text:
Petition of Boyer and Another for a Writ of Prohibition/Opinion of the Court

The owners of the canal-boat Brilliant and her cargo filed a libel in admiralty, in the district court of the United States for the northern district of Illinois, against the steam canal-boat B & C, in a case of collision. The libel alleges that the Brilliant is a vessel of more than 20 tons burden, and employed, at the time of the collision, in the business of commerce and navigation between ports and places in different states and territories of the United States, upon the lakes and navigable waters connecting said lakes; that the B & C is a vessel of more than 20 tons burden, and was, at the time of the collision, enrolled and licensed for the coasting trade, and employed in the business of commerce and navigation between ports and places in different states and territories of the United States, upon the lakes and navigable waters connecting said lakes; that in August, 1882, the Brilliant, while bound from Morris, Illinois, to Chicago, Illinois, towed, with other canal-boats, by a steam canal-boat, and carrying the proper lights, and moving up the Illinois and Lake Michigan canal, about four miles south of the Chicago end of the canal, was, through the negligence of the B & C, struck and sunk, with her cargo, by the B & C, which was moving in the opposite direction, to the damage of the libelants, $1,500. The owners and claimants of the B & C answered the libel, giving their version of the collision, and alleging that it was wholly due to the faulty navigation of the Brilliant, and that it occurred on the Illinois and Michigan canal, at a place within the body of Cook county, in the state of Illinois. In November, 1883, the district court made an interlocutory decree, finding that both parties were in fault, and decreeing that they should each pay one-half of the damages occasioned by the collision, to be thereafter ascertained and assessed by the court. The owners of the B & C have now presented to this court a petition praying that a writ of prohibition may issue to the judge of the said district court, prohibiting him from proceeding further in said suit. The ground alleged for the writ is the want of jurisdiction of the district court, as a court of admiralty, over the waters where the collision occurred.

The Illinois and Michigan canal is an artificial navigable waterway, connecting Lake Michigan and the Chicago river with the Illinois river and the Mississippi river. By the act of congress of March 30, 1822, c. 14, (3 St. 659,) the use of certain public lands of the United States was vested in the state of Illinois forever, for a canal to connect the Illinois river with the southern bend of Lake Michigan. The act declared 'that the said canal, when completed, shall be and forever remain a public highway, for the use of the government of the United States, free from any toll or other charge whatever for any property of the United States, or persons in their service, passing through the same.' This declaration was repeated in the act of March 2, 1827, c. 51, (4 St. 234,) granting more land to the state of Illinois to aid it in opening the canal. We take judicial notice of the historical fact that the canal, 96 miles long, was completed in 1848, and is 60 feet wide and 6 feet deep, and is capable of being navigated by vessels, which a canal of such size will accommodate, and which can thus pass from Mississippi river to Lake Michigan and carry on interstate commerce, although the canal is wholly within the territorial bounds of the state of Illinois. By the act of 1822, if the land granted thereby shall cease to be used for a canal suitable for navigation, the grant is to be void. It may properly be assumed that the district court found to be true the allegations of the libel, before cited, as to the character and employment of the two vessels, those allegations being put in issue by the answer.

Within the principles laid down by this court in the cases of The Daniel Ball, 10 Wall. 557, and The Montello, 20 Wall. 430, which extended the salutary views of admiralty jurisdiction applied in The Genesee Chief, 12 How. 443, The Hine v. Trevor, 4 Wall. 555, and The Eagle, 8 Wall. 15, we have no doubt of the jurisdiction of the district court in this case. Navigable water situated as this canal is, used for the purposes for which it is used,-a highway for commerce between ports and places in different states, carried on by vessels such as those in question here,-is public water of the United States, and with the legitimate scope of the admiralty jurisdiction conferred by the constitution and statutes of the United States, even though the canal is wholly artificial, and is wholly within the body of a state, and subject to its ownership and control; and it makes no difference as to the jurisdiction of the district court that one or the other of the vessels was at the time of the collision on a voyage from one place in the state of Illinois to another place in that state. The Belfast, 7 Wall. 624. Many of the embarrassments connected with the question of the extent of the jurisdiction of the admiralty disappeared when this court held, in the case of The Eagle, ubi supra, that all of the provisions of section 9 of the judiciary act of September 24, 1789, c. 20, (1 St. 77,) which conferred admiralty and maritime jurisdiction upon the district courts, were inoperative, except the simple clause giving to them 'exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction.' That decision is carried out by the enactment in section 563 of the Revised Statutes, subd. 8, that the district courts shall have jurisdiction of 'all civil causes of admiralty and maritime jurisdiction,' thus leaving out the inoperative provisions.

This case does not raise the question whether the admiralty jurisdiction of the district court extends to waters wholly within the body of a state, and from which vessels cannot so pass as to carry on commerce between places in such state and places in another state or in a foreign country; and no opinion is intended to be intimated as to jurisdiction in such a case.

The prayer of the petition is denied.


text: Talk:Petition of Boyer and Another for a Writ of Prohibition/Opinion of the Court

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


text:
Estey v. Burdett

E. N. Dickerson and ''Wm. M. Evarts'', for appellants.

''Geo. Harding and E. J. Phelps'', for appellee.

BLATCHFORD, J.

title: Estey v. Burdett


text: Talk:Estey v. Burdett

title: Talk:Estey v. Burdett


text:
Estey v. Burdett/Opinion of the Court

This is a suit in equity brought for the infringement of letters patent No. 87,241, granted February 23, 1869, to Riley Burdett, the plaintiff, for 17 years from August 24, 1868, for an improvement in reed organs.' The specification of the patent is in these words: 'Figure 1 is a perspective view of one of my reed celeste organs. Figure 2 is a diagram plan, showing the relative arrangement of the needs. Figure 3 is a vertical transverse section of my reed-board, etc. This invention consists-First, in the arrangement of the reed-board; second, in a method of tuning, by which a peculiar quality of tone is produced, and by which the

power of the instrument is greatly increased without an increased resistance in the action, and without an increase of power being necessary to operate the bellows. The advantages gained by my peculiar arrangement are, a greatly in creased power and variety of tone. This is effected by the use of an additional set of reeds, commencing at tenor, F, or thereabouts, and running upward through the scale of the instrument, and tuning the same in the peculiar manner hereinafter described. No other reed musical instrument containing the same number of reeds, so     far as I know, has ever possessed so great a variety or      pleasing quality of tone, while simplicity of construction,      compactness of form, and ease of operation are other      exellencies of this arrangement not found in others. I will     now describe particularly the construction of that part of my      instrument which forms the subject of this patent. The case,     bellows, pedals, etc., may be, in general construction and      arrangement, like those in common use, and, therefore, no      special description is required. The foundation of the     reed-board is also constructed in the usual manner, but the      reed-board proper, in itself, differs from the ordinary      reed-board in the following particulars, viz.: The main      board, A, contains two sets of reeds running through the      entire scale, the back set of which is marked a, and is tuned      as a unison or diapason, while the front or octave set,      marked b, is tuned an octave above the diapason. In the     arrangement of these reeds, it will be seen that the lowest      and longest reeds in the diapason and the octave sets are      placed with their vibrating ends as near together as they can      be, with room only for the tracker-pin which communicates the      motion of the key to the valve beneath the reeds. But, as the     reeds continually shorten as they advance upward in the      scale, there is necessarily a vacant space left between the      diapason set, a, and the octave set, b, which constantly      enlarges itself, and has heretofore been regarded as useless. Within this space, commencing on tenor, F, and running upward     through the scale, I have introduced a third set of reeds, L,      which forms the distinguishing feature of this instrument. These are placed in the reed-board over the octave set, b,     and run obliquely to the foundation board, G, as shown in      Figure 3, the vibrating ends resting on the same base as the      other sets of reeds, a, and b. These reeds are of the same     size as the corresponding ones in the diapason, a, and are      tuned either a trifle above or below the diapason, but only      sufficiently so to produce a slightly waving and undulating      quality or effect, without producing any discord. A few     trials will enable any tuner of reed instruments to tune      these reeds so as to realize the best effect. This method of     tuning will, when this set of reeds, which I have named the      Harmonic Celeste, is drawn and used in conection with the      diapason, produce a most wonderfully pleasing and captivating      effect, while the power and beauty of both sets of reeds are      greatly augmented and enriched, in a manner which cannot be realized without being heard. Figure 2     shows a top view of the reed-board proper, wherein the      location of the reeds is shown with reference to the      divergence of the reeds of the diapason set, a, and the      octave set, b, and also the space afforded for the      introduction of the third set, L. Figure 3 exhibits a      transverse section of my reed and foundation board, showing      the arrangement of my reeds and the valve connections. In     this figure, A is the reed-board, G is the foundation board,      D is the valve opening, E is the valve, and FF are the      throats over which the reeds are located and placed. The     valve, E, is retained in its proper place by the pins, e, e,      and spring, H, and is operated by the tracker-pin, I, which      rests upon its upper surface, and passes upwards through the      reed-board to the under surface of the key, n. the      swell-boards, j and k, and stop-dampers, b aND M, ARE RAISED,      WHENEVER DESIRED, BY the knee-stop, C, Figure 1, or by a hand      draw-stop, or by some other convenient device. Another     important advantage arising from the introduction of the      Harmonic Celeste is that a greater power and variety are      attained than can be by the use of any of the octave coupling      arrangements now in use. These, while they augment the power,     by drawing down octaves to the keys actually played, are      objectionable, inasmuch as they offer more than double the      resistance to the key, and are thus often exceedingly      undesirable. In my instrument, no such objection can ever     arise, as the pressure upon the keys is always the same,      whether one or all the sets of reeds are used This is of      prime importance to the performer, as the required exertion      becomes involuntary, and not a matter of calculation, and      thus the mind is not distracted from the proper feeling and      expression of the music performed.'

