution with original jurisdiction. It rests with the legislative department of the government to say to what extent such grants shall be made, and it may safely be assumed that nothing will ever be done to encroach upon the high privileges of those for whose protection the constitutional provision was intended. At any rate, we are unwilling to say that the power to make the grant does not exist.

It remains to consider whether jurisdiction has been given to the circuit courts of the United States in cases of this kind. As has been seen, it was not given by the judiciary act of 1789, and it did not exist in 1873, when the case of Wisconsin v. Duluth, 2 Dill. 406, was decided by Mr. Justice MILLER on the circuit. But the act of March 3, 1875, c. 137, (18 St. 470,) 'to determine the jurisdiction of circuit courts of the United States, and to regulate the removal of causes from the state courts, and for other purposes,' does, in express terms, provide 'that the circuit courts of the United States shall have original cognizance, concurrent with the courts of the several states, of all suits of a civil nature at common law, or in equity, * *  * arising under the constitution or laws of the United States;' and also that suits of the same nature begun in a state court may be removed to the circuit courts. And here it is to be remarked that there is nothing in this which manifests an intention to interfere with the exclusive original jurisdiction of the supreme court as established by the act of 1789, and continued by section 687 of the Revised Statutes. The only question we have to consider is, therefore, whether suits cognizable in the courts of the United States on account of the nature of the controversy, and which need not be brought originally in the supreme court, may now be brought in or removed to the circuit courts without regard to the character of the parties. All admit that the act does give the requisite jurisdiction in suits where a state is not a party, so that the real question is whether the constitution exempts the states from its operation.

The same exemption was claimed in Cohens v. Virginia to show that the appellate jurisdiction of this court did not extend to the review of the judgments of a state court in a suit by a state against one of its citizens, but Chief Justice MARSHALL said, (page 391:) 'The argument would have great force if urged to prove that this court could not establish the demand of a citizen upon his state, but is not entitled to the same force, when urged to prove that this court cannot inquire whether the constitution or laws of the United States protect a citizen from a prosecution instituted against him by a state. * *  * It may be true that the partiality of the state tribunals, in ordinary controversies between a state and its citizens, was not apprehended, and therefore the judicial power of the Union was not extended to such cases; but this was not the sole nor the greatest object for which this department was created. A more important, a much more interesting, object was the preservation of the constitution and laws of the United States, so far as they can be preserved by judicial authority, and therefore the jurisdiction of the courts of the Union was expressly extended to all cases arising under the constitution and those laws. If the constitution or laws may be violated by proceedings instituted by a state against its own citizens, and if that violation may be such as essentially to affect the constitution and the laws, such as to arrest the progress of government in its constitutional course, why should these cases be excepted from that provision which expressly extends the judicial power of the Union to all cases arising under the constitution and laws? After bestowing on this subject the most attentive consideration, the court can perceive no reason, founded on the character of the parties, for introducing an exception which the constitution has not made; and we think the judicial power, as originally given, extends to all cases arising under the constitution or a law of the United States, whoever may be the parties.'

The language of the act of 1875, in this particular, is identical with that of the constitution, and the evident purpose of congress was to make the original jurisdiction of the circuit courts co-extensive with the judicial power in all cases where the supreme court had not already been invested by law with exclusive cognizance. To quote again from Chief Justice MARSHALL, in Cohens v. Virginia, (page 379,) 'the jurisdiction of the court then being extended by the letter of the constitution to all cases arising under it, or under the laws of the United States, it follows that those who would withdraw any case of this kind from that jurisdiction must sustain the exception they claim, on the spirit and true meaning of the constitution, which spirit and true meaning must be so apparent as to overrule the words which its framers have employed.' This rule is equally applicable to the statute we have now under consideration. The judicial power of the United States extends to all cases arising under the constitution and laws, and the act of 1875 commits the exercise of that power to the circuit courts. It rests, therefore, on those who would withdraw any case, within that power, from the cognizance of the circuit courts, to sustain their exception 'on the spirit and true meaning of the' act, 'which spirit and true meaning must be so apparent as to overrule the words its framers have employed.' To the extent that the words conflict with other laws giving exclusive original jurisdiction to the supreme court, this has been done, but no more. The judicial power of the United States exists under the constitution, and congress alone is authorized to distribute that power among the courts.

We conclude, therefore, that the cases were removable under the act of March 3, 1875. The order to remand in each case is reversed, and the circuit court directed to entertain the cases as properly removed from the state court, and proceed accordingly.


text: Talk:Ames v. State of Kansas Johnston Kansas Pacific Railway Company/Opinion of the Court

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


text:
Alley v. Nott

A. A. Abbott, for appellants.

H. F. Averill and ''Geo. F. Betts'', for appellee.

WAITE, C. J.

title: Alley v. Nott


text:
Page:Copyright, Its History And Its Law (1912).djvu/257

 making copyright a sequent to publication (sec. 9) and providing (sec. 2) "that nothing in this Act shall be construed to annul or limit the right of the author or proprietor of an unpublished work, at common law or in equity, to prevent the copying, publication, or use of such unpublished work," it makes it at least probable that the author of an artistic or cognate work who simply exhibits, does not surrender the right to copyright. The trend of the courts in recent decisions has been, as in the Werkmeister case, cited below, to protect exhibited works, at least where any reservation of rights could be construed into the circumstances of the exhibition; but it is still uncertain whether the exhibition of a work of art at a public museum where there is no regulation against copying or reservation by the artist, might not constitute a dedication and thus prevent later copyright.

In providing however (sec. 11) specifically "that copyright may also be had of the works of an author of which copies are not reproduced for sale, by the deposit, with claim of copyright . . . of a photographic print if the work be a photograph; or of a photograph or other identifying reproduction thereof if it be a work of art or a plastic work or drawing," it gives to the artist or the author of a cognate work an easy means of protecting his production beyond question; and he is not wise who neglects the simple precaution provided in the law.

It is not made absolutely clear in the new law whether the copyright notice must be attached to the original of a work of art; but again the provision for protection is so simple that it is wise to take advantage of the method of the law, by placing the copyright notice on the original. The copyright notice may be in the form (sec. 18) "'Copyright' or the abbreviation 'Copr.' accompanied by the name of


text: Talk:Alley v. Nott

title: Talk:Alley v. Nott


text:
Alley v. Nott/Opinion of the Court

This is an appeal from an order of the circuit court remanding a case removed from a state court. The suit was begun on the second of March, 1883, in the supreme court of New York by Eliphalet Nott, a citizen of New York, for himself and all others who should come in and be made parties to the action and contribute to the expenses, against Las Nueve Minas de Santa Maria Gold & Silver Mining Company, a New York corporation, John B. Alley, a citizen of Massachusetts, and certain other persons, some of whom were citizens of Illinois, and others, citizens of New York. Nott was the holder of 300 shares of the stock of the mining company, and the several individual defendants were trustees and directors. The prayer of the complaint was, in substance, that the individual defendants might be adjudged to be trustees as to the amount in money represented by 1,000,000 shares of the capital stock of the company, and collectively and severally decreed to account concerning the same, and that they might also be severally adjudged to account for the gains and profits received by each of them from the sale of the stock.

