text:
Giddings v. Insurance Company/Opinion of the Court

The facts of this case necessary to be considered are few and simple. They are clearly disclosed in the record, and there is no conflict between the parties about them.

The appellee is a corporation created by the State of Wisconsin. Its principal office and place of business were at Milwaukee. It was authorized to insure lives. Dean & Payne were its agents at Chicago. The extent of their authority was to receive applications, forward them to the office at Milwaukee, and, when risks were taken, to receive, countersign, and deliver the policies, collecting in all cases, before the latter was done, the first premium from the assured.

On or about the 6th of August, 1872, a member of the firm of Roberts & Hubbard, of the county of Warren, in the State of Illinois, at the instance of Silas Giddings, Sen., of the same county, presented to Dean & Payne, at Chicago, an application, in due form, for a life insurance policy, insuring Giddings in the sum of $6,000. The application consisted of a printed form furnished previously by Dean & Payne. It contained blanks to be filled with answers of the applicant to the questions propounded, and was filled up accordingly. Dean & Payne immediately forwarded it to Milwaukee. On the 24th of the same month the company considered the application and decided to issue the policy. It was issued accordingly, and bears date on that day. The premium to be paid by the assured was $302.52. The policy was immediately sent to Dean & Payne. Not being called for, on the 2d of October following they returned it to the company, and it was thereupon cancelled.

At the same time that the policy was applied for, an application was submitted for a loan by the company to Giddings of $6,000. In relation to this matter there is some conflict in the evidence, but as the view which we take of the case before us renders it unnecessary to consider that subject, we pass it by without further remark.

The seventh section of the act incorporating the appellee is as follows:--

'Every person who shall become a member of this corporation,     by effecting insurance therein, shall, the first time he      effects insurance and before he receives his policy, pay the      rates that shall be fixed upon and determined by the      trustees; and no premium so paid shall ever be withdrawn from      said company, except as hereinafter provided, but shall be      liable to all the losses and expenses incurred by this      company during the continuance of its charter.'

The policy, as made out, was according to the form issued by the company in all cases. Among other things it provided,--

'7th, This policy shall not take effect and become binding on     the company until the premium be actually paid, during the      lifetime of the person whose life is assured, to the company      or to some person authorized to receive it, who shall      countersign the policy on receipt of the premium.'

Giddings was taken ill of acute pleurisy on or about the 15th of August, 1872, and died of that disease on the 4th of September following. On the 12th or 13th of November following, the appellants, by their attorney, tendered to Dean, of the firm of Dean & Payne, the first premium and demanded the policy. The attorney had also present proof of the death of Giddings. Dean 'refused to have anything to do with the matter, as he claimed that the company was not liable.' The proof of the death was thereupon transmitted to the home office at Milwaukee.

Neither a tender of the premium nor a demand for the policy was made by any one until the time before mentioned, and no notice was given by Giddings or by any one in his behalf during his life that he intended to consummate the transaction by paying the premium and receiving the policy. All action on his part terminated with the delivery of his application to Dean & Payne for transmission to the company. He did nothing afterwards. There his connection with the affair ended.

Upon this state of facts the appellants insist that the company is liable for the $6,000 specified in the undelivered policy.

A few remarks will be sufficient to dispose of the case.

The presentment of the application to the agents at Chicago, its transmission to Milwaukee, and its receipt by the company, in nowise committed or bound the latter to anything. It was competent for the company to pause as long as they might deem proper, and finally to accept or reject the application as they might choose to do. If they elected to contract, they had the right to prescribe the terms, and it was for the other party to assent to or reject them. His unbroken silence, as would have been such silence by the company after receiving the application, was necessarily negation. Neither party in such case would have been bound in any wise to the other, because there would have been wanting the mutual assent of the minds of the parties, which is vital in all cases to the creation of a contract obligation. What was done, without something further, could have no more weight or efficacy, in the view of the law, than an unexpressed thought or any other unexecuted intention.

The company prepared the draft of a contract which they were willing to execute. Among its stipulations was one that the assurers should not be bound by the instrument until the premium was paid in the lifetime of the assured, and the policy was countersigned by the authorized agent of the company. This was a condition precedent to the liability of the appellee, and necessary to its safety. There was nothing in it unconscionable or oppressive, and the company had a clear legal right to make it.

Where a condition is subsequent and it is broken, relief may be given upon equitable terms; but where it is precedent, and neither fulfilled nor waived, no right or title vests, and equity can do nothing for the party in default. Davis v. Gray, 16 Wall. 203.

Here there was clearly no performance by the applicant, and it is equally clear that hence there was no contract or obligation whatsoever on the part of the company.

It was the business of the applicant, if, after sending forward his application, he continued to desire a policy, to keep up the proper communication with Dean & Payne, and during his lifetime to avail himself of the offer which the company had made. The proposition of the company expired with his life. After his death, his legal representatives could not act vicariously for him. To allow them to enforce such a claim would be contrary to the plainest principles of both law and equity. If authorities in so plain a case are needed, it is sufficient to refer to Insurance Company v. Young's Administrator (23 Wall. 85), and ''Piedmont, &c. Life Insurance Co. v. Ewing'', 92 U.S. 377.

What the consequence would have been if, after the applicant was stricken with his mortal disease, the premium had been paid and the policy delivered, the company being ignorant of his changed condition, is a point which we do not find it necessary to consider.

Decree affirmed.


text: Talk:Giddings v. Insurance Company/Opinion of the Court

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


text:
Pearce v. Mulford

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

This is a suit by Lewis J. Mulford, Seth. W. Hale, Shubael Cottle, and Samuel, P. Baker, doing business under the firm name of Mulford, Hale, & Cottle, against Thomas D. Pearce. The complainants' bill prays for an injunction to restrain his infringement of reissued letters-patent No. 5774, granted to the complainants as assignees of Shubael Cottle, Feb. 24, 1874, for an alleged new and useful improvement in chains and chain links for necklaces, &c., upon the surrender of original letters No. 147,045, granted Feb. 3, 1874. The bill also prays for an account of profits and damages. The defendant's answer admits the manufacture and sale of the chains made in the mode described in the letters, but denies the novelty and patentability of the alleged invention.

The specification forming a part of said reissued letters, together with the drawings therein referred to, is as follows:--

'Be it known that I, Shubael Cottle, of the city, county, and State of New York, have invented a new and useful improvement in chains for necklaces, &c.; and I do hereby declare that the following is a full, clear, and exact description of the same, reference being had to the accompanying drawing, forming a part of this specification, in which—

'Figure 1 is a side view of a portion of a chain necklace illustrating my invention. Fig. 2 is a view of the same turned one-quarter around. Fig. 3 is a cross-section of the same, taken through the line x x, Fig. 1.

'My invention has for its object to furnish an improved chain for necklaces, & c., having links of peculiar construction, which enable all the links to be finished separate, and then put together to form the chain. The invention consists in an ornamental chain whereof the links are connected together by open spiral links B finished before being connected together, the connection being made by springing the finished links into each other in the manner described.

'I will now describe the chain represented in the drawing to illustrate my invention.

'A and B represent the links of the chain. The links A are round and closed, as shown in Fig. 1, and are made and polished or colored separately from the other links. The links B, which constitute the peculiar feature of my invention, are formed of one or more coils of tubing of the proper length, so as to form a double spring-link. Into each end of the tube forming the link B is soldered a small shot, as shown in the drawing, which shot gives a finish to the link. The links B may then be colored or polished, and the chain is formed by springing the links into each other. The links A B may be made the one kind round and the other oval, or both may be made round, or both oval.

'The first construction is preferred, as producing a more elegant chain. Either kind of the links A B may be polished and the other colored, or both may be polished or both colored; but I prefer to polish the closed links and color the open spiral links, as producing a more pleasing effect. By this constructon the links may be made and finished in quantities, and the chain formed from the finished links by springing them into each other to produce any desired combination of the links of the same or different kinds. Finishing the separate links in this way enables them to be more perfectly polished or colored, and with a greatly diminished expenditure of labor and time, and enables the links to be put together without injuring them in the least, however highly they may be polished or colored.

'Having thus described my invention, what I claim is—

'1. An ornamental chain for necklaces, &c., formed of alternate closed links A and open spiral links B, substantially as shown and described.

'2. The open spiral link B formed of coils of tubing, substantially as shown and described.

SHUBAEL COTTLE.' The court below sustained the validity of the letters, enjoined the defendant from infringing them, and awarded damages to the complainants. Pearce thereupon appealed.

Mr. Henry Baldwin, Jr., for the appellant, cited Phillips v. Page, 24 How. 164; Rubber Tip Pencil Company v. Howard, 20 Wall. 498; Collar Company v. Van Dusen, 23 id. 530; Dalton v. Jennings, 93 U.S. 271; Glue Company v. Upton, 97 id. 3; Rubber-Coated Harness Trimming Company v. Welling, id. 7.

Mr. Benjamin F. Lee, contra.