'(1) The arrangement, in a reed musical instrument, of the     reed-board, A, having the diapason set, a, and its octave      set, b, and the additional set, L, extending from about at      tenor, F, upward through the scale, substantially as and to      the effect set forth; (2) the reed-board, A, and      foundation-board, G, constructed with the contracted valve      openings, D, FF, and the reeds arranged in relation thereto,      all in the manner described; (3) the diapason, a, and its      octave, or principal, b, arranged over the same valve      opening, as described, so that the octave unison may be      produced, when desired, without the use of coupler, and      without any additional pressure upon the keys; (4) in      connection with the reed-board, A, having the sets, a, b, and L, as described, the independent      dampers, B and M, as set forth.'

The circuit court made an interlocutory decree declaring the patent to be valid so far as claims 1 and 2 are concerned; that those two claims had been infringed; that the plaintiff was not the original and first inventor of what is set forth in claim 4, and did not before the commencement of this suit file a disclaimer of what is claimed in claim 4, and had not unreasonably neglected to file such disclaimer, and had presented evidence of his having filed such disclaimer; that no evidence had been offered to show any infringement of claim 3; and that the plaintiff was entitled to recover profits and damages because of such infringement. A reference to a master to ascertain the same was ordered and a perpetual injunction was awarded as to claims 1 and 2. On the report of the master a final decree was made for the plaintiff for $161,011.79, without costs to either party. The decisions of the circuit court in the case are reported in 15 Blatchf. C. C. 349; 16 Blatchf. C. C. 105; and 19 Blatchf. C. C. 1; [S.C.. 3 Fed. Rep. 566.] The defendants have appealed.

An examination of the text of the specification shows that the inventor purposed to cover by his patent two things: (1) a new arrangement of the reed-board; (2) a new method of tuning. In the application for the patent, claim 1 read as it does now, while claims 2, 3, and 4 had specific reference to the method of tuning described. The patent-office rejected all the claims. The plaintiff then amended two of the claims relative to tuning, still retaining the tuning feature in them, and added the claims which are now claims 2, 3, and 4. The office then rejected all seven of the claims. On appeal to the examiners in chief, the decision rejecting the three tuning claims was affirmed, and that rejecting the other four claims was reversed, and the patent was issued accordingly. There is nothing in claims 1 and 2, as granted, which has any reference to any new method of tuning, unless it is to be intended, in accordance with the description, that the partial set is to be capable of being tuned a trifle above or below the diapason set. Except, perhaps, to that extent, all there is in the descriptive part of the specification in relation to a new method of tuning may be dismissed from consideration, as it was introduced to lay a foundation for the original claims 2, 3, and 4, in reference to such new method of tuning. Claims 1 and 2, as they stand, relate only to the arrangement of the reed-board and the sets of reeds, in conjunction with the foundation board and the valve openings and the valves.

The specification shows that the inventor takes a reed-board having two sets of reeds running through the entire scale, a diapason set and an octave or principal set, and makes no change in the foundation-board, or in the case, bellows, pedal, etc. The reed-board with the two sets was old. In its structure, as shown in Figure 2 of the drawings, and as described in the specification, the lowest and longest reeds in the two sets are placed so near together as to leave between them room only for the tracker-pin which communicates motion from the key to the valv ; but, as the reeds shorten continually as the scale proceeds upward, there is a vacant space between the ends of the reeds in the two sets, which space continually grows wider. Within that space the inventor introduces a third set of reeds, commencing at or about tenor, F, and running upward through the scale. He places this third set over the octave set, and the reeds run down-wardly in a direction oblique to the foundation-board, and their vibrating ends, which are their lower ends, rest on the same base as that of the other two sets of reeds. They are of the same size as the corresponding reeds in the diapason set. The point of advantage in bringing down the vibrating ends of the reeds in the third set, so that they shall rest on the same base with the vibrating ends of the reeds in the other two sets, is shown by the evidence to be the same point of advantage which is set forth in the specification of the prior patent granted to the plaintiff on the ninth of January, 1866. In that the invention is stated to be to so make the reed-board that the three or four sets of reeds in it shall be acted upon instantly and simultaneously by the rush of air upon the opening of the valve; and it is set forth that that result is effected by placing two sets of reeds on the same horizontal plane, and placing the other sets on an inclined plane, each with its base on the same level as the first and second sets, thus making the head of each reed equidistant from the valve and making each produce instantaneous concerted sound.

There was introduced in evidence a reed-organ, known as exhibit No. 21, containing reed-board with two sets of reeds and a third partial set, alleged to have been made by one Dayton in 1866, prior to the plaintiff's invention. There was much testimony on the question as to whether the reed-board and reeds in this organ were made prior to the plaintiff's invention, in the shape in which they appeared when put in evidence. The circuit court decided that question in the affirmative, but nevertheless it held that the arrangement of reed-board and reeds found in No. 21 did not embrace the entire arrangement specified and claimed in claim 1 of the patent, because, although it had a reed-board no wider than was necessary for two full sets of reeds, and had an additional partial set of reeds put in on an incline, and although the reeds in that set may have been tuned flat in relation to the diapason set, yet such reeds did not rest on the same base as that of the other two sets of reeds. We concur with the circuit court in its conclusion as to the genuineness and the date of No. 21, but are of opinion that there is nothing found in the alleged infringing organs which, so far as claim 1 of the plaintiff's patent is concerned, is not found in No. 21. The vibrating reeds in the partial set in the alleged infringing organs do not rest on the same base as that of the other two sets of reeds, and occupy a position in that respect no different, in reference to any requirement of the plaintiff's patent, from that occupied by the vibrating ends of the partial set in No. 21. In all other respects in which the alleged infringing reed-board and reeds embrace what is covered by claim 1 of the plaintiff's patent, what they contain is found in No. 21.

The material point in claim 2 is the contraction of the valve openings. The idea is that the valve openings and passages for the two complete sets of reeds and the intermediate partial set are contracted or condensed within the same space which was usually occupied by the valve openings and passages for only two complete sets of reeds in an instrument of the usual prior construction; and that, therefore, no more force is required to be applied to the keys to open the valves than where only two full sets of reeds are used. The circuit court was of opinion that the valve openings in No. 21 were not the contracted valve openings of the plaintiff's patent, because they were as large as the valve openings in a reed board having three full sets of reeds; and that the lowest and longest reeds in No. 21 did not, as in the plaintiff's arrangement, have their vibrating ends as near together as they could be, with room between them only for the tracker-pin. Our conclusion is that the absolute length and size of the valve opening was a matter of judgment, in view of the state of the art shown, and that there was no invention in making its length and size greater or less in a reed-board of a given width, or where the reed-board was made wider or narrower, or had more or less sets of reeds in it, either full or partial. The dimensions of the valve-opening and of the valve are regulated by the judgment of the manufacturer as to the quantity of air necessary, and the resistance to be overcome in working the valve, and the inconvenience of the leakage of air. We are also satisfied that the vibrating ends of the lowest and longest reeds in No. 21 were as near together as they are in the reed-boards of alleged infringing organs.

