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The Corn-Planter Patent/Dissent Clifford

Mr. Justice CLIFFORD, with whom concurred Justices MILLER and DAVIS, dissenting.

Applicants for a patent are required to file in the Patent Office a written description of their invention and of the manner and process of making, constructing, and using the same, in such full, clear, concise, and exact terms as to enable any person skilled in the art or science to which it appertains, or with which it is most nearly connected, to make, construct, and use the same; and in the case of a machine he must explain the principle thereof and the best mode in which he has contemplated applying that principle, so as to distinguish it from other inventions. Patents granted without a compliance with those conditions are invalid, as the express requirement of the act of Congress is that every inventor or discoverer shall do so, before he shall receive a patent for his invention or discovery.

Letters-patent were granted to the complainant on the second of August, 1853, to take effect from the second of February prior to the date of the patent. Seed-planter is the name of the invention given in the patent, but in the introductory part of the specification it is denominated 'new and useful improvements in seed-planters for planting corn and smaller grains.' Very minute description is given of the machine and of the several devices of which the machine is composed, for the declared purpose of enabling others skilled in the art to make and use the invention. Suffice it to say, without entering into details, that of all the numerous devices described as ingredients of the machine not one of them is new, nor is it claimed that the patentee either invented the machine or any one of the ingredients of which it is composed. What he claims in that patent is as follows: (1.) The oscillating horizontal wheels or distributors in the bottom of the hopper, having slots and tubes of various sizes, in combination with the stationary caps and pins for the discharge of different kinds and qualities of seeds. (2.) He also claims the arrangement of the covering rollers, mounted as described, and performing the functions of covering the seed, elevating the cutters in turning the machine, and also in adjusting the cutters to different depths.

Tested by the descriptive portion of the specification the better opinion is that the second claim is also for a combination, but in the view taken of the case it is unimportant whether it be regarded as a method of accomplishing the described result or as a combination of the described ingredients to effect the same end, as it is quite clear that the patentee does not claim that he is the original and first inventor of any one of the several devices of which the entire machine is composed. Beyond all doubt the invention consisted of the two combinations described in the respective claims, and it is equally certain that the letters-patent were in all respects sufficient to secure the full enjoyment of the patented machine to the patentee. Nevertheless the patentee surrendered the same, and on the sixteenth of February, 1858, the same was reissued to him with amended specification which contains only one claim. Instead of claiming a combination of old ingredients, as in the original patent, he claimed in the reissued patent a shoe for opening a furrow, which has a convex edge in front and a seeding-tube in its rear end, so that it may cut through any grass, open out a furrow, and hold it open until the seeds are deposited in the same, substantially as set forth in the sp cification.

Like the original patent the reissued patent was in form both operative and valid, but inasmuch as it was not sufficiently comprehensive to supersede all other improvements the patentee surrendered it for a second time and caused the original invention to be reissued in five parts, embracing several claims, all of which except one are involved in the present action.

Surrendered patents cease to be a cause of action from the moment the surrender takes place, nor can the owner of the patent recover, even for an infringement which preceded the surrender, unless the claim for profits or damages had passed into judgment before the surrender took place. Such a patent, though inoperative as a cause of action, may be admitted as evidence to support or disprove an issue that the reissued patent is not for the same invention as the original. Reference may also be made to such patent, as to a repealed statute, to aid in the construction of a reissued patent, if the latter is ambiguous, but it ceases to be operative for any other purpose just as much so as a repealed statute, and can never have the effect to enlarge or diminish the operative words of a reissued patent.

Patents are public grants, and every person claiming any right under such an instrument must show that the right claimed is secured by the instrument; nor can he be benefited by showing that the right claimed was secured by a surrendered patent, unless the reissued patent also secures the same.

Viewed in the light of these suggestions it is clear that the rights of the complainant in this case depend solely upon the last-mentioned reissued patents, which are the patents mentioned in the bill of complaint, and which it is alleged by the complainant that the respondents have infringed.

Defences of various kinds are set up by the respondents to the allegations of the bill of complaint, as follows: (1.) That the complainant is not the original and first inventor of the improvements described in the said several patents mentioned in the bill of complaint. (2.) They deny that the said new patents were issued in good faith, and they allege that said reissued patents are not for the same invention as that described and embodied either in the original patent or in the prior reissues of the original patent. (3.) That the five last-mentioned reissued letters-patent are severally invalid in law and void and of no effect, and that they do not confer any such right or monopoly to the complainant as he alleges and pretends to claim.

Enough has already been remarked to show that the original patent was a combination of old ingredients by which the described result was effected; or, in other words, that the patented invention consisted in a new combination of the described ingredients, every one of which was proved to be old. Old ingredients are not the proper subjects of letters-patent in any other form than as a combination, for the plain reason that nothing is the proper subject of a patent which is not both new and useful.

Reissued patents must be for the same invention as the original, and that condition is just as applicable to a second reissue as to the first; nor is the second reissue relieved in any respect from the full force of that condition in a case where the invention in the reissue is divided into several parts.

Undoubtedly a new and useful combination consisting of old ingredients may be the proper subject of letters-patent if the combination produces a new and useful result, but the act of Congress does not authorize the patentee to surrender such a patent and to reissue the same for the separate ingredients, for the plain reason that the ingredients are old, and for the additional reason that a patent for a separate ingredient is not the same as the combination of several ingredients.

Authorities to support these propositions are unnecessary as they are self-evident, nor is it necessary to do more than to refer to the several claims of the several r issues under consideration to show that every one of those reissues are invalid, both for the reason that the alleged improvement is old, and also for the reason that the invention embodied in each of the reissued patents is different from the one secured by the original patent. Even the court here admits that each one of those reissues is 'for a distinct and separate part of the original invention alleged to have been made by the complainant,' full proof of which is exhibited in the claims of the respective reissued patents. They are as follows:

1. No. 1036.-Appended to that patent is a claim much more comprehensive than is to be found in either of the four other patents, but it is plainly not a claim for a combination, nor one for the whole machine, as was admitted in argument by the complainant. What he there claims is a seed-planting machine constructed principally of framework, the front part of which is supported on not less than two runners, or shoes, with upward inclining edges, and the rear part is supported on not less than two wheels, the latter being arranged to follow the former.

Evidently that claim is not intended to cover the whole machine; nor would it benefit the complainant even if it could receive that construction, as it is not pretended that he was the original and first inventor of such a planting machine, nor that the specification of the original patent professed to describe such an original invention. Machines of the kind have existed for a very long period before the date of the complainant's patent, even for a period whereof the memory of man runneth not to the contrary.

2. No. 1037.-Nothing is claimed in this patent except the construction of a shoe or runner for a seed-planting machine, with an upward inclining edge, with its point sufficiently raised so that it will climb up and over, or cut and break through intervening obstacles without materially forcing the earth laterally at its front part, and widening towards the rear end so as to open a furrow in which the seed to be planted may be deposited, and long enough to furnish a support to the framework of the machine. Explanations of that patent are certainly unnecessary, as it is plain that the claim is for distinct and separate ingredients of the combination embodied in the original patent.

3. No. 1038.-Under this patent the complainant claims a hinged joint between the point of the tongue and the rear part of the machine in combination with a seed-planting machine, so that one part of the framework may be raised, lowered, adjusted, and supported on the other part. Nor is any argument necessary to show that the claim of the patent is for one of the separate and distinct ingredients of the combination embodied in the original patent, all of which were confessedly old.

4. No. 1039.-Two claims are made in this patent as follows: (1.) The seat for the attendant, or, in the language of the claim, the mounting of the attendant upon the machine or seed-planter, wherein the seed-dropping mechanism is operated by hand, in such a position that he may readily see the previously made marks upon the ground, and operate the dropping mechanism to conform thereto. (2.) He also claims a lever, in combination with a seed-planting machine, or its equivalent, by which the driver or second attendant may raise or lower that part of the framework that carries the attendant and the seeding devices.

Manifestly the lever or its equivalent is the principal subject-matter of that claim, reference being made to certain other parts of the seed-planter merely as a means of describing the functions to be performed by the lever, and the results to be attained by its use; nor does it require any argument to show that the lever is old, as it is matter of common knowledge that it was well known long before the original patent of the complainant was issued.

5. No. 1040.-Two claims are also made by the patentee in this patent: (1.) He claims a pair of auxiliary wheels and an axle, i combination with the seed-planting machine, carried mainly upon not less than two runners and two covering-wheels, for the double purpose of taking a portion of the weight off from the runners and the other wheels, and for affording means of readily converting the machine from a hand-planter to an automatic seed-sower. (2.) He also claims hanging the axle of the auxiliary wheels on hinged or adjustable arms or levers, so that more or less of the machine may be placed upon the auxiliary wheels.

All necessity for any remarks upon those claims is superseded by the admission that they are not infringed by the respondents.

Four of the five reissues are included in the charge, and the complainant also charges that the respondents have infringed five other reissued patents held by him, which also secure to him the exclusive right to the respective improvements therein described, all of which appertain to the same machine for planting corn and smaller grains.