Cottle having accomplished in the manufacture of gold chains a new and useful result, an increase of efficiency, and a decided saving in the operation, was clearly entitled to a patent. Gayler v. Wilder, 10 How. 477, 484; Smith v. Goodyear Dental Vulcanite Co., 93 U.S. 486; Rich v. Lippincott, 2 Fish. Pat. Cas. 4; Strong v. Noble, 3 id. 586; Goodyear Dental Vulcanite Co. v. Willis, 7 Pat. Off. Gaz. 41; Dalton v. Nelson, 9 id. 1112; Walton v. Potter, 3 Man. & G. 438; Curtis, Patents (4th ed.), Prel. Obs. p. xxx.

MR. JUSTICE STRONG, after stating the case, delivered the opinion of the court.

title: Pearce v. Mulford


text: Talk:Pearce v. Mulford

title: Talk:Pearce v. Mulford


text:
Pearce v. Mulford/Opinion of the Court

In view of the evidence found in the record, it cannot be questioned that ornamental chains composed of alternate closed links and spiral links, or formed by spiral links alone, had been known and in use long before Cottle made his alleged invention. As was said by the circuit judge, 'Chains formed by split rings which are sprung into each other, or into a solid link, are familiar articles, and there can be no novelty in the mere shape or form of the chain, or of the link which is shown in the drawings of the patent.' There is abundant evidence, not only that split rings had been long in use, but that other spiral links had been made and used before 1873, when the patentee claims to have made his invention. If, therefore, there be any novelty in the link which is the subject of the second claim, it must consist in the fact that the spiral link is formed of tubing. Tubing itself, as understood in the jeweller's art, is made by compressing a strip of gold around a brass or copper wire, and then forcing it through a draw-plate, the holes in which decrease gradually in diameter until the edges of the gold strip are completely united. The copper wire is then eaten out by an acid, and the tubing is complete. Both the product and process have long been well known. And so have been spiral rings formed of gold tubing. The tubing, before the wire is removed, is wound into coils around a mandrel, and cut into desired lengths. The coils may then be pressed together by a wire and annealed, the wire having been removed, or the compressing and annealing process may be omitted. Such spirals have a certain degree of elasticity, which enables them to be sprung upon other links, and when thus sprung into other closed or open spirals they will form a chain. The well-known serpent bracelet was such an open spiral, such a double link, and several of them, sprung together alternately with closed links, would have formed a chain identical in principle with that of the patentee. There certainly is nothing patentable in merely reducing the size of the bracelet so as to adapt it to use in a necklace. The record also contains evidence that other spiral rings or links made of gold tubing, some of them open and some closed, by soldering, were made before 1873. It is to be observed that the second claim in the patent is not for any process of making a link; not for making tubing, or winding it into spiral forms; not for tying or annealing the coils when they have been wound: but for an open link, consisting of one or more coils of tubing of the proper length, so as to form a double spring link, into each end of which is soldered a small shot to give the link a finish. This is all the description the specification gives of the link. It is not intimated that the coils must be brought into close contact with each other, or annealed, and it is simply said the links may be colored or polished. The form of the link, when made of gold tubing, is all that is attempted to be patented. The constituents are not. The patentee has testified that as long as he had known anything about the manufacture of jewelry he had known tubing to be used in the art; that for many years he had known shot put into the ends of such tubing, and that for a number of years he had known links formed of tubing with shotted ends. We think, therefore, the evidence sufficiently establishes that the second claim is void for want of novelty in the alleged invention.

The first claim read in connection with the description given in the specification and drawings is for an ornamental chain, consisting of solid links and open spiral links made of tubing, the latter being finished before they are sprung into the solid links, and the connection being made by thus springing the links together. In considering whether this can be sustained, it is necessary to observe what was the state of the art and what was known when Cottle claims to have invented the device for which he obtained the patent. Chains having alternate open and closed links, the open links being spiral and sprung into the closed links, were known. So were chains made entirely of spiral links, and even of open spiral links. A chain had also been made and worn, and it was for sale in the stores, the links of which were hollow. They were made solid, with copper wire inside. The copper wire was then destroyed, leaving the links hollow, and they were then sprung together to form a chain. The chain was thus composed of open spiral links made of hollow metal; that is, of tubing. It is true, as appears from the model which is an exhibit in the case, the two ends of the spiral were bent outward and the coils were soldered together after the links had been sprung into each other. Still, when thus sprung into each other, they made a chain formed of open spiral links of tubing. The soldering was a distinct and after process. Omitting that process and the outward deflection of the ends, and alternating the links with other links made closed and solid, the chain would have been substantially the same as that of the complainants. We cannot think the advance which the patentee made upon that can be called invention. Leaving the links open after they have been sprung into closed links, there being no novelty in the links themselves, cannot be patentable. It is nothing more than the exercise of ordinary mechanical skill. If in one of the complainants' chains, after the links had been joined, a person should solder the spirals together or to the closed rings, it could hardly be maintained that a new chain had been invented. Or if, when thus soldered, the soldering should be removed, the change would not deserve to be regarded as a product of invention. Yet this is substantially what the patentee has done. His chain may have been an improvement on the chains that preceded it. In some particulars it doubtless was. It left the elasticity of the spiral gold tubing more free by releasing the link from the attachment of the soldering, and it enabled the chain to be freely taken in pieces without injury to its structure. But all improvement is not invention, and entitled to protection as such. Thus to entitle it, it must be the product of some exercise of the inventive faculties, and it must involve something more than what is obvious to persons skilled in the art to which it relates.

In this case neither the tubing, nor the open spiral link formed of tubing, nor the process of making either the open or the closed link, nor the junction of closed and open spiral links in a chain, was invented by the patentee. We are, therefore, constrained to hold that the first claim of the patent, even if not void for want of novelty, is void for want of patentability.

The decree of the Circuit Court will therefore be reversed, and the cause remanded with directions to dismiss the bill.

So ordered.

title: Pearce v. Mulford/Opinion of the Court


text: Talk:Pearce v. Mulford/Opinion of the Court


text:
Schoonmaker v. Gilmore

MOTION to dismiss a writ of error to the Supreme Court of the State of Pennsylvania, to which is united a motion to affirm.

This was an action on the case, brought in the Court of Common Pleas of Allegheny County, Pennsylvania, by Gilmore against Schoonmaker & Brown, owners of the steam-tug 'Jos. Bigley.' The declaration avers in substance that, by reason of the negligence of the defendants, the tug, when descending the Ohio River, a few miles below Pittsburgh, collided with and damaged certain barges belonging to the plaintiff.

The point was made by the defendants that the courts of the United States have exclusive jurisdiction in cases of collision on navigable waters.

There was a judgment for the plaintiff, on the affirmance of which by the Supreme Court the defendants sued out this writ.

Mr. Alexander M. Watson in support of the motions.

Mr. Hill Burgwin, contra.

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

title: Schoonmaker v. Gilmore


text: Talk:Schoonmaker v. Gilmore

title: Talk:Schoonmaker v. Gilmore


text:
Schoonmaker v. Gilmore/Opinion of the Court

The single question in this case is, whether the courts of the United States, as courts of admiralty, have exclusive jurisdiction of suits in personam, growing out of collisions between vessels while navigating the Ohio River. This is a Federal question, and gives us jurisdiction; but we cannot consider it as any longer open to argument, as it was decided substantially in The Moses Taylor, 4 Wall. 411; The Hine v. Trevor, id. 555; The Belfast, 7 id. 624; Leon v. Galceran, 11 id. 185; and Steamboat Company v. Chase, 16 id. 522. The Judiciary Act of 1789 (1 Stat. 73, sect. 9), reproduced in sect. 563, Rev. Stat., par. 8, which confers admiralty jurisdiction on the courts of the United States, expressly saves to suitors, in all cases, the right of a common-law remedy, where the common law is competent to give it. That there always has been a remedy at common law for damages by collision at sea cannot be denied.

The motion to dismiss is overruled, and that to affirm granted.

Judgment affirmed.

NOTE.-Brown v. Davidson, error to the Supreme Court of the State of Pennsylvania, involved the same question as the preceding case. It was submitted by the same counsel and determined in the same manner.


text: Talk:Schoonmaker v. Gilmore/Opinion of the Court


text:
Railway Company v. Heck

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

The facts are stated in the opinion of the court.

Mr. E. Walker for the plaintiff in error.

Mr. O. B. Sansum, contra.

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

title: Railway Company v. Heck


text: Talk:Railway Company v. Heck

title: Talk:Railway Company v. Heck


text:
Railway Company v. Heck/Opinion of the Court

It does not appear from this record that any exceptions were taken in the progress of the trial to what was done by the court below. Nearly three weeks after the trial was concluded and a verdict rendered, a motion was made for a new trial, because of certain alleged errors in the charge; but it is nowhere shown that they were noted or brought to the attention of the court before the verdict. Certainly no exceptions were taken. A trial court may, in the exercise of its judicial discretion, grant a new trial, if convinced that its charge was wrong, even though its attention was not called to the error complained of before the case was finally submitted to the jury. But not so with us. Our power is confined to exceptions actually taken at the trial. The theory of a bill of exceptions is that it states what occurred while the trial was going on. Time is usually given to put what was done into an appropriate form for the record; but, unless objection was made and exception taken before the verdict, no case is presented for a review here of the rulings at the trial. This has been settled in this court since Walton v. United States, 9 Wheat. 651. The cases are numerous to that effect.