It results from these considerations that the decree of the circuit court must be reversed, and the case be remanded to that court, with direction to dismiss the bill.

title: Estey v. Burdett/Opinion of the Court


text: Talk:Estey v. Burdett/Opinion of the Court


text:
Clements v. Odorless Excavating Apparatus

Hector T. Fenton, for appellant.

''Benj. Price'', for appellee.

BLATCHFORD, J.


text: Talk:Clements v. Odorless Excavating Apparatus


text:
Clements v. Odorless Excavating Apparatus/Opinion of the Court

This is a suit in equity, brought for the infringement of reissued letters patent No. 6,962, granted to Lewis R. Keizer, February 29, 1876, for an 'improvement in apparatus for cleaning privies,' the original patent, No. 115,565, having been granted June 6, 1871, to Henry C. Bull and Joseph M. Lowenstein, on the invention of said Bull, and the application for the reissue having been filed January 11, 1876. The specification says:

'My invention consists, mainly, in a sink-cleaning apparatus,     consisting of an air-pump, a deodorizer, and suitable tubular      connections, in combination with an independent or movable      receiving cask, having an induction passage or opening, and      also an air-passage for connecting with the air-pump and prov      ded with stench and water tight covers for both passages,      whereby the movable cask may be located in any desired      position with relation to the vault, and the air-pump and the      dodorizer properly located with reference to the vault and      cask, and also whereby the cask, when filled, may be trundled      on its bilge or end, after the usual manner of handling casks      or barrels. My invention consists, further, in the     combination, with the cask, of a flanged opening, a      detachable suction-pump or funnel connected with the flange      of the opening, and a check-valve located within the cask for      retaining the offensive matter after passing through the      valve. My invention still further consits in the combination,     with the air-passage of a night-soil cask, a float-valve,      whereby, when the cask is filled with fluid matter, the valve      will be floated and closed, thereby indicating that the cask      is filled, and preventing the fluid matter from entering the      conducting-pipe and passing through the air-passage to the      air-pump, which would otherwise be liable to have its valves      clogged thereby and rendered inoperative. To more     particularly describe my invention, I will refer to the      accompanying drawings, in which figure 1 represents, in side      view, a cask embodying several features of my invention,      located within a privy. Figure 2 represents, in side view, an     air-pump connected with the cask by a flexible tube or      suction-hose, and provided with a deodorizer. Figure 3     represents a privy vault. Figure 4 represents, on an enlarged     scale and in detail, in vertical central section, the cask      shown in Figure 1. A vault is indicated at A. It is provided     with the usual entrance or opening, as at a. B denotes one of     several casks or receptacles which are employed in connection      with an air-pump, as at C, for removing the offensive matter      from the vault.

The cask, B, has at one end a screw-neck, i, and the check-valve, d, which opens inwardly. Said cask also has another screw-neck, as at M, to which is attached the suction-hose which communicates with the air-pump. Attached to this neck is also a float-valve, as at f, which guards the entrance to the suction tube or hose. The spindle of the valve, f, is provided, in a well-known manner, with guiding devices. The lower portion of the float-valve is provided with cork or other light material, whereby, when the

cask is filled with fluid matter, the valve will be floated and effectually close the entrance to the suction air-pipe, preventing the latter, as well as the pump, from being clogged by said matter. The cask is shown to be provided with shoulders, h, h, whereby the hoisting-clamps, L, may readily be made to engage with the cask. The induction-pipe, O, is secured to the proper screw-neck on the cask, and it constitutes a tubular connection with the cask, through which the offensive matter is conducted from the vault into the cask. In operation I proceed as follows: After removing the seat or floor of a privy, uncovering the entrance to the vault, the cask, B, is suspended by a block and tackle over the vault, connected by the suction-pipe to the air-pump, and then lowered until the funnel-pipe connection, O, (which is temporarily screwed to the neck, i, of the cask,) is at its lower end immersed in the contents to be removed. The air is then exhausted from the cask by means of the pump, and deodorized by the furnace on the pump. The vacuum thus induced causes the matter to be sucked through the funnel-pipe into the cask until the float-valve is lifted and the air-passage closed. The pump is then stopped and the valve, d, closes. The cask, being wholly free from exterior contact with filth, is then lifted, the funnel and suction-pipe removed, and the screw-caps, V, applied to the necks, i and M, after which the cask is handled like any filled cask, and rolled on its bilge or end.'

'(1) A privy-vault-cleaning apparatus, consist ng of an     air-pump, a deodorizer, and suitable tubular connections, in      combination with an independently movable receiving-cask,      having an induction passage or opening, and also an      air-opening for connection with the air-pump, and provided      with screw-necks at each opening, for receiving sealing-caps      or covers, substantially as described, whereby the movable      cask may be located in any desired position with relation to      the vault and privy, and the pump and deodorizer located in      any desired position with relation to the vault, privy, and      cask, and also whereby the casks, when filled, may be handled      as is usual with filled casks, as set forth; (2) the      combination, with a portable cask, having an induction      aperture at one end, of a check-valve, a screw-neck      surrounding the aperture, a funnel-shaped pipe connected with      the neck, and an air-eduction passage provided with a      screw-neck, substantially as described; (3) the combination,      with a portable night-soil cask, of a float-valve located at      the air-passage, substantially as described, whereby the      fluid matter is prevented from entering the air-passage and      clogging the suction air-pipe and pump, as set forth.' The specification of the original patent was in these words, the drawings attached to the original and the reissue being alike:

'Figure 1 is a view in perspective of the cask or package,     showing the method of suspending and operating the same. Figure 2 is a side elevation of the suction-pump and furnace. Figure 3 is a plan view of the vault. Figure 4 is a vertical     transverse section of the cask or receptacle shown in Figure      1. My invention relates to an improvement in devices for     cleaning or emptying privy-vaults, whereby the night soil      therein contained may be removed and utilized and the      disagreeable odors arising therefrom prevented. It consists     of the vault, A, receptacles or casks, B, and the      suction-pump with furnace, C, constructed and operated as      shown and described. A, a cylindrical privy-vault,     constructed of metal or other suitable water-tight material,      and provided with the neck, a, and the flange, b, which      latter is designed as an auxiliary for holding it in a      vertical position, as also for strengthening the same. B     represents one of several casks or receptacies, which are      employed as adjuncts of the suction-pump, C, for removing the      fecal matter from the vault. It has located at its lower     extremity the funnel, O, which fits air-tight upon the neck,      i, and the valve, d, which opens upwardly; and at its apex      the float-valve, f, is provided, which screws upon or is      otherwise caused to fit air-tight upon the neck, M. The      float-valve, f, consists of the rod, e, located vertically in      the tube, g, the said rod being guided by orifices provided      in transverse bars in the upper and lower ends thereof. The     lower part of the float-valve is made of cork or other light      material, in order that, when the cask or receptacle becomes      filled by the action of the suction-pump, it may press      against the orifice of the tube and thereby prevent the      contents of the vault, A, from overflowing or extending      beyond the cask, B. h h are shoulders rigidly attached to the      cask, B, and are designed for clutching with the clamps, L. V      represents one of a series of caps which are screwed upon the      neck or necks of casks, B, when filled by the action of the      suction-pump. The method of operating my device is as     follows: After removing the seat or floor, the receptacle, B,      is suspended from a block and tackle over the opening, and      the cask or receptacle, B, is then lowered into the vault      until the funnel, O, enters the fecal matter about ten      inches, whereupon, by operating the suction-pump, the receptacle or      cask becomes filled with the feces until it reaches the      float-valve, f, which presses against and closes the orifice      of the tube leading to the pump. The valve, d, then falls and     prevents the escape of the contents of the cask. In the mean     time the air that is pumped out of t e receptacle, B, is      forced into a furnace located over the suction-pump, whereby      the odor arising therefrom is destroyed. When one receptacle     is thus filled, the valve, f, is removed and the cap, V,      screwed theron, whereupon the operation is repeated by the      employment of another cask until the vault is emptied of its      contents.'