The summons required an answer to the complaint within 20 days after its service. Two of the defendants were never served, and they have never appeared. Four of the individual defendants, including Alley, appeared on the twenty-ninth of March, and filed separate demurrers to the complaint on the ground 'that it did not state facts sufficient to constitute a cause of action.' On the ninth of June, during a special term of the court begun on the first of that month, 'the issues of law raised by the demurrers of the defendants * *  * having been brought on for trial,' and argued by counsel, it was 'ordered that the said demurrers be overruled, and that the plaintiff have judgment thereon accordingly for costs, with leave to said defendants demurring, within twenty days to withdraw said demurrer and answer the complaint upon payment of costs;' and that if the defendants fail to withdraw their demurrers and answer within the time allowed, a final judgment be entered against them for the relief to which the plaintiff is entitled; the form of the judgment to be settled by the judge. On the thirteenth of June all the defendants who had demurred gave notice of appeal to the general term of the court. On the twenty-third of June the defendants gave notice that they would move on the first of July for a stay of execution on the interlocutory judgment until the appeal could be heard, and on the twenty-ninth of June the time for answering the complaint was extended until 10 days after the determination of this motion. On the thirteenth of July another of the defendants appeared and filed a demurrer to the complaint. On the first of August the defendants who had appealed withdrew their appeals and also their respective demurrers, and paid the costs awarded to the plaintiff by the interlocutory decree, and the costs of the appeal. Separate answers were filed on the same day by each of the several individual defendants whose demurrers had been overruled, and on the next day, August 2d, Alley presented to the court a petition for the removal of the suit to the circuit court of the United States for the Southern district of New York. In this petition the citizenship of Nott, the company, and Alley are stated, and it is then averred, 'that the controversy in this suit or action, so far as it respects or is between the plaintiff individually, or as representing the said mining company and this petitioner, is wholly between citizens of different states, and that the same can be fully determined and a final determination of the controversy in said action can be had, so far as concerns the plaintiff and this petitioner, without the presence of either of the other defendants or parties in said cause.' It is then stated 'that since the service of said answer there has been no term of the court at which this action could have been tried.' The suit was docketed in the circuit court at once, and on the eleventh of October a motion was made to remand. This motion was granted on the twenty-first of December, and from an order to that effect the appeal was taken.

In our opinion, the petition for removal was not filed in time. The statute requires the filing to be 'at or before the term at which said cause could be first tried, and before the trial thereof.' By the New York Code of Civil Procedure issues are of two kinds: (1) Of law; (2) of fact. Section 963. An issue of law arises only on a demurrer. Section 964. A demurrer to a complaint may be, among other things, because 'the complaint does not state facts sufficient to constitute a cause of action. Section 488. Upon the decision of a demurrer, either at a general or special term, or in the court of appeals, the court may, in its discretion, allow the party in fault to plead anew or amend on such terms as may be just.' Section 497. An issue of law in the supreme court must be tried at a term held by one judge. Section 976. At any time after the joinder of issue either party may serve a notice for trial. Section 977.

A demurrer to a complaint because it does not state facts sufficient to constitute a cause of action, is equivalent to a general demurrer to a declaration at common law, and raises an issue which, when tried, will finally dispose of the case as stated in the complaint, on its merits, unless leave to amend or plead over is granted. The trial of such an issue is the trial of the cause as a cause, and not the settlement of a matter of form in proceeding. There can be no other trial except at the discretion of the court, and if final judgment is entered on the demurrer, it will be a final determination of the rights of the parties which can be pleaded in bar to any other suit for the same cause of action. Under such circumstances, the trial of an issue raised by a demurrer which involves the merits of the action, is, in our opinion, a trial of the action, within the meaning of the act of March 3, 1875. To allow a removal after such a trial would be to permit 'a party to experiment on his case in the state court, and, if he met with unexpected difficulties, stop the proceedings, and take the suit to another tribunal.' This, as was said in Removal Cases, 100 U.S. 473, could not have been the intention of congress. In effect, when this case was heard on the demurrer, the issue made by the pleadings, and on which the rights of the parties depended, was submitted to the court for judicial determination. This issue the court decided, but, before entering final judgment, granted a new trial, with leave to amend pleadings. The situation of the case at this time, for the purposes of removal, was precisely the same as it would be if the trial, instead of being on an issue of law involving the merits, had been on an issue of fact to the jury, and the court had, in its discretion, allowed a new trial after verdict. We can hardly believe it would be claimed that a removal could be had in the last case, and, in our opinion, it cannot in the first.

The case of Vannevar v. Bryant, 21 Wall. 43, arose under the act of March 2, 1867, c. 196, which allowed a removal at any time 'before the final hearing or trial of the suit,' and what is there said is to be construed in connection with that fact. The same is true of ''Ins. Co. v. Dunn'', 19 Wall. 214.

In King v. Worthington, 104 U.S. 44, and Hewitt v. Phelps, 105 U.S. 395, the questions were as to the time when a case could be removed that was begun before the act of 1875 was passed.

In Lewis v. Smythe, 2 Woods, 117, the question here presented was not involved, and the removal was decided to be too late because it was not applied for until after a trial on the issues of fact had begun.

In Miller v. Tobin, 18 Fed. Rep. 609, the experienced district judge for the district of Oregon did hold that a removal, applied for after hearing upon a demurrer to a complaint, because it did not state facts sufficient to constitute a cause of action, could be had; but, on full consideration, we are unable to reach that conclusion.

Without deciding whether Alley would have been entitled to a removal if his petition had been filed in time, we affirm the order to remand on the ground taken by the circuit judge, that the application for removal was not made 'before the trial,' within the meaning of that term as used in the act of 1875.

title: Alley v. Nott/Opinion of the Court


text: Talk:Alley v. Nott/Opinion of the Court

title: Talk:Alley v. Nott/Opinion of the Court


text:
United States v. Bell

Asst. Atty. Gen. Maury, for plaintiff in error.

''Chas. F. Benjamin and Richard McAllister'', for defendants in error.

WAITE, C. J.

title: United States v. Bell


text: Talk:United States v. Bell

title: Talk:United States v. Bell


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

This was a suit upon the bond of a purser in the navy, and at the trial a transcript from the books and proceedings of the treasury department was offered in evidence, authenticated in the following form:

'TREASURY DEPARTMENT, FOURTH AUDITOR'S OFFICE,

'WASHINGTON, D. C., Feb. 11, 1881.

'Pursuant to section 886 of the Revised Statutes of the     United States, 1, Charles Beardsley, fourth auditor of the      treasury department, do hereby certify that the annexed is a      transcript of the books and proceedings of the treasury      department, in account with Miles H. Morris, late paymaster      in the United States navy, under bond of April 9, 1858.

'CHARLES BEARDSLEY, Auditor.

'Be it remembered that Chas. Be rdsley, Esq., who  certified the annexed transcript, is now, and was at the   time of doing so, fourth auditor of the treasury of the   United States, and that full faith and credit are due to   his official attestations.

'In testimony whereof, I, John Sherman, secretary of the     treasury of the United States, have hereunto subscribed my      name and caused to be affixed the seal of this department, at      the city of Washington, this eleventh day of February, in the      year of our Lord 1881.