We have uniformly held that, as a motion for new trial in the courts of the United States is addressed to the discretion of the court that tried the cause, the action of that court in granting or refusing to grant such a motion cannot be assigned for error here. Schuchardt v. Allens, 1 Wall. 359; Insurance Company v. Barton, 13 id. 603.

Judgment affirmed.


text: Talk:Railway Company v. Heck/Opinion of the Court


text:
Tiernan v. Rinker

ERROR to the Supreme Court of the State of Texas.

A statute of Texas, entitled 'An Act regulating taxation,' approved June 3, 1873, enacts as follows:--

'SECT. 3. That there shall be levied on and collected from every person, firm, or association of persons, pursuing any of the following named occupations an annual tax (except when herein otherwise provided), on every such occupation or separate establishment, as follows: For selling spirituous, vinous, malt, and other intoxicating liquors, in quantities less than one quart, $200; in quantities of a quart and less than ten gallons, $100: Provided, that this section shall not be so construed as to include any wines or beer manufactured in this State, or when sold by druggists for medicinal purposes: And provided further, that this section shall not be so construed as to authorize druggists to sell spirituous or intoxicating liquors, except alcohol. For selling in quantities of ten gallons and over, $100.

'SECT. 4. That the county courts of the several counties of this State shall have the power of levying taxes equal to the one-half of the amount of the State tax herein levied, except as hereinbefore provided: And provided further, that any one wishing to pursue any of the vocations named in this act for a less period than one year may do so by paying a pro rata amount of such occupation for the period he may desire: Provided further, that no occupation license shall issue for a less period than three months: And provided further, that the receipt of the proper officer shall be prima facie evidence of the payment of such tax.'

In pursuance of the authority conferred by this statute, the county court of Galveston County, in March, 1876, levied a tax upon certain parties engaged in the occupations mentioned in the third section, equal to one-half the tax levied by the State.

Barney Tiernan and a number of others, who were the petitioners in the court below, are engaged in the county of Galveston in the occupation of 'selling spirituous, vinous, malt, and other intoxicating liquors,' some of them in quantities less than one quart, and others in quantities of one quart and less than ten gallons; and the wines and beers which they sell are not of the manufacture of the State. By the present suit against Rinker, the treasurer of that county, they seek to enjoin the enforcement of the tax against them, on the alleged ground that the statute is invalid in that it discriminates in favor of wines and beer manufactured in the State against those which are manufactured elsewhere. The District Court of the State sustained a demurrer to their petition and dismissed the case. The Supreme Court of the State affirmed the decision. The petitioners thereupon sued out this writ of error.

Mr. A. H. Willie for the plaintiffs in error.

The statute subjects to a tax persons engaged in the pursuit of a given occupation, which is defined to be the selling of spirituous, vinous, malt, and other intoxicating liquors.

The first proviso embraces the plaintiffs in error, as their occupation is that of selling vinous and malt liquors which are not manufactured in Texas, and of spirituous and other intoxicating liquors. It discriminates in favor of wines or beer manufactured in Texas, and against those liquors if they are the product of other States or of foreign nations. The statute is, therefore, a regulation of commerce and is repugnant to the Constitution. Welton v. State of Missouri, 91 U.S. 275.

The proviso is an essential part of the statute. Its office is to restrain the enacting clause and to except something which would otherwise have been within it, or, in some measure, to modify it. Wayman v. Southard, 10 Wheat. 1. The court can no more limit the legal effect of terms, because they are in a proviso, than it can qualify the terms of a private agreement, because they are in one part of the instrument instead of another. Dugan v. Bridge Company, 27 Pa. St. 310.

To strike out the proviso as unconstitutional, and yet sustain the statute as imposing the tax upon the sale of spirituous, vinous, malt, and other intoxicating liquors indifferently, would defeat its obvious intention, which is to encourage the manufacture of Texas wines and beer. Where a statute is clearly made up of parts, sections, or provisions, one part will not be held good and another bad, unless the respective parts are independent of each other. State v. Commissioners of Perry County, 5 Ohio St. 507; Potter's Dwarris, 249. The constitutional parts can stand only when, after rejecting the others, the object and effect of the law are not destroyed. State v. Estabrook, 3 Nev. 180. The whole must fall, if, after rejecting the unconstitutional parts, the remainder is incapable of being executed in accordance with the legislative intent. Cooley, Const. Lim. 178; Washington v. The State, 13 Ark. 763. Where the different provisions form inseparable parts of the same system, the whole is invalidated by the unconstitutionality of a part. People v. Detroit, 29 Mich. 108; Sedgwick, Stat. Law, 414, and cases cited.

No counsel appeared for the defendant in error.

Mr. JUSTICE FIELD, after stating the case, delivered the opinion of the court.

title: Tiernan v. Rinker


text:
Page:Dictionary of National Biography volume 60.djvu/115

 of John Webb (1776–1869) [q. v.] He matriculated from Magdalen Hall, Oxford, on 8 March 1826, graduated B.A. in 1829 with mathematical honours, and M.A. in 1832. In 1830 he was ordained deacon at Hereford, and licensed to the curacy of Pencoyd. He was admitted to priest's orders in the following year by George Isaac Huntingford, bishop of Hereford. After twenty-five years of diligent though unostentatious labour in this and other parishes (including a lengthy term as precentor and minor canon of Gloucester Cathedral), he was presented in 1856 to the scattered living of Hardwick, Herefordshire, which he filled with the utmost conscientiousness until his death on 19 May 1885. He was a fellow of the Royal Astronomical Society, and had a profound and accurate knowledge, practical and theoretical, of astronomy and optics. From an early age Webb took a deep interest in the former science, and as far back as 1825 was making useful observations, precursors of a long, painstaking, and most accurate series. His first telescope was a 4-inch fluid achromatic, after which he observed in succession with a 37/10-inch Tulley, a 5½-inch Alvan Clark, and a 91/3-inch With reflector. In 1859 he issued ‘Celestial Objects for Common Telescopes’ (London, 16mo), a work which reached its fifth edition in 1899, and has done more than any other to advance the cause of amateur observation. Besides this book Webb published ‘Optics without Mathematics’ (London, 1883, 8vo), ‘The Sun’ (London, 1885, 12mo), and a little work on ‘Chrismas and Easter Carols.’ He also contributed largely to such publications as ‘The Student,’ ‘The Intellectual Observer,’ ‘The London Review,’ ‘Nature,’ ‘Knowledge,’ ‘The Argonaut,’ and ‘The English Mechanic.’ He ‘edited and completed’ his father's ‘Memorials of the Civil War’ (London, 1879, 2 vols.). Webb was an observer of great ability. He took a special interest in the study of the moon, was a member of the moon committee of the British Association, and an active supporter of the now defunct Selenographical Society. After his father's death he finished editing the ‘Military Memoirs of Colonel John Birch,’ for the Camden Society, and in 1879 published a new and enlarged edition of John Webb's ‘Civil War in Herefordshire.’ In 1882 he became prebendary of Hereford Cathedral. On the death of Sir Henry Webb, seventh baronet, of Odstock, Wiltshire, he succeeded in 1874 as head of that family. He died on 19 May 1885, and was buried beside his wife Henrietta (d. 1884), daughter of Arthur Wyatt of Troy House, Monmouth, in the cemetery of Mitchel Troy. He bequeathed the family estate in Herefordshire to his cousin, J. G. H. Webb, and left a sum of over 20,000l. to Herefordshire charities.

There is a watercolour portrait of Webb in the possession of F. E. Webb, esq., at 113 Maida Vale, London, and a good portrait is prefixed to the fifth edition of ‘Celestial Objects.’ By his will he bequeathed certain pictures and articles of plate to the trustees of the South Kensington Museum.

[Memoir in the Monthly Notices of the R.A.S.; Nature; Mee's Observational Astronomy; and the biographical note prefixed by the Rev. T. E. Espin to the fifth edition of Celestial Objects; Foster's Alumni Oxon. 1715–1886; Works in Brit. Mus. Libr.; Burke's Landed Gentry. A detailed memoir is in preparation from the pen of Mr. S. Maitland Baird Gemmill.]  WEBBE. [See also .]

