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Wirth v. Branson/Opinion of the Court

This case was before us at the December Term, 1872. Branson v. Wirth, 17 Wall. 32. It comes before us now on a different state of facts; the original patent to Giles Egerton, which was not produced on the former trial, being produced on the trial which has taken place since our decision, and purports to be for the southeast quarter of section 18, instead of the northeast quarter in controversy. The question is, whether this fact changes the rights of the parties. A statement of the case, however, is necessary, in order to show the precise questions which are now raised by the record.

The action is ejectment, brought by the plaintiff in error to recover a quarter-section of land in Fulton County, Illinois; namely, the northeast quarter of section 18, township 4 north, range 2 east, from the fourth principal meridian. On the trial, the plaintiff produced a regular patent for the lot, issued by the United States to one Edward F. Leonard, dated Feb. 20, 1868; and a conveyance from Leonard to himself.

The defendants then offered in evidence a duly exemplified copy of a military land-warrant, No. 13,598, bearing date Dec. 3, 1817, issued to one Giles Egerton, a sergeant in the 26th regiment United States infantry, and purporting to be in pursuance of the second section of the act of May 6, 1812, and certifying that said Egerton was entitled to one hundred and sixty acres of land, to be located agreeably to said act on any unlocated parts of the six millions of acres appropriated for that purpose,-it being conceded that the lot in question is part of said military reservation. They then proved by an exemplified record of the General Land-Office at Washington, that the aforesaid land-warrant was located according to law on the tenth day of January, 1818, by Giles Egerton, on the lot in question. The defendants then gave in evidence an exemplified copy from the records of the land-office of a patent from the United States to Giles Egerton, dated Jan. 10, 1818, reciting that he had deposited the said land-warrant, No. 13,598, in the land-office, and granting to him the said lot. On the margin of this certified copy of the patent was written a memorandum, without date, as follows:--

'This patent was issued for the S. E. 1/4 instead of the N. E. 1/4 as recorded; sent a certificate of that fact to E. B. Clemson, at Lebanon, Ill's, see his letter of 19th May, 1826.'

The plaintiff insisted that this memorandum should be read with the record of the patent. In accordance with our decision in the former case, the court refused to allow it to be read. The defendants then offered in evidence a deed from Giles Egerton to Thomas Hart, dated July 29, 1819, for the southeast quarter of section 18, reciting that the same was granted to said Giles in consideration of his military services, as would appear by a patent dated Jan. 10, 1818. The defendants then gave in evidence an exemplified copy of a patent from the United States to one James Durney for the said southeast quarter of section 18, dated Jan. 7, 1818 (three days prior to the date of Egerton's patent), referring to land-warrant No. 5144 as the basis of the grant. The defendants then gave in evidence a tax-title for the lot in question, being a deed from the sheriff of Fulton County, Illinois, to one Timothy Gridley, dated Nov. 14, 1843, under a judgment of June Term, 1840, for the taxes for the year 1839; and also several mesne conveyances from the said Gridley to the defendants in February, 1849; and they proved that they and their grantors had occupied, cultivated, and had full and undisturbed possession of the land ever since November, 1843, paying the taxes thereon. The plaintiff objected to the reception of this evidence relating to the tax-title and possession.

In rebuttal of this defence the plaintiff gave in evidence a deed for the southeast quarter of section 18 from Thomas Hart to Samuel F. Hunt, dated May 12, 1824; also a deed from Hunt to one Eli B. Clemson, dated April 7, 1825; and from Clemson to one John Shaw, dated Oct. 20, 1829; also an act of Congress, approved March 3, 1827, entitled 'An Act for the relief of the legal representatives of Giles Egerton,' by which it was enacted that the legal representatives of Giles Egerton, late a sergeant, &c., be authorized to enter with the register of the proper land-office, any unappropriated quarter-section of land in the tract reserved, &c., in lieu of the quarter patented to said Giles on the 10th of January, 1818, which had been previously patented to James Durney. The plaintiff further proved that John Shaw, assignee of Giles Egerton, on the 6th of April, 1838, entered another quarter-section in pursuance of this act. The plaintiff then gave in evidence the original patent, dated Jan. 10, 1818, given to Giles Egerton for the southeast quarter of section 18, purporting to be based on the warrant in his favor, numbered 13,598. All this rebutting evidence of the plaintiff was objected to by the defendants, but was received by the court.

Upon this evidence, each party asked the court for instructions; and the instructions given were, 1st, that the defendants had proved that the land in controversy was granted by the United States to Giles Egerton on the 10th of January, 1818, and that Egerton had conveyed it to Thomas Hart, which constituted an outstanding title that defeated the plaintiff's right of recovery; 2d, that defendants had shown that on the 10th of January, 1818, the land-warrant of Giles Egerton was duly located on and upon the land in controversy, which location was not shown to be vacated or set aside, and therefore said land was not subject to entry by or grant to Leonard in 1868: and a verdict was thereupon given for the defendants. To these instructions the plaintiff excepted; and whether they were correct is the question now before the court.

Each of these instructions was based upon undisputed facts; and if either was correct in point of law, the defendants had a complete defence, and the judgment must be affirmed.

We are satisfied that the second instruction, at least, correctly expressed the law of the case, and renders the production of the original patent to Egerton entirely immaterial. The land in question was shown to have been located in his favor in due form, under a regular military land-warrant, and no attempt was made to show that this location was ever vacated or set aside. Whilst it was in force, no other could lawfully be made on the same land. A subsequent location, though followed by a patent, would be void. Every thing was done which was required to be done to entitle Egerton to a patent for the land. Being for military bounty, no price was payable therefor. The land became segregated from the public domain, and subject to private ownership, and all the incidents and liabilities thereof.

The rule is well settled, by a long course of decisions, that when public lands have been surveyed and placed in the market, or otherwise opened to private acquisition, a person who complies with all the requisites necessary to entitle him to a patent in a particular lot or tract is to be regarded as the equitable owner thereof, and the land is no longer open to location. The public faith has become pledged to him, and any subsequent grant of the same land to another party is void, unless the first location or entry be vacated and set aside.

This was laid down as a principle in the case of Lytle et al. v. The State of Arkansas et al. (9 How. 314), and has ever since been adhered to. See Stark v. Starrs, 6 Wall. 402. Subsequent cases which have seemed to be in conflict with these have been distinguished from them by the fact that something remained to be done by the claimant to entitle him to a patent; such as the payment of the price, the payment of the fees of surveying, or the like. The proper distinctions on the subject are so fully stated in the case of Stark v. Starrs (supra), Frisbie v. Whitney (9 Wall. 187), The Yosemite Valley Case (15 id. 77), Railway Company v. McShane (22 id. 444), and Shepley et al. v. Cowan et al. (91 U.S. 330), that it would be supererogation to go over the subject again.

But it is said that Giles Egerton and his grantees and all other persons are estopped from any claim under his location of the northeast quarter of section 18, by his accepting a patent for the southeast quarter; and by the further fact, that his grantee, finding the southeast quarter already granted to another party (namely, to James Durney), applied to Congress for leave to make, and actually made, another location in lieu thereof.