The claims of the original patent are two in number, as follows:

'(1) The combination and arrangement of the funnel, O, neck,     i, and valve, d, with cask, B, neck, M, and float-valve, f,      substantially as shown and described. (2) The combination and     arrangement of the vault, A, cask, B, and suction-pump, C,      substantially in the manner and for the purpose described.'

Infringement of only claims 1 and 3 of the reissue is insisted on. It is set up as a defense in the answer that the reissue is not for the same invention as that described in the original patent. The apparatus used by the defendant is constructed in accordance with the description contained in two letters patent-one, No. 158,743, granted to Samuel R. Scharf, January 12, 1875, for an 'improvement in machines for cleaning privy-vaults;' the other, No. 179,993, granted to Jerome Bradley and Samuel R. Scharf, July 18, 1876, for a 'machine for cleaning privy-vaults and like places.' In that apparatus there is an independently movable cask, having two necks in its upper head, as it stands. The suction-pipe from the vault is screwed to one neck, and the air-pipe, which leads to the pump, is screwed to the other neck. There is an air-pump, by means of which a vacuum can be formed and maintained in the cask, and a deodorizer, through which the air drawn into the pump is expelled by the working of the pump. The suction-pipe and the air-pipe are both of them tubular, flexible connections. There are caps for closing the necks after the barrel is filled. There is inside of the cask no check-valve, but there is a float-valve, so arranged with reference to the opening of the air-pipe that the fecal matter lifts the valve and closes the passage when the barrel is sufficiently full.

It is quite apparent that the defendant's apparatus did not infringe either one of the two claims of the original patent. Claim 1 made the valve, d, in the bottom of the cask, opening to admit the entrance of material, and shutting when the orifice to the pump was closed by the float-valve, a necessary element in the combination covered by that claim. Without the valve, d, the peculiarly constructed cask of the patent could not be operated. So, as to claim 2, there could be no operative combination of vault, cask, and pump unless the cask should have the valve, d, and that valve was a part of the combination covered by claim 2. The valve, d, is not found in the defendant's apparatus, nor is there any substitute or equivalent for it. The material is taken into the barrel through its head as it stands on its bottom, and hence there is no need of a check-valve. There is not in the specification of the original patent any suggestion or indication of any invention other than the two combinations severally claimed in the two claims. In the reissue there are material enlargements of the scope of the invention described and claimed in the original patent, and, apparently, with a studied view to include and cover, by descriptive words and by broader claims, an apparatus like that used by the defendant. If claim 1 of the reissue be construed so as to exclude the check-valve from the combination covered by that claim, no warrant' is found in the original specification for such a construction. It is apparent that the inventor contemplated the use of no other description of cask than one having such a check-valve as the original specification describes. If claim 1 of the reissue be construed so as to include only such a cask as is described, that is one with a check-valve, there is no infringement of that claim.

Claim 3 of the reissue is for the combination of a float-valve with a cask of same kind. Whether it be a cask with a check-valve, or one without a check-valve, the claim is an expansion of the invention beyond anything indicated in the original specification as the invention. In claim 1 of the original patent four other elements are made necessary, with the cask and the float-valve, to constitute the combination claimed. In claim 2 of the original the cask and the pump cannot be combined, so as to practically co-operate in working, unless the float-valve is used. The original specification states that unless the float-valve is used the contents of the vault will overflow or extend beyond the cask. The specification of the reissue states that, in the absence of the float-valve, the fluid matter will enter the air-pipe, and pass through it to the air-pump, and tend to clog the air-pipe and the valves of the pump and render the latter inoperative. It is, moreover, as true of claim 3 of the reissue as it is of claim 1, that, if the cask of claim 3 be construed to be a cask without a check-valve, there is no ground in the original patent for such a construction; and that, if claim 3 includes no cash except one with a check-valve, it is not infringed.

The original specification indicates nothing but a cask having the entrance opening in its bottom, furnished with a check-valve to open and shut such entrance automatically, the cask suspended vertically over the vault and lowered into it until the funnel at the bottom is sufficiently immersed, the filling of the cask in that position, and the raising it and emptying it. The cask in the defendant's apparatus has the entrance opening in its top, has no check-valve, is not suspended over or lowered into the vault, is placed at a distance from the vault, and is connected with the vault by a flexible pipe. The patent to Scharf, No. 158,743, granted January 12, 1875, a year before reissue No. 6,962 was applied for, shows an apparatus substantially the same as that used by the defendant. There is a barrel or tank, in the head of which, as it stands on its bottom, there are two short metallic pipes. A flexible pipe extends from one into the vault, and another flexible pipe extends from the other to an air-pump. There is a deodorizer connected with the air-pump by a third flexible pipe. The cask is filled by the action of the air-pump in creating a vacuum in it. The foul air passes through the cask and the pump into the deodorizer. The barrel and air-pump are described as 'independently movable about the vault,' by reason of the flexibility of the pipes. The attempted expansion of the original Bull patent, to cover what is shown in the Scharf patent, is manifest. The funnel, O, of the original patent is called, in the reissue, 'an induction passage or opening.' It is said, in the reissue, that 'the movable cask may be located in any desired position with relation to the vault;' and that the operation may be performed 'within or near the privy.' In claim 1 of the reissue it is stated that 'the movable cask may be located in any desired position with relation to the vault and privy.' The effort was to obtain a reissue which should cover an apparatus having the cask located at a distance from the vault, with a flexible pipe from it to the vault, and a receiving opening in the top of the cask, and no check-valve-all of them features not indicated in the original patent, but all of them features existing in the Scharf patent granted after the original Bull patent and before the application for its reissue. The same observations apply to the patent to Frazier, No. 168, 473, granted October 5, 1875, more than three months before reissue No 6,962 was applied for. That patent shows a portable receiving cask connected from its top, by a flexible pipe, with the vault, and by another flexible pipe with an air-pump, which has secured to it a deodorizing vessel. The air is exhausted from the cask and passes through the air-pump into the deodorizer, and the contents of the vault rise into the cask. The cask has no heck-valve, and is described as placed suitably near the vault.

The foregoing state of facts brings this case within the principles laid down in Miller v. Brass Co. 104 U.S. 350, and James v. Campbell, Id. 357. The suggested mistake in the original patent, that its two claims were not as broad as they might have been made, and that the combinations claimed were too narrow and contained too many elements, and that sub-combinations such as are found in claims 1 and 3 of the reissue might have been claimed in the original patent, in view of the state of the art and of the description and drawings of that patent, was, if a mistake at all, one apparent on the first inspection of that patent. The expansions in claim 1 and 3 of the reissue were afterthoughts, developed by the subsequent course of improvement in the Scharf and Frazier patents, and intended to cover matters appearing in those patents and not claimed in the original patent, No. 115,565. No excuse is given for the delay in applying for the reissue, nor is any actual inadvertence, accident, or mistake shown. The omission to claim sub-combination in the combinations claimed, the existence of such sub-combinations being apparent on the face of the original patent, was, in law, on the facts in this case, such a dedication of them, if new to the public, that a reissue, to cover such subcombinations, in revocation of such dedication, cannot be availed of to the prejudice of rights acquired by the public to what is shown in the Scharf and Frazier patents, issued before the reissue was applied for. The reissued patent must, for these reasons, be held to be invalid as to claims 1 and 3.

The circuit court made an interlocutory decree declaring the validity of the reissue and its infringement and awarding a perpetual injunction and an account of profits and damages. By a final decree, a sum of money was awarded as damages. From that decree the defendant has appealed. The result of our consideration is that the decree must be reversed, and the case be remanded to the circuit court, with direction to dismiss the bill.


text: Talk:Clements v. Odorless Excavating Apparatus/Opinion of the Court


text:
Albright v. Emery

A. S. Worthington, for appellants.

John W. Ross and S. S. Henkle, for appellee.