WEBBE, EDWARD (fl. 1590), master-gunner and adventurer, son of Richard Webbe, ‘master-gunner of England,’ was born at St. Katherine's, near the Tower of London, about 1554. At the age of twelve his father placed him in the service of Captain Anthony Jenkinson [q. v.], ambassador to Russia, who sailed from England on 4 May 1566. He was in Jenkinson's service in and about Moscow for three years, and returned with him to England. In 1570 he sailed in the English-Russian fleet, under Captain William Borough [q. v.], for Narva, and was at Moscow in May 1571 when that town was burnt by the Crim Tartars. He became a slave to the Tartars in the Crimea, but was ransomed. Sailing again from London in the Henry, he appears to have been at Tunis when Don John of Austria took it from the Turks (October 1572), and to have reached the rank of master-gunner; but some months later the Henry was captured by the Turks, and Webbe became a galley slave. ‘Constrained for want of victuals,’ he consented to serve the Turks as a gunner, and accompanied the Turkish army to Persia and many other eastern countries. About 1588 William Harborne [q. v.], the English ambassador, ransomed Webbe and nineteen others. He encountered various troubles on his way to England, but reached England safely in 1589. In November of that year he proceeded to France, and was made chief master-gunner by Henry IV. He was present at the battle of Ivry, 14 March 1590, but returned soon after to England, and took lodgings at Blackwall, where on 19 May he dedicates the little tract which recounts his adventures. The title of this is: ‘The Rare & most wonderful thinges which Edward Webbe an Englishman borne hath seene


text: Talk:Tiernan v. Rinker

title: Talk:Tiernan v. Rinker


text: Dictionary of National Biography, 1885-1900/Grose, Francis


text:
Tiernan v. Rinker/Opinion of the Court

The petitioners rely upon the ruling of this court in the case of Welton v. State of Missouri to sustain their position. There the State had exacted the payment of a license tax from travelling pedlers who dealt in the sale of goods, wares, and merchandise which were not the growth, product, or manufacture of the State, and required no such license tax from similar traders selling goods which were the growth, product, or manufacture of the State. And this court held, following in that respect the ruling in Brown v. Maryland, that the tax exacted from dealers in goods before they could be sold was in effect a tax upon the goods themselves, and that the legislation which thus discriminated against the products of other States in the conditions upon which they could be sold by a certain class of dealers was in conflict with the commercial clause of the Constitution.

In deciding the case, the court observed that the power conferred by this clause to regulate commerce with foreign nations and among the several States is without limitation; and that to regulate commerce is to prescribe the conditions upon which it shall be conducted; to determine how far it shall be free from restrictions; how far it shall be subjected to duties and imposts; and how far it shall be prohibited; that when the subject to which the power applies is national in its character, or of such a nature as to admit of uniformity of regulation, the power is exclusive of State authority; that the portion of commerce with foreign countries or between the States, which consists in the transportation and exchange of commodities, is of national importance and admits and requires uniformity of regulation; that the object of vesting this power in the general government was to insure this uniformity against discriminating State legislation; and that to that end this power must cover the property which is the subject of trade from hostile or interfering legislation until it has become a part of the general property of the country and subject to similar protection and to no greater burdens. If, before that time, the property can become subject to any restrictions by State legislation, the object of vesting the control in Congress may be defeated. If the State can exact a license tax from one class of traders for the sale of goods which are the growth, product, or manufacture of other States, it can exact the license from all traders in such goods, and the amount of the tax will rest in its discretion. 'Imposts,' the court said, 'operating as an absolute exclusion of the goods, would be possible, and all the evils of discriminating State legislation favorable to the interests of one State and injurious to the interests of other States and Countries, which existed previous to the adoption of the Constitution, might follow, and the experience of the last fifteen years shows would follow, from the action of some of the States.' The court, therefore, held that the commercial power of the Federal government over a commodity continued until the commodity had ceased to be the subject of discriminating legislation in any State by reason of its foreign character, and that this power protects it after it has entered the State from any burdens imposed by reason of its foreign origin. The court also held that the inaction of Congress to prescribe any specific rules to govern inter-state commerce, when considered with reference to its legislation with respect to foreign commerce, is equivalent to a declaration that inter-state commerce shall be free and untrammelled, and that this policy would be defeated by discriminating legislation like that of Missouri.

The doctrine of this case has never been questioned; it has been uniformly recognized and approved, and expresses now the settled judgment of the court.

According to it, the statute of Texas is inoperative, so far as it makes a discrimination against wines and beer imported from other States, when sold separately from other liquors. A tax cannot be exacted for the sale of beer and wines when a foreign manufacture, if not exacted from their sale when of home manufacture. If a party be engaged exclusively in the sale of these liquors, or in any business for which a tax is levied because it embraces a sale of them, he may justly object to the discriminating character of the act, and on that account challenge its validity, under the decision in question; but if engaged in the sale of other liquors than beer or wines, he cannot complain of the State tax on that ground. The statute makes no discrimination in favor of other liquors of home manufacture. Whilst it groups the sale of several kinds of liquors as one occupation, it evidently intends that the occupation which consists in the sale of any one of the several liquors named, in the quantities mentioned, shall be subject to taxation, as though it read, 'for selling spirituous, or vinous, or malt, or other intoxicating liquors.' It does not require to justify the tax that a party shall be engaged in the sale of all the liquors mentioned, as well as other liquors. This being the true construction of the act, there can be no objection to its enforcement where the tax is levied for occupations for the sale of other liquors than wines and beers. In the present case the petitioners describe themselves as engaged in the occupation of selling spirituous, vinous, malt, and other intoxicating liquors; that is, in all the liquors mentioned and others not mentioned. There is no reason why they should be exempted from the tax when selling brandies and whiskies and other alcoholic drinks, in the quantities mentioned, because they could not be thus taxed if their occupation was limited to the sale of wines and beer.

We see, therefore, no error in the ruling of the Supreme Court of Texas, and its judgment is accordingly

Affirmed.

title: Tiernan v. Rinker/Opinion of the Court


text: Dictionary of National Biography, 1885-1900/Grose, John (1758-1821)


text: Talk:Tiernan v. Rinker/Opinion of the Court


text: Dictionary of National Biography, 1885-1900/Grose, John Henry


text:
Ball v. Langles

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

The facts are stated in the opinion of the court.

Mr. Thomas J. Durant and Mr. Charles W. Hornor for the appellants.

Mr. Conway Robinson and Mr. Leigh Robinson, contra.

MR. JUSTICE STRONG delivered the opinion of the court.

title: Ball v. Langles


text: Talk:Ball v. Langles

title: Talk:Ball v. Langles


text:
Ball v. Langles/Opinion of the Court

This is a bill in equity filed by Hosea Ball and Margaret Haughery, against Justin Langles and N. A. Baumgarden, composing the firm of Baumgarden & Langles. It charges an infringement by the defendants of reissued letters-patent granted to Ball, June 14, 1870, for an alleged new and useful improvement in ovens. The original patent was granted to him on the 23d of September, 1856, for a period of fourteen years from that date. On the 12th of October, 1869, this original was surrendered, and a reissue was granted. A second reissue was granted on the 14th of June, 1870, numbered 4026. Subsequently an extension of the patent was granted for seven years, from Sept. 23, 1870. It is upon the second reissue (No. 4026), thus extended, that this suit is founded. The charge of the bill is, that the defendants have constructed such an oven as that patented, with intent to use it. The Circuit Court dismissed the bill, and from that decree the complainants have appealed.

The first question now to be considered under the pleadings and evidence is, whether the reissued patent (No. 4026) is valid. One of the defences set up by the answer is, that the reissue is not for the same invention as that described, claimed, and shown in the original letters, and it is averred that the surrender of those letters and the first reissue were for the purpose of introducing new matter not shown, suggested, or indicated in the specification, drawings, or model filed with the original application, and also for the purpose of obtaining a claim broader than the invention, and broad enough to cover the invention of subsequent inventors and patentees. If these averments of the answer are well founded the reissue is void, and it will be unnecessary to consider the other defences set up.

When the reissues of 1869 and 1870 were granted, the Commissioner of Patents had authority under the acts of Congress to grant reissues only in certain specified cases. These were whenever a patent was inoperative or invalid by reason of a defective or insufficient specification, or by reason of the patentee's claiming as his own invention or discovery more than he had a right to claim as new, if the error had arisen by inadvertence, accident, or mistake, without any fraudulent or deceptive intention. The commissioner was invested with authority to determine whether the surrendered patent was valid by reason of a defective or insufficient specification, or because the patentee had claimed more than he had a right to claim as new; and if he found such to be the case, and found also that the error had been due to inadvertence, accident, or mistake, without fraud, his decision was conclusive, and not subject to review by the courts. But the law did not confer upon him jurisdiction to grant a reissue embracing new matter, or a broader invention than what was revealed by the original specification, or drawings or models, except in some cases where there was neither model nor drawing. A reissue for anything more is, therefore, inoperative and void. Accordingly, this court has repeatedly held that if, on comparing a reissue with its original, the former appears on its face to be for a different invention from that described or indicated in the latter, it must be declared invalid. Seymour v. Osborne, 11 Wall. 516, 544; Russell v. Dodge, 93 U.S. 460.

In the original patent, Ball described his invention as consisting of an oven with a series of bread-receivers swung between the ends of a reel hung in an interior perforated chamber, and capable of rotation on a horizontal shaft; an arrangement being provided for the self-delivery of the bread from the front of the oven, as afterwards set forth. Having thus described it generally, he proceeded to set forth in detail its construction, including the mode in which it was heated. This was done in part by explanation of his drawings. A fire-chamber was represented below the oven, with an ash-pit beneath. Above the fire-chamber, but beneath the oven, a space through which the products of combustion passed on their way to the chimney, communicating by openings with the vertical side and back flues. These flues were exterior to the oven proper, but they communicated with the interior chamber or oven by perforations or openings. In this interior chamber the bread was placed on platforms hung on a revolving reel, and a mode of discharge and filling was described. The specification then stated that, 'owing to the perforated sides and back of the interior chamber, all parts of it receive the full heat of the oven, suitable dempers regulating the course of the products of combustion to the chimney.' Such was the description, so far as it is necessary to state it. The single claim of the patent was as follows: 'What I claim and desire to secure by letters-patent is the perforated interior chamber, in combination with the rotary reel and the swinging platform thereon, self-discharging, substantially as set forth.'