Reference will first be made to the original patent from which those several reissues are derived. Like the preceding reissued patents, these were all derived from a single original patent, issued May 8th, 1855, as appears by the record, which it is claimed is an improvement upon the prior original patent.

Doubtless the patentee made some change in the original machine, as appears by the descriptive portion of the specification; as for example, he enlarged the rollers, increased the length of the side pieces, connected those pieces by cross pieces, and constructed the frame in two parts, denominated front and rear, placing the long seat for the driver on the front end, in order that he may slide forward or back, to tilt the machinery when necessary to deepen the furrow, or to raise the front of the shoes from the ground, as occasion calls for such a movement; but he invented no new ingredient or device, nor did he introduce any element into the machine which was not previously well known, all of which will sufficiently appear from the claim when compared with the drawings, without reproducing the details of the specification annexed to the patent. It contains but a single specification in that regard, which, in substance and effect, is as follows: What he claims is the runners, with their valves, in combination with the hoppers and their plates, together with the adjustment of the valves by means of levers and cams, and the driver's weight, for the purpose of carrying and dropping seeds by each vibration of the lever, and to regulate the depth of the planting.

Tested by the description contained in the specification it is not doubted that the patent was a valid one for the described combination, which, beyond all doubt, is composed of all ingredients. Regarded as an invention for a combination it may be regarded as an improvement upon the original invention described in the first-mentioned patent, but it is quite clear that it contains no devices except such as had long before been well known to mechanics.

Though operative and valid still it was not satisfactory to the complainant, because not sufficiently effective to shut out other improvements for plainting seeds. Accordingly, on the tenth of November, 1857, he surrendered the patent and the same was, on the same day, reissued to him with a single claim, as follows: He claims the locating the seat for the driver in the rear of the supporting axle in combination with the hinged frames or hinged joint, so that as the driver moves forward or back, on his seat, the rear frame may act as a lever for lowering or raising the seed part of the machine, and thus throw it into or out of the ground, as circumstances may require.

Probably it would be difficult to frame a claim which would more exactly embody the true nature of the actual improvement, but still it was not satisfactory to the complainant, and on the eleventh of December, 1860, he surrendered the patent, and the same was reissued to him in five separate patents, as follows:

1. No. 1091.-Two claims are contained in this patent as follows: (1.) The placing of both the driver and the person who operates the seed-slides or valves, in such a position on the seed-planter that each may attend to his particular duty without interfering with that of the other. (2.) The so locating the seats or stands for those persons, in combination with the machine, that the weight of one of the persons may be used to counterbalance or overbalance the weight of the other, for the purpose of more readily raising or lowering the seeding apparatus.

2. No. 1092.-He claims in this patent the locating of the seat in the machine in such relation to a line drawn through the centre of the wheels or ground supports that the occupant of the seat may, by moving himself or throwing his weight forward or backward on his seat, without the necessity of rising, walking, or standing over or near the seeding devices, force the seeding apparatus into or raise it from the ground.

3. No. 1093.-His claim in this patent is the so connecting of the parts between the fixed points in the described machine that the portion of it carrying the seeding devices may be raised up out of the ground by the attendant riding on the machine and be carried by the tongue or horses' necks and the supporting wheels.

4. No. 1094.-Where he claims a lock-block or stop, in combination with the machine, which prevents the rear part of the frame from descending so low as to strike the ground or inconvenience the occupant of the seat upon the rear portion of the frame.

5. No. 1095.-His claim in this patent is for a valve or slide in the seed-hopper and a valve in the seed-tube, so combining with a lever operating both that a half-motion of the lever by the operator riding on the machine, shall open and close the seed-passages at regular periods and pass only the right quantities.

Most of these ten reissued patents are for a single ingredient of the combinations described in the two original patents, and every one of the others is for a separate and distinct part of one or the other of those combinations; and the rule of decision set up by the complaint is that he may mass these several patents just as if the several ingredients were all described in one patent embracing a claim for a combination of each and every of the respective ingredients included in these ten several patents. Such a theory, in my judgment, is simply absurd, and it is certain that it finds no support in any decided case nor in any treatise upon the rules and practice in patent cases.

Argument to show that such is the theory of the present suit is scarcely necessary, as it is plainly shown in that part of the bill of complaint which alleges that the improvements and inventions contained in those several letters-patent constitute separate parts of an entire machine for seed-planting, and that they may be constructed for use and used in one machine in that department of agriculture; and the complainant charges that the respondents have constructed machines and used the same and vended the machines to others to be used in imitation of all those improvements and inventions except the improvement described in the reissued patent No. 1040, which it is admitted is not infringed by the respondents.

All the ingredients described in those ten reissued patents are old, and it was admitted at the argument that no one of the patents contains a claim for a combination of the several ingredients described in the said several reissued patents, and that the case rests on the basis that the several claims or some of them are valid though not amounting to a combination.

Valid patents may be granted for a new combination of old ingredients, provided it appears that the new combination produces a new and useful result, but the invention in such a case consists entirely in the new combination, and any other party may, if he can, make a substantially different combination of the same ingredients, or he may use any number of the ingrediants less than the whole, for the reason that the monopoly of the p tent extends only to the combination and not to the ingredients separately considered.

Patents may also be granted for a machine or for a separate and distinct device, but it cannot be held that such a patent is valid unless it be proved that the patentee is the original and first inventor of the thing patented.

None of the separate devices patented in those reissued patents are new, and it being conceded that no one of the patents contains any such a combination as that embodied in either of the original patents, it is clear in my judgment that the decree of the Circuit Court should be affirmed, unless the theory that these several patents can be massed and be by judicial construction converted from patents for separate and distinct ingredients into one patent for a combination of all the ingredients described in the several patents mentioned in the bill of complaint.

Courts of justice cannot accomplish such an object by construction nor in any other mode, for several reasons: (1.) Because the province of construction is restricted to the ascertainment of the meaning of the language employed in the grant. (2.) Because the object can only be accomplished by the surrender of these patents and by a reissue of the original patent, which is a matter within the exclusive jurisdiction of the commissioner. (3.) Because each of these patents is a separate and distinct grant. (4.) Because the court in construing such a grant is restricted to the language employed by the granting power. (5.) Because several patents for several separate and distinct devices do not in law amount to a patent for a combination, and, therefore, cannot so be declared by a court of justice.

The CHIEF JUSTICE took no part in the judgment given in this case; the argument having been had before he was appointed. The case was held long under advisement, and the opinions were not given to the Reporter until long after the judgment was rendered.


text: Talk:The Corn-Planter Patent/Dissent Clifford

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The Collector v. Richards

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

Richards sued Arthur, collector of the port of New York, at law in the court below, to recover an alleged excess of duties on imported goods exacted by the defendant and paid by the plaintiff under protest. Judgment was given in favor of the plaintiff, and to reverse this judgment this writ of error was brought.

The case was thus:

On the 16th day of March, 1874, the plaintiff, Richards, entered at the custom-house an invoice of all-wool dress-goods imported from France, the value of which was invoiced in francs of the currency of France. By an act of Congress passed May 22d, 1846, it was enacted that 'in all computations at the custom-house, the franc of France. . . shall be estimated at eighteen cents six mills.' At this rate of estimation of the French franc in money of account of the United States, the dutiable value of these goods was less than twenty cents per square yard, and under the then existing tariff, subject to an ad valorem duty of thirty-five per cent., and an additional duty of six cents per square yard. The plaintiff contended that this act of May 22d, 1846, fixed the value of the franc, and accordingly that he was chargeable only at the rate of eighteen cents six mills for each franc.

On the other hand the defendant relied on the act passed March 3d, 1873, entitled 'An act to establish the custom-house value of the sovereign or pound sterling of Great Britain, and to fix the par of exchange;' by which it was enacted as follows:

'SECTION 1. That the value of foreign coin, as expressed in the money of account of the United States, shall be that of the pure metal of such coin of standard value, and the values of the standard coins in circulation of the various nation of the world shall be estimated annually by the Director of the Mint, and proclaimed on the 1st day of January by the Secretary of the Treasury.

'SECTION 2. That in all payments by or to the treasury, whether made here or in foreign countries, when it becomes necessary to compute the value of the sovereign or pound sterling, it shall be deemed equal to $4.86 and 6 1/2 mills, and the same rule shall be applied in appraising merchandise imported, when the value is by the invoice in sovereigns or pounds sterling, and in the construction of contracts payable in sovereigns or pounds sterling; and this valuation shall be the par of exchange between Great Britain and the United States; and all contracts made after the 1st day of January, 1874, based on an assumed par of exchange with Great Britain, of fifty-four pence to the dollar, or $4.44 4/9 to the sovereign or pound sterling, shall be null and void.

'SECTION 3. That all acts and parts of acts inconsistent with these provisions be, and the same are hereby, repealed.'