This question of estoppel was fully considered by us when the case was formerly here; and the principles which were then laid down are equally decisive of the case as it now stands. The original patent to Egerton had not then been exhibited in evidence, it is true; but we do not see that the case is materially altered by its production.

The difficulty of applying the doctrine of estoppel arises from the fact that there is no privity between the defendants and the parties who procured the act of Congress referred to. The defendants rely, and have a right to rely, on the fact that the lot in question was located in due form of law, and that it thereby became exempt from further location until the first location should be set aside. The fact that a clerical error was made in the patent issued to Egerton; that his grantees, instead of claiming the northeast quarter (as they might have done), claimed the southeast quarter, which had been previously granted to another person; and that they solicited the privilege of locating another lot in lieu thereof,-are all matters with which the defendants have nothing to do. Congress might have given to those parties a dozen lots without affecting the defendants, unless the latter were in some way bound by their acts. We are unable to see how they were or should be bound thereby. They do not claim under those parties, and have no privity with them whatever.

As, however, the question of estoppel was fully discussed in the previous judgment, it is unnecessary to enlarge upon the subject.

Judgment affirmed.

title: Wirth v. Branson/Opinion of the Court


text: Talk:Wirth v. Branson/Opinion of the Court

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


text:
National Bank v. Grand Lodge

ERROR to the Circuit Court of the United States for the Eastern District of Missouri.

This is an action by the Second National Bank of Saint Louis, Missouri, against the Grand Lodge of Missouri of Free and Accepted Ancient Masons, to compel the payment of certain coupons formerly attached to bonds issued in June, 1869, by the Masonic Hall Association, a corporation existing under the laws of the State of Missouri, in relation to which bonds the Grand Lodge, Oct. 14, 1869, adopted the following resolution:--

'Rosolved, that this Grand Lodge assume the payment of the two hundred thousand dollars bonds, issued by the Masonic Hall Association, provided that stock is issued to the Grand Lodge by said association to the amount of said assumption of payment by this Grand Lodge, as the said bonds are paid.'

The court below instructed the jury, that, independently of the question of the power of the Grand Lodge to pass the resolution, it was no foundation for the present action, and directed a verdict for the defendant.

The jury returned a verdict in accordance with the direction of the court; and judgment having been entered thereon, the plaintiff sued out this writ of error.

Mr. John C. Orrick for the plaintiff in error.

Mr. John D. S. Dryden, contra.

MR. JUSTICE STRONG delivered the opinion of the court.

title: National Bank v. Grand Lodge


text: Talk:National Bank v. Grand Lodge

title: Talk:National Bank v. Grand Lodge


text:
National Bank v. Grand Lodge/Opinion of the Court

It is unnecessary to consider the several assignments of error in detail, for there is an insurmountable difficulty in the way of the plaintiff's recovery. The resolution of the Grand Lodge was but a proposition made to the Masonic Hall Association, and, when accepted, the resolution and acceptance constituted at most only an executory contract inter partes. It was a contract made for the benefit of the association and of the Grand Lodge,-made that the latter might acquire the ownership of stock of the former, and that the former might obtain relief from its liabilities. The holders of the bonds were not parties to it, and there was no privity between them and the lodge. They may have had an indirect interest in the performance of the undertakings of the parties, as they would have in an agreement by which the lodge should undertake to lend money to the association, or contract to buy its stock to enable it to pay its debts; but that is a very different thing from the privity necessary to enable them to enforce the contract by suits in their own names. We do not propose to enter at large upon a consideration of the inquiry how far privity of contract between a plaintiff and defendant is necessary to the maintenance of an action of assumpsit. The subject has been much debated, and the decisions are not all reconcilable. No doubt the general rule is that such a privity must exist. But there are confessedly many exceptions to it. One of them, and by far the most frequent one, is the case where, under a contract between two persons, assets have come to the promisor's hands or under his control which in equity belong to a third person. In such a case it is held that the third person may sue in his own name. But then the suit is founded rather on the implied undertaking the law raises from the possession of the assets, than on the express promise. Another exception is where the plaintiff is the beneficiary solely interested in the promise, as where one person contracts with another to pay money or deliver some valuable thing to a third. But where a debt already exists from one person to another, a promise by a third person to pay such debt being primarily for the benefit of the original debtor, and to relieve him from liability to pay it (there being no novation), he has a right of action against the promisor for his own indemnity; and if the original creditor can also sue, the promisor would be liable to two separate actions, and therefore the rule is that the original creditor cannot sue. His case is not an exception from the general rule that privity of contract is required. There are some other exceptions recognized, but they are unimportant now. The plaintiff's case is within none of them. Nor is he sole beneficiary of the contract between the association and the Grand Lodge. The contract was made, as we have said, for the benefit of the association, and if enforceable at all, is enforceable by it. That the several bondholders of the association are not in a situation to sue upon it is apparent on its face. Even as between the association and the Grand Lodge, the latter was not bound to pay any thing, except so far as stock of the former was delivered or tendered to it. The promise to pay and the promise to deliver the stock were not independent of each other. They were concurrent and dependent. Of this there can be no doubt. The resolution of the lodge was to assume the payment of the two hundred thousand dollar bonds, issued by the association, 'Provided, that stock is issued to the Grand Lodge by said association to the amount of said assumption,'. . . 'as said bonds are paid.' Certainly the obligation of the lodge was made contingent upon the issue of the stock, and the consideration for payment of the debt to the bondholders was the receipt of the stock. But the bondholders can neither deliver it nor tender it; nor can they compel the association to deliver it. If they can sue upon the contract, and enforce payment by the Grand Lodge of the bonds, the contract is wholly changed, and the lodge is compelled to pay whether it gets the stock or not. To this it cannot be presumed the lodge would ever have agreed. It is manifest, therefore, that the bondholders of the association are not in such privity with the lodge, and have no such interest in the contract, as to warrant their bringing suit in their own names.

Hence the present action cannot be sustained, and the Circuit Court correctly directed a verdict for the defendant.

Judgment affirmed.


text: Talk:National Bank v. Grand Lodge/Opinion of the Court


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Powder Company v. Powder Works

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

This is an appeal from a decree dismissing, upon demurrer, a bill filed by the Giant Powder Company against the California Powder Works and others, charging them with the infringement of three certain letters-patent belonging to the complainant, and praying for an injunction and a decree for damages. These letters, for certain alleged inventions of one Alfred Nobel, of Hamburg, in Germany, relating to the use of nitro-glycerine in the manufacture of dynamite and other explosive compounds, are all reissues; two of them bearing date the nineteenth day of March, 1872, and numbered respectively 4818 and 4819; and the third bearing date the seventeenth day of March, 1874, and numbered 5799. No. 4818 is for the mixture of gunpowder with nitro-glycerine; No. 4819 is for the mixture of rocket powder with nitro-glycerine; and No. 5799 is for a mixture of nitro-glycerine with porous or absorbent substances, forming what is called dynamite, or giant powder. The bill sets out the substance of the original and intermediate letters as well as those sued on, and of some of them makes profert. A consent order was made in the cause, that the complainant should file, as parts of the bill, copies of the several letters mentioned and described therein, of which profert was so made. The bill also sets forth by way of schedule a copy of the original application of Nobel filed in the Patent Office on the sixteenth day of September, 1865.