It is evident from this description and from the attendant drawings that the interior chamber or oven was so constructed, that what are called 'the products of combustion' did not and could not pass directly into it. The chamber was heated by those products passing through the exterior flues on the sides and back. There was no direct communication between the space above the fire-chamber and the interior of the oven, and no communication at all except indirectly through the perforations in the vertical flues on the sides and back of the oven. The interior chamber was heated for baking by heat radiating from its walls, except the comparatively small quantity which was permitted to enter through the small perforations in the flues. It is impossible to detect in the specification or drawings any intention or hint even of conducting the products of combustion (whatever may have been meant by the phrase, whether heat, gases, or smoke, or all of them) directly into the baking-chamber. Not a single ray of heat could enter the chamber, radiated from the fire. No passage was provided through the bottom, and even the perforations in the sides must have been ineffectual to divert the ascending heat from its upward course through the flues.

If, now, we turn to the reissues of 1869 and 1870, it cannot be doubted that while they claim what was claimed in the original, they claim much more. They claim an entirely different mode of heating the chamber, necessitating a radical difference in the construction of the oven.

The specification of the reissue of 1870, as well as that of 1869, instead of representing the space above the fire-chamber as communicating with the interior chamber only indirectly through perforations in the vertical and back flues, described it as communicating 'directly or indirectly or indirectly in any proper manner with the chamber in which the bread-receiving shelves or platforms are revolved.' The patentee says, 'The flues and openings to permit the passage or circulation of gases into or through the bread-chamber may be located and arranged in any effective manner.' Thus the flues and openings may be made through the bottom of the oven and immediately over the fire, admitting direct radiation from the fire-chamber. And he claims 'one or more swinging bread-holders, suspended from the arms or end plates of a rotating reel in combination with a furnace so arranged and connected that the products of combustion will pass into or through the chamber within which the bread-holders move.' Thus his reissued patent has become one for an oven in which there may be no diaphragm or partition separating the compartment in which the dough is placed from the furnace by which it is heated, and which may be directly under it. Thus the oven is made a part of the passageway for the products of combustion from the fire-chamber to the chimney. That this is a very different invention from anything exhibited in the original specification and drawings is too obvious to need further elucidation. We cannot doubt that the purpose of the reissues was not to cure defects in the original specification, or any deficiency in describing the invention, but to cover other devices which the patentee had not in mind when he first applied for his patent, and which may have subsequently come to his knowledge. Thirteen years after the patent was granted had elapsed before he applied for any reissue. However this may be, the reissued letters are so clearly for a different invention from that for which the patentee first applied, containing new matter, and so much broader, that we are constrained to hold that the Commissioner of Patents had no authority to grant them, and consequently that they are void.

The complainants' bill was, therefore, rightly dismissed.

Decree affirmed.

title: Ball v. Langles/Opinion of the Court


text: Talk:Ball v. Langles/Opinion of the Court


text:
Page:A book of the Cevennes (-1907-).djvu/261

Rh Gabriel Astier was finally taken and broken on the wheel in 1690.

François Vivens was a wool-comber of Valleraux, a small man and lame, but with a robust and indefatigable body. He had gone to Holland, but, on the accession of William to the English throne, felt so confident that the Prince of Orange would bring all the power of his kingdom to assist the Calvinists of Languedoc, that he returned thither. When he arrived in the Cevennes he found the people agitated by the spirit of prophecy. He was the first to organise rebellion. He exhorted to it, and collected arms, manufactured powder, and cast bullets. He soon had four hundred men under arms, and he met Bâville and de Broglie near Florac at the head of a considerable body. A fight ensued. Vivens was obliged to fly and hide in a wood; he lost three men killed, and some prisoners, who were hung next day.

Bâville executed several persons charged with having given him shelter. To revenge this Vivens, with his own hand, killed the curé of Conguérac, and had the priest of S. Marcel and the vicaire stabbed and four officers assassinated, either in their houses or on the roads. "This Cevenol," says Peyrat in his Histoire des Pasteurs du Desert, "had in his soul something of the Tishbite who had four hundred and fifty of the prophets of Baal slain by the brook of Carmel."

Whilst Vivens was ordering these bloody reprisals he was carrying on a correspondence with Schomberg, late Marshal of France, who was at this time in Savoy in command of a regiment of refugee Protestants. He proposed to Schomberg a plan. He was to raise an army of several thousands, make a sudden descent on


text:
French v. Wade

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

This was a suit brought March 14, 1878, against Joseph M. French, by the heirs-at-law of Henry F. Wade, Jr., to recover the possession of certain real estate in the city of New Orleans.

Wade was the owner of the property when it was seized and a libel for its condemnation filed in the proper District Court of the United States, under the act of July 17, 1862 (12 Stat. 589), commonly called the Confiscation Acts, and the joint resolution of even date therewith. Id. 627. It was condemned May 6, 1865, as forfeited to the United States, and sold under a writ of venditioni exponas, Oct. 21, 1865. Wade was the purchaser, and he and his wife, by an authentic act passed before S. Magner, notary public, on the thirtieth day of that month, bargained and sold it in fee, with all legal warranties, to French. The latter took possession of it and made valuable improvements.

The act recites that the property was acquired by Wade 'at a sale made by the marshal of the United States for the eastern district of Louisiana, by virtue of a writ of venditioni exponas to him directed by the District Court of the United States for that district, in the suit entitled. The United States v. One Piece of Ground, & c., the property of Henry F. Wade, Jr., No. 7969 of the docket of said court, as per deed of said marshal, dated the 24th of October, 1865, recorded in the clerk's office of said court in sales-book B, folios 340 and 341, hereto annexed as part hereof; said property belonged to said Wade, Jr., defendant in said suit, for having acquired the same by donation from his father, Henry F. Wade, and his mother, Lucretia Martin, by act passed before Theodore Guyole, late notary, on the 17th of May, 1860, and the same belonged to said donor and his wife, as community property.' Wade died Feb. 24, 1874.

Judgment was rendered in favor of the plaintiffs, and French sued out this writ of error.

Mr. Benjamin F. Jonas for the plaintiff in error.

Mr. John A. Campbell, contra.

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

title: French v. Wade


text: Talk:French v. Wade

title: Talk:French v. Wade


text:
French v. Wade/Opinion of the Court

We think the court below was right in holding that this case was governed by that of Wallach et al. v. Van Riswick (92 U.S. 202), in which we decided that after a seizure and an adjudicated condemnation and sale under the Confiscation Act of July 17, 1862 (12 Stat. 589), of the lands of one engaged in rebellion against the United States, there was 'left in him no estate or interest of any description which he could convey by deed, and no power which he could exercise in favor of another' (p. 208), and that the joint resolution passed contemporaneously with the approval of the act was 'intended for the benefit of his heirs exclusively, to enable them to take the inheritance after his death.' p. 213. As to him, the forfeiture was complete and absolute; but the ownership after his death was in no wise affected (p. 209), except by placing it beyond his control while living. This case has been followed many times since. Pike v. Wassell, 94 U.S. 711. It must now be considered as the settled rule of decision in this court.

Wade, by the purchase of his own interest in the property, took the property to hold during his life, the same as any other purchaser. Whatever rights another could have acquired by the purchase, he got, but no more. Another could not, after purchase, have sold and conveyed the interest of the heirs in the property; neither can he. By the condemnation and sale, Wade's estate was separated entirely from that of his heirs after his death, and the heirs are not estopped by his warranty from asserting their title.

As the cause was tried below on the question of title only, and there are no findings in respect to the improvements pur on the property by French, we cannot consider whether any allowances should be made to him on that account or not.

Judgment affirmed.

title: French v. Wade/Opinion of the Court


text: Talk:French v. Wade/Opinion of the Court


text:
Railroad Company v. Mississippi

ERROR to the Supreme Court of the State of Mississippi.

The facts are stated in the opinion of the court.

Mr. John A Campbell and Mr. Thomas L. Bayne for the plaintiff in error.

Mr. Alexander M. Clayton, contra.

MR. JUSTICE HARLAN delivered the opinion of the court.

title: Railroad Company v. Mississippi


text: Talk:Railroad Company v. Mississippi

title: Talk:Railroad Company v. Mississippi


text:
Page:A book of the Cevennes (-1907-).djvu/262

184 Mortes, march across the plain, and join hands with the Cevenols. The correspondence was intercepted, and Bâville, seeing he had to do with a dangerous man, put a price on his head.

A preacher named Languedoc, a companion of Vivens, was arrested, and made revelations—amongst others that Vivens had converted four dragoons, who kept him informed of every movement of the royal troops. These men were taken, and one betrayed where Vivens hid, in a cave. The commandant of Alais with a body of soldiers went to the place, which was not far off. The cavern was in a rock that had to be surmounted, and descent to the cave was by a narrow path. Vivens, who was there with two of his lieutenants, was only aware of his danger when the enemy were close at hand. His first assailant, a sergeant, he shot as he descended. Vivens had several guns loaded that were passed out to him by his companions. He killed two more soldiers and wounded the lieutenant, but was himself shot by a man who had succeeded in creeping down in his rear. All but one of the pastors in the Cevennes, Pierre Roman, had been captured and hung. The death of Vivens and the peace of Ryswick deprived the Calvinists there of hope of assistance from the Protestant powers, and resistance ceased. However, although all seemed quiet, the authorities redoubled their measures of severity. Everywhere new excesses of cruelty were committed by the governors of the provinces, the judges and the provosts of the mounted police, against poor creatures who desired only to be let alone to serve God according to their dim lights.