BLATCHFORD, J.

title: Albright v. Emery


text: Talk:Albright v. Emery

title: Talk:Albright v. Emery


text:
Albright v. Emery/Opinion of the Court

In a suit in equity brought in the supreme court of the District of Columbia, by the firm of Langdon, Albright & Co., against Samuel Emery, Sr., and five other persons, that court, in special term, made a decree setting aside an assignment made to two of the defendants, directing the manner in which receivers in the suit should distribute a fund in their hands, directing the clerk to pay to the plaintiffs the whole of a fund in the registry of the court, directing the defendant Emery to pay to the plaintiffs $1,232.37, with interest from July 14, 1879, adjudging Emery to be indebted to the plaintiffs in the further sum of $14,818.98, with interest from July 20, 1877, and the defendant Sailer to be liable to them for the same amount, and awarding execution as at law therefor against them or either of them. From that decree Emery appealed to that court in general term, in his own behalf; Sailer declining, in open court, to appeal. The court in general term made a decree reversing the decree in special term so far as it charged Emery, and dismissing the bill as to him. From that decree the plaintiffs have appealed to this court. It is not necessary to consider the question whether the bill, if demurred to, or if the facts alleged in it were sustained by the proofs, would lie, as setting forth a case for the cognizance of a court in equity, because we are of opinion that the proofs do not establish the allegations of the bill, so far as they affect Emery, in respect to any relief prayed against h m in the bill, or any relief granted against him by the court in special term, and that no part of the relief contended for in the assignments of error made by the appellants is warranted by the proofs.

The decree of the court in general term is affirmed.

title: Albright v. Emery/Opinion of the Court


text: Talk:Albright v. Emery/Opinion of the Court


text:
Winchester Partridge Manufacturing Company v. Funge

This is an appeal from the supreme court of Utah territory, in a suit brought in the First judicial district court of that territory, in March, 1882, by the appellant, a Wisconsin corporation, against the appellee, to recover the sum of $1,444.90, and interest from the filing of the complaint. The complaint contains two counts. The first sets forth that the appellee owed the appellant $2,832.40, for a balance of an account; that, for the purpose of settling such indebtedness, the appellee gave to the appellant's agents, on the twenty-eighth of October, 1880, six orders, on six different parties in Utah territory, for the delivery to such agents of wagons, 25 in number, the orders being severally for 1, 3, 2, 5, 9, and 5 wagons; that, at the same time, said agents executed and delivered to the appellee a receipt, which he accepted, as follows:

'Received from W. W. Funge orders on the respective parties     named in the annexed list, for wagons therein mentioned,      which wagons are to be received in payment of the claim of      Winchester & Partridge Manufacturing Company against said      Funge for twenty-eight hundred and thirty-two dollars and      forty cents, provided the said wagons are delivered to said      Winchester & Partridge Manufacturing Company, or their      agents, W. W. Burton & Co., in good condition and      merchantable order, at the respective places named in said      orders, on presentation thereof; and it is understood and      agreed that if said wagons are so delivered in good condition an  promptly, as      aforesaid, they are to be sold to the best advantage and for      the highest prices that can be obtained for them, and any      surplus of the proceeds thereof that may remain after paying      said debt of $2,832.40, and the actual and necessary cost of      selling the same, is to be refunded to said Funge, unless      prior to that time he shall have been paid two hundred      dollars, ($200), which he agrees, at their option, to take in      lieu of said surplus, and in full settlement of his account      with said company.'

-that 4 of the wagons covered by the order for 9 wagons were not delivered; that 21 of the wagons were delivered, but were none of them in good condition and merchantable order; and that the appellant had sold 19 of them for $1,807.43 net, and had made ineffectual efforts to sell the other 2. The second count sets forth an indebtedness of the appellee to the appellant of $2,832.40, for a balance of an account, in August, 1880, and a credit thereon of the net proceeds of certain wagons, leaving due $1,444.90, with interest from the filing of the complaint.

F. S. Richards, for appellant.

E. D. Hoge, for appellee.

BLATCHFORD, J.


text: Talk:Winchester Partridge Manufacturing Company v. Funge


text:
Winchester Partridge Manufacturing Company v. Funge/Opinion of the Court

The appellee filed a demurrer, and alleged therein as a ground of demurrer to the complaint, and to each count separately, that it did not state facts sufficient to constitute a cause of action. The district court sustained the demurrer, and, the appellant electing to stand by its complaint, judgment was entered in favor of the appellee. The supreme court affirmed the judgment, and the case is here for review. We are of opinion that, on the terms of the receipt, which expressed the contract between the parties, the appellant, or its agents, were required to determine, on receiving the wagons, whether they were in good condition and merchantable order, and were at liberty to reject them if not meeting those conditions; that the receiving the 21 and proceeding to sell them was an acceptance of the 21 in payment pro tanto of the claim; that the contract for the payment in wagons was unfulfilled as to the 4 wagons not delivered; and that the price for which the 19 wagons were sold, and the selling value of the 2 not sold, have no bearing on the case under the first count, unless there be a surplus of the proceeds of sale, to be refunded to the appellee, under the contract.

As to the second count, it sets forth a good cause of action. That count does not involve, on its face, any question as to the contract evidenced by the receipt embodied in the first count.

The judgment of the supreme court is reversed, with direction to it to reverse the judgment of the district court, and to take or direct such further proceedings in the suit as may be according to law and in conformity with this opinion.


text: Talk:Winchester Partridge Manufacturing Company v. Funge/Opinion of the Court


text:
Wyman v. United States (109 U.S. 654)

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

A. L. Merriman and J. Walter Cooksey, for defendant in error.

GRAY, J.

title: Wyman v. United States (109 U.S. 654)


text: Talk:Wyman v. United States (109 U.S. 654)


text:
Wyman v. United States (109 U.S. 654)/Opinion of the Court

This is a writ of error sued out by the treasurer of the United States to reverse a judgment of the supreme court of the District of Columbia, ordering a peremptory writ of mandamus to issue against him, upon the petition of Eminel P. Halstead, as administrator, appointed in the District, of the estates of John N. Pulliam and John J. Pulliam, (each of whom was an inhabitant of the state of Tennessee at the time of his death,) and as trustee appointed by that court, to compel the payment to him of the amount of certain drafts hereinafter mentioned. The petition alleged, and the answer admitted, these facts: On June 17, 1882, Wyman's predecessor, as treasurer of the United States, residing and transacting the business of his office at Washington, in the District of Columbia, issued under and by virtue of the act of congress of May 1, 1882, c. 114, mak ng appropriations therefor, three drafts payable at the treasury in Washington,-one for $3,020, payable to John J. Pulliam, executor of John N. Pulliam, or order, and two for $1,223 and $545, respectively, payable to John J. Pulliam or order; and the three drafts were delivered to Halstead on account of the payees. John J. Pulliam afterwards died, and Halstead, having the drafts in his possession, applied for, and on August 2, 1882, obtained, letters of administration in the District of Columbia upon the several estates of the two Pulliams. In September, 1882, Benjamin U. Keyser filed a bill on the equity side of the supreme court of the District against Halstead and others, claiming an equitable interest in these drafts or the proceeds thereof, and in March, 1883, obtained a decree directing Halstead, as administrator as aforesaid, and as trustee for that purpose, to indorse and collect the drafts, and to make distribution of the proceeds. In obedience to this decree, Halstead, on April 19, 1883, indorsed the drafts, and demanded payment thereof of Wyman, as treasurer of the United States; but he, although having sufficient money in his possession, appropriated by congress, refused to pay them without the indorsements of administrators appointed in the state of Tennessee, the domicile of the two deceased persons. The opinions delivered in the court below, upon granting the writ of mandamus, are reported in 11 Wash. Law Rep. 370-377, 385-394.

The determination of this case does not depend upon the question whether administration was rightly taken out in the District of Columbia, nor upon the question whether an administrator appointed elsewhere could sue within the District upon debts payable here, but upon the question whether a payment by the United States to an administrator already or hereafter appointed in Tennessee, the domicile of the deceased, would be a good discharge of the debts, payment of which is now sought to be enforced.