From the statements of the bill, and the documents thus annexed to and made part thereof, it appears that Alfred Nobel, on the day last aforesaid, by his attorney, filed in the Patent Office a paper describing certain alleged discoveries and inventions made by him in reference to the use of nitro-glycerine as an explosive agent and as a component in explosive compounds. Having in this document referred to the well-known property of nitro-glycerine, and the nitrates of ethyl and methyl, nitro-mannite, &c., whereby they cannot be exploded in open space by the application of fire, he proceeds to point out how he succeeds in effecting their explosion. He says:--

'A chief point of my invention consists in overcoming this difficulty. According as nitro-glycerine is to be used for fire-arms or for blasting, I adopt two different methods for promoting its explosion, viz.:--

'1st Method. By mixing it with gunpowder, gun-cotton, or any other substance developing a rapid heat, nitro-glycerine being an oil, fills the pores of gunpowder, and is heated by the latter to the degree of its explosion. Gunpowder treated in this way can take up from ten to fifty per cent of nitro-glycerine, and develops a greater power with a lesser quickness of explosion. Where the only object in view is to reduce the quickness of explosion of gunpowder, I mix it with or make it absorb common non-explosive oil from one to ten per cent of its weight.

'2d Method. When nitro-glycerine is to be used for blasting, where quickness of explosion is of great importance, I submit it to the most rapid source of heat known; viz., that developed by pressure. To effect this, I make use of the pressure developed by heating a minute portion of nitro-glycerine, or by the detonation of any other violently exploding substance. Nitro-glycerine being a liquid, if it cannot escape, as for instance in a bore, receives and propagates the initial pressure through its whole mass, and is by that pressure instantaneously heated; hence the first impulse of explosion decomposes the rest. There are many means of obtaining this impulse of explosion, such as—

'1. When nitro-glycerine in tubes is surrounded by gunpowder, or vice versa.

'2. By the spark or heat developed by a strong electric current when the nitro-glycerine is enclosed on all sides, so as not to afford an escape to the gas developed.

'3. By a capsule,' &c., six different methods of producing explosion of nitro-glycerine being pointed out, accompanied by drawings for showing the manner in which they were employed.

He then claims as his invention:--

1. The use of gunpowder or similar substances, when mixed with nitro-glycerine or analogous substances.

2. The reduction of the quickness of explosion of gunpowder by mixing it with oily explosive, or non-explosive substances.

3. The effecting the detonation of nitro-glycerine or analogous substances (which can be ignited without exploding) by the heat developed by pressure, promoting an impulse of explosion which decomposes the rest.

4. The exclusive use of nitro-glycerine and the class of substances described above, or mixtures of such as far as their application may be classed under any of the methods indicated in this memorandum.

He then describes a new method of preparing or manufacturing nitro-glycerine, and claims to be the inventor of that.

The bill further states, that after filing the above application Nobel's agent (one Howson) filed certain amendments thereto, striking out a portion of the original; and on the twenty-fourth day of October, 1865, upon such amended application, letters-patent were granted to Nobel for the term of seventeen years, numbered 50,617; and profert is made of the same in the bill, and they are set out in the record.

By reference to the specification of these letters, which are accompanied with drawings, they appear to be for a process, to wit, the process of using nitro-glycerine, or its equivalent, as a substitute for gunpowder, by exploding it in the manner pointed out. Having explained the nature of nitro-glycerine, nitrate of ethyl, methyl, and nitro-mannite, as in the original paper, the specification then points out how nitro-glycerine may be exploded after being confined in a hole drilled in the rock when to be used for blasting, or in a case when to be used for other purposes. Four distinct modes of doing this are enumerated: first, by exploding gunpowder in contact with the liquid; secondly, by passing an electric spark through a fine wire immersed in it; thirdly, by inserting in it a thin case containing lime-water; and, fourthly, by a fuse. The drawings show the manner in which the wire is arranged for passing an electric spark through the fluid.

The bill then states that on the 13th of April, 1869, the above patent was surrendered, and four new divisional patents were issued for the same inventions for which the original patent was granted, numbered respectively reissues 3377, 3378, 3379, 3380; the first, No. 3377, being for the method of exploding nitro-glycerine by detonation; the second, No. 3378, being for the application and use of percussion caps and other exploders to create the detonation necessary to explode the nitro-glycerine; the third, No. 3379, being for the improved mode of manufacturing nitro-glycerine; and the fourth, No. 3380, being (as stated in the bill) for the new explosive compounds invented by Nobel, viz. the mixture of gunpowder and nitro-glycerine, and the mixture of gun-cotton and nitro-glycerine, and the mixture of rocket powder and nitro-glycerine.

These four reissued patents are not referred to by way of profert in the bill; but the above description of their purport is sufficient for the purpose of understanding their character.

The bill then states that on the nineteenth day of March, 1872, the said reissue 3380 was surrendered, and two new divisional patents for the same inventions were issued in lieu thereof, numbered respectively reissues 4818 and 4819; the former being for the mixture of gunpowder with nitro-glycerine, and the latter for the mixture of rocket powder with nitroglycerine; and each patent securing to the patentee the exclusive right of making, using, and vending the explosive compound therein described respectively. These are two of the patents on which the suit is brought; and profert is made of them in the bill, and they are set out in the record. By reference thereto, it appears that in reissue 4818 the patentee claims,--

1. The utilization, as explosives, of nitro-glycerine and the analogous liquid substances before mentioned (nitrate of ethyl, &c.), by combining therewith gunpowder, gun-cotton, or other similar substances developing a rapid heat or combustion, substantially as described.

2. The combination of gunpowder with nitro-glycerine, substantially as and for the purposes described.

3. The combination of gun-cotton with nitro-glycerine, substantially, &c.

In reissue 4819 the claim is for the mixture of nitro-glycerine and rocket powder.

The remainder of the bill is taken up in setting forth the other patent sued on, and various assignments by which the complainant deduces its title to the patents, with the allegation of infringement and prayer for relief.

To this bill the defendant demurred, as well to the whole bill for want of equity as to the relief sought in respect of the different patents taken separately; also for multifariousness, misjoinder of defendants, &c.

The demurrer having been sustained and a final decree entered dismissing the bill, the Giant Powder Company brought the case here.

Mr. M. A. Wheaton and Mr. William Bakewell for the appellant.

The vital question in this case is, Did the commissioner, when granting the reissues, have the right to look into Nobel's original specification on file, for the purpose of ascertaining what those inventions were, or was he confined to the amended specification which was issued with the letters-patent?

The Circuit Court decided that he could only look to the amended specification. For this reason they decided reissues Nos. 4818 and 4819 to be void, and sustained the demurrer.

If, therefore, he had a right to look at the original specification, the decree must be reversed.

Both upon authority and reason, he had the right, and was bound in duty, to look as well to the original as to the amended specification.

Although most of the adjudications on this point were made under the act of 1836, they are equally applicable to that of 1870. The former did not say what should be used as evidence to prove the original invention on an application for a reissue.