"In 1700," says Court, the historian of the Camisards, "the country groaned with the crowds languishing in prison


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

The plaintiff in error, defendant below, filed a petition in the State court of original jurisdiction for the removal of this suit into the Circuit Court of the United States for the Southern District of Mississippi. The petition was accompanied by a bond, with good and sufficient surety, conditioned as required by the statute. The application for removal was denied, and the court, against the protest of the company, proceeded with the trial of the suit. A demurrer to the answer was sustained, and judgment was entered in behalf of the State. Upon a writ of error, sued out by the company, the Supreme Court of Mississippi gave its sanction to the action of the inferior court upon the petition for removal, and affirmed, in all respects, its judgment upon the merits.

The first assignment of error relates to the action of the State court in proceeding with the trial after the filing of the petition and bond for removal of the suit. If the suit was one which the company was entitled, under the statute, to have removed into the Circuit Court of the United States, then all that occurred in the State court, after the filing of the petition and bond, was in the face of the act of Congress. Gordon v. Longest, 16 Pet. 97; Kanouse v. Martin, 15 How. 198; Insurance Company v. Dunn, 19 Wall. 214. Its duty, by the express command of the statute, was, the suit being removable, to accept the petition and bond, and proceed no further.

Among the cases to which the national Constitution extends the judicial power of the United States are those arising under the Constitution or laws of the Union. The first section of the act of March 3, 1875, determining the jurisdiction of circuit courts of the United States, and regulating the removal of causes from State courts, invests such circuit courts with original jurisdiction, concurrent with the courts of the several States, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of $500, and 'arising under the Constitution or laws of the United States.' Under the second section of that act either party to a suit of the character just described may remove it into the Circuit Court of the United States for the proper district. The only inquiry, therefore, upon this branch of the case is, whether the present suit, looking to its nature and object as disclosed by the record, is, in the sense of the Constitution, or within the meaning of the act of 1875, one 'arising under the Constitution or laws of the United States.'

The action was commenced by a petition filed, in behalf of the State, against the New Orleans, Mobile, and Chattanooga Railroad Company (now known as the New Orleans, Mobile, and Texas Railroad Company), a corporation created in the year 1866, under the laws of Alabama, and by an act of the legislature of Mississippi, passed Fed. 7, 1867, recognized and approved as a body politic and corporate in that State, with authority to exercise therein the rights, powers, privileges, and franchises granted to it by the State of Alabama.

The object of the action was to obtain a peremptory writ of mandamus, requiring the company to remove a stationary bridge which it had erected across Pearl River, on the line between Louisiana and Mississippi, and construct and maintain, in the central portion of the channel of that river, where the railroad crosses, a drawbridge which, when open, will give a clear space, for the passage of vessels, of not less than sixty feet in width, and provide, after its construction, for the opening of the drawbridge, without unnecessary delay, for any and all vessels seeking to pass through it.

The claim of the State is:--

1. That the construction and maintenance of a stationary bridge across Pearl River is in violation of the company's charter, an obstruction to the navigation of the river, and a public nuisance, resulting in great and irreparable damage to the people of Mississippi.

2. That Pearl River, by the common law and the law of nations, is a navigable river, in which the tide ebbs and flows above said bridge, is navigable for steamboats for more than two hundred miles, and has been so navigated from time immemorial; that the river is the boundary between Mississippi and Louisiana, neither of those States having power to authorize any obstruction to its free navigation; that by an act of Congress, entitled 'An Act to enable the people of the western part of Mississippi Territory to form a constitution and State government, and for the admission of said State into the Union on an equal footing with the original States,' passed March 1, 1817, it was, among other things, provided 'that the Mississippi River and the navigable rivers and waters leading into the same, or into the Gulf of Mexico, shall be common highways and for ever free, as well to the inhabitants of said State as to other citizens of the United States;' that those provisions constituted a condition on which the State of Mississippi was admitted into the Union, and an engagement on the part of the United States that all the navigable rivers and waters emptying into the Gulf of Mexico should for ever be free to all the inhabitants of the State of Mississippi; that Pearl River does lead and empty into the Gulf of Mexico; that the bridge is such an obstruction to the navigation of Pearl River as to cause permanent injury, as well to the State of Mississippi and its inhabitants, as to the commerce of the United States and of the world, and, consequently, was in violation of the law.

The company resists the application for a mandamus, upon several grounds.

It affirms that the bridge in question had been constructed and is maintained in accordance with its charter and conformably to the power and authority conferred by the States of Alabama, Mississippi, and Louisiana.

It further avers, in its answer, that the railroad is a great public highway through those States, connecting them with other portions of the United States; that Congress, in view of the magnitude and cost of the work, and to expedite its construction, by an act entitled 'An Act to establish and declare the railroad and bridges of the New Orleans, Mobile, and Chattanooga Railroad, as hereafter constructed, a post-road, and for other purposes,' approved March 2, 1868, authorized and empowered that corporation to construct, build, and maintain bridges over and across the navigable waters of the United States on the route of said railroad, between New Orleans and Mobile, for the use of the company and the passage of its engines, cars, trains of cars, mails, passengers, and merchandise, and that the railroad and its bridges, when complete and in use, were to be held and deemed lawful structures and a post-road; that the act of Congress required drawbridges on the Pascagoula, the Bay of Beloxi, the Bay of St. Louis, and the Great Rigolet, but none on Pearl River, power being reserved by Congress to amend or alter the act so as to prevent or remove material obstructions; that the company is authorized to maintain the bridge in question under that act of Congress; that the same is a lawful structure and a post-road, which no court can, consistently with the act of Congress, overturn or abate as illegal or as a nuisance.

On the day succeeding that on which its answer was filed, the company presented the petition for removal, to which refer ence has already been made, accompanied by a bond in proper form. That petition sets out the nature and object of the action, and claims that the right to erect and to maintain the present bridge for the conveyance of the cars, trains, passengers, mails, and merchandise, vested in the company, 'on a contract with the State of Mississippi in the enactment aforesaid; that the State of Mississippi has no power to repudiate that contract or to impair its obligations; that it is a vested right resting on a contract and supported and sustained by the Constitution of the United States, and that this cause is one arising under the Constitution of the United States.'

It then proceeds:--

'And your petitioner further represents that the bridge aforesaid, and its maintenance over the said river in the manner in which it exists, is authorized by the act of Congress approved March 2, 1868, which authorized and empowered the said company to construct, build, and maintain bridges over and across the navigable waters of the United States on the route of the said railroad between Mobile and New Orleans, and that when constructed they should be recognized as lawful structures and a post-road, and were declared to be such; and the Congress reserved the power to alter the same when they become an obstruction to the navigable waters.

'Your petitioner says that the railroad and bridges are and have been for three of more years a post-road, over which the mails of the United States have been carried and are now being carried, and as the bridge referred to is a lawful structure under the laws of the United States, this suit impugns the rights, privileges, and franchises granted by the act of Congress aforesaid of the 2d March, 1868.'

From this analysis of the pleadings, and of the petition for removal, it will be observed that the contention of the State rests, in part, upon the ground that the construction and maintenance of the bridge in question is in violation of the condition on which Mississippi was admitted into the Union, and inconsistent with the engagement, on the part of the United States, as expressed in the act of March 1, 1817. On the other hand, the railroad company, in support of its right to construct and maintain the present bridge across Pearl River, invokes the protection of the act of Congress passed March 2, 1868. While the case raises questions which may involve the construction of State enactments, and also, perhaps, general principles of law, not necessarily connected with any Federal question, the suit otherwise presents a real and substantial dispute or controversy which depends altogether upon the construction and effect of an act of Congress. If it be insisted that the claim of the State, as set out in its petition, might, possibly, be determined by reference alone to State enactments, and without any construction of the act of 1817, the provisions of which are invoked by the State in support of its application for mandamus, the important, and, so far as the defence is concerned, the fundamental, question would still remain, as to the construction of the act of Congress of March 2, 1868. That act, the company contends, protects the present stationary bridge against all interference whatever, upon the part either of the State or of the courts. In other words, should the court be of opinion that the law is for the State, if the rights of parties were tested simply by the statutes of Alabama and Mississippi, it could not evade, but must meet and determine, the question, distinctly raised by the answer, as to the operation and effect of the act of Congress of 1868.

Is it not, then, plainly a case which, in the sense of the Constitution, and of the statute of 1875, arises under the laws of the United States?

If regard be had to the former adjudications of this court, this question must be answered in the affirmative.

It is settled law, as established by well-considered decisions of this court, pronounced upon full argument and after mature deliberation, notably in Cohens v. Virginia, 6 Wheat. 264; Osborn v. Bank of the United States, 9 id. 738; Mayor v. Cooper, 6 Wall. 247; Gold-Washing & Water Company v. Keyes, 96 U.S. 199; and Tennessee v. Davis, 100 U.S. 257.