The general rule of law is well settled that for the purpose of founding administration, all simple contract debts are assets at the domicile of the debtor; and that the locality of such a debt for this purpose is not affected by a bill of exchange or promissory note having been given for it, because the bill or note does not alter the nature of the debt, but is merely evidence of it, and therefore the debt is assets where the debtor lives, without regard to the place where the instrument is found or payable. Yeomans v. Bradshaw, Carth. 373; S.C.. Comb. 392; Holt, 42; 3 Salk. 70, 164; ABINGER, C. B., in Atty. Gen. v. Bouwens, 4 Mees. & W. 171, 191; S.C.. 1 Horn & Hurl, 319, 324; PARKE, B., in Mondel v. Steele, 1 Dowl. (N. S.) 155, 157; Slocum v. Sanford, 2 Conn. 533; Chapman v. Fish, 6 Hill, 554; Owen v. Miller, 10 Ohio St. 136; Pinney v. McGregory, 102 Mass. 186. An administrator is, of course, obliged to demand payment at the place where the bill or note is payable; and he may find difficulty, unless it is payable to bearer, in suing upon it in a place in which he has not taken out administration. But payment to the administrator appointed in the state in which the intestate had his domicile at the time of his death, whether made within or without that state, is good against any administrator appointed elsewhere. Wilkins v. Ellett, 9 Wall. 740, and 108 U.S. --; [S.C.. 2 SUP. CT. REP. 641.]

As was said by Mr. Justice STORY, in delivering the judgment of this court in Vaughan v. Northup, 15 Pet. 1, 6, and repeated by Mr. Justice MCLEAN, in delivering judgment in Mackey v. Coxe, 18 How. 100, 105: 'The debts due from the government of the United States  have no locality at the seat of government. The United  States, in their sovereign capacity, have no particular   place of domicile, but possess, in contemplation of law,   an ubiquity throughout the Union; and debts due by them   are not to be treated like the deb § of a private   debtor, which constitute local assets in his own   domicile. On the contrary, the administrator of a  creditor of the government, duly appointed in the state   where he was domiciled at the time of his death, has   full authority to receive payment and give a full   discharge of the debt due to his intestate, in any place   where the government may choose to pay it.'

In Vaughan v. Northup, an administrator, appointed in Kentucky, of an inhabitant of that state, who died there intestate and childless, received a sum of money from the treasurer of the United States, for military services rendered by the intestate during the revolutionary war, and a bill in equity filed against him in the District of Columbia by the next of kin, for their distributive shares of the money, was dismissed for want of jurisdiction, because an administrator, appointed in and deriving his authority from one state, was not liable to be sued elsewhere, in his official character, for assets lawfully received by him under and in virtue of his original letters of administration.

In that case, as in this, it was argued by counsel that the assets in question were not collected in the state of the intestate's domicile, 'but were received as a debt due from the government at the treasury department at Washington, and so constituted local assets within this district.' It was in declining to yield to that argument that the court laid down the general principles above quoted, and added:

'If any other doctrine were to be recognized, the consequence     would be that before the personal representative of any      deceased creditor, belonging to any state in the Union, would      be entitled to receive payment of any debt due by the      government, he would be compellable to take out letters of      administration in this District for the due administration of      such assets. Such a doctrine has never yet been sanctioned by     any practice of the government, and would be full of public as well as private inconvenience. It has not, in our judgment, any just foundation in the     principles of law. We think that Northup, under the letters     of administration taken out in Kentucky, was fully authorized      to receive the debt due from the government to his intestate;      that the moneys so received constituted assets under that      administration, for which he was accountable to the proper      tribunals in Kentucky; and that distribution thereof might      have been, and should have been, sought there in the same      manner as of any other debts due to the intestate in      Kentucky.'

The act of June 24, 1812, c. 106, § 11, (since omitted in the Revision in 1874 of the Statutes of the District,) by which executors or administrators appointed in any state or territory were permitted to maintain any suit or action, or to prosecute and recover any claim, in the District of Columbia, as if they had been appointed here, was referred to in the opinion, not as the principal ground of decision, but as affording no support for the bill, and as fortifying rather than weakening the general principles of law upon the subject. 2 St. 758; 12 Pet. 7, 8.

In the case at bar, neither the fact that the drafts were made payable at the treasury of the United States in the city of Washington, nor the deposit, pursuant to section 307 of the Revised Statutes, of the mony represented by the drafts in the treasury to the credit of the payees, affected the character or the the locality of the debts. The deposit of the money gave the payees or their representatives no property in or lien upon it. The obligation of the United States was not to surrender to them any specific sums of money, but to pay to them sums equal to the amounts credited to them, as in the case of any other liquidated debt. The creditors could not indeed insist upon payment without first demanding it at the treasury. But the United States, in their sovereign capacity, having no domicile in any one part of the Union rather than in any other, do not, by establishing at the national capital a treasury for the tr nsaction of the principal business of the financial department of the government, and making their money obligations payable there, confine their presence or their powers to this spot. The United States having, in the phrase of Mr. Justice STORY, 'an ubiquity throughout the Union,' may in their discretion, exercised through the appropriate officers, pay a debt due to the estate of a deceased person, either to the administrator appointed in the state of his domicile or to an ancillary administrator duly appointed in the District of Columbia; and the exercise of their discretion in this regard cannot be controlled by writ of mandamus.

It is hardly necessary to mention the proceedings in equity upon the suit of Keyser. Though referred to in the petition for the writ of mandamus in the general terms stated at the beginning of this opinion, they have not been printed in full in the record, as required by the eighth rule. The reason, doubtless, is that both in the opinion of the court below, and in the argument in this court, while it is said that the administrator appointed in Tennessee of the estate of John N. Pulliam was made a defendant in that suit, and the bill taken for confessed against him, it is admitted that he was not amenable as administrator to suit in this District, and that neither he, nor any administrator hereafter appointed in Tennessee of the estate of John J. Pulliam, could be concluded by that decree.

The result is that the judgment of the supreme court of the District of Columbia awarding a peremptory writ of mandamus must be reversed, and the case remanded to that court, with directions to dismiss the petition.


text: Talk:Wyman v. United States (109 U.S. 654)/Opinion of the Court


text:
Bachman v. Lawson

Edward Jordan, for plaintiffs in error.

Frederic B. Jennings, for defendants in error.

GRAY, J.

This action was brought in the superior court of the city of New York, by the members of the firm of Lawson & Walker against the members of the firm of Bachman Bros., to recover compensation for services performed under a written agreement between them, dated April 25, 1871, which recited that the defendants had employed, and by power of attorney of the same date had authorized, the plaintiffs to collect their 'claim arising out of the capture of the ship Commonwealth and her cargo by the armed rebel cruiser, the Florida;' and by which the plaintiffs agreed 'to use their best efforts, at their own expense, to collect the said claim in the shortest practicable time;' and the defendants, in consideration of the premises, agreed to allow and pay to the plaintiffs 'a compensation equal to twenty-five per cent. of weatever sum shall be collected on the said claim.' By the power of attorney referred to in this agreement, the defendants appointed the plaintiffs their attorneys to prosecute and collect the claim by such lawful proceedings and means as to them might appear expedient, but at their own cost and charge; and authorized them to receive on the defendants' account whatever sums of money might be awarded on the claim, and to give in their name proper acquittances therefor; to execute all papers necessary to secure the transfer of the claim to any party, department, or government which might assume the payment thereof; and to employ for the prosecution of the claim such attorneys as they might think fit. The plaintiffs, who were average adjusters, filed an abstract of the claim in the department of state, and in accordance with the instructions issued by that department, and from papers and information furnished by the defendants, prepared a memorial, giving a full history of the circumstances relating to the claim; and afterwards went to Washington several times about this and other like claims; and after the passage of the act of congress of June 23, 1874, c. 489, establishing the court of commissioners of the Alabama claims, prepared and sent to the defendants for signature a petition to be presented to that court, which, although repeatedly asked for, was never returned; and the defendants, after endeavoring to induce the plaintiffs to release the from the agreement, employed an attorney at law to prosecute their claim before that court, which he did, and recovered thereon the sum of $3,034.16. The plaintiffs brought this action to recover 25 per cent. of this sum, less $125, the estimated expense which they would have incurred had they proceeded and recovered the money. The defendants, besides other defenses presenting no federal question, contended that the agreement sued on had been annulled and rescinded by the act of 1874. The judge presiding at the trial overruled the objection, and the jury returned a verdict for the plaintiffs, on which judgment was rendered. The defendants appealed to the general term of the superior court, at which the judgment was reversed and a new trial ordered. The plaintiffs appealed to the court of appeals, which reversed the judgment of the general term, and remitted the case to the superior court for further proceedings. See 81 N. Y. 616. The superior court thereupon entered judgment in accordance with the verdict, and the defendants sued out this writ of error.