As a matter of law and also of fact, the original specification, drawings, and model are never issued with the patent. They remain on file; copies only are issued.

There are many cases in which the term 'original specification' is used, instead of naming that which issues with the patent. The correct rule is laid down in the case of Collar Company v. Van Dusen (23 Wall. 557, 558), in the following language: 'Repeated decisions also have established the rule that parol testimony is not admissible in an application for a reissued patent, so as to enlarge the scope and effect of the invention beyond what was described, suggested, or substantially indicated in the original specification, drawings, or Patent-Office model, as the purpose of a surrender and reissue is not to introduce new features, ingredients, or devices, but to render effectual the actual invention for which the original patent should have been granted.

This is the whole point in this case; and it seems too plain for argument that Seymour v. Osborne (11 Wall. 516) holds that the original specification may be examined as claimed by us.

Sect. 5 of the act of 1837, and sect. 53 of the act of 1870, permitted several patents to issue for 'distinct and separate parts of the thing patented.'

The words 'thing patented' here used doubtless refer to the thing patented by the reissues.

Nobel's whole inventions were made in utilizing nitro-glycerine. One of them was the method of exploding it by mixing it with well-known explosives which explode by the application of fire. One distinct and separate part of it was mixing nitro-glycerine with gunpowder, another with gun-cotton, another with rocket powder, and so on. Every divisional patent issued for each one of these mixtures was valid, and reissue No. 4819 was, of course, one of them.

The law allowed divisional reissues. Sect. 5, act of March 3, 1837; act of 1870, sect. 53; Goodyear v. Providence Rubber Co., 2 Fish. 499; s. c. 9 Wall. 788; Goodyear v. Wait, 3 Fish. 242; Pennsylvania Salt Co. v. Thomas, 5 id. 148; Bennett v. Fowler, 8 Wall. 445.

The act of 1870, sect. 53, re-enacted by sect. 4916 of the Revised Statutes, expressly provides for the introduction of new matter into the reissue of letters-patent for a process. When it was passed, there were well known, and had long been known, two classes of patents,-one with models and drawings, and the other without. The last part of the section refers to the class which includes those for processes, and not to the former class; that is, patents for machines.

As new matter was proper to be introduced into the two reissues Nos. 4818 and 4819, the court below erred in sustaining the demurrer.

The grant of the reissue is prima facie evidence that the commissioner did his duty, and that the reissues were granted on proof satisfactory to him that whatever new matter was introduced into them was a part of the original invention, omitted by inadvertence, accident, or mistake from the specification attached to the original patent.

In the present case, the matter omitted from the original patent, and which forms the subject-matter of reissue No. 4818, is found in the original specification on the records of the office. Furthermore, neither model nor drawing of any thing embraced in that reissue was filed, for the reason that the invention is not, in that way, susceptible of illustration, being not a machine, but a combination of nitro-glycerine with gunpowder, gun-cotton, or similar substances.

The court below having sustained the demurrer so far only as reissues Nos. 4818 and 4819 are concerned, it erred in dismissing the whole bill. 1 Daniell, Ch. Pr., p. 543, sect. 1, p. 589, sect. 3, p. 598, sect. 5; Livingston v. Story, 9 Pet. 632.

The point on which the court below held reissues Nos. 4818 and 4819 to be invalid was that these reissues were not for the same invention as the original patent.

This is a question which should not have been decided without affording the parties an opportunity to offer evidence for the consideration of the court. Seymour v. Osborne, supra; Battin v. Taggart, 17 How. 74-85.

It is distinctly alleged in the bill that Nobel was the original and first inventor of the subject-matter of the several patents in suit; that the patents were duly granted; that the surrenders and reissues were duly made; that the reissues were for the same inventions; that the title was in the complainant; and that the defendants had infringed each of said patents. These facts being admitted by the demurrer are sufficient to establish the complainant's equity, and to entitle it to a decree. Welford, Eq. Pl., pp. 261-265; Kay v. Marshall, 2 Webs. P. C. 39; 1 Myl. & Cr. 373; Westhead v. Keene, 1 Beav. 287.

If any of these facts are denied by the demurrer, it is no longer a demurrer, but a plea by demurrer, which is bad, and therefore should have been overruled.

Mr. George Harding, contra.

MR. JUSTICE BRADLEY, after stating the facts, delivered the opinion of the court.

title: Powder Company v. Powder Works


text: Talk:Powder Company v. Powder Works

title: Talk:Powder Company v. Powder Works


text:
Powder Company v. Powder Works/Opinion of the Court

The main defence relied on by the counsel of the defence, on the demurrer, is, that it is apparent that the reissued patents numbered 4818 and 1819 are not for the same invention as that which was described in the original letters-patent numbered 50,617, for a portion of which they purport to be reissues.

It is apparent, they say, that the original patent was for a process, to wit, a mode, or different modes, of exploding nitroglycerine; whereas the reissues are for manufactured compounds or mixtures, namely, mixtures of nitro-glycerine with gunpowder, gun-cotton, and rocket powder. It is contended that a process and a mixture are the subjects of different inventions; that a patent granted for one cannot, by its surrender, be the basis of a reissued patent for the other. If this position is sound, and the matter can be examined on demurrer, it was not error to dismiss the bill as to all relief sought in reference to the two reissues in question.

We have no doubt that the question may be examined on demurrer; for the bill sets forth in full both the original patent and the reissues, so that they may be examined and compared together. If it were a case in which the identity or non-identity of the inventions in the original and reissued patents was a complicated question, the court might require the defendants to answer, in order to have the benefit of evidence on the subject. But in ordinary cases, the court itself will compare them. Whether a patent is for a process or a composition is especially a question of construction, and is for the court to decide; and whether a patent for a process is the same invention as a patent for a composition is certainly a mere question of law. We feel no hesitation, therefore, in approaching the consideration of the questions presented by the pleadings.

Upon due examination of the patents in question, it cannot well be doubted that the original patent, No. 50,617, granted on the 24th of October, 1865, was for a process, or rather for different processes and appliances for producing the explosion of nitro-glycerine; nor can it be doubted that the reissued patents, Nos. 4818 and 4819, granted in 1872, are for compounds and mixtures; in other words, for compositions of matter. In the specification of the original patent, the inventor says: 'My invention consists in the use as a substitute for gunpowder of nitro-glycerine, or its equivalent, substantially in the manner described hereafter, so that the said liquid, which, when exposed, cannot be wholly decomposed and exploded, shall by confinement be subjected to heat and pressure, by which its total and immediate decomposition and explosion is effected.' He then proceeds: 'In order to enable others to make and use my invention, I will now proceed to describe the method of carrying it into effect. On reference to the accompanying drawing which forms a part of this specification, Fig. 1 is a view, partly in section, of one apparentus by means of which I render nitro-glycerine, or its equivalent, available as a substitute for gunpowder; and Fig. 2 is a plan view. There is a class of explosive substances comprising nitro-glycerine, the nitrates of ethyl and methyl, and nitro-mannite, which have long been known, but have never been practically applied as explosive agents.' He then describes the behavior of these substances, when, being in an unconfined state, they are subjected to appliances of flame and contusion, no explosion being thereby produced; and then shows how, when they are in a confined state, their complete explosion may be produced by the processes which he describes; adding, 'The chief point of my invention consists in overcoming the difficulty of suddenly igniting the entire mass of the materials mentioned, so that the same can be practically used as explosive agents.' He then shows how nitro-glycerine may be best prepared and manufactured for the purposes of use as an explosive agent. Then he describes the four several methods or appliances for producing the explosion desired, which have already been referred to, concluding with this formal claim: 'I claim as my invention, and desire to secure by letters-patent, the use of nitro-glycerine, or its equivalent, substantially in the manner and for the purposes described.' The only equivalents of nitro-glycerine referred to or pointed at in the specification are the cognate substances of nitrate of ethyl and methyl and nitro-mannite. It is to be presumed that these are referred to when the patentee uses the expression, 'nitro-glycerine or its equivalent.'