'[Seal of Department.]

JOHN SHERMAN, Secretary of the Treasury.'

An objection to the admission of the evidence on the ground that the 'transcript was not certified as required by law,' was sustained by the court, and that is assigned for error here. In our opinion the certificate was sufficient. Section 886 of the Revised Statutes provides that 'when suit is brought in any case of delinquency of a revenue officer, or other person accountable for public money, a transcript from the books and proceedings of the treasury department, certified by the register and authenticated under the seal of the department, or, when the suit involves the accounts of the war and navy departments, certified by the auditors respectively charged with the examination of those accounts and authenticated under the seal of the treasury department, shall be admitted as evidence, and the court trying the cause shall be authorized to grant judgment and award execution accordingly.' This suit involved the accounts of the navy department. The fourth auditor is charged by law with the duty of examining all accounts accruing in that department. Rev. St. § 277, subd. 5. He has certified under his hand that the paper offered in evidence 'is a transcript of the books and proceedings of the treasury department in account with' the purser whose bond is in suit, and the secretary of the treasury has certified, under the seal of the department, to the official character of the auditor, 'and that full faith and credit are due to his official attestations.' What more need be done to authenticate the transcript under the seal of the department we are at a loss to determine. The certificate of the proper auditor is attached, and his certificate attested by the secretary of the treasury under the seal of the department. The form of the certificates and the mode of affixing the seal correspond exactly with what appears in Smith v. U.S. 5 Pet. 292, where it was held, more than half a century ago, that the seal affixed in this way was sufficient for the purposes of evidence under a statute, of which section 886 is a re-enactment. The transcript is certified by the auditor, and authenticated under the seal of the treasury department, affixed by the secretary, its lawful custodian.

The judgment is reversed, and the cause remanded, with instructions to set aside the verdict and grant a new trial.


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


text:
Page:Copyright, Its History And Its Law (1912).djvu/258

 the copyright proprietor," the year of publication not being required in the case of an artistic work. It is further provided that "in the case of copies of works specified in subsections (f) to (k), inclusive, of section five of this Act, the notice may consist of the letter C inclosed within a circle, thus: (c), accompanied by the initials, monogram, mark, or symbol of the copyright proprietor: Provided, That on some accessible portion of such copies or of the margin, back, permanent base, or pedestal, or of the substance on which such copies shall be mounted, his name shall appear."

If the copyright notice is attached to the original, it is not made clear whether it should be on the face of the work and visible to the casual spectator; but again the wise artist will take an easy precaution.

It is further required (sec. 12) that "if the work is not reproduced in copies for sale, there shall be deposited the copy, print, photograph, or other identifying reproduction " required as above stated, "accompanied in each case by a claim of copyright."

The new Copyright Ofifice Rules and Regulations schedule (17) among unpublished works that may be registered " (c) photographic prints; {d) works of art (paintings, drawings, and sculpture), and (e) plastic works," and states specifically as to the deposit in such cases:

"19. (2) In the case of photographs, deposit one copy of a positive print of the work. (Photo-engravings or photogravures are not photographs within the meaning of this provision.)

"20. (3) In the case of works of art, models or designs for works of art, or drawings or plastic works of a scientific or technical character, deposit a photographic reproduction."

As deposit in the case of an unpublished work


text:
Anderson v. Philadelphia Warehouse Company

Preston K. Erdman and Edward Harvey, for plaintiff in error.

R. C. McMurtree and ''Geo. Junkin'', for defendant in error.

WAITE, C. J.


text: Talk:Anderson v. Philadelphia Warehouse Company


text:
Anderson v. Philadelphia Warehouse Company/Opinion of the Court

This suit was brought by the receiver of the First National Bank of Allentown, an insolvent national bank, to recover an assessment made by the comptroller of the currency on the shareholders to pay debts, and the only question presented for determination is whether, upon the facts, the Philadelphia Warehouse Company was in law a shareholder of the bank at the time of its failure, and as such liable to creditors. The facts, as shown by the undisputed testimony or found by the jury, are these: From the seventeenth of April, 1864, until December 27, 1871, William Kern was the registered holder of 490 shares of the stock of the bank. Kern was one of the partners in the banking and business firm of W.H.Blumer & Co., composed of himself, William H. Blumer, and Jesse Line. Blumer was the president of the bank, and the other two partners in the firm directors. A son of the president was cashier and also a director. In the latter part of the year 1871 Blumer & Co., through William H. Blumer, arranged with the Philadelphia Warehouse Company, in Philadelphia, for a loan or banker's credit, to be secured by a deposit of collaterals. The account was opened and the first drafts paid upon a deposit of gas stocks as security. On the twenty-seventh of December, 1871, Kern transferred 450 of the shares of the stock standing in his name on the books of the bank, and had a new certificate issued in the name of T. Charlton Henry, president. This certificate was receipted to the bank by Blumer, its president, and by him either taken or sent to the warehouse company as further security for the credit extended to Blumer & Co. The certificate came into the hands of Henry, the president of the company, on the twenty-eighth of December, and soon after another draft of Blumer & Co. for $10,000 was paid. On or before the second of January the fact of the transfer of the stock to the name of Henry, president, was brought to the attention of some of the directors and members of the executive committee of the warehouse company. At once it was deemed inadvisable to have the stock stand in the name of the president, and the certificate was, on the third of January, transferred, under the seal of the company and the signatures of its president and secretary, to Dennis McCloskey, an irresponsible person, and a porter in its employ. The certificate with the transfer upon it was sent the same day by the secretary of the company to Blumer & Co., with a request that the stock might be transferred and a new certificate issued in the name of McCloskey and returned. To this request Blumer replied as follows: 'WM. H. BLUMER, President.

J. A. BLUMER, Cashier.

'THE FIRST NATIONAL BANK OF ALLENTOWN.

'ALLENTOWN, PENN' A, January 4, 1872.

'T. Charlton Henry, Esq., President: To-day I received one     remittance from your L. S. Maderia, to-wit, certificate of      stock for four hundred and fifty shares of the capital stock      of the First National Bank of Allentown, with a request to      assign the same and make a new certificate to Dennis      McCloskey. I do not understand t e nature of this     transaction, and would respectfully ask you to give me      explanation why the stock is to be transferred to a third      party; and if it would be better to place other securities      with you, such as gas stock, in cases where you pledge them      with outsiders.

'If my remarks seem improper, pardon me, for I only ask     questions to gain wisdom.

Very respectfully,

'WM. H. BLUMER.

'For W. H. BLUMER & CO.'

To this letter the company sent the following answer:

'JANUARY 6, 1872.

'''Wm. H. Blumer, Esq., Pres't''-DEAR SIR: I am in receipt of     your favor of the fourth inst., and in reply would say that I      am not surprised at your inquiry, since you were requested to      have the certificate made out in my name. We have no need to     borrow any money, nor do we expect or intend to put this      stock out of our hands, but the failure of one or two      national banks lately led our directors to consider the      clause in the national bank act which renders all      stockholders liable, in case of failure, to pay up to the      receiver the full amount of the stock in their name; and on      this account we determine to have the certificates of      national bank stock put in the name of Dennis McCloskey, who      is the boy in our office, taking his power of attorney to      transfer the same. Hoping this explanation will prove     satisfactory,

'I am yours, respectfully,

'T. C. HENRY, Pres't.'