That while the Eleventh Amendment of the National Constitution excludes the judicial power of the United States from suits, in law or equity, commenced or prosecuted against one of the United States by citizens of another State, such power is extended by the Constitution to suits commenced or prosecuted by a State against an individual, in which the latter demands nothing from the former, but only seeks the protection of the Constitution and laws of the United States against the claim or demand of the State; That a case in law or equity consists of the right of one party, as well as of the other, and may, properly, be said to arise under the Constitution or a law of the United States, whenever its correct decision depends on the construction of either;

That cases, arising under the laws of the United States are such as grow out of the legislation of Congress, whether they constitute the right or privilege, or claim, or protection, or defence of the party, in whole or in part, by whom they are asserted;

That, except in the cases of which this court is given, by the Constitution, original jurisdiction, the judicial power of the United States is to be exercised in its original or appellate form, or both, as the wisdom of Congress may direct; and, lastly,

That it is not sufficient to exclude the judicial power of the United States from a particular case, that it involves questions which do not at all depend on the Constitution or laws of the United States; but when a question to which the judicial power of the Union is extended by the Constitution forms an ingredient of the original cause, it is within the power of Congress to give the circuit courts jurisdiction of that cause, although other questions of fact or of law may be involved in it.

These propositions, now too firmly established to admit of, or to require, further discussion, embrace the present case, and show that, whether we look to the Federal question raised by the State in its original petition, or to the Federal question raised by the company in its answer, the inferior State court erred, as well in not accepting the petition and bond for the removal of the suit to the Circuit Court of the United States, as in thereafter proceeding to hear the cause. It was entirely without jurisdiction to proceed after the presentation of the petition and bond for removal.

In view of our decisions in Insurance Company v. Dunn (19 Wall. 214), in Removal Cases (100 U.S. 457), and in other cases, it is scarcely necessary to say that the railroad company did not lose its right to raise this question of jurisdiction by contesting the case, upon the merits, in the State courts after its application for the removal of the suit had been disregarded. It remained in the State court under protest as to the right of that court to proceed further in the suit, and there is nothing in the record to show that it waived its right to have the case revoved to the Federal court, and consented to proceed in the State court, as if there had been no petition and bond for the removal.

The judgment of the Supreme Court of Mississippi will, therefore, be reversed, and the cause remanded for such orders as may be consistent with this opinion, and with directions that the court of original jurisdiction be required to set aside all judgments and orders made in this suit after the presentation of the petition and bond for its removal into the Circuit Court of the United States, and proceed no further in the suit; and it is

So ordered.

MR. JUSTICE FIELD did not sit in this case, nor take part in deciding it.

MR. JUSTICE MILLER dissenting.


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


text:
Railroad Company v. Mississippi/Dissent Miller

MR. JUSTICE MILLER dissenting.

I dissent from the opinion of the court in this case. It is always a matter of delicacy when a cause of which a court has undoubted jurisdiction is transferred, at the instance of one party, to another court of concurrent jurisdiction. It is especially so when the transfer is to be made to a Federal from a State court, without regard to the consent of the latter, and against the objection of the other party.

In such a case the right of removal should be made very clear on the application for that purpose. And when the application has been refused, and the State courts, up to the highest to which the cause can be carried, have considered and decided it upon its merits, the judgment finally rendered should not be treated as a nullity, unless the case upon which the want of jurisdiction of these courts depends is made very plain indeed.

I do not think such a case is presented here.

The removal is based upon the second section of the act of Congress of March 3, 1875, 'to determine the jurisdiction of circuit courts of the United States, and to regulate the removal of causes from, State courts, and for other purposes.' This enacts 'that any suit of a civil nature, at law or in equity, now pending or hereafter brought in any State court, where the matter in dispute exceeds, exclusive of costs, the sum or value of $500, and arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority,' may be removed by either party, on proper showing, to the Circuit Court of the United States. The decision is that this is a suit arising under a law of the United States, to wit, the act of Congress concerning the bridge of which plaintiff complains. I make no captious criticism by reason of the fact that the opinion of the court is mainly directed to the constitutional provision extending the judicial power of the United States to cases arising under that instrument and the laws and treaties made under its authority, while the word used in the statute is suits. The language of the Constitution may be broad enough to sustain a statute which authorizes the removal of a cause at any stage when a case is made, which, taken as a whole, requires a judgment based upon the Constitution, a law, or a treaty of the United States.

The act of 1875 is the first which ever attempted to give a right of removal on such ground, and it limits that right to suits arising under the Constitution, laws, or treaties of the United States. It does not give the right of removal where the defence arises under such a law, unless 'suit' necessarily includes the defence which may be made thereto. The lexicons do not so define it. Bouvier's Law Dictionary says that in the practice of the law 'suit' means 'an action.' Can a defence to an action be called the action? No more can the defence to a suit be called the suit. Webster says 'suit' is the act of suing; the process by which one gains an end or object, and as a word in the law, he says it is 'an attempt to gain an end by legal process;' 'a legal application to a court for justice;' 'an action or process for the recovery of a right of action.' Does this mean the defence to an alleged right of action? Can it be held to mean the attempt to defeat an action? Worcester defines it thus: 'In modern law, the prosecution of some claim or demand in a court of justice; judicial prosecution:' and perhaps this is as good a definition of the word, when used in reference to legal proceedings, as any that can be framed, and it is peculiarly applicable to the use of the word in the act of 1875.

In Weston v. The City of Charleston (2 Pet. 449), Mr. Chief Justice Marshall, in delivering the opinion of the court, conceding the term to be a very comprehensive one, says it applies 'to any proceeding in a court of justice by which an individual pursues that remedy in a court of justice which the law affords him.'

Taking the idea of a 'suit' as thus defined, what is meant by the suit arising under a law of Congress? The obvious answer seems to be that the cause of action is founded on the act of Congress; that the remedy sought is one given by an act of Congress; that the relief which is prayed is a relief dependent on an act of Congress; that the right to be enforced in the suit is a right which rests upon an act of Congress. In all this I see no place for holding that a defence to a suit not so founded on an act of Congress, or a plea which the defendant may interpose to any ordinary action, though that plea be founded on an act of Congress, is a suit arising under an act of Congress.

Looking also to the reasons which may have influenced Congress, it may well be supposed that while that body intended to allow the removal of a suit where the very foundation and support thereof was a law of the United States, it did not intend to authorize a removal where the cause of action depended solely on the law of the State, and when the act of Congress only came in question incidentally as part (it might be a very small part) of the defendant's plea in avoidance. In support of this view, it may be added that he in such case is not without remedy in a Federal court; for if he has pleaded and relied on such defence in the State court, and that court has decided against him in regard to it, he can remove the case into this court by writ of error, and have the question he has thus raised decided here.


text: Talk:Railroad Company v. Mississippi/Dissent Miller


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Langford v. Monteith

ERROR to the Supreme Court of the Territory of Idaho.

The facts are stated in the opinion of the court.

The Attorney-General for the plaintiff in error.

Mr. Benjamin F. Butler, contra.

MR. JUSTICE MILLER delivered the opinion of the court.

title: Langford v. Monteith


text: Talk:Langford v. Monteith

title: Talk:Langford v. Monteith


text:
Langford v. Monteith/Opinion of the Court

Langford, the plaintiff in error, who was plaintiff below, brought an action before a justice of the peace in the nature of forcible detainer, to revover of Charles E. Monteith the possession of buildings and grounds occupied by the latter under the agent of the United States for the Nez Perc e Indians.

The plaintiff, in his petition, charges that under a lease from him the defendant entered with a condition to deliver possession to the plaintiff on ten days' notice, which was given.

The defendant answers by alleging that at the time of making the lease he was in possession under John B. Monteith, Indian agent; that he was induced to take the lease by the false representation of the plaintiff that he was the owner of the property; that said buildings and grounds were then and are now the property of the United States; and that the government had issued orders to defend its possession against the plaintiff.

Another allegation of the defence is that the property is situated within an Indian reservation, to which the Indian title has never been extinguished, and therefore forms no part of the Territory of Idaho. Of course, if this latter allegation be true, neither the justice of the peace before whom the case was first tried, nor the District Court to which it afterwards came by appeal, had any jurisdiction over it. The opinion of this court in Harkness v. Hyde (98 U.S. 476) is relied on by the defendant.

The principle announced in that case is sound, namely, that when, by the act of Congress organizing a territorial government, lands are excepted out of the jurisdiction of the government thus brought into existence, they constitute no part of such Territory, although they are included within its boundaries. Congress, from which the power to exercise the new jurisdiction emanates, has undoubted authority to exclude therefrom any part of the soil of the United States, or of that whereto the Indians have the possessory title, when, by our solemn treaties with them, a stipulation to that effect has been made.

The applicability of this doctrine to the jurisdiction of places in which the United States have constructed permanent forts, arsenals, &c., before such governments are organized, will be seen at once. Congress has also acted on this principle on the admission of new States into the Union. The act for the admission of Kansas (12 Stat. 126), after describing its exterior boundaries, and declaring that the new State is admitted into the Union on an equal footing with the original States, in all respects whatever, adds, that nothing contained in the Constitution of the State shall be construed 'to include any territory which by treaty with such Indian tribe is not, without the consent of said tribe, to be included within the territorial limits or jurisdiction of any State or Territory; but all such territory shall be excepted our of the boundaries and constitute no part of the State of Kansas, until said tribe shall signify their assent to the President of the United States to be included within said State.' Between the United States and the Shawnees a treaty then existed by which the United States guaranteed that their lands should never be brought within the bounds of any State or Territory, or subject to the laws thereof. In United States v. Ward (1 Woolw. 1), the Circuit Court held that the State courts had no jurisdiction in the lands of the Shawnees, and this was repeated in United States v. Stahl, id. 192.

The act of Congress of March 3, 1863, to provide a temporary government for the Territory of Idaho (12 Stat. 808), contains a clause precisely similar to that in the act admitting Kansas into the Union.

This court, in Harkness v. Hyde (supra), relying upon an imperfect extract found in the brief of counsel, inadvertently inferred that the treaty with the Shoshones, like that with the Shawnees, contains a clause excluding the lands of the tribe from territorial or State jurisdiction. In this it seems we were laboring under a mistake. Where no such clause or language equivalent to it is found in a treaty with Indians within the exterior limits of Idaho, the lands held by them are a part of the Territory and subject to its jurisdiction, so that process may run there, however the Indians themselves may be exempt from that jurisdiction. As there is no such treaty with the Nez Perc e tribe, on whose reservation the premises in dispute are situated, and as this is a suit between white men, citizens of the United States, the justice of the peace had jurisdiction of the parties, if the subject-matter was one of which he could take cognizance.

Sect. 347 of the act to regulate proceedings in civil cases in the courts of that Territory declares that, on a trial before a justice of the peace, if it appear from the plaintiff's own showing, or from the answer of the defendant verified by his oath, that the determination of the action will necessarily involve the decision of a question of title to real property, the justice of the peace shall suspend all further proceedings, and certify the case to the District Court of the county, which shall thereafter have jurisdiction over the case as if originally brought in that court.

The record is imperfect, but it appears that an appeal was taken from the judgment of the justice of the peace to the District Court, and that the latter overruled the motion of the defendant to dismiss the case because the justice of the peace was without jurisdiction to try it. The same matter was urged in the Supreme Court on appeal from the judgment of the District Court.

We are of opinion that the justice of the peace had no jurisdiction to try the case after the sworn answer of the defendant was filed, and that it was his duty to certify it for primary trial to the District Court. When removed there on appeal, it should have been dismissed, because there could have been no lawful trial before the justice.

That the issue tendered by the sworn answer of the defendant involved the title is clear. If he was holding under the United States, his attornment to the plaintiff and taking a lease were void. The question would then arise, whether the title of plaintiff or that of the United States, set up by defendant, was valid. For the trial of that title, the action brought by the plaintiff and the forum in which it was commenced were inappropriate. The judgment of the Supreme Court of Idaho on the effect of their own code of procedure in this respect will not be reversed here.

Judgment affirmed.


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Page:A book of the Cevennes (-1907-).djvu/263

Rh and in irons. In April a chain of sixty-three were sent to the galleys, whose only crime was fidelity to and zeal for their religion, and among them were several fathers of families with grey heads."

The death of Charles II., King of Spain, at the close of 1700, roused expectations of a new foreign war, into which England and Holland would be drawn to take part with Austria against France. The news of the War of Succession breaking out, spread through the provinces, and revived the hopes of the Reformed; the spirit of prophecy that had languished since the execution of Gabriel Astier burst forth again. At the end of that year, 1700, an old maid who earned her livelihood by tailoring in the villages on the Ardèche brought the prophetic gift into the Cevennes. She communicated it to a number of young boys and girls, and they in turn transmitted it to the population of the mountains. This was done by wild gesticulation, loud invocation of the Spirit, and by breathing into the mouths of those who were to be inspired. The winter had not passed before the epidemic had spread with astounding rapidity, and prophets prophesied by the thousands. Women and children were especially liable to take the contagion. It was calculated that as many as eight thousand children in the Cevennes preached and prophesied. The Governor of Languedoc had a number of them arrested and put in prison, and required the faculty of medicine at Montpellier to examine into the nature of the phenomenon. The doctors observed, discussed, wrangled, and produced an opinion that these children were fanatics. That was the sum of what they had to say.

Bâville released the youngest of the children, but


text: Talk:Langford v. Monteith/Opinion of the Court


text:
Graham v. Railroad Company

APPEAL from the Circuit Court of the United States for the Eastern District of Wisconsin.

This is a bill in equity filed by Lawrence G. Graham and Donald D. Scott against the La Crosse and Milwaukee Railroad Company, the Milwaukee and St. Paul Railway Company, Moses Kneeland, James Ludington, Byron Kilbourn, and others, to subject certain real estate in the city of Milwaukee, Wisconsin, to the satisfaction of certain judgments recovered by the complainants against the first-named company for an indebtedness on contracts arising after its sale and conveyance of that real estate, to Charles D. Nash. The defendants deraign title through him.

The court below dismissed the bill, whereupon the complainants appealed here. The remaining facts are stated in the opinion of the court.

Mr. Matthew H. Carpenter and Mr. Newton S. Murphey for the appellants.

The complainants had the right, as subsequent creditors, to maintain this suit, because, first, if, as we contend, the sale was void as to Nash and purchasers from him with notice, then subsequent creditors of the company may treat the conveyance to him as never having been made; and, secondly, if such sale is merely voidable, it may, at the suit of such creditors, be set aside and the property subjected to the payment of their debts.

It is a general principle that a creditor may, in equity, reach every property right of his debtor. Williams v. Thorn, 70 N. Y. 270. Even damages recovered for torts to property which is subject to execution may be reached by a creditor's bill. Hudson v. Plets, 11 Paige (N. Y.), 183. A creditor purchasing the lands of his debtor on execution may bring his bill to set aside a prior usurious mortgage, or prosecute any suit in regard to them that the debtor could have maintained. Dix v. Van Wyck, 2 Hill (N. Y.), 525; Shaw v. Dwight, 27 N. Y. 245; McMahon v. Allen, 35 id. 403. A judgment creditor may, without issuing an execution, maintain a suit to remove a cloud upon the title to lands, whereon his judgment would otherwise be a lien. Shaw v. Dwight, supra.

Where A. is induced by fraud to convey lands to B. under circumstances which, in equity, entitle the former to set aside the sale, B. has thereunder no such adverse possession as will defeat a subsequent deed from A. to C., and the latter may maintain a bill to set aside the prior voidable conveyance. Livingston v. Iron Company, 9 Wend. (N. Y.) 511; Dickinson v. Burrell, Law Rep. 1 Eq. 337; McMahon v. Allen, supra; Baker v. Whiting, 3 Sumn. 475.

Crocker v. Belangee et al. (6 Wis. 645), and Milwaukee & Minnesota Railroad Co. v. Milwaukee & Western Railroad Co. (20 id. 174), relied upon by the appellees, rest upon Prosser v. Edmonds (1 Y. & C. 481), which was substantially overruled by Dickinson v. Burrell, supra. These cases are both consid ered, and Dickinson v. Burrell is followed in McMahon v. Allen, which is very like the present case. The conveyance was obtained by fraud, and in violation of the duty imposed by fiduciary relations. The grantor then made a general assignment for the benefit of creditors; and the assignee's bill to set aside the conveyance was sustained.

Again, Prosser v. Edmonds and the cases following it, even if held to be good law, do not apply to this case. They all proceed upon the ground that the second conveyance is void by reason of the first grantee's adverse possession of the lands. This cannot be said of a proceeding by a creditor seeking, as in the present case, to enforce the lien of his judgment on them.

The doctrine that subsequent creditors cannot set aside a debtor's fraudulent conveyance rests upon the ground that he was a party to the fraud, and, in furtherance of it, transferred the property. He cannot rescind the sale; and they find no property right in him which even he could assert against his grantee. Existing creditors only are protected by the statute in such a case. But where the conveyance was obtained by fraud practised upon him, he has a subsisting property right, and may enforce the rescission of the sale.

If the defrauded debtor company had sold the property for value to the complainants, or conveyed it to them in satisfaction of their judgment, they could, in either case, have bourght their bill to set aside the prior conveyance to Nash. If so, they could levy on the property, and, having thus acquired a specific lien, maintain such a suit.

The distinction between prior and subsequent creditors is not to be held as strictly in the case of a corporation as in that of individual debtors.

In Bradwell v. Weeks (1 Johns. (N. Y.) Ch. 205), and in Cumberland v. Codrington (3 id. 229), approved in Bank of the Metropolis v. Guttschlick (14 Pet. 19), it was held that when a trust is created for the benefit of a third party, though without his knowledge at the time, he may ratify and enforce it. In Railroad Company v. Howard (7 Wall. 392), and numerous subsequent cases, it is held that the property of a corporation is a trust fund for creditors; and we think the court meant all creditors becoming such during the life of the corporation. Jackson v. Ludeling, 21 id. 616.

Mr. Ephraim Mariner and Mr. John W. Cary, contra.

MR. JUSTICE BRADLEY delivered the opinion of the court.

title: Graham v. Railroad Company


text: Talk:Graham v. Railroad Company

title: Talk:Graham v. Railroad Company