Now, in all this specification there is not a hint of any new mixture or new composition of matter having been invented by the patentee. The only thing that approaches it is the method which he describes, of preparing the pure nitro-glycerine. The whole invention set forth, described, and claimed consists of methods or processes of exploding the substance so as to render it a useful exploding agent. The technical form of the claim, it is true, is in appearance a little broader, being for the use (generally) of nitro-glycerine as an exploding agent; but these general terms are properly limited by those which follow, namely, 'substantially in the manner and for the purposes described.' If any other method of exploding nitro-glycerine should be discovered different from the processes invented and described by the patentee, it could be employed without infringing his patent. According to our view, therefore, the patent is for those processes and methods as applied to the use of nitro-glycerine, or its equivalent, as an explosive agent.

Inasmuch as the reissued patents in question, numbered 4818 and 4819, are for compounds of nitro-glycerine with various other substances, it is impossible not to say that they are for an entirely different invention from that secured, or attempted to be secured, by the original patent.

If the patent had been not for the mode or process of exploding nitro-glycerine, but for the process of compounding nitro-glycerine with gunpowder and other substances, inadvertently omitting to claim the exclusive use of the substances so produced, the case would have been one of very different consideration. That was the case with Goodyear's patent, which was issued in 1844, and claimed only the process of vulcanizing india-rubber. In 1849 it was surrendered, and two new patents issued in lieu thereof,-one for the process, and the other for the composition. In 1852, the validity of these reissues came up for consideration in the third circuit, in the case of Goodyear v. Day, which was argued by Mr. Choate, Mr. Webster, and other eminent counsel. Mr. Justice Grier disposed of the objections as follows: 'We now come to the objections which have been made to the reissued or amended patents of 1849. The first objection is that the patents of 1844 and 1849 are not for the same invention. This objection is not founded in fact. Both patents are for precisely the same invention or discovery. They both describe, in nearly the same words, the best mode of manufacturing india-rubber, by exposing it to a high degree of heat in connection with sulphur and white lead; by which treatment the substance is endowed with new and valuable qualities which it did not possess before. The discovery is the same; the mode of manufacturing the compound is the same. The first patent had set forth the nature and extent of the invention defectively. There is no reason to doubt the bona fides and propriety of the reissue. It is apparent on the face of the papers, even if the action of the commissioner on that point was not conclusive.' Again, he adds: 'The fourth objection is 'that the latter patent claims more than was contained in the original.' If the latter patent is for precisely the same invention, art, or discovery as that described in the first, the objection that it claims more is a mistake of fact. If the last patent differs from the first only in stating more clearly and definitely the real principles of the invention, so that those who wish to pirate it may not be allowed to escape with impunity through the imperfection of the language used in the first, there has arisen one of the cases for which it was the intention of the act of Congress to provide, and the objection is worthless in point of law.' This case is partially reported in 2 Wall. Jr. 283, but the opinion of Mr. Justice Grier is not stated in full. In another case, arising on the original patent of Goodyear, reported in 2 Wall. Jr. 356, Mr. Justice Grier used this expression: 'The product and the process constitute one discovery.' The product in Goodyear's invention was the direct result of the process. They were parts of one invention, and, except in imagination, could no more be separated from each other than the two sides of a sheet of paper, or than a shadow from the body that produces it.

The present case is entirely different. The processes which the patentee described as his invention in the original patent, No. 50,617, had no connection with the compounds or mixtures which are patented in the reissued patents. They were not processes for making those compounds, and in describing them the compounds were not mentioned. The invention of the one did not involve the invention of the other. The two inventions might have been made by different persons, and at different times.

We think, therefore, that the conclusion is irresistible, that the two reissued patents, numbered 4818 and 4819, are for a different invention from that described or suggested in the original patent No. 50,617, upon which they are founded, and which they are intended, in part, to supersede.

These reissues being granted in 1872, were subject to the law as it then stood, being the act of July 8, 1870, the fifty-third section of which (reproduced in sect. 4916 of the Revised Statutes) relates to the matter in question. It seems to us impossible to read this section carefully without coming to the conclusion that a reissue can only be granted for the same invention which formed the subject of the original patent of which it is a reissue. The express words of the act are, 'a new patent for the same invention;' and these words are copied from the act of 1836, which in this respect was substantially the same as the act of 1870. The specification may be amended so as to make it more clear and distinct; the claim may be modified so as to make it more conformable to the exact rights of the patentee; but the invention must be the same. So particular is the law on this subject, that it is declared that 'no new matter shall be introduced into the specification.' This prohibition is general, relating to all patents; and by 'new matter' we suppose to be meant new substantive matter, such as would have the effect of changing the invention, or of introducing what might be the subject of another application for a patent. The danger to be provided against was the temptation to amend a patent so as to cover improvements which might have come into use, or might have been invented by others, after its issue. The legislature was willing to concede to the patentee the right to amend his specification so as fully to describe and claim the very invention attempted to be secured by his original patent, and which was not fully secured thereby, in consequence of inadvertence, accident, or mistake; but was not willing to give him the right to patch up his patent by the addition of other inventions, which, though they might be his, had not been applied for by him, or, if applied for, had been abandoned or waived. For such inventions, he is required to make a new application, subject to such rights as the public and other inventors may have acquired in the mean time. This, we think, is what the present statute means, and what, indeed, was the law before its enactment under the previous act of 1836. If decisions can be found which present it in any different aspect, we cannot admit them to be correct expositions of the law.

The counsel for the complainant refers us to, and places special reliance on, the last clause of sect. 53 of the act of 1870, where it is said: 'But where there is neither model nor drawing, amendments may be made upon proof satisfactory to the commissioner that such new matter or amendment was a part of the original invention, and was omitted from the specification by inadvertence, accident, or mistake.' But this clause relates only to the evidence which may be employed by the commissioner in ascertaining the defects of the specification. It does not authorize him to grant a reissue for a different invention, or to determine that one invention is the same as another and different one; or that two inventions essentially distinct constitute but one. In this case, it is not necessary for us to decide, and we express no opinion as to the precise meaning and extent of the final clause of sect. 53, to which we have referred; as, whether it relates to all patents, or only to patents for machines. But as it relates to the matter of evidence alone, it cannot enlarge the power of the commissioner in reference to the invention for which a reissue may be granted. That power is restricted, by the general terms of the section, to the same invention which was originally patented. Conceding that the commissioner had a right, in this case, by virtue of the clause in question, to examine the original application of Nobel, as it stood before it was amended, in order to ascertain what his invention really was, it would only show that he described, in that paper, two different inventions,-one for a composition, and another for a process distinct from the composition. It would not prove that the two inventions were the same; and it would not authorize the commissioner, on a reissue, to add the one to the other, as a part thereof.