In support of the writ of error it was contended that the agreement sued on had relation solely to the claim which existed at its date; that that claim was extinguished by the operation of the treaty of Washington, the Geneva award, and the payment by Great Britain to the United States of the sum awarded; and that the claim successfully prosecuted under the act of congress and before the court of commissioners was a new claim, created by that act, and after the making of the agreement; or, if it could be treated in any respect as the same claim, was so changed in its character and circumstances that the agreement had no application to it. But, as was said by Mr. Justice STORY, delivering the judgment of this court, in a similar case:

title: Bachman v. Lawson


text: Talk:Bachman v. Lawson

title: Talk:Bachman v. Lawson


text:
Bachman v. Lawson/Opinion of the Court

'The right to indemnity for an unjust capture, whether     against the captors or the sovereign, whether remediable in      his own courts, or by his own extraordinary interposition and      grants upon private petition, or upon public negotiation, is      a right attached to the ownership of the property itself. * *      * The very ground of the treaty is that the municipal remedy      is inadequate; and that the party has a right to compensation      for illegal captures, by an appeal to the justice of the      government. * *  * The right to compensation, in the eye of      the treaty, was just as perfect, though the remedy was merely      by petition, as the right to compensation for an illegal      conversion of property, in a municipal court of justice. * *      * It recognized an existing right to compensation in the      aggrieved parties, and did not, in the most remote degree,      turn upon the notion of a donation or gratuity. It was     demanded by our government as matter of right, and as such it      was granted by Spain.' Comegys v. Vasse, 1 Pet. 193, 215-217.

The claim established before the court of commissioners of Alabama claims was manifestly the very claim contemplated by the agreement in suit. It is described in that agreement as a 'claim arising out of the capture of the ship Commonwealth and her cargo by the armed rebel cruiser the Florida.' The agreement bears date only a fortnight before the treaty of Washington was made and concluded, by which it was agreed between the United States and Great Britain that all claims growing out of acts committed by the Alabama and other vessels should be referred to a tribunal of arbitration. The Florida was one of the vessels which were determined by the Geneva award to have put out from British ports through neglect of international duty on the part of Great Britain, and compensation for the wrongs done by which to these defendants and others was included in the sum awarded in favor of the United States. The claim of the defendants was one for which compensation was justly due to them from Great Britain; was demanded by the United States from Great Britain as a matter of right; as such was awarded to be paid and was paid by Great Britain to the United States, in accordan e with the provisions of the treaty between the two nations, and with the determination of the tribunal of arbitration created by that treaty; and was paid by the United States to the defendants, out of the money received from Great Britain, pursuant to the directions of the act of congress, and to the decision of the court of commissioners established by that act. The defendants were the original owners of the claim, and the money was granted and paid by the United States to them as such. The money so demanded and received by the United States from Great Britain, and paid by the United States to the defendants, was money collected on the claim described in the agreement. Comegys v. Vasse, supra; Phelps v. McDonald, 99 U.S. 298; Leonard v. Nye, 125 Mass. 455.

The other points relied on in support of the writ of error, so far as they present any foderal question, are based upon the following provisions of the act of 1874:

'Sec. 18. In case any judgment is rendered by said court for     indemnity for any loss or claim hereinbefore mentioned      against the United States, at the time of the giving of the      judgment the court shall, upon motion of the attorney or      counsel for the claimant, allow, out of the amount thereby      awarded, such reasonable counsel and attorney fees, to the      counsel and attorney employed by the claimant or claimants      respectively, as the court shall determine is just and reasonable, as compensation for the      services rendered the claimant in prosecuting such claims,      which allowance shall be entered as part of the judgment in      such case, and shall be made specifically payable as a part      of said judgment for indemnification to the attorney or      counsel, or both, to whom the same shall be adjudged; and a      warrant shall issue from the treasury in favor of the person      to whom such allowance shall be made, respectively, which      shall be in full compensation to the counsel or attorney for      prosecuting such claims and all other liens upon, or      assignments, sales, transfers, either absolute or      conditional, for services rendered or to be rendered about      any claim or part or parcel thereof provided for in this      bill, heretofore or hereafter made or done before such      judgment is awarded and the warrant issued therefor, shall be      absolutely null and void and of none effect.' 18 St. 249.

It was argued that the act, by prescribing a mode of proceeding for collecting the claim which required the services of attorneys at law, rendered the agreement in question inoperative, because the plamtiffs, not being such attorneys, were incapable of performing it. But the power of attorney executed at the same time as the agreement, and referred to therein, authorized the plaintiffs to use all such lawful means and proceedings, and to employ such attorneys, as they might think fit, for the prosecution of the claim. It was further contended that the section above quoted rendered illegal and void all agreements, made before judgment, to pay compensation for services about any such claim. But the prohibition is clearly limited to liens, sales, or assignments, which create a right of property in the claim itself, and does not extend to a mere personal agreement to pay as compensation for such services a sum of money equal to a certain proportion of the amount which may be recovered.

The other points made in argument present no federal question, and therefore afford no ground upon which this court can revise the judgment of the state court. Murdock v. Memphis, 20 Wall. 590.

Judgment affirmed.

title: Bachman v. Lawson/Opinion of the Court


text: Talk:Bachman v. Lawson/Opinion of the Court


text:
Bendey v. Townsend

C. I. Walker, for appellants.

A. T. Britton, J. H. McGowan, and Walter H. Smith, for appellees.

GRAY, J.

title: Bendey v. Townsend


text: Talk:Bendey v. Townsend

title: Talk:Bendey v. Townsend


text:
Bendey v. Townsend/Opinion of the Court

This is an appeal by James Bendey and wife from a decree for the foreclosure of a mortgage of land in Michigan, executed by them at Houghton, in that state, on April 30, 1873, to Samuel S. Smith and William Harris; expressed to be made in consideration of the indorsement by Smith and Harris of several promissory notes of Bendey therein described, payable to the order of Thomas W. Edwards, at the First National Bank of Houghton; conditioned that if Bendey should pay the notes at maturity, and should save and keep harmless the mortgagees 'of and from all costs and charges arising from or on account of said indorsements,' and empowering the mortgagees, in case of default by Bendey in the payment of the notes, or either of them, to sell the land by public auction and convey it to the purchasers, rendering the surplus money, if any, arising from the sale, to the mortgagors, after deducting the costs and charges of the sale, 'and also one hundred dollars as an attorney fee, should any proceedings be taken to foreclose this indenture under the statute, and the same sum as a solicitor's fee, should any proceedings be taken to foreclose the same in chancery.'

The other facts appearing by the record are as follows: Smith & Harris, who were partners, signed their partnership name upon the back of the notes before their delivery to Edwards. One of these notes, for $5,000, became payable on May 4, 1876, and, not being paid by Bendey, was protested for non-payment, and an action was brought thereon by Edwards against Smith & Harris, who, before judgment in that action, paid the amount of the note, with interest. Edwards indorsed the amount as a full payment on the note, and delivered up the note to Smith & Harris; and they entered the amount paid by them upon their books in their general account against Bendey, and afterwards, on September 5, 1877, assigned the mortgage, and the land therein described, 'together with the note or obligation therein also mentioned,' to 'William Brigham and Amos Townsend, trustees.' The assignment was in fact made in part payment of debts due from Smith & Harris to firms of which Townsend and Brigham were respectively members. Townsend and Brigham, who were citizens of Ohio, filed a bill in equity against Bendey and wife, who were citizens of Michigan, in a court of this state, alleging the facts aforesaid, and praying for an account, for the foreclosure of the mortgage by sale of the land, for the payment by Bendey of any balance remaining due to the plaintiff of the principal and interest of the note and mortgage, and for general relief. After the filing of answers and replication, the case was removed, on petition of the defendants, into the circuit court of the United States for the western district of Michigan, and a hearing there had, upon which the facts above stated were proved, and a decree entered that the defendants pay to the plaintiffs the sum of $7,996.59, with interest, together with a solicitor's fee of $100, and that in default of such payment the land be sold by public auction, and conveyed under the direction of a master in chancery, and the proceeds of the sale applied to the payment of these sums, and that if the proceeds of the sale should be insufficient for such payment, the amount of the deficiency, with interest, should be paid by Bendey to the plaintiff. From this decree the defendants appealed to this court.