Upon the receipt of this letter the stock was transferred in due form, January 10th, to McCloskey, on the books of the bank, and a new certificate issued in his name. This certificate was receipted for McCloskey by W. H. Blumer, and forwarded to the warehouse company as an inclosure in the following letter:

'OFFICE OF THE ALLENTOWN GAS COMPANY.

'W. H. BLUMER, President.

J. M. LINE, Treasurer.

'ALLENTOWN, PA., January 10, 1872.

'T. C. Henry, Esq.-DEAR SIR: Inclosed I hand you certificate     of 450 shares First National Bank of Allentown. It is never     out of the way if you are cautious, but in this case I      presume there would have been no danger. I would not sell the     gas stock for $50,000.

Truly,

'W. H. BLUMER.'

McCloskey never had possession of the certificate, and, at the request of the warehouse company, executed in blank, as of the date of January 3d, an irrevocable power of attorney for the sale and transfer of the stock. He died in 1875. After his death the stock was transferred on the books of the bank, at the request of the company, to Francis Ferris, another employe and also an irresponsible person. This certificate was delivered to the company, and Ferris indorsed thereon an irrevocable power of attorney for its transfer. The stock stood in his name at the time of the failure of the bank, in 1878, the company holding the certificate. Dividends were paid regularly on this stock to Kern or Blumer & Co. from the time of the original transfer up to and including December, 1876. The warehouse company never received any dividends and never acted as a shareholder. Blumer & Co. failed in 1877, largely indebted to the warehouse company, which still held as security the stock standing in the name of Ferris. The failure of Blumer & Co. crippled the bank so that it never afterwards paid a dividend, and on the fifteenth of April, 1878, it was put into insolvency by the comptroller of the currency and a receiver appointed. On the tenth of May following the comptroller assessed the shareholders 20 per cent. of the par value of their shares to pay the debts, and this suit was brought to collect that assessment on the 450 shares in question. The jury, under instructions applicable to the foregoing state of facts, rendered a verdict for the defendant, and to reverse a judgment on that verdict this writ of error was taken.

It is well settled that one who allows himself to appear on the books of a national bank as an owner of its stock is liable to creditors as a shareholder, whethere he be the absolute owner or a pledgee only, and that, if a registered owner, acting in bad faith, tr nsfers his stock in a failing bank to an irresponsible person, for the purpose of escaping liability, or if his transfer is colorable only, the transaction is void as to creditors. ''Nat. Bank v. Case, 99 U.S. 628; Bowden v. Johnson'', 107 U.S. 251; S.C.. 2 SUP. CT. REP. 246. It is also undoubtedly true that the beneficial owner of stock registered in the name of an irresponsible person may, under some circumstances, be liable to creditors as the real shareholder, but it has never, to our knowledge, been held that a mere pledgee of stock is chargeable where he is not registered as owner.

There is in this case no evidence of actual fraud or bad faith. The warehouse company never was the owner of the stock in question, and never held itself out as such. The transfer of Kern and Blumer & Co. was only by way of pledge, and the company was bound to return the stock whenever the debt, for which it was held, should be paid. From the verdict of the jury, under the instructions of the court, it must also be accepted as a fact that the company never consented to a transfer of the stock to its name on the books, or to that of its president, and it is undisputed that for seven years before the failure of the bank, and at least five years before its embarrassments were known to the company or the public, the stock had been standing, with the assent of Kern, Blumer & Co., and the officers of the bank, in the name of McCloskey or Ferris. During all that time, neither the registered holders nor the warehouse company claimed dividends or in any way acted as shareholders. On the contrary, either Kern or Blumer & Co. took the dividends as they were paid, and to all intents and purposes controlled the stock. There was no concealment on the part of the warehouse company, and no effort to deceive. It had possession of the certificates which represented the stock, with full power to control them for all the purposes of its security, but there was never a time, from the date of the original transfer by Kern on the books, until the failure of the bank, that it was or pretended to be anything else than a mere pledgee. Those who examined the list of shareholders would have found the name of McCloskey or of Ferris as the registered holder of 450 shares. There was nothing on the books of the bank to connect them, or either of them, with the warehouse company, and therefore no credit could have been given on account of the apparent liability of the company as a shareholder. If inquiries had been made and all the facts ascertained, it would have been found that either Kern or Blumer & Co. were always the real owners of the stock, and that it had been placed in the name of the persons who appeared on the registry, not to shield any owner from liability, but to protect the title of the company as pledgee. Blumer & Co. and the bank were fully advised who McCloskey was, and of his probable responsibility, when they allowed the transfer to be made to him, and they undoubtedly knew who Ferris was when the stock was put in his name after McCloskey's death. The avowed purpose of both transfers was to give the company the control of the stock for the purposes of its security, without making it liable as a registered shareholder. To our minds there was neither fraud nor illegality in this. The company perfected its security as pledgee, without making itself liable as an apparent owner. Kern or Blumer & Co. still remained the owners of the stock, though registered in the name of others, and pledged as collateral security for their debt. They consented to the transfer, not to escape liability as shareholders, but to save the company from a liability it was unwilling to assume, and at the same time to perfect the security it required for the credit to be given. As between Blumer & Co. and the warehouse company, Blumer & Co. or Kern were owners of the stock and the company the pledgee. As between the company and the bank, or its creditors, the company was a pledgee of the stock a d liable only as such. The creditors were put in no worse position by the transfers that were made than they would have been if the stock had remained in the name of Kern or Blumer & Co., who were always the real owners.

To our minds the fact that the stock stood registered in the name of Henry, president, from December 27th to January 10th, is, under the circumstances of this case, of no importance. The warehouse company promptly declined to allow itself to stand as a registered shareholder, because it was unwilling to incur the liability such a registry would impose. It asked that the transfer might be made to McCloskey. To this the owners of the stock and the bank assented, and from that time the case stood precisely as it would if the transfer had originally been made to McCloskey instead of Henry, president, or if Henry had retransferred to Kern or Blumer & Co., and they had, at the request of the company, made another transfer to McCloskey. The security of the warehouse company was perfected without imposing on the company a shareholder's liability. All this was done in good faith, when the bank was in good credit and paying large dividends, and years before its failure or even its embarrassment. So far as the company was concerned, the transfer was not made to escape an impending calamity, but to avoid incurring a liability it was unwilling to assume, and which it was at perfect liberty to shun.

It follows that the judgment of the circuit court was right, and it is consequently affirmed.

MILLER, J., dissenting.

I do not concur in this judgment. I think if in any case between private persons, one of them had placed property in the hands of minors, servants, or other irresponsible persons, for the purpose of escaping the responsibility attaching to the ownership of such property, while securing all the advantages of such ownership, it would be held to be a transaction which could not be supported on any legal or equitable principle. It does not remove this case from the control of that principle, that the parties to be injured are the unknown creditors of the bank, who are, by this means, deprived of the right which they have to resort to a responsible shareholder for the contribution which the law gives for their benefit. If not an actual fraud, it is a fraud upon the banking law, and was so intended to be by both the original holders of the bank shares and the officers of the warehouse company, by which the latter could control the shares without the responsibility which the law attaches to the owner. It is an easy device to make the right which the law gives to creditors of a failing bank ineffectual, and to evade it in all cases.