The complainant insists, however, that the present reissues are for the same invention which was patented in the reissued patent, No. 3380, granted in April, 1869; and that the latter reissue was granted before the passage of the act of 1870. But this fact does not help the complainant. The law relating to reissues was substantially the same under the act of 1836 as it is under the act of 1870. As before remarked, the former act as well as the latter restricted the power of the commissioner, in granting reissues, to 'the same invention' which was the subject of the original patent. It has been repeatedly so held by this court, as the following cases will show: Burr v. Duryee, 1 Wall. 531; Seymour v. Osborne, 11 id. 516; Gill v. Wells, 22 id. 1; The Wood Paper Patent, 23 id. 566.

Since, therefore, the reissues in question are not for the same invention for which the original patent was granted, it follows that they are void; and the bill must be dismissed so far as relates to the said reissued patents numbered respectively 4818 and 4819.

As nothing is shown, however, in the statements of the bill, which affects the validity of the third patent sued on, the bill should not have been dismissed as a whole, but only as to the said reissues 4818 and 4819. For this error the decree must be reversed, and the cause remanded with directions to enter a decree in conformity with this opinion, dismissing the bill as to all relief sought therein in respect of, or in reference to or founded upon, the said reissued patents numbered respectively 4818 and 4819, and, as to the residue of the bill, overruling the demurrer and directing the defendants to answer in accordance with the rules and practice of the court.

So ordered.


text: Talk:Powder Company v. Powder Works/Opinion of the Court


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Citizens' Bank v. Board of Liquidation

ERROR to the Supreme Court of the State of Louisiana.

The facts are stated in the opinion of the court.

Mr. Armand Pitot and Mr. Edward Janin for the plaintiff in error.

Mr. John Q. A. Fellows, contra.

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

title: Citizens' Bank v. Board of Liquidation


text: Talk:Citizens' Bank v. Board of Liquidation


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Citizens' Bank v. Board of Liquidation/Opinion of the Court

This was an application for a mandamus to compel the funding board of Louisiana to fund, under the funding act of that State, passed Jan. 24, 1874, $60,000 and accrued interest of the second-mortgage bonds of the New Orleans, Mobile, and Chattanooga Railroad Company, guaranteed by the State under the alleged authority of act No. 26, approved Feb. 16, 1869. The averment in the petition is 'that the refusal of the board to fund the bonds and coupons presented by the petitioners is in violation of the compact entered into between the people of the State of Louisiana and the bondholders.'

In the answer, several defences were set up, but in none was any Federal question in terms presented. In one, which was separate and distinct from the others, and in no manner connected with them, it was alleged 'that the bonds presented in this case, and the funding of which is claimed, are not included among the obligations permitted to be funded by the act,. . . and are not the bonds of this State.' This defence was sustained by the Supreme Court of the State because the act only permitted the funding of 'valid outstanding bonds of the State, and valid warrants drawn previous to the passage of the act,' and the bonds held by the relator were not bonds of the State, but bonds of the railroad company, on which the State was liable only as guarantor.

No Federal question was involved in this decision, but it determined the cause. The relator had no contract which the funding act impaired. The State being in debt, passed the funding law. The relator, claiming the benefit of the privileges conferred by the law, asked for a mandamus to compel the State officers to issue funding bonds in exchange for the obligations the relator held and offered to surrender. This was refused, because, in the opinion of the court, the act did not provide for that class of State obligations. Over this decision we have no control. In fact, being the construction of a State statute by a State court, it controls us. Under these circumstances, if we should take jurisdiction we would be compelled to affirm the judgment, whether we found any error in respect to questions arising under the other defences or not. This defence is complete in itself, and sufficient to support the judgment we are asked to review.

To give us jurisdiction under sect. 709, Rev. Stat., it is not only necessary that some one of the questions mentioned in the section should exist on the record, but that the decision was controlling in the disposition of the cause. Williams v. Oliver, 12 How. 125; Klinger v. State of Missouri, 13 Wall. 257. As the State court has decided as a question on State law that even if the guaranties of the bond are valid obligations of the State, they are not fundable under the act, it matters not in this suit whether the decision against their validity was erroneous or not. The judgment would have been the same whether the guaranties were held to be valid or invalid. No Federal question having been specially raised by the pleadings, and the record showing clearly on its face that the decision of such a question was not necessarily involved, we will not go through the opinion of the court, even in Louisiana, to ascertain whether one was in fact decided. In no event could it have affected the determination of the cause. There is nothing in murdock v. City of Memphis (20 Wall. 590) to the contrary of this. In that case the decision of the Federal question raised was necessary. The judgment as given could not have been rendered without passing upon it. We have often since that case reaffirmed the old rule. Moore v. Mississippi, 21 Wall. 636; Brown v. Atwell, Administrator, 92 U.S. 327. In the last case, citing numerous authorities, we say, 'We have often decided that it is not enough to give us jurisdiction over the judgments of the State courts for a record to show that a Federal question was argued or presented to that court for decision. It must appear that its decision was necessary to the determination of the cause, and that it actually was decided, or that the judgment as rendered could not have been given without deciding it.'

It follows that the writ must be dismissed for want of jurisdiction; and it is

So ordered.


text: Talk:Citizens' Bank v. Board of Liquidation/Opinion of the Court


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Dumont v. United States

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

The facts are stated in the opinion of the court.

Mr. W. Willoughby for the plaintiff in error.

Mr. Assistant Attorney-General Smith, contra.

MR. JUSTICE BRADLEY delivered the opinion of the court.

title: Dumont v. United States


text: Talk:Dumont v. United States

title: Talk:Dumont v. United States


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

This is an action against the surety upon an ordinary bond for duties, given at the time of importation, upon the estimated amount, before the duties were regularly liquidated. The estimated duties, based on the invoice shown by the importer, were $425; and the condition of the bond was, that within one year the importer should pay to the collector $425, or the amount of the duties which should be ascertained to be due, or should within three years withdraw and export them, or transport them to a Pacific port. About a month after importation the goods were withdrawn by the importer, upon payment of the sum named in the bond; but the duties were not regularly liquidated until about a month later. The liquidation showed that the duties payable were $676.75, instead of the $425 which had been paid. This suit was brought to recover the balance. The surety pleaded payment of the sum named in the bond, as a fulfilment of one of the alternate conditions. The counsel for the government contended that the condition ought to be construed not alternatively, but as intended to secure the payment at all events of the true amount of duties, unless the goods should be exported or sent to the Pacific coast within three years. It was shown that the bond was in the form long in use, and had been approved by the Secretary of the Treasury; and it was undoubtedly intended to cover the full amount of the duties, whether the original estimate reached that amount or not. The word 'or' is frequently construed to mean 'and,' and vice versa, in order to carry out the evident intent of the parties. But such a change cannot be made in this case; for if we make 'or' to read 'and,' the condition would require the importer to pay the actual duties in addition to the $425. Besides, there are two other alternate conditions dependent upon the same word 'or;' namely, that the bond should be void if the goods should be re-exported, or if they should be transported to the Pacific coast, within three years. This shows that the word 'or' was intended to have its ordinary sense. To make the condition mean what the counsel for the government contends it means, would require, in place of the word 'or,' the addition of several words, so as to make it read, '$425, and any additional amount of duties to be ascertained to be due and owing on the goods.' The court would not have been justified, in this case, in making such a change and addition, by way of construction.