The contract into which Smith & Harris entered, by signing their names on the back of the note before its delivery to the payee, though styled in the mortgage an indorsement, was rather, as towards the payee or a subsequent indorsee of the note, that of joint makers with Bendey. Good v. Martin, 95 U.S. 90; Rothschild v. Grix, 31 Mich. 150. But, whether their liability in that aspect should be treated as that of promisors, or of guarantors, or of indorsers, it is clear that, having signed their names to the note for the accommodation of Bendey, their relation towards him was that of sureties, and they had the right, upon being obliged to pay the amount of the note on his failure to pay it at maturity, to recover from him the sum so paid. The mortgage, containing a condition to ndemnify them against all costs and charges arising from their contract, was security to them for the payment by the mortgagors to them of that sum. The entry, in the regular course of their book-keeping, of the amount so paid in general account against Bendey, did not merge or extinguish the mortgage, or the personal liability of Bendey to them. The assignment by them to Townsend and Brigham of the mortgage, together with the obligation therein mentioned, was a valid assignment, in equity at least, of the mortgage, as well as of their claim against Bendey for the repayment of the sum paid by them on the note. The assignees were therefore rightly held to be entitled to a decree for the foreclosure of the mortgage, and also, under the ninety-second rule in equity, to a decree against Bendey himself for so much of the sum paid by Smith & Harris, with interest, as the money obtained by the sale of the land under the foreclosure should be insufficient to satisfy. The decree below is therefore right in all respects, except in allowing a solicitor's fee of $100. The land is in Michigan; the notes and mortgage were made and payable in Michigan; and by the law of Michigan, as settled by repeated and uniform decisions of the supreme court of that state, a stipulation in a mortgage to pay an attorney's or solicitor's fee of a fixed sum is unlawful and void, and cannot be enforced in a foreclosure, either under the statutes of the state or by bill in equity. Bullock v. Taylor, 39 Mich. 137; Myer v. Hart, 40 Mich. 517; Vosburgh v. Lay, 45 Mich. 455; [S.C.. 8 N. W. Rep. 91;] Van Marter v. McMillan, 39 Mich. 304; Botsford v. Botsford, 49 Mich. 29; [S.C.. 12 N. W. Rep. 897.] Upon such a question, affecting the validity and effect of a contract made and to be performed in Michigan, concerning land in Michigan, the law of the state must govern in proceedings to enforce the contract in a federal court within the state. Brine v. ''Ins. Co. 96 U.S. 627;Connecticut Ins. Co. v. Cushman'', 108 U.S. --; [S.C.. 2 Sup. CT. REP. 236;] Equator Co. v. Hall, 106 U.S. 86; [S.C.. 1 SUP. CT. REP. 128.]

The result is that the decree must be reversed, without costs to either party in this court, and the case remanded to the circuit court with directions to enter a decree for the plaintiffs, with costs, modified by striking out the allowance of the solicitor's fee. Decree accordingly.

title: Bendey v. Townsend/Opinion of the Court


text: Talk:Bendey v. Townsend/Opinion of the Court


text:
Smith v. Greenhow

''Wm. L. Royall and Wager Swayne'', for plaintiff in error.

F. S. Blair, for defendant, in error.

MATTHEWS, J.

title: Smith v. Greenhow


text: Talk:Smith v. Greenhow

title: Talk:Smith v. Greenhow


text:
Smith v. Greenhow/Opinion of the Court

A writ of summons was issued out of the circuit court of the city of Richmond by the plaintiff in error, who was plaintiff below, against the defendant, on May 2, 1883, service of which was acknowledged by the defendant on the same day. The writ was returnable on the first Monday in May, which was the seventh day On that day the plaintiff filed his declaration in trespass, vi et armis, for entering upon the premises of the plaintiff, and taking and carrying away his personal property, consisting of one table and one bookcase, with the books therein, of the value of $100, and for remaining on the premises of the plaintiff for a long term, whereby the plaintiff was greatly disturbed and annoyed in the peaceable possession thereof, being his place of business, and hindered and prevented from carrying on and transacting his lawful and necessary affairs and business, and for other wrongs and injuries, laying the damage therefor at $6,000. To this declaration the defendant filed a plea in bar, justifying the alleged trespasses, by setting out that the defendant, as treasurer of the city of Richmond, levied upon the personal property mentioned, in order to sell the same, in satisfaction of certain taxes then due and owing from the plaintiff to the state of Virginia, as by law it was his duty to do. To this plea the plaintiff filed a replication, alleging a previous tender, in payment of said taxes, of coupons cut from bonds issued by the state of Virginia under the authority of an act of the general assembly of that state, approved March 28, 1879, said coupons being by that law receivable in payment of said taxes; which, however, the defendant refused to accept in payment thereof. To this replication the defendant rejoined that, by the act of the general assembly of the state of Virginia of January 26, 1882, he was forbidden to receive the said coupons tendered in payment of said taxes; and to that rejoinder the plaintiff demurred. All these various pleadings, including the declaration, were filed on the same day, and on that day the plaintiff al o filed his petition praying for the removal of the suit to the circuit court of the United States for the Eastern district of Virginia, on the ground that it arose under the constitution of the United States, which was accordingly done. The cause was docketed in the circuit court, and on September 4, 1883, it was, on motion of the defendant, remanded to the circuit court of the city of Richmond. To reverse the order of the circuit court of the United States remanding the cause to the state court, this writ of error is prosecuted.

The ground on which the order of the court below, remanding the cause, was placed, seems to have been that no federal question, such as is necessary to confer jurisdiction in the case upon the courts of the United States, appears to be necessarily involved in the issue raised by the pleadings. In this we think the court erred. The replication alleges that the coupons tendered contained an express promise, as required by law, of the state of Virginia that they should be received in payment of all taxes due to the state. The rejoinder is that the act of January 26, 1882, subsequently passes, expressly forbids the defendant from receiving such coupons in payment of texes. The demurrer in effect denies the validity of that law, and upon the record no ground of its invalidity can be inferred, except that it is avoided by the operation of that provision of the constitution of the United States which forbids any state from passing laws which impair the obligation of contracts. It therefore sufficiently appears upon the record that the plaintiff's case arises under the consitution of the United States, within the rule as laid down in Bridge Prop'rs v. Hoboken Co. 1 Wall. 116-142.

There is a ground for remanding the cause suggested by the record, but not sufficiently apparent to justify us in resorting to it to support the action of the circuit court. The value of the property taken is stated in the declaration to be but $100, although the damages for the alleged trespass are laid at $6,000. The petition for removal does not allege the sum or value of the matter in dispute otherwise than by the statement of the amount of the claim for damages. We cannot, of course, assume, as a matter of law, that the amount laid, or a less amount, greater than $500, is not recoverable upon the case stated in the declaration, and cannot, therefore, justify the order remanding the cause, on the ground that the matter in dispute does not exceed the sum or value of $500. But if the circuit court had found, as matter of fact, that the amount of damages stated in the declaration was colorable, and had been laid beyond the amount of a reasonable expectation of recovery, for the purpose of creating a case removable under the act of congress, so that, in the words of the fifth section of the act of 1875, it appeared that the suit 'did not really and substantially involve a dispute or controversy properly within the jurisdiction of said circuit court,' the order remanding it to the state court could have been sustained.

The order of the circuit court remanding the cause to the state court is reversed, and the cause is reinstated in that court, with directions to proceed therein in conformity with law. And it is so ordered.

title: Smith v. Greenhow/Opinion of the Court


text: Talk:Smith v. Greenhow/Opinion of the Court


text:
Potomac Steam-Boat Company v. Upper Potomac Steam-Boat Company

[Syllabus from pages 672-673 intentionally omitted]

[Statement of Case from page 673 omitted] John Selden and ''Con. Robinson'', for appellants.

''Wm. Birney'', for appellees.

''Nathl. Wilson'', for Inland & Seaboard Coasting Co.

MATTHEWS, J.


text: Talk:Potomac Steam-Boat Company v. Upper Potomac Steam-Boat Company