Justice MATTHEWS agrees with me in this dissent.


text: Talk:Anderson v. Philadelphia Warehouse Company/Opinion of the Court


text:
Texas Pacific Railway Company v. Kirk

W. Hallett Phillips and A. H. Garland, for motion.

John F. Dillon, Wager Swayne, John C. Brown, and W. D. Davidge, in opposition.

WAITE, C. J.

title: Texas Pacific Railway Company v. Kirk


text: Talk:Texas Pacific Railway Company v. Kirk


text:
Texas Pacific Railway Company v. Kirk/Opinion of the Court

The defendant in error moves to dismiss this case for want of a sufficient writ of error, and with this motion is united one to affirm, under section 5 of rule 6. The plaintiff in error moves for leave to amend the writ. In our opinion the motion to amend should be granted. The writ is in every respect in accordance with the form transmitted by the clerk of this court to the clerks of the circuit courts, under the authority of the act of May 8, 1792, c. 36, § 9, now section 1004 of the Revised Statutes, except that it is made returnable on a wrong day, bears the teste of the chief justice of the supreme court of Texas, and is signed by the chief justice and the clerk, and sealed with the seal of that court. It commands the justices of the supreme court of Texas, in the name of the president of the United States, to transmi to this court for review their record and proceedings in a certain suit, which is properly described, and the return has been made and the cause duly docketed here.

In Bondurant v. Watson, 103 U.S. 278, relied on in support of the motion to dismiss, the writ did not purport to be issued in the name of the president, or under the authority of the United States. It was in reality nothing more than an order of the supreme court of Louisiana to its clerk to transmit the record and proceedings of that court in a certain cause to this court for review.

By section 1005 of the Revised Statutes, we are authorized to allow an amendment of a writ of error, when there has been a mistake in the teste, or a seal is wanting, or the writ is made returnable on a wrong day, 'and in all other particulars of form.' This writ is signed by the clerk of the supreme court of Texas; and in McDonogh v. Millaudon, 3 How. 707, the question whether that was not sufficient was left open. But however that may be, we think all the defects which are complained of are such as come within the remedial provisions of the statute, and the amendments asked for may be made, save only that the seal and the signature of the clerk of this court, instead of the circuit court of the Western district of Texas, may be affixed to the writ. If the amendments are made on or before Monday next, the motion to dismiss will be denied; otherwise it will be granted.

The case upon the merits is not of a character to be disposed of on a motion to affirm. That motion is consequently overruled.


text: Talk:Texas Pacific Railway Company v. Kirk/Opinion of the Court


text:
Texas Pacific Railway Company v. Murphy (111 U.S. 488)

W. Hallett Phillips and A. H. Garland, for motion.

W. D. Davidge, in opposition.

WAITE, C. J.


text: Talk:Texas Pacific Railway Company v. Murphy (111 U.S. 488)


text:
Texas Pacific Railway Company v. Murphy (111 U.S. 488)/Opinion of the Court

The defendant in error moves to dismiss this writ on the ground that it is brought to review an order of the court below refusing a rehearing, and not the final judgment. With this motion he unites another to affirm under section 5, rule 6. If these motions are denied, he asks that the supersedeas may be vacated. The facts are these:

On the twenty-ninth of May, 1883, a judgment was entered by the supreme court of Texas affirming a judgment of the district court of Harrison county. The following entry appears in the record under date of December 21, 1883:

'APPEAL FROM HARRISON.

'The Texas Pacific Railroad Company    }

v.   }

James Murphy }

'(No. 422. Case 1,111.)

'Opinion of the court delivered by Mr. Justice SLAYTON. Mr. Chief Justice WILLIE not sitting in this cause.

'Motion of the appellant for a rehearing in this cause came     on to be heard, and, the same having been considered by the      court, it is ordered that the motion be overruled and the      rehearing refused; that the appellant, the Texas Pacific      Railway Company, pay all the costs of this motion.'

On the third of January, 1884, the chief justice of the state indorsed his allowance on a petition presented to him for a writ of error from this court for a review of the record and proceedings in the suit, properly describing it, 'in which a final judgment was rendered against the Texas & Pacific Railway Company on the twenty-first of December, A. D. 1883.' The writ was issued on the ninth of January, describing the suit and the parties properly, but not giving the date of the judgment. The objection now made is that as the judgment entered on the twenty-first of December was only an order overruling a motion for a rehearing, which is not reviewable here, we have no jurisdiction.

In Brockett v. Brockett, 2 How. 238, it was decided that a petition for rehearing, presented in due season and entertained by the court, prevented the original judgment from taking effect as a final judgment, for the purposes of an appeal or writ of error, until the petition was disposed of. This record does not show in express terms when the motion for a rehearing was made, but it was entertained by the court and decided on its merits. The presumption is, therefore, in the absence of anything to the contrary, that it was filed in time to give the court control of the judgment which had been entered, and jurisdiction to enforce any order that might be made. This presumption has not been overcome.

The writ of error as issued is on its face for the review of the final judgment, not of the order refusing a rehearing. The judgment is sufficiently described for the purposes of identification. We are of opinion, therefore, that the judgment as entered on the twenty-ninth of May is properly before us for consideration. The motion to dismiss is overruled.

It was expressly ruled in Brockett v. Brockett, which has been followed in many cases since, that if a petition for rehearing is presented in season and entertained by the court, the time limited for an appeal or writ of error does not begin to run until the petition is disposed of. Slaughter-house Cases, 10 Wall. 289; Memphis v. Brown, 94 U.S. 717. The motion for rehearing in this case was not decided until December 21st, and the writ of error was sued out and served within 60 days thereafter. This was in time to secure the supersedeas. The motion to vacate is therefore overruled.

The questions arising on the merits are not of a character to be disposed of on a motion to affirm. That motion is also denied.


text: Talk:Texas Pacific Railway Company v. Murphy (111 U.S. 488)/Opinion of the Court


text:
Eagleton Manufacturing Company v. West Bradley Cary Manufacturing Company

Frederic H. Betts, for appellant.

''Wm. C. Witter'', for appellee.