Of course the importer is liable, without reference to the bond, for the entire amount of duties. But the surety is only bound by the condition of the bond. That is all the obligation which he assumes; and as it is clear, in this case, that the condition is in the alternative, the bond was discharged by the performance of one of the alternative conditions.

The point was sufficiently raised on the trial to be reviewed here. It is true, the request for a nonsuit was not sufficient; because the court was not bound to grant a nonsuit. And it is also true that the defendant neglected to ask the court to direct a finding for the defendant. But on the proofs made the judge assumed to direct a verdict for the plaintiff; and to this direction the defendant excepted. We think this is sufficient to enable us to take cognizance of the defence.

As this is the only point made in the assignment of errors, we make no observation upon the other points raised at the trial.

The judgment of the Circuit Court will be reversed, and the cause remanded for a new trial; and it is

So ordered.


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


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Reynolds v. United States (98 U.S. 145)

ERROR to the Supreme Court of the Territory of Utah.

This is an indictment found in the District Court for the third judicial district of the Territory of Utah, charging George Reynolds with bigamy, in violation of sect. 5352 of the Revised Statutes, which, omitting its exceptions, is as follows:--

'Every person having a husband or wife living, who marries another, whether married or single, in a Territory, or other place over which the United States have exclusive jurisdiction, is guilty of bigamy, and shall be punished by a fine of not more than $500, and by imprisonment for a term of not more than five years.'

The prisoner pleaded in abatement that the indictment was not found by a legal grand jury, because fifteen persons, and no more, were impanelled and sworn to serve as a grand jury at the term of the court during which the indictment was found, whereas sect. 808 of the Revised Statutes of the United States enacts that every grand jury impanelled before any District or Circuit Court shall consist of not less than sixteen persons.

An act of the legislature of Utah of Feb. 18, 1870, provides that the court shall impanel fifteen men to serve as a grand jury. Compiled Laws of Utah, ed. of 1876, p. 357, sect. 4.

The court overruled the plea, on the ground that the territorial enactment governed.

The prisoner then pleaded not guilty. Several jurors were examined on their voire dire by the district attorney. Among them was Eli Ransohoff, who, in answer to the question, 'Have you formed or expressed an opinion as to the guilt or innocence of the prisoner at the bar?' said, 'I have expressed an opinion by reading the papers with the reports of the trial.'

Q. 'Would that opinion influence your verdict in hearing the evidence?'

A. 'I don't think it would.'

By the defendant: 'You stated that you had formed some opinion by reading the reports of the previous trial?'

A. 'Yes.'

Q. 'Is that an impression which still remains upon your mind?'A. 'No; I don't think it does: I only glanced over it, as everybody else does.'

Q. 'Do you think you could try the case wholly uninfluenced by any thing?'

A. 'Yes.'

Charles Read, called as a juror, was asked by the district attorney, 'Have you formed or expressed any opinion as to the guilt or innocence of this charge?'

A. 'I believe I have formed an opinion.'

By the court: 'Have you formed and expressed an opinion?'

A. 'No, sir; I believe not.'

Q. 'You say you have formed an opinion?'

A. 'I have.'

Q. 'Is that based upon evidence?'

A. 'Nothing produced in court.'

Q. 'Would that opinion influence your verdict?'

A. 'I don't think it would.'

By defendant: 'I understood you to say that you had formed an opinion, but not expressed it.'

A. 'I don't know that I have expressed an opinion: I have formed one.'

Q. 'Do you now entertain that opinion?'

A. 'I do.'

The defendant challenged each of these jurors for cause. The court overruled the challenge, and permitted them to be sworn. The defendant excepted.

The court also, when Homer Brown was called as a juror, allowed the district attorney to ask him the following questions: Q. 'Are you living in polygamy?' A. 'I would rather not answer that.' The court instructed the witness that he must answer the question, unless it would criminate him. By the district attorney: 'You understand the conditions upon which you refuse?' A. 'Yes, sir.'-Q. 'Have you such an opinion that you could not find a verdict for the commission of that crime?' A. 'I have no opinion on it in this particular case. I think under the evidence and the law I could render a verdict accordingly.' Whereupon the United States challenged the said Brown for favor, which challenge was sustained by the court, and the defendant excepted.

John W. Snell, also a juror, was asked by the district attorney on voire dire: Q. 'Are you living in polygamy?' A. 'I decline to answer that question.'-Q. 'On what ground?' A. 'It might criminate myself; but I am only a fornicator.' Whereupon Snell was challenged by the United States for cause, which challenge was sustained, and the defendant excepted.

After the trial commenced, the district attorney, after proving that the defendant had been married on a certain day to Mary Ann Tuddenham, offered to prove his subsequent marriage to one Amelia Jane Schofield during the lifetime of said Mary. He thereupon called one Pratt, the deputy marshal, and showed him a subpoena for witnesses in this case, and among other names thereon was the name of Mary Jane Schobold, but no such name as Amelia Jane Schofield. He testified that this subpoena was placed in his hands to be served.

Q. 'Did you see Mr. Reynolds when you went to see Miss Schofield?'

A. 'Yes, sir.'

Q. 'Who did you inquire for?'

A. 'I inquired for Mary Jane Schofield, to the best of my knowledge. I will state this, that I inserted the name in the subpoena, and intended it for the name of the woman examined in this case at the former term of the court, and inquired for Mary Jane Schofield, or Mrs. Reynolds, I do not recollect certainly which.'

Q. 'State the reply.'

A. 'He said she was not at home.'

Q. 'Did he say any thing further.'

A. 'I asked him then where I could find her. I said, 'Where is she? And he said, 'You will have to find out."

Q. 'Did he know you to be a deputy marshal?'

A. 'Yes, sir.'

Q. 'Did you tell him what your business was as deputy marshal?'

A. 'I don't remember now: I don't think I did.'

Q. 'What else did he say?'A. 'He said, just as I was leaving, as I understood it, that she did not appear in this case.'

The court then ordered a subpoena to issue for Amelia Jane Schofield, returnable instanter.

Upon the following day, at ten o'clock A.M., the said subpoena for the said witness having issued about nine o'clock P.M. of the day before, the said Arthur Pratt was again called upon, and testified as follows:--

Q. (By district attorney.) 'State whether you are the officer that had subpoena in your hands.' (Exhibiting subpoena last issued, as above set forth.)