Under this act the superintendent of the mint prepared two tables, one showing the standard value of foreign coins and moneys of account, according to the amount of pure metal contained therein, as provided in the first clause of the first section; and the other, showing the weight, fineness, and value of certain foreign coins in actual circulation, as assayed at the mint, exhibiting a slight diminution of the values contained in the first table. The Secretary of the Treasury, by a circular letter addressed to the collectors of the customs, declared that the values contained in the first of these tables would be used in the computation of customs duties from and after the 1st of January, 1874. This made the value of the franc nineteen cents and three mills, which carried the dutiable value of the plaintiffs' goods above twenty cents per square yard, and subjected them, in consequence, to an ad valorem duty of forty per cent., and an additional duty of eight cents per square yard. The collector required the plaintiff to pay duties in accordance with the latter valuation. This he did under protest, and now brought, as already said, this suit to get back the value.

The question thus was whether the effect of the first and third sections of the above-quoted act of 1873 was to repeal the act of 1846, and to substitute in all computations at the custom-house for the valuation of foreign coins, which had been previously prescribed by statute, the valuation according to standard value, annually estimated by the Director of the Mint and proclaimed by the Secretary of the Treasury.

It was asserted by the importer in the argument and not denied by the government, that the effect of the construction sought to be established by the government, would be materially to increase the amount of duties imposed by the ad valorem tariff, where the rate was upon a sliding scale in proportion to the value of the article. The duty was raised upon one class of articles eighteen per cent.; upon another class twenty-five per cent.; upon other classes still more highly; and the aggregate result would be to increase the amount of duties annually millions of dollars.

The opinion of the court below was that the first section of the act of March 3d, 1873, and the act of May 22d, 1846, did not cover the same subject; and that the latter act was not repealed; and accordingly that in fixing the dutiable value of the goods under consideration, the old value of 18 6/10 cents fixed by the act of 1846 should have been given to the franc, and not the new value of nineteen cents and three mills given to it by the act of 1873.

The document presents so curious and interesting a history, and the facts which it collates show how much more difficult than from the language of the two statutes alone, might be imagined, was the question to be solved by this court, that the Reporter deems it worthy of preservation in this place.

The court below said:

'It is apparent, from an examination of the second section of the act of 1873, that the intention of Congress was to make a complete change for all commercial purposes in the valuation of the pound sterling. In addition to the provision 'that in all payments by or to the treasury, whether made here or in foreign countries,' the value of the sovereign shall be deemed equal to $4.86 and 6 1/2 mills; it is also expressly declared that 'the same rule shall be applied in appraising merchandise imported when the value is, by the invoice, in sovereigns or pounds sterling. Apt, appropriate, and definite language was here used to declare the radical change effected by the section and indicated by the title of the bill. The position of the defendant is, that the same change is wrought, in regard to the value of all other foreign coins of the various nations of the world, by the general provision of the first section-'the value of foreign coin, as expressed in the money of account of the United States, shall be that of the pure metal of such coin of standard value.'

'It was not denied upon the trial that the effect of this construction of the first section would be to materially increase the amount of duties imposed by the ad valorem tariff, where the rate is upon a sliding scale in proportion to the value of the article. Such a change, in regard to the pound sterling, was unmistakably intended and made by the second section of the act in question. If the same purpose existed in regard to other coins, why was not the intent expressed in similar decisive terms? The entirely different phraseology of the two sections of the act suggests the conclusion that the object of each section was not the same.

'In considering the question more closely, it is apparent that if the act of May 22d, 1846, and the other statutes which provide for the valuation of foreign coins in custom-house computations are repealed by the first and third sections of the act of March 3d, 1873, such repeal is by implication only.

'The rule in regard to repeals by implication is laid down in United States v. Tynen, as follows: 'It is a familiar doctrine that repeals by implication are not favored. When there are two acts on the same subject, the rule is to give effect to both, if possible. But if the two are repugnant in any of their provisions, the latter act, without any repealing clause, operates to the extent of the repugnancy as a repeal of the first, and even where two acts are not in express terms repugnant, yet, if the latter covers the whole subject of the first, and embraces new provisions plainly showing that it was intended as a substitute for the first act, it will operate as a repeal of that act.' And in Henderson's Tobacco, Mr. Justice Strong, in reasserting the rule, adds: 'It must be observed that the doctrine asserts no more than that the former statute is repealed so far as the provisions of the subsequent statute are repugnant to it, or so far as the latter statute, making new provisions, is plainly intended as a substitute for it.'

'In order, then, to ascertain whether the act of 1873 is a repeal by implication of the previous acts, upon the subject of the valuation for custom-house purposes, of foreign coins other than the pound sterling, an examination of the legislation of Congress in regard to foreign coins becomes necessary. Such examination discloses the fact, that from the earliest history of the government to a comparatively recent period, three classes of laws in regard to foreign coins have existed, each class having a distinct and separate object.

'The first class embraces those laws which were passed to fix the rate at which foreign denominations of money are to be computed in American money at the custom-house for the purpose of ascertaining the dutiable value of imported merchandise. Congress commenced as early as 1789 the system of collecting a revenue by means of duties upon imported goods, the duties to be computed upon the values of the goods in currency of the U ited States. Foreign invoices stated the values in the currency of the respective countries from which the goods were imported, and it of course became necessary to transmute these values thus stated into the currency of this country. Hence the eighteenth section of the act of July 31st, 1789, which was an act to regulate the collection of duties upon imported goods, provided 'that all foreign coins and currencies shall be estimated according to the following rates: each pound sterling of Great Britain at four dollars forty-four cents; each livre tournois of France at eighteen cents and a half.'. . . Similar legislation was had in the acts of August 14th, 1790, of March 2d, 1799, and in various years thereafter, including the act of May 22d, 1846, until the second section of the act of March 3d, 1873, which as has been said, specifically provides that the valuation therein given to the sovereign shall be applied to the valuations stated in the invoices at the custom-house. The statutes of this class are those of July 31st, 1789, sec. 18; August 4th, 1790, sec. 40; March 2d, 1799, sec. 61; March 3d, 1801, secs. 1, 2; July 27th, 1842, secs. 1, 2; March 3d, 1843; May 22d, 1846, March 2d, 1861; March 3d, 1873, sec. 2d. Each of the various acts in this class either referred in direct terms to the valuation of foreign coins for custom-house purposes, or are parts of general statutes imposing duties upon foreign goods, and obviously relate exclusively to the appraisal of merchandise when the value is by the invoice in foreign coin. For example, the act of July 27th, 1842, provides that in all payments by or to the treasury, when it becomes necessary to compute the value of the pound sterling, it shall be deemed equal to $4.84, 'and the same rule shall be applied to appraising merchandise imported when the value is by the invoice in pounds sterling.' The language used in other statutes is of the following kind: 'In all computations of the value of foreign moneys of accounts at the custom-house of the United States;' 'in the computation of duties;' 'in computation at the custom-house.' Congress thus adopted an exact, well-defined, and uniform system for the ascertainment at the custom-house of the dutiable value of foreign goods, which system, as will be seen, has always materially differed from the system of valuation placed upon foreign coins for the payment of debts.

'In the infancy of the government, and until recently, foreign coin was in common circulation in this country. The duties under the revenue acts were payable in gold and silver coin, and hence it became necessary to establish the rates at which coin of other countries should be received in payment of debts to the government, and also as legal tender in payment of debts to individuals. Statutes establishing these rates constitute the second class of legislation on the subject of foreign coinage. Thus the thirtieth section of the act of July 31st, 1789, the same act from which I have heretofore cited, provided that 'the duties and fees to be collected by virtue of this act shall be received in gold and silver coin only, at the following rates, that is to say, the gold coins of France, England, Spain, and Portugal, and all other gold of equal fineness, at eighty-nine cents for every pennyweight.' The eighteenth section had provided that all foreign coins and currencies shall be estimated (for custom-house computations) according to a different rate. This section prescribed the rate at which coin shall be received in payment of duties the amount of which was ascertained by the aid of the eighteenth section. So the act of February 9th, 1793, provided the rates at which foreign coins should be received as legal tender 'for the payment of all debts and demands;' and a series of statutes of the same character was passed, from time to time, until the act of February 21st, 1857. But it was never supposed that this class of acts, passed for the purpose of establishing the value of foreign coin, when used in payment to the government or between individuals, had any relation to the first-mentioned class. The second series was enacted for a different object and purpose. For example, when Congress provided, by act of March 3d, 1843, that the gold coins of Great Britain should be receivable by weight for the payment of all debts and demands at prescribed rates, such act evidently did not repeal the law of the previous year, by which the pound sterling was estimated for custom-house purposes.

'The second series of statutes existed until the act of February 21st, 1857, the third section of which act repealed 'all former acts authorizing the currency of foreign gold or silver coins, and declaring the same a legal tender in payment for debts.' The same section also provided that 'it shall be the duty of the Director of the Mint to cause assays to be made from time to time of such foreign coins as may be known to our commerce, to determine their average weight, fineness, and value, and to embrace in his annual report a statement of the results thereof.' This provision was in continuation of the third series of laws which had been passed on the subject of foreign coinage, whereby the mint was made the instrument for estimating the value of foreign coins.

'Perhaps the germ of this class of legislation may be found in the last clause of the act of February 9th, 1793, the act which established the rates at which foreign coins should be received as legal tender, and which chause provided that 'no foreign coin, that may have been or shall be issued subsequent to the 1st day of January, 1792, shall be a tender as aforesaid until samples thereof shall have been found by assay, at the mint of the United States, to be conformable to the respective standards required, and proclamation thereof shall have been made by the President of the United States.' This provision simply had reference to the rate at which coins-the value of which was then unknown to Congress-should be received in payment of debts; but Congress thereafter provided, in the act of April 10th, 1806, as follows: 'And it shall be the duty of the Secretary of the Treasury to cause assays of the foreign gold and silver coins made current by this act to be had at the mint of the United States at least once in every year, and to make report of the result thereof to Congress, for the purpose of enabling them to make such alterations in this act as may become requisite from the real standard value of such foreign coins. And it shall be the duty of the Secretary of the Treasury to cause assays of the foreign gold and silver coins of the description made current by this act, which shall issue subsequently to the passage of this act, and shall circulate in the United States, at the mint aforesaid, at least once in every year, and to make report of the result thereof to Congress, for the purpose of enabling Congress to make such coins current, if they shall deem the same to be proper, at their real standard value.'

'With the clauses of the act of 1806, just quoted, the third class of legislation in regard to coinage definitely commenced. This provision, passed for the purpose of furnishing information to Congress, by the aid of which proper alterations might be made in existing rates at which coins shall be received in payment of debts, continued until the act of February 21st, 1857, supplemented by similar acts of April 29th, 1816, June 25th, 1834, and March 3d, 1843. The act of February 21st, 1857, repealed all acts relating to the use of foreign coin as a legal tender, but continued the requirement upon the Director of the Mint to cause assays of foreign coins, to determine their average weight, f neness, and value, and to report annually to Congress the result of such assays. The object of this provision was not to ascertain the rates at which foreign coin should pass current in the country, for the use of foreign coin as currency ceased upon the passage of this statute, but it was obviously for the purpose of furnishing official information to Congress and to the various departments of government, so that their payments in foreign coin could be regulated, and to the public, so that courts and individuals should have accurate knowledge of the rate at which foreign coin should properly be estimated in our own currency. These provisions of the acts of 1806 and of 1857, continued until the act of March 3d, 1873, were annually complied with by the Director of the Mint, and, with the first class of laws, constituted, after 1857, the only two existing series of statutes on the subject of foreign coin.

'The question now is, whether the first section of the act of 1873 is a repeal of the first class of laws, and of the entire system of valuation of foreign coins for custom-house purposes, or is the establishment of a new principle for the valuation of foreign coins for other purposes, and an instruction to the Director of the Mint to make such new estimate in addition to, or in alteration of, the system of assays which had previously been the means of information which Congress and the public possessed in regard to the value of foreign coins.

'I cannot think that Congress intended in the first clause of the section to repeal the exact and uniform system of custom-house valuations which had existed since the year 1798, and to substitute therefor an entirely new system, by which the valuation of foreign coins was to be annually estimated and annually proclaimed. If Congress had intended such a change, it seems to me that they would have used apt and appropriate language, by which their intent would have been rendered obvious. Such language was within the reach of the draughtsmen, and it was used in the second section. It is true that the language of the section in question is positive and broad, 'That the value of foreign coin as expressed in the money-account of the United States, shall be that of the pure metal of such coin of standard value,' but from the history of the legislation in regard to the subject of foreign coins, the intent and object of the laws seems to me to have been a modification of the third series of laws rather than of the first. Theretofore, the sole method of estimating values had been by assay of the coins in circulation; the Director of the Mint annually ascertained the average weight and fineness of the actual coin, and communicated the result to Congress. The valuation which these results placed upon foreign coins-the valuation known to the public, recognized by individuals, and by the departments of the government-'the valuation of foreign coin, as expressed in the money-account of the United States,' was, prior to the act of 1873, the average value of such coin in circulation as determined by annual assays. Congress now establishes a new rule by which the Director of the Mint is to be guided, and declares that the valuation which the government deems to be based upon a correct principle is the valuation of the ideal rather than the actual coin, and that thereafter the value shall be deemed that of the pure metal of such coins of standard value; and in order that Congress and the public shall have the knowledge of the valuations thus placed upon foreign coins, that the Director of the Mint shall annually estimate, and the Secretary of the Treasury annually proclaim, the result of the estimate.

'The former plan was to ascertain values by assays of the coin in use. That valuation was the official valuation furnished to Congress and the public. A new method and system of valuation is now prescribed to be made by the Director of the Mint, to wit, that the value of foreign coin expressed in money of account of the United States shall be that of the pure metal of such coin, and that the new rule shall be annually reduced to practice, and its results communicated by the Secretary of the Treasury for the benefit of the public. It may well be that Congress intended to impose upon the various departments the duty of making payments and of regulating their accounts with officers of the government abroad in accordance with the new rule. This official valuation annually proclaimed may be the one by which courts should estimate the value of coins mentioned in contracts which are the subject of litigation. I do not think that it was intended to be the standard of values in a department of business for which a special series of acts has always made provision, and in which a special system of valuation has always existed different from the valuation imposed upon foreign coins when used as a legal tender. The intent to repeal that series of acts does not plainly appear.

'It may be argued that the first section of the act under consideration is analogous to the provision contained in the sixty-first section of the act of March 2d, 1799, 'Provided, That it shall be lawful for the President of the United States to cause to be established fit and proper regulations for estimating the duties on goods, wares, and merchandise imported into the United States in respect to which the original cost shall be exhibited in a depreciated currency, issued and circulated under the authority of any foreign government.' It is to be observed that the proviso of the act of 1799 had reference exclusively to the manner in which a confessedly depreciated currency issued under authority of any foreign government should be estimated, and was limited to such exceptional case. But, not to dwell upon this suggestion, the object of this proviso was upon its face avowedly for the purpose of 'estimating the duties on goods imported into the United States.' The question here is whether the first section had any such object in view; whether the object was not totally different. Because the act of 1799 specifically conferred upon the President the duty of establishing regulations for estimating the duties on goods in respect to which the cost shall be exhibited in a depreciated currency, it does not follow that the act of 1873 conferred upon the Secretary of the Treasury power to proclaim annually the value at which all goods shall be estimated when such power has not been conferred in terms.

'My conclusion is that the first section of the act of March 3d, 1873, and the act of May 22d, 1846, do not cover or embrace the same subject, and that the former section was not intended as a substitute for the act of 1846, and kindred statutes, but was intended for other and different purposes than those which are specified in the class of statutes of which the act of 1846 is a part. I am, therefore, of opinion that the act of May 22d, 1846, is not repealed, and consequently, in determining the dutiable value of the several importations mentioned in the agreed statement of facts, the franc should have been estimated at 18 6/10 cents.'

Judgment was accordingly entered for the plaintiffs, and from that judgment the case was now brought by the government here.

Mr. G. H. Williams, Attorney-General, and Mr. C. H. Hill, for the United States; Messrs. W. M. Evarts and Sidney Webster, contra.

Mr. Justice BRADLEY delivered the opinion of the court.

title: The Collector v. Richards


text: Talk:The Collector v. Richards

title: Talk:The Collector v. Richards


text:
The Collector v. Richards/Opinion of the Court

The court below decided that the case was to be governed by the act of 1846, and that the act of 1873 did not cover or embrace it. The correctness of this decision is now before us for review.

Of course the act last in date must prevail if it covers the case. Its language is, therefore, to be carefully examined. The important words of the first section are as follows:

'The value of foreign coin, as expressed in the money of account of the United States, shall be that of the pure metal of such coin of standard value.'

The plain meaning of this language is, that the value of foreign coins, in United States money, shall be mea ured by the amount of pure metal contained therein when of standard value; that is, when of the weight and fineness required by the laws and regulations of the country where they are produced. This value having been duly ascertained and published by the superintendent of the mint and the Secretary of the Treasury, becomes the rule in the cases and for the purposes to which, according to the fair meaning of the act, it is to be applied. In what cases and to what purposes it is to be applied is not expressed by the statute, but is to be gathered from its general terms, from the context, and from an examination of other statutes passed in pari materi a. The government contends that it is to be applied in all cases where the estimation of the value of foreign moneys of account is required by law; and that its principal and perhaps most important purpose is the very one in question, namely, the estimation of the invoice values of imported goods chargeable with ad valorem duties.

This would seem to be, prim a facie, the correct construction of the act. The second section proceeds, at once, without any inquiry of the Director of the Mint, or any further investigation of the subject, to adopt this very method of computing the value of the sovereign or pound sterling, the most important foreign coin with which the financial operations of this country are concerned, and to direct that such computation shall be applied to the valuation of invoices of imported goods, and to other specified cases in which the value of the pound sterling is necessary to be ascertained. The value of the sovereign or pound sterling, fixed by this section is four dollars, eighty-six cents, six and a half mills. This is precisely its standard value computed in reference to the amount of pure metal contained in it when of standard value according to the mint regulations of England, and estimating that metal according to the amount contained in the United States dollar. Although the sovereign, or pound sterling, as a coin has only existed since the year 1817, the amount of pure gold contained in the pound sterling (estimating the guinea at twenty-one shillings) has been 113.001 grains ever since the year 1717; and as the United States dollar contains 23.22 grains of pure metal, it only requires a process of simple division to show that the value of the sovereign is precisely what the second section of the act determines it to be. This intrinsic value of the pound sterling, as represented by the gold coins of England, was a matter of such public notoriety as to need no extraneous inquiry on the subject. It was the public law of the British empire during the period of our own colonial history, of which all our courts were required to take judicial notice; and its continuance to the present time is a public fact as well established as any other act of the British government. In addition to this, the Finance Committee of the Senate, in reporting the act of 1873, stated the value of the pound sterling, computed in the manner referred to, as an ascertained fact. There were also other reasons, if any were needed, having respect to the fictitious par of exchange so long persisted in by the bankers of both countries, which made it expedient for Congress itself to fix the value of the pound sterling. But the material fact in this inquiry is, that it fixed that value on precisely the same principle which it is claimed by the government is laid down in the first section for ascertaining the value of all other foreign coins, and specified the purposes to which such valuation should be applied, amongst which is that of computing the value of invoices of imported goods. And it seems to us clear that the two sections have, in this regard, substantially the same objects in view; that it was the object of the first section to establish a method of computing the value of other foreign coins, similar to that employed in the second section in computing the value of the sovereign, and to apply such computation in the same cases and for he same purposes. Otherwise there would exist two differing metholds of computing the values of foreign coins, and two differing rules for estimating the values of goods imported from different countries, giving a different value to goods imported from one country from that given to goods of the same cost imported from another country.

And it seems to us (although that is a matter of legislative cognizance) that the statute adopts the true method of computing the value of foreign money. The basis of our dollar of account (when not affected by the exceptional condition of legal-tender notes) is the standard gold dollar of 25.8 grains, containing one-tenth alloy. The actual coinage in circulation may be slightly diminished in value by abrasion, and this may have some effect on the dollar of account. But the same thing is true in other countries as the assays at the mint have shown; and the true method of comparing their money of account with ours, when both are based on actual coin, is to compare the standard coins of the two countries in a perfect state, and to ascertain the actual amount of pure metal in each. This is the result at which Congress seems to have arrived, and, as we think, wisely.

In making the comparison of the moneys of different countries their gold coins, if they have such, are employed for the purpose; gold having become the general medium of international exchange, whilst silver is regarded more as a domestic coin, and is usually made a legal tender for only limited amounts. This practice, together with the rejection of the alloy from the estimate, is in accordance with the rules laid down on the subject by the most enlightened economists.

Computed in the manner required by the law, the value of the franc is ascertained to be nineteen cents and three mills, as contended for by the government. This is the result of the examination and estimate made by the Director of the Mint and announced by the Secretary of the Treasury.

But the defendants in error insist that an examination of prior statutes on the subject of coins and their valuation, demonstrates that the act of 1873 was not intended to fix the value of the franc or of other foreign coins for the purpose of ascertaining the amount of invoices of imported goods, but for the purpose of giving general information on the subject, or of estimating the value of contracts in legal proceedings, or for some other purpose.

We have carefully examined the statutes for the purpose of ascertaining the soundness of this suggestion, but have failed to see anything in the legislation on the subject requiring us to adopt it. It is true that some of the laws have had for object simply the valuation of foreign coins for the use of the custom-house in computing the amount of invoices; others have fixed the value of such coins when receivable in payment of public dues, or when used as legal tenders in the payment of debts; and others have had still other purposes and objects. But how this general fact can affect the express mandatory terms of the act of 1873, we fail to perceive. Those terms are that the value of foreign coin, as expressed in the money of account of the United States, shall be that of the pure metal of such coin of standard value. This simple and sensible rule abrogates previous regulations on the subject. It is inconsistent with them, and the third section of the act expressly repeals all acts and parts of acts inconsistent with its provisions. No resort to a repeal by implication is necessary.

Of course the act of 1873 does not make foreign coins receivable in cases where they were not receivable before; but where they are receivable, or where their value is material to be known, the rule for ascertaining that value is clearly laid down and determined by the law. It is true it does not itself fix the values of foreign coins except in a single instance where special reasons require it; and it is doubtful whether the attempt to do so would have been as judicious as the method adopted. Those values a e now to be carefully ascertained and publicly announced by the proper officers of the government. This method will insure the greatest accuracy, and will be attended with many public benefits. It is just, both to the government and the importer, because it is founded on truth; and it will be a great convenience to all persons who have any transactions in which the value of foreign money is in any way involved.

JUDGMENT REVERSED, and the record remitted, with directions to the Circuit Court to award

A VENIRE DE NOVO.


text: Talk:The Collector v. Richards/Opinion of the Court


text: Mason v. Graham

title: Mason v. Graham


text: Talk:Mason v. Graham

title: Talk:Mason v. Graham


text:
Mason v. Graham/Opinion of the Court

APPEAL from the Circuit Court for the District of Massachusetts, in which court E. H. Graham filed a bill against one Mason for injunction and account; the bill being founded upon letters-patent for an 'improvement in picker-staff motion for looms,' granted to him, October 16th, 1860, and reissued May 28th, 1867; which patent and reissue the bill alleged that a machine of Mason, the defendant, infringed.

The object of the invention patented to the complainant was to produce an accurate and sure picker-staff motion in looms by a combination of devices, which, while giving great accuracy of motion, should so guide and hold the picker-staff as to enable it to work with the least possible friction and lateral disarrangement, commonly called 'wabbling.'

In all picker-staff motions it is desirable, if not essential, that the end of the staff made to strike the shuttle should move in a right line, so as to drive the shuttle directly along the shuttle-race in the line in which it is desired to play.

This has been effected by constructing the lower end of the staff in the form of a rocker, the exterior curve of which is an arc of a circle described from a centre corresponding with that point in the staff that strikes the shuttle. This rocker is made to roll on a bed, the face of which is extended parallel to the shuttle-race, and which is placed on the outside of the loom beneath the lay. How to connect the rocker with the bed, so that the picker-staff may be maintained in proper position upon the bed, had been a subject of much inquiry. Various modes had been suggested before the complainant obtained his patent, and several of these modes had been described in patents for improvements in looms granted to other inventors.

The invention of Graham, the complainant, is shown in the following drawings:

[NOTE: MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE (GRAPHIC OR TABULAR MATERIAL)]

This figure represents a vertical central longitudinal section through so much of a picker-staff and its appurtenances, embracing the said improvements, as is necessary to illustrate the invention.

Figure 2, upon the following page, is a perspective view of same. [NOTE: MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE (GRAPHIC OR TABULAR MATERIAL)]

Figure 3 represents a central longitudinal horizontal section through the retracting spring of the picker-staff and its cylinder.

[NOTE: MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE (GRAPHIC OR TABULAR MATERIAL)]

Figure 4 is a plan or top view of Figure 1.

[NOTE: MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE (GRAPHIC OR TABULAR MATERIAL)]

'In these figures, a a represent a curved rocker, in the socket b b, of which the picker-staff is to be fastened. The rocker a a plays upon a horizontal bed, c c, having a socket d, through which the shaft of the loom passes in the usual way. The shank, e e, of the rocker, a a, is made hollow, or with a suitable box or bearing, f f, into which a shaft arm or bar, g g, is inserted, which arm, by means of journals projecting on each side thereof, has a bearing in the eyes, i i, formed in the bed-piece, c c. By this arrangement, the rocker (in its reciprocating movement) is kept perfectly true in its bearings by the arm or bar, g g, which holds the rocker, a a, truly in position, in consequence of its long bearing therein; and as the arm or bar, g g, also oscillates freely upon its journals, h h, which further serve to steady the rocker laterally, the rocker moves with the least possible friction, and with the greatest accuracy, so that the wear and tear is necessarily but very slight. The eyes or bearings, i i, have inclined slots (shown in dotted lines in Figure 1) cut in them, so as to form ears or open boxes in which the journals, h h, are inserted when the parts of the picker motion are put together. By this means, the shaft or arm, g, and its journals, h, can readily be removed and replaced, and are free to play without liability to work out of their bearings. The rocker, a a, is retracted by means of a spiral spring, k k, wound loosely around a short shaft, l, and attached at one end to a plate, m, which turns freely on the shaft, l. A strap, n, attached to the plate, m, fits over a hook, o, on the under side of the rocker, a a. As the spring, k k, is liable to partially lose its force by the motions of the rocker, a a, this contingency is provided for by forming in the plate, m, a series of holes, p p, into which successively one end of the spring, k k, is set, as fast as it loses its elastic force, whereby the spring can be set up at pleasure, and its force graduated without the necessity of frequent repairings or renewals.'

The reader thus sees that the invention described is primarily a combination of a rocker with a bed by means of loose journals projecting on each side of the picker-staff, and arranged beneath it substantially as described in the specification. As in other arrangements for picker-staff motions, the rocker is made to play upon a horizontal bed, parallel to and below the shuttle-race, and the bed has a socket passing longitudinally through its base, for the passage of the shaft of the loom. The shank of the rocker is made hollow, that is, with a box or bearing extending through its tread upward, into which a shaft-arm or bar is inserted. This bar or shaft-arm is fitted with journals projecting on each side at right angles with the rocker, and resting in eyes formed in the bed-piece, which constitute the journal bearings. The eyes have inclined slots cut in them, so that they form ears, or open boxes, into which the journals are inserted when the parts of the picker-stiff motion or the constituents of the combination are put together. Thus the shaft and the journals can readily be removed and replaced, and the journals are free to play without working out of their bearings. The rocker is retracted and caused to move by means of a spiral spring, would loosely around a short shaft below the bed, and attached at one end to a plate which turns freely on the shaft; and the plate is connected by a strap with a hook extending from the under-side of the rocker, or the lower end of the shaft-arm.

'The first part of this invention relates to the position of the journals. This position is determined by the position of the socket for the picker-staff, which socket is so placed that the point of the picker-staff which strikes the shuttle must move in the required line; and this part of the invention consists in placing the journal at or near this socket, and as near the level of the bed as practicable. In this position there is the least possible wear, and the journals perform all their functions to the best possible advantage. It is obvious that as every point upon the rocker varies its position in the action of the motion, with reference to the bed, it is impossible to connect the journal directly with the rocker and its box directly with the bed, or vice versa. One or the other must be indirectly connected, and it is for this reason that in the motion described the journals are placed upon the arm g, upon which the rocker can play up and down. So far as we know, no rocker has ever been combined with its bed by means of journals before this invention.'

'The second part of this invention consists in forming the boxes or bearings for the journals with such an opening that the journals may be laid in them in putting the motion together, without liability to work out in the operation of the rocker, as plainly shown in the drawings. This method of onstruction is much cheaper than making the boxes cylindrical, and is quite as efficient in every respect.'

'1st. The combination of a rocker of a picker-staff with its bed, by loose journals, projecting on each side of the picker-staff, and arranged beneath the picker-staff, substantially as described.

'2d. In combination with the rocker, the bed and the journals, the open boxes, substantially as and for the purpose described.

'3d. In combination with the rocker and its bed, the journal-bearing arm, operating substantially as and for the purpose specified.'

The devices of Mason (the defendant) are shown in perspective in Figure 5; and a vertical section, in central plane, of the rocker, is shown in Figure 6.

[NOTE: MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE (GRAPHIC OR TABULAR MATERIAL)]

These drawings were thus described in the defendant's patent: 'A represents the rocker-bed, cast with a socket, a, at one end, by which it is attached to the loom. The upper surface on which the rocker works is, as usual, straight, in the direction of the length, but in the cross-section it is made concave, of a V-shape, to within a short distance of the outer end, where it is formed with a cross semi-cylindrical box, b, to receive one end of a link, to be presently described; and near the middle of its length it is formed with a vertical mortise, C, through which the stem of the rocker passes, and in which it plays freely.

'The rocker, B, longitudinally is, as usual, in the form of a segment of a circle, but in the cross-section it is of an inverted V-shape, to fit the concave of the bed. It has a short stem or arm, d, which extends through the mortise, c, in the bed, and by which it is, as usual, connected with a spring for drawing back the picker-staff. The upper part is suitably formed with an open socket, e, to receive, and in which is secured by a screw-bolt, f, the lower end of the staff, g. Back of the socket, e, it is formed with a cross semi-cylindrical box, h, like the one, b, at the outer end of the bed, A.

'There is an open link, c, consisting of two cylindrical journals, i i, connected by side-bars, J J. One of the end journals fits and works in the semi-cylindrical box, b, at the outer end of the bed, A, and the other in the semi-cylindrical box, i, of the rocker. As the tension of the usual spring attached to the arm, d, of the rocker tends to draw the rocker in the direction of the arrow, the link, c, keeps it in its right place on the bed, and by reason of its end journals working in the semi-cylindrical boxes, permits the required rocking motion to take place freely, whilst at the same time the form of the upper surface of the bed, and of the under surface of the rocker, prevents the picker-staff from wabbling or moving sidewise.

'By the mode of construction above described. I am enabled to make the whole structure of three pieces, the bed, A, the rocker, B, and the open link, c, each of which can be readily cast, and the three put together and used without any finish beyond the usual cleaning operation to which castings are subjected.'

'The bed, formed with a V-shaped groove, and the rocker, with its under surface of the corresponding form, in combination with the open link, by which the rocker is kept in place on the bed, substantially as and for the purpose set forth.'

It was not disputed that the defendant's machine was the same as that described in the complainant's patent, in these respects, viz.:

1. Each consisted of three main parts, the rocker, the bed, and a third piece whose office it was to hold the rocker properly upon the bed.

2. The rocker and the bed were the same in each.

The principal question for consideration of the court below was: Whether the device for holding the rocker upon the bed in the defendant's machine was the substantial equivalent of the corresponding device in the complainant's achine?

These devices in each machine were described as follows:

In the complainant's machine the rocker, a, in its reciprocating movement, was kept true in its bearings by the arm or bar, g, which held the rocker in position; the bar, g, oscillated upon its journals, h h. The eyes or bearings for the journals had inclined slots, i, cut in them, so as to form open boxes, in which the journals were inserted.

In the defendant's machine there was an open link, c, consisting of two cylindrical journals, i i, connected by side-bars, J J. One of the end journals fitted and worked in the semi-cylindrical box, b, at the outer end of the bed, A, and the other in the semicylindrical box, i, of the rocker. As the tension of the usual spring attached to the arm, d, of the rocker tended to draw the rocker in the direction of the arrow, the link, c, kept it in its right place on the bed, and by reason of its end journals working in the semicylindrical boxes, permitted the required rocking motion to take place freely.

One of the defences-one, however, not much pressed-was that the invention of the complainant, Graham, had been anticipated by prior devices.

Of these four only need be noticed. They were described in the earlier patents granted to Benjamin Lapham, to David Barnum, to Renselaer Reynolds, and to William Stearns. While each of these had a rocker and a bed, no one connected the rocker with the bed by means of loose journals, or by loose journal-bearing arms, and no one of them obtained the beneficial results secured by the invention belonging to the complainant. In Lapham's invention there was one journal on the bed and one on the rocker, both on the same side of the picker-staff; a device which obviously could not prevent wabbling, or the sliding of the rocker on the bed. Barnum's invention had no journals, journal-boxes, or journal-bearing arms. Nor had the device of Stearns. In the Reynolds patent the rocker was described as held to the bed by means of a strap fastened at one end to the under face of the rocker, and at the other to a point in the groove of the bed-piece, in which the rocker rolled.

The defendant referred to the four patents above mentioned as exhibiting the state of the art when the complainant's patent was granted, and as requiring that patent to be construed to cover only a combination, of which a journal-bearing arm sliding vertically in a hollow place or box in the rocker, and having journals which turn in open boxes in the bed-piece, is an essential constituent.

The court below held that the invention of Graham had not been anticipated by any of the devices relied on to show anticipation; that the patent of the complainant was infringed by the machine of the defendant, and a decree was entered ordering the defendant to account, and referring the case to a master to state an account.

This decree and reference was made on the 9th of June, 1869.

The master reported that the defendant had made and sold 3639 pairs of the infringing motions as a part of looms manufactured in his establishment, and that the profits resulting from the manufacture and sale of such motions had mingled with the profits from the manufacture of looms:

That the cost of making the looms, including the motions, was $59.63:

That the cost of making the motion was 45 1/2 cents each, or 91 cents for each loom:That the profits resulting from the manufacture of each loom, including the pair of motions, was $5.64.

Assuming these to be the facts, the appellant insisted that he should have been charged with only 8 6/10 of a cent as the profit made by him on each pair of motions, that bearing the same proportion to $5.54, the whole profit on the looms, which 91 cents, the cost of a pair of motions, bears to $59.63, the cost of the entire loom with the motions. This view the master refused to take.

It appeared further, from the master's report, that the defendant sold 414 pairs separately from the looms at $2 per pair, and 297 1/2 other pairs for $534.75.

It appeared, however, from the report that the defendant made the infringing motions after a pattern of his own devising; that they cost 50 cents per pair less than the picker-staff mechanism, which he had immediately before put upon his looms; that they were made under a patent granted to him, and that they cost about 50 cents less than the motions made by the complainant, the difference in the cost being due to his invention.

It seemed, also, that the cost of making 'beds' and 'rockers,' which were used in the repair of bridle-motions previously made, had been reduced by the defendant; the defendant's bed costing but 27 2/10 cents, and his rocker but 12 4/10 cents, whereas those of the complainant cost, the bed 42 cents and the rocker 19 2/10; the reduction obtained by the defendant being due in part to the fact that the labor required in putting together the arm and rocker in his motion was less than in putting them together in the complainant's.

The report charged the complainant with—

3639 pairs bridle-motions, sold on looms to sundry parties at a

profit of 50 cents per pair,............ $1819

The profit derived from the sale of the 414 pairs of

motions, sold separately from the looms, at $2 a pair, $828

Less cost of producing at 91 cents per pair,. 376

---..........................451

297 1/2 motions sold separately from the looms,. $534

Less cost of producing at 91 cents per pair,. 271

---...........................263 00 The master also charged the defendant as follows:

346 beds (parts of bridle-motions), sold at various prices,

amounting in all to...................$313

Deduct cost at 27 2/10 each,............94

Profit,.......................................$218

1548 rockers (parts of bridle-motions), sold at various

prices, amounting in all to...........$768

Deduct cost at 12 4/10 each,...........191

-  576

-

$3329

On the hearing before the master the defendant sought to reduce the damages found by him by the introduction of a paper, admitted to be genuine and signed by the complainant. The paper was given under these circumstances: Graham, the complainant, had obtained injunctions against certain mill companies who had bought their motion from Mason, the defendant, he, Mason, having guaranteed them against disturbance by Graham. Graham, the complainant, was about to apply for injunctions against other purchasers from Mason, who had purchased and were holding in the same way. And Mason, acting really in behalf of the persons using the motions, and in a certain sense as their agents, rather than as representing himself alone, had paid the $1000 mentioned in the paper to protect them from all claims of Graham. The bill in the case had been filed in June, 1867, and as already said, the decree was made June 9th, 1869:

'BOSTON, October 25th, 1869.

'Received of William Mason, of Taunton, $1000 in full satisfaction for our right to collect back damages for the past infringement of reissue letters-patent of May 28th, 1867, for picker-staff motions, by the individuals and corporations who have used bridle-motions of Mr. Mason's make, and as tariff for the future use of such motions. It is understood and agreed that the number of these motions does not exceed five thousand four hundred and fifty-one, and that Mr. Mason is to furnish us with a list of the names of the users and the number sold by him to each, and that the bridle-motions enumerated in that list are all hereby licensed. This bridle-motion is the motion that has been patented by Mr. Mason. It is also understood and agreed that this settlement does not affect in any manner our right to recover profits or damages from Mr. Mason for his infringement of said patent, and that the suit of Graham et al. v. Mason shall proceed precisely as if this settlement never had been ade. It is also understood that this agreement relates simply and solely to the bridle-motion, and no other, and licenses simply those bridle-motions of Mr. Mason's make not already licensed, and no others.

'E. H. GRAHAM,

'W. MASON.'

Mason, the defendant, insisted that this $1000 should be added to the cost of the 'bridle-motions,' or in some way applied to reduce the amount of profits which should be found resulting from the manufacture. But the master refused to allow him any benefit from this payment. The master said:

'The money was paid by the defendant after the decree was passed in the case. It forms no part of the cost of manufacturing the 'bridle-motions' and cannot be here considered in reduction of the amount found as profits of manufacture. If this is a payment on account of the sum to be ultimately adjudged against the defendant in this case it is not within the matter submitted to the master by the decretal order.'

The court below affirmed the report of the master, and a final decree being entered this appeal was taken from the same.

Mr. Benjamin Deane, for the appellant; Mr. J. E. Maynadier, contra.

Mr. Justice STRONG delivered the opinion of the court.

By the arrangement described in Graham's reissued patent of 1867, and claimed as his invention, it is manifest that that part of the device called the rocker is prevented from sliding perceptibly on its bed and is kept true in its bearings by the arm or bar from which the journals are projected, the arm having also a long bearing in the box of the rocker. The journals, moreover, having bearings in the ears of the bed, steady the rocker, resist any lateral movement, and prevent what is denominated as wabbling. As the picker-staff is made to oscillate, its rocker rises and sinks upon the arm, and thus most of the friction caused by the play of the staff comes upon the shaft, or journal-bearing arm, and not upon the tread of the rocker or the bed-plate.

We think the invention has no relation to any mere form of a journal-bearing arm. Nor do we think it consists in arranging a journal-bearing arm in a slot in the rocker. In our opinion it embraces every combination of a rocker with a bed and loose journal-bearing arms, arranged so as to produce the result described in the specifications as effected by the combination.

And we have been unable to perceive that the invention was anticipated by any of those devices which the defendant has given in evidence. We do not propose to go into any critical examination of them. The case does not call for it. Of them all it may be said that while each has a rocker and a bed, no one connects the rocker with the bed by means of loose journals, or by loose journal-bearing arms, and no one of them obtains the beneficial results secured by the invention belonging to the complainants. It is but faintly claimed, if at all, that any of these patents describe the invention of the complainants. The defendant has used them rather as exhibiting the state of the art when the reissued patent in question was granted, and as requiring that patent to be construed to cover only a combination, of which a journal-bearing arm sliding vertically in a hollow place or box in the rocker, and having journals which turn in open boxes in the bed-piece, is an essential constituent. We think, however, they exhibit no such state of the art as requires that construction to be given to patent, and we cannot perceive that such a construction is justified by the language of the specification and claims.

We come, then, to the inquiry whether the devices made and sold by the defendant are substantially the same as those patented by the reissued patent; or, in other words, whether the picker-staff motion made and sold by the defendant is an infringement upon the complainants' right. Upon this question the opinions of the experts examined are in direct conflict, and we are, therefore, under the necessity of comparing for ourselves the two devices. We have already said that t e object sought to be accomplished by the complainants' invention was the prevention of wabbling of the picker-staff, and compelling it to move steadily, without lateral deflection, on the required plane. It is not denied that exactly this is the object at which the defendant's motion is aimed. It remains, then, only to determine whether the means by which the intended result is obtained are substantially the same. That both the combinations connect a rocker to its bed by journals indirectly, employing an arm to effect such indirect connection, is made clear by inspection. In Mason's motion the arm is attached by a second journal, in the complainants' by a slot in the rocker. It is true the form and the location of the arms differ, but they perform the same functions, and in substantially the same manner. Both are journal-bearing arms. Both connect the journals, whether they are on the rocker or on the bed, indirectly with the bed in the one case, or with the rocker in the other. Each, then, is a combination of a rocker with a bed, by loose journals projecting on each side of the picker-staff, and the combination is effected by means of a journal-bearing arm. That the form of the journal-bearing arm of the defendant's motion is unlike that of the complainants', or that its mode of attachment is different, is immaterial so long as it performs the same function in substantially the same way. We are, therefore, of the opinion that the defendant's picker-staff motion must be considered as practically the same as that patented to the complainants, and, therefore, that the charge of infringement is sustained. The Circuit Court then correctly ordered that the defendant should account.

But we think there was error in the ascertainment of the profits with which he was charged. The master to whom the statement of the account was referred reported that the defendant had made and sold 3639 pairs of the infringing motions as a part of looms manufactured in his establishment, and that the profits resulting from the manufacture and sale of such motions had mingled with the profits from the manufacture of looms. He further reported that the cost of making the looms, including the motions, was $59.63; that the cost of making the motion was 45 1/2 cents each, or 91 cents for each loom; and that the profits resulting from the manufacture of each loom, including the pair of motions, was $5.64. Assuming these to be the facts the appellant insists that he should have been charged with only 8 6/10ths of a cent as the profit made by him on each pair of motions, that bearing the same proportion to $5.54, the whole profit on the looms, which 91 cents, the cost of a pair of motions, bears to $59.63, the cost of the entire loom with the motions. To this we cannot assent. It appears from the master's report that the defendant sold 414 pairs, separately from the looms, at $2 per pair, and 297 1/2 other pairs for $534.75. These sales furnish a must better measure of profits than is a ratable proportion of the profits on an entire loom. It may fairly be presumed from them that the profits on the sale of looms, with the motion attached, were increased by the infringing device quite as much as was the profit on the motions sold separately. It does not appear at what profit, if any, the looms could have been sold without the picker-staff motion attached.

But the master further reported that the defendant made the infringing motions after a pattern of his own devising; that they cost per pair 50 cents less than the picker-staff mechanism which he had immediately before put upon his looms; that they were made under a patent granted to him, and that they cost about 50 cents less than the motions made by the plaintiffs, the difference in the cost being due to his invention. If this is so, it is clear that the 50 cents saved on each pair, equivalent to 50 cents profit, is not due to the complainants' invention. Were it not for the defendant's improvement the cost of making a pair of motions would have been, not 91 cents, but 91 plus 50 c nts, or $1.41, and the profits on each pair would have been 59 cents, instead of $1.09 charged to the defendant. Manifestly the complainants are not entitled to the savings or profits resulting from the defendant's own invention.

The defendant, therefore, has been charged by the master's report, confirmed by the court, too much for the profit derived from the sale of 414 pairs of motions sold separately from the looms, and from the sale of 297 1/2 motions also sold separately from the looms. For the former he should have been charged $243.26, instead of $451.26, and for the latter $175.52, instead of $263.

We think, also, that the defendant has been excessively charged for the profits made by him on the 346 beds, and the 1548 rockers sold by him at various times for the repair of bridle motions previously made. He has been credited with the cost only, without reference to the fact that the cost was reduced by his own invention. The complainants have not shown how much the cost would have been had the defendant made them without employing his own improvements. Under such circumstances it appears just to assume that but for the improvement of the defendant the cost of making the bed would have been 42 cents instead of 27 2/10, and the cost of making the rockers would have been 19 2/10 cents instead of 12 cents and 4 mills, as reported by the master. The consequence of this is that the profit on the 346 beds sold was only $167.68, and the profit on the 1548 rockers sold was only $471.49.

The decree, therefore, should have been in favor of the complainants for

1st. Profits on bridle motions sold on looms, $1819

2d. Profits on 414 pairs sold separately, 243

3d. Profits on 297 1/2 pairs sold separately, 175

5th. Profits on the rockers sold separately, 471

A majority of the court is of opinion that the appellant is not entitled to a credit for the $1000 paid on the 25th of October, 1869, for which a receipt was then given.

The decree of the Circuit Court is REVERSED, and the case is remitted with instructions to enter a decree in favor of the complainants against the defendant for $2877.45, with costs of suit in the court below. Each party to pay his own costs in this court.

REVERSAL AND REMAND ACCORDINGLY.

title: Mason v. Graham/Opinion of the Court


text: Talk:Mason v. Graham/Opinion of the Court


text:
Thomas & Company v. Wooldridge

ON motion to dismiss an appeal from the Circuit Court for the Southern District of Mississippi. The case was thus:

In May, 1874, Wooldridge, of Kentucky, got a judgment in the Circuit Court just named, against Thomas & Co., of Mississippi, for $4800.

In June following, one Hedric, of Louisiana, a creditor of Wooldridge, attached in a State court of Mississippi, the judgment which Wooldridge had thus got, and summoned Thomas & Co. as garnishees. Notwithstanding this, the attorney of Wooldridge issued a ''fi. fa.'' against Thomas & Co., and the marshal was proceeding to levy and make sale of their property to satisfy it. They informed him of the attachment, and that they had been summoned as garnishees, and remonstrated against the levy. To this the marshal replied that his own fees in the suit of Wooldridge against them, and the fees of Wooldridge's attorney would take precedence of any lien made by the attachment. Thomas & Co. accordingly paid the marshal his own fees and those of the attorney, and a credit to this extent was entered on the ''fi. fa.''

However, the attorney soon afterwards issued an ''alias fi. fa.'' for the balance.

Hereupon Thomas & Co. filed a bill against Wooldridge, the attorney, and the marshal, in the Circuit Court, where the judgment had been got against them, praying an injunction against all the parties just mentioned from any further attempt to collect the judgment got by Wooldridge, until the proceedings in attachment had been disposed of; the bill stating that the attorney was made defendant 'by reason of his being attorney of the said Wooldridge, and not by reason of any personal interest of his own in the matters set forth in the bill.' The bill prayed process against Wooldridge, the attorney, and the marshal, and that Wooldridge, as 'the real party in interest,' might be required to answer, and that he, the attorney, and marshal should be enjoined from proceeding until, as already said, the result of the proceedings in attachment should be seen.

The bill also prayed that if the complainants should be adjudged to pay the judgment-debt under the proceedings in attachment, Wooldridge might be perpetually enjoined from its collection.

Upon the filing of the bill an interlocutory injunction was allowed. An answer by Wooldridge, but not by either the attorney or marshal, and replication to the answer were afterwards filed and testimony was taken. On 1st December, 1874, Wooldridge moved to dissolve the injunction upon bill and answer filed, and on the same day the following order was made in the cause:

'This cause coming on to be heard upon the bill and answer filed, and the motion of the defendants to dissolve the injunction heretofore granted herein, and after hearing the argument of counsel, and being fully advised of and concerning the matters and things in the pleadings mentioned, the court doth order, adjudge, and decree, that the said injunction be, and is hereby dissolved, and that the complainants pay the costs of this proceeding.'

Upon the petition of the complainants an appeal from this order was allowed on the 28th December, 1874, 'to supersede the order of dissolution and reinstate the injunction.' Bond was filed on the same day to perfect the appeal.

This appeal having been allowed during the present term of this court, the appellants had by the general practice of the court until the next term to file the record here. Not waiting for the appellants to file the record, the appellee caused it to be done on the 9th February, 1875, and on the same day filed this motion to dismiss the appeal, on the ground that the order appealed from was not a final decree. On the 25th February the appellants were served, at Vicksburg, Mississippi, with notice for the hearing of the motion on the 22d of March, but the notice was not accompanied by a copy of the brief or argument to be submitted. The record had been printed.

An amendment to Rule 6, adopted at the December Term, 1871, orders that—

'All motions to dismiss appeals and writs of error (except motions to docket and dismiss under the ninth rule), must be submitted in the first instance in printed briefs or arguments. If the court desires further argument on the subject, it will be ordered in connection with the hearing on the merits.

'The party moving to dismiss shall serve notice of the motion, with a copy of his brief or argument, on the counsel for the plaintiff in error or appellant, of record, at least three weeks before the time for submitting the motion,' &c.

However, in the present case, the appellants, before the day fixed for the hearing of the motion, filed a brief of six pages, going into the merits of the motion.

The record had been printed.

Mr. Joseph Casey, in support of the motion:

The decree below is not the subject of an appeal.

This court has decided, in Moses v. The Mayor, and previously, that an appeal does not lie from an interlocutory decree dissolving an injunction, or refusing one.

In Thompson v. Dean, it is held that no decree is final which does not dispose of the whole case.

Mr. A. P. Pittman, contra:

This motion is made on the sole ground that there was no such final judgment in the court below as to sanction an appeal here. But—

1. Will this court entertain the motion at all before the return day of the record? Certainly its general practice is not to entertain motions to dismiss before such time.

2. If it will thus entertain the motion, is service of a copy of the motion, unaccompanied by any brief or argument, upon the attorney of record in the Circuit Court, sufficient notice under the sixth rule, and the amendments to it made at December Term, 1871?

3. A reference to the notice served will show that all the parties defendant to the case in the lower court are not parties to this proceeding to dismiss. The marshal and attorney have received no notice, though they were parties defendant to the bill. The notice of the present motion was given to Wooldridge alone. Is it not necessary that the former two parties should join in this motion, equally so as if they prayed an appeal or writ of error?

4. Finally, and as to the main point. Was not the decree of the court below, dissolving the injunction, such a judgment as could be appealed from to this court?

Where injunction is the sole equity of the bill and the only relief sought, an order of dissolution is such a final order as can be appealed from. This is the view taken by t e Supreme Court of Illinois.

And this court have indicated a similar view.

If Moses v. The Mayor, have a contrary aspect, that case is distinguishable from this one. That case was an appeal from the judgment of a State Supreme Court revising and remanding the cause to the inferior State court. This is an appeal from a decree of the Circuit Court finally disposing of the merits of controversy. The motion to dissolve was upon an answer which raised only a question of law. Nothing thus remained to be done except formally to dismiss the case for want of equity.

The CHIEF JUSTICE delivered the opinion of the court.

title: Thomas & Company v. Wooldridge


text: Talk:Thomas & Company v. Wooldridge

title: Talk:Thomas & Company v. Wooldridge


text:
Thomas & Company v. Wooldridge/Opinion of the Court

It is first objected that this motion cannot be entertained now because the appellants had until the next term to file the record. In Ex parte Russell, we decided that 'unless some unforeseen inconvenience should arise from the practice, we would not refuse to hear a motion to dismiss before the term in which, in regular order, the record ought to be returned,' if the record was actually brought here and printed. We think now, as we did then, that such a practice will 'be likely to prevent great delays and expense and further the ends of justice.'

It is next objected that the notice of the motion is insufficient, because it was not accompanied by a copy of the brief or argument to be used in its support, as required by the amendment to Rule 6, adopted at the December Term, 1871. This might have been a good cause for postponing the hearing to give time for further preparation, if application therefor had been made. Instead of that a full argument has been filed upon the merits of the motion. No more could be done if the hearing should be now postponed. Under these circumstances we are inclined to treat the filing of the argument as a waiver of the notice required by the rule.

It is next objected that all the parties defendant in the lower court are not parties to this motion to dismiss. The motion is made by the appellees and is signed by the attorney of the only defendant in the court below who had any real interest in the litigation, and the only one