BLATCHFORD, J.


text: Talk:Eagleton Manufacturing Company v. West Bradley Cary Manufacturing Company


text:
Eagleton Manufacturing Company v. West Bradley Cary Manufacturing Company/Opinion of the Court

This suit was brought in the circuit court of the United States for the southern district of New York, on letters patent No. 122,001, granted to the plaintiff, the Eagleton Manufacturing Company, December 19, 1871, for an 'improvement in japanned furniture springs.' The patent contains these recitals: 'Whereas, J. J. Eagleton, of New York, New York, (Sarah N. Eagleton, administratrix,) has presented to the commissioner of patents a petition praying for the grant of letters patent for an alleged new and useful improvement in japanned furniture springs, (she having assigned her right, title, and interest in said improvement, as administratrix, to Eagleton Manufacturing Company, of same place,) a description of which invention is contained in the specification of which a copy is hereto annexed and made a part hereof, and has complied with the various requirements of law in such cases made and provided; and whereas, upon due examination made, the said claimant is adjudged to be justly entitled to a patent under the law.' The specification of the patent is as follows: 'Be it known, that I, J. Joseph Eagleton, of New York, in the county of New York and state of New York, have invented a new and useful improvement in furniture springs; and I do hereby declare that the following is a full, clear, and exact description thereof, which will enable others skilled in the art to make and use the same, reference being had to the accompanying drawing, forming part of this specification, in which the drawing represents a furniture spring provided, according to my improvement, with a japan covering. The helical springs heretofore employed for furniture seats, mattresses, etc., have generally been made of iron wire, brass, or copper; but steel wire, although a far superior material for such springs, has not been commonly employed, owing to the lack of means for protecting such springs from corrosion, and the lack of means for imparting to them the necessary stiffness or temper. The object of this invention is to produce steel furniture springs that shall not only be protected from corrosion, but shall also be sui ably tempered and stiffened. The drawing is a perspective view of one of my improved springs. In carrying out my invention, I provide a suitable quantity of steel wire of the size of which the spring is to be made, and this I wind upon blocks in the usual manner, giving the wound spring the ordinary pressing or set. I then provide a suitable bath containing the ordinary preparation of japan varnish, in which I dip or place the springs, so as to cover them with japan. They are then removed and strung on wires, or put on pegs, to drain, after which they are placed in a baking oven of the ordinary kind suitable for the baking of japanned articles, in which oven the springs are subjected to a temperature sufficient to bake and harden the japan; after which the springs are removed from the oven and allowed to cool, when they are ready for use. The treatment of the springs in this manner imparts to them two important and valuable qualities: First, the springs, when they come from the oven and are cooled, have firmly attached to their exterior surface a water-proof covering or coating, which perfectly protects them from corrosion, and fits them for service in all kinds of climates, hot or cold, dry or damp;second, the springs thus prepared are strengthened or stiffened, the application of heat to the springs in the oven having the apparent effect to temper the steel of which they are composed, making the springs stronger and more elastic. As between a steel spring not japanned, as I have described, and a steel spring japanned, as described, both being of the same size and made from the same piece of wire, the japanned spring will be found to be much stronger than the spring not japanned. The spring not japanned is, therefore, not only lacking in strength, but it is also practically useless, for want of a protecting covering. But the improved article, produced substantially in the manner I have described, forms a strong and durable spring, and no article like it has, so far as I am aware, ever been known or used. While I do not claim, broadly, the making of furniture springs of steel wire, I wish it to be understood I do not limit or confine myself to the exact order or method of operation here described, in producing my improved springs; as the order or method may be varied without departing from my invention.' There are two claims, namely: '(1) The method, herein described, of strengthening metal springs; (2) as an improved article of manufacture, a spring made substantially as herein described.'

Eagleton, as inventor, filed in the patent-office, on the sixth of July, 1868, a petition for a patent for an 'improvement in furniture springs,' accompanied by an affidavit, a specification, a drawing, and a model, and the proper fee, and, in the petition, appointed Munn & Co. 'to act as his attorneys in presenting the application, and making all such alterations and amendments as may be required, and to sign his name to the drawings.' The affidavit, that Eagleton verily believed himself to be 'the original and first inventor of the within described improvement in furniture springs,' was sworn to by him June 26, 1868. The specification then filed was as follows: 'Be it known that I, J. Joseph Eagleton, of New York, in the county of New York and state of New York, have invented a new and useful improvement in furniture springs, and I do hereby declare that the following is a full, clear, and exact description thereof, which will enable others skilled in the art to make and use the same, reference being had to the accompanying drawings forming part of this specification, in which the drawing represents a furniture spring provided, according to my improvement, with a japan covering. [The nature of this invention relates to improvements in helical furniture springs, such as are used for mattresses, sofas, etc., the object of which is to provide steel springs which will not be so liable to injury from corrosion as those now in use. It consists in providing steel springs, uch as are commonly used, with a japan outer covering. Steel springs, as is well known, possess in a much higher degree the requisite qualities of strength, flexibility, and elasticity than iron, copper, or brass, and, by reason of the susceptibility of steel to be tempered, and thereby regulated to any degree of elasticity, it is much more preferable to use; but, owing to its great liability to deterioration from corrosion, it is but little used for such springs. To obviate this difficulty, I propose to provide steel springs coated with japan, which I find to be of great advantage in resisting the corrosive action of the atmosphere on the steel, and whereby steel springs are made very much more durable than any other. To some extent, the same purpose may be accomplished by coating the spring with tin or zinc, or other similar metal, which will not suffer by corrosion, but the process of coating with such metals requires the use of acids for cleaning and preparing the steel, which, adhering to the steel, and being to some extent inclosed within the said coating and maintained in contact with the steel, have an injurious effect thereon. I have therefore found that when the springs are protected by japanning they are much more durable and give more satisfactory results, the same being applied by the common japanning process. Having thus described my invention, I claim as new, and desire to secure by letters patent, japanned furniture springs as a new article of manufacture, substantially as and for the purpose described.']

The application was rejected on the tenth of July, 1868, the following reasons being assigned by the examiner: 'The application above referred to has been examined, and is rejected for want of patentable invention. The japanning of metal is an old process, and no invention is shown in applying it to a spring for a bed-bottom. It is a common right, possessed by every one, to galvanize, paint, or japan any metal that he may use.' The specification was returned to the applicant. Eagleton died in February, 1870. On December 29, 1870, the application for the patent was renewed on the same specification, it being returned to the patent-office, and received there January 4, 1871, and a reconsideration requested, the letter being signed 'J. J. Eagleton, per Munn & Co., Attorneys.' Nothing further seems to have been done until, on October 19, 1871, the specification filed was amended by erasing the part above put in brackets, and substituting what is in brackets in the specification of the patent as issued, and by substituting the following as the claim: 'Having thus described my invention, I claim as new, and desire to secure by letters patent, as an improved article of manufacture, a japanned steel furniture spring, made substantially as set forth.' On the twentieth of October, 1871, the application was rejected, the examiner saying: 'The above-named application has been examined on the amended specification, but no reason can be seen for changing the action of the office in rejecting the same, July 10, 1868. The applicant is referred to the commissioner's decision in the case of Osborn and Drayton, November 5, 1870. The application is again rejected.' On the thirty-first of October, 1871, Munn & Co. wrote thus to the office: 'In the matter of the application of J. J. Eagleton, for letters patent for furniture springs, filed July 6, 1868, we respectfully request a specific reference on which the rejection of the case may be based, as provided in rule 34 of office rules of practice.' On November 3, 1871, this answer was returned: 'The applicant's letter of the thirty-first of October has been duly considered. His application has been twice rejected for want of patentable invention, and not for want of novelty. Sufficient reasons, it was deemed, were given for its rejection, and that rule 34 of office rules of practice is not applicable in the case. The process of japanning is so old that it is not probable that any person ever before applie for a patent for it. Furniture springs have been painted, galvanized, varnished, and, probably, japanned, as they are found coated with material that would require a chemical analysis to determine of what it was composed. The former action is affirmed.' On the seventh of November, 1871, by a letter to the office signed 'J. J. Eagleton, per Munn & Co., Attorneys,' the specification was amended by erasing the claim last presented and inserting in lieu thereof the two claims which are in the patent as issued. The application was again examined, and on November 17, 1871, the patent was ordered to issue. The specification annexed to the patent purports to be signed 'J. J. Eagleton,' and also to be signed by two witnesses who signed the specification originally filed.

The bill avers that Eagleton, having invented the improvement, died intestate, and Sarah N. Eagleton was appointed his administratrix, and the invention was assigned to the plaintiff, and afterwards the administratrix applied for a patent, and complied with all the nesessary conditions and requirements of the statute, and the patent was issued. The answer states that, as to whether or not the patent was applied for or issued in the manner and with the formalities set forth in the bill, the defendants leave the plaintiff to proof thereof. It denies that Eagleton was the first inventor of what is patented by the patent, and avers that, before the time of any invention thereof by Eagleton, it was known to and used by various persons named, at various places mentioned; that the description in the patent is obscure, and not sufficient to enable one acquainted with the art to use the alleged process therein attempted to be described, and for that reason the patent is void; that the description and specification of the patent are not in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it appertains to temper steel wire, but, if the description and specification be followed out, there will not be produced a tempered steel furniture spring; that, if the desired effect be to temper or strengthen a steel furniture spring, then, for the purpose of deceiving the public, the description and specification filed by Eagleton were made to contain less than the whole truth relative to his invention or discovery, and the patent is, therefore, null and void; that any representation contained in the patent or the specification, that treating a spring as described therein tempers it, is false; and that treating a steel furniture spring as described in the patent does not temper it. Infringement, also, is denied.

The circuit court dismissed the bill, assigning its reasons in an opinion which is found in 18 Blatchf. C. C. 218; S.C.. 2 Fed. Rep. 774. The court decided the following points: (1) The patent is for steel furniture springs protected by japan, and tempered by the heat used in baking on the japan. (2) Such springs, so protected and tempered, were known and used by various persons named in the answer, before the date of the patent. (3) The specification which accompanied the original application did not set forth the discovery that moderate heat, such as may be applied in japanning, will impart temper to the springs, but set forth merely the protection of the springs by japan. (4) Not only does the evidence fail to show that Eagleton in fact made and used, prior to such other persons, the invention covered by the patent as issued, but it shows that he did not, and that, probably, it never came to his knowledge while he lived. (5) Japanning, by itself, was not patentable, and Eagleton, in the specification which he signed and swore to, did not describe any mode of japanning which would temper or strengthen the steel, and did not even mention that the japan was to be applied with heat, and it now appears that the temper and strength are produced by the heat altogether, and not at all by the japan. (6) The only invention to which the application and oath of Eagl ton were referable was that of merely japanning steel furniture springs; the authority given to his attorneys was only to amend that application and ended it at his death; the amendments made were not mere amplifications of what had been in the application before; the patent was granted upon them without any new oath by the administratrix; and this defense is not required by statute to be specifically set forth in the answer, and can be availed of under the issues raised by the pleadings, as showing that the plaintiff has no valid patent.

We are satisfied with the conclusions arrived at by the circuit court, and with the reasons assigned by it therefor. The copy of the file wrapper and its contents in the matter of the patent from the patent-office, giving the history of the application, was put in evidence by the plaintiff. It shows beyond doubt that there was no suggestion in the specification signed and sworn to by Eagleton, of the invention described in the amendment filed October 19, 1871. Prior to that time the process practiced by the defendants, which is the process described in letters patent No. 116,266, granted to Alanson Cary, June 27, 1871, for an 'improvement in modes of tempering springs,' was invented and put in use; and there is no sufficient evidence that Eagleton had any knowledge, prior to the invention by Cary of the Cary process, of either that process or of the process described in the patent in suit. The plaintiff's patent shows on its face that it was granted on the petition of Eagleton, and the allegation of the bill that the patent was granted on the application of his administratrix is not established. In view of the entire change in the specification as to the invention described, the patent, to be valid, should have been granted on an application made and sworn to by the administratrix. Act of July 8, 1870, c. 230, § 34, (16 St. 202.) The specification, as issued, bears the signature of Eagleton and not of the administratrix, and it is sufficiently shown that the patent was granted on the application and oath of Eagleton, and for an invention which he never made. The renewed application of December 29, 1870, was made in the name of Eagleton, though he was dead. The letter of Munn & Co. of October 31, 1871, treats the matter under consideration as the application of Eagleton, though the amendment of October 19, 1871, had been made. The amendment of November 7, 1871, was not only made in the name of Eagleton, but the letter of that date in his name to the office, states that what is amended is in the specification in his application. Although at some time before the issuing of the patent evidence was produced to the office of the appointment of the administratrix, and of her assignment to the Eagleton Company, yet it is very clearly shown that there was no application or oath by the administratrix.

The decree of the circuit court is affirmed.


text: Talk:Eagleton Manufacturing Company v. West Bradley Cary Manufacturing Company/Opinion of the Court


text:
United States v. Bryant

Asst. Atty. Gen. Maury, for plaintiff in error.

No appearance for defendants in error.

BLATCHFORD, J.

title: United States v. Bryant


text: Talk:United States v. Bryant

title: Talk:United States v. Bryant


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

This is an action at law brought by the United States, in the circuit court of the United States for the Southern district of Alabama, against Henry Bryant and J. V. Weekley, the complaint in which, filed August 8, 1879, states that the plaintiffs claim of the defendants 2,740 pine logs, with the use thereof during the detention. The bark-marks and stamps and sizes and value of the logs are set forth, and the times when and places where they were cut. With the complaint there was filed an affidavit in these words: 'United States of America, Southern District of Alabama ss.: On this, the eighth day of August, A. D. 1879, before me, Henry S. Skaats, a commissioner of the circuit court of said district, personally appeared J. J. Gainey, special agent general land-office, who, being first sworn, deposes and says that, to the best of his knowledge, information, and belief, the property sued for in the case of the United States against Henry Bryant and J. V. Weekley, for the recovery of two thousand seven hundred and forty pine logs, of the value of one dollar and twenty-five cents each, is the property of the plaintiffs, the said United States. J. J. GAINEY. Sworn and subscribed before me this eighth day of August, A. D. 1879. HENRY SKAATS, U.S.C.ommissioner Sou. Dist. of Ala.' Thereupon, the clerk of the court issued the following order for seizure: 'United States of America, Circuit Court of the United States for the Southern District of Alabama: J. J. Gainey, special agent to the commissioner of the general land-office, having made affidavit, to the best of his knowledge, information, and belief, that the property sued for in the annexed complaint, namely, two thousand seven hundred and forty pine logs or sticks of timber, belongs to the plaintiff in said suit, the marshal of the United States for the Southern district of Alabama is required to take the property mentioned in the said complaint into his possession, unless the defendants give bond, payable to the said plaintiffs, with sufficient surety, in double the amount of the value of the property, with condition that if the defendant is cast in the suit he will, within thirty days thereafter, deliver the property to the plaintiffs, and pay all costs and damages which may accrue from the detention thereof. N. W. TRIMBLE, Clerk U.S.C.ircuit Court, Sou. Dist. Ala.' A summons having been issued, the marshal, on the fifteenth of January, 1880, made a return that he had served the summons and complaint on Bryant, and had seized 858 of the logs described.

On the twenty-second of January, 1880, the defendants moved the court for an order dissolving the order of seizure, and directing the restoration of the property, on the ground that the record showed 'that no affidavit or bond was given by the plaintiff, as required by law in detinue suits, to authorize the seizure by the marshal of the property sued for.' This motion was founded on the following provisions of the statute of Alabama, Code 1876: 'Sec. 2942, (2593.) When a suit is brought for the recovery of personal chattels in specie, if the plaintiff, his agent or attorney, make affidavit that the property sued for belongs to the plaintiff, and execute a bond in such sum and with such surety as may be approved by the clerk, with condition that if the plaintiff fail in the suit he will pay the defendant all such costs and damages as he may sustain by the wrongful complaint, it is the duty of the clerk to indorse on the summons that the sheriff is required to take the property mentioned in the complaint into his possession, unless the defendant give bond payable to the plaintiff, with sufficient surety, in double the amount of the value of the property, with condition that if the defendant is cast in the suit, he will, within thirty days thereafter, deliver the property to the plaintiff, and pay all costs and damages which may accrue from the detention thereof. Sec. 2943, (2594.) If the defendant neglect for five days to give such bond, the property sued for must be delivered to the plaintiff, on his giving bond, with sufficient surety, in double the value of the property, payable to the defendant, with condition to deliver the property to the defendant within thirty days after judgment, in case he fail in the suit, and to pay damages for the detention of the property and costs of suit. If the plaintiff fail for five days to give such bond, after the expiration of the time allowed the defendant, the property must be returned to the defendant.'

Before the motion was decided, the court, on the application of the United States, made an order, ex parte, on the sixteenth of February, 1880, directing the marshal to sell the logs at public auction. The sale was advertised for March 10th, but on March 8th the court stayed the execution of the order of sale till the pending motion to dissolve the order of seizure should be determined. On June 9, 1880, the court made an order granting the motion to dissolve the order of seizure, and directing the marshal to restore the property seized. The United States excepted to such ruling. On January 10, 1881, the case was tried by a jury, which found for the plaintiffs 500 logs, and assessed their value at $150, and a judgment was entered that the plaintiffs recover of the defendants said 500 logs, or their alternate value, $150. On the same day, the United States moved the court to vacate the order dissolving the seizure of the logs, on the ground that the defendants had no property which was not exempt from execution by the laws of Alabama, other than the logs seized. On the thirteenth of January, the motion was denied, and the plaintiffs excepted. They then brought this writ of error, to review the judgment and proceedings.

This is not the case of an attachment against the property of a defendant under section 915 of the Revised Statutes, but is a case where, under section 914, the forms and modes of proceeding are to conform, 'as near as may be,' to the forms and modes of proceeding existing at the time, in a like cause, in the courts of record of Alabama. The suit is one for the recovery of personal chattels in specie, under section 2942 of the Code of Alabama. The affidavit for seizure is made by the special agent of the general land-office, who swears that, 'to the best of his knowledge, information, and belief,' the property sued for is the property of the United States. The statute authorizes the affidavit to be made by 'the plaintiff, his agent or attorney.' The making of an affidavit by an agent or attorney necessarily implies that he may not be able to make it on positive knowledge; and where, in such a suit as this, the agent is the special agent of the general land-office, an affidavit 'to the best of his knowledge, information, and belief' is sufficient till controverted. The United States can act only by agents, and the language of this statute does not require that such an agent as the special agent of the general land-office should swear in any stronger form that the property belongs to the United States, or should set forth the grounds of his knowledge, information, or belief. The conformity in this case was one 'as near as may be' to the mode of proceeding i Alabama. We are not aware of any case in Alabama holding the contrary. The Alabama statute in regard to attachments at law (Code, § 3252 et seq.) provides for issuing attachments against property in specified cases, and (section 3255) for an affidavit to be made by 'the plaintiff, his agent or attorney,' of the amount of the debt or demand, and that it is justly due, and as to other matters. In Mitchell v. Pitts, 61 Ala. 219, in 1878, an affidavit for an attachment was made, under this statute, by an attorney for the plaintiffs, who swore 'that he is informed and believes, and therefore states,' that the debt was due; that the debtor and creditors resided out of the state of Alabama; and that, 'according to the best of affiant's knowledge and belief,' certain facts existed which the statute required to be shown by the oath of 'the plaintiff, his agent or attorney.' It was objected by the defendant that the recital in the affidavit that the deponent was informed and believed that the defendant was indebted, etc., impaired the efficiency of his averment, thereupon made, of such indebtedness. But the court held otherwise, saying that it was almost impossible that an attorney residing in the state could, where the parties resided out of it, absolutely know that the debt was still due and unpaid; that other causes for which attachments might issue, and which, under the statute, must be as positively sworn to by affidavit as the indebtedness of defendants, were of a nature which prevented it from being positively known whether they were true or not; and that, if the person who by law might make the oath must positively know them to be true before he could swear to them, it could hardly ever happen that such causes would be available in any instance. These views properly apply to the case of a special agent of the general land-office who is making oath to the property of the United States in pine logs. A like ruling was made by the supreme court of Louisiana in Bridges v. Williams, 1 Mart. (N. S.) 98. The statute allowed an agent, in an attachment case, to swear to the debt. He swore to it 'to the best of his knowledge.' The court held that, to give effect to the statute, the agent must be allowed to swear in the only manner in which he could safely swear, except in some few particular cases, namely, to the best of his knowledge and belief.

As to the bond, it is provided, by section 1001 of the Revised Statutes, that whenever any process issues from a circuit court, by the United States, no bond, obligation, or other security shall be required from the United States, either to prosecute the suit, or to answer in damages or costs. The adoption of the state practice 'as near as may be' does not have the effect to abrogate the provision of section 1001, so as to require the United States to give a bond for costs and damages, as a condition of obtaining the order of seizure, or to require them to give the bond provided for in section 2943 of the Alabama Code. It has been held that the United States are relieved by section 1001 from giving the undertaking required from a plaintiff by section 782 of the Revised Statutes of the District of Columbia, on issuing an attachment. U.S. v. Ottman, 23 Int. Rev. Rec. 294.

The order made by the circuit court, June 9, 1880, dissolving the order for the seizure of the property and directing the marshal to restore the property seized, and its order of January 13, 1881, denying the motion to vacate the order of June 9, 1880, are reversed, and the case is remanded to that court, with direction to vacate the order of June 9, 1880, and to take such further proceedings in the suit as may be according to law and not inconsistent with this opinion.


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


text:
Pacific Railroad of Missouri v. Missouri Pacific Railway Company

N. A. Cowdrey, D. H. Chamberlain, and ''Wm. B. Hornblower'', for appellant.

Melville C. Day, John F. Dillon, and Wager Swayne, for appellees.

BLATCHFORD, J.


text: Talk:Pacific Railroad of Missouri v. Missouri Pacific Railway Company