A. 'Yes, sir.'

Q. 'State to the court what efforts you have made to serve it.'

A. 'I went to the residence of Mr. Reynolds, and a lady was there, his first wife, and she told me that this woman was not there; that that was the only home that she had, but that she hadn't been there for two or three weeks. I went again this morning, and she was not there.'

Q. 'Do you know any thing about her home,-where she resides?'

A. 'I know where I found her before.'

Q. 'Where?'

A. 'At the same place.'

Q. 'You are the deputy marshal that executed the process of the court?'

A. 'Yes, sir.'

Q. 'Repeat what Mr. Reynolds said to you when you went with the former subpoena introduced last evening.'

A. 'I will state that I put her name on the subpoena myself. I know the party, and am well acquainted with her, and I intended it for the same party that I subpoenaed before in this case. He said that she was not in, and that I could get a search-warrant if I wanted to search the house. I said, 'Will you tell me where she is?' He said, 'No; that will be for you to find out.' He said, just as I was leaving the house,-I don't remember exactly what it was, but my best recollection is that he said she would not appear in this case.'Q. 'Can't you state that more particularly?'

A. 'I can't give you the exact words, but I can say that was the purport of them.'

Q. 'Give the words as nearly as you can.'

A. 'Just as I said, I think those were his words.'

The district attorney then offered to prove what Amelia Jane Schofield had testified to on a trial of another indictment charging the prisoner with bigamy in marrying her; to which the prisoner objected, on the ground that a sufficient foundation had not been laid for the introduction of the evidence.

A. S. Patterson, having been sworn, read, and other witnesses stated, said Amelia's testimony on the former trial, tending to show her marriage with the defendant. The defendant excepted to the admission of the evidence.

The court, in summing up to the jury, declined to instruct them, as requested by the prisoner, that if they found that he had married in pursuance of and conformity with what he believed at the time to be a religious duty, their verdict should be 'not guilty,' but instructed them that if he, under the influence of a religious belief that it was right, had 'deliberately married a second time, having a first wife living, the want of consciousness of evil intent-the want of understanding on his part that he was committing crime-did not excuse him, but the law inexorably, in such cases, implies criminal intent.'

The court also said: 'I think it not improper, in the discharge of your duties in this case, that you should consider what are to be the consequences to the innocent victims of this delusion. As this contest goes on, they multiply, and there are pure-minded women and there are innocent children,-innocent in a sense even beyond the degree of the innocence of childhood itself. These are to be the sufferers; and as jurors fail to do their duty, and as these cases come up in the Territory, just so do these victims multiply and spread themselves over the land.'

To the refusal of the court to charge as requested, and to the charge as given, the prisoner excepted. The jury found him guilty, as charged in the indictment; and the judgment that he be imprisoned at hard labor for a term of two years, and pay a fine of $500, rendered by the District Court, having been affirmed by the Supreme Court of the Territory, he sued out this writ of error.

The assignments of error are set out in the opinion of the court.

Mr. George W. Biddle and Mr. Ben Sheeks for the plaintiff in error.

First, The jury was improperly drawn. Two of the jurors were challenged for cause by the defendant below, because they admitted that they had formed, and still entertained, an opinion upon the guilt or innocence of the prisoner. The holding by a juror of any opinions which would disqualify him from rendering a verdict in accordance with the law of the land, is a valid objection to his serving.

An opinion based merely upon a hypothetical case, as that 'if so and so is true, the prisoner is guilty,' is not always sufficient; but where the opinion is as to the actual fact of guilt or innocence, it is a disqualification, according to all the authorities. Burr's Trial, 414, 415; United States v. Wilson, 1 Baldw. 83; Ex parte Vermilyea, 6 Cow. (N. Y.) 563; The People v. Mather, 4 Wend. (N. Y.) 238; Cancemi v. People, 16 N. Y. 502; Fouts v. The State, 11 Ohio St. 472; Neely v. The People, 23 Ill. 685; Schoeffler v. The State, 3 Wis. 831; Trimble v. The State, 2 Greene (Iowa), 404; Commonwealth v. Lesher, 17 Serg. & R. (Pa.) 155; Staup v. Commonwealth, 74 Pa. St. 458; Armistead's Case, 11 Leigh (Va.), 658; Stewart v. The State, 13 Ark. 740.

It was clearly erroneous for the prosecution to ask several of the jurymen, upon voire dire, whether they were living in polygamy; questions which tend to disgrace the person questioned, or to render him amenable to a criminal prosecution, have never been allowed to be put to a juror. Anonymous, Salk. 153; Bacon, Abr., tit. Juries, 12(f); 7 Dane, Abr. 334; Hudson v. The State, 1 Blackf. (Ind.) 319.

Second, The proof of what the witness, Amelia Jane Schofield, testified to in a former trial, under another indictment, should not have been admitted. The constitutional right of a prisoner to confront the witness and cross-examine him is not to be abrogated, unless it be shown that the witness is dead, or out of the jurisdiction of the court; or that, having been summoned, he appears to have been kept away by the adverse party on the trial. It appeared not only that no such person as Amelia Jane Schofield had been subpoenaed, but that no subpoena had ever been taken out for her. An unserved subpoena with the name of Mary Jane Schobold was shown. At nine o'clock in the evening, during the trial, a new subpoena was issued; and on the following morning, with no attempt to serve it beyond going to the prisoner's usual residence and inquiring for her, the witness Patterson was allowed to read from a paper what purported to be statements made by Amelia Jane Schofield on a former trial. No proof was offered as to the genuineness of the paper or its origin, nor did the witness testify to its contents of his own knowledge. This is in the teeth of the ruling in United States v. Wood (3 Wash. 440), and the rule laid down in all the American authorities. Richardson v. Stewart, 2 Serg. & R. (Pa.) 84; Chess v. Chess, 17 id. 409; Huidekopper v. Cotton, 3 Watts (Pa.) 56; Powell v. Waters, 17 Johns. (N. Y.) 176; Cary v. Sprague, 12 Wend. (N. Y.) 45; The People v. Newman, 5 Hill (N. Y.), 295; Brogy v. The Commonwealth, 10 Gratt. (Va.) 722; Bergen v. The People, 17 Ill. 426; Dupree v. The State, 33 Ala. 380.

Third, As to the constitutionality of the Poland Bill. Rev. Stat., sect. 5352. Undoubtedly Congress, under art. 4, sect. 3, of the Constitution, which gives 'power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States,' and under the decisions of this court upon it, may legislate over such territory, and regulate the form of its local government. But its legislation can be neither exclusive nor arbitrary. The power of this government to obtain and hold territory over which it might legislate, without restriction, would be inconsistent with its own existence in its present form. There is always an excess of power exercised when the Federal government attempts to provide for more than the assertion and preservation of its rights over such territory, and interferes by positive enactment with the social and domestic life of its inhabitants and their internal police. The offence prohibited by sect. 5352 is not a malum in se; it is not prohibited by the decalogue; and, if it be said that its prohibition is to be found in the teachings of the New Testament, we know that a majority of the people of this Territory deny that the Christian law contains any such prohibition.

The Attorney-General and The Solicitor-General, contra.

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

title: Reynolds v. United States (98 U.S. 145)


text: Talk:Reynolds v. United States (98 U.S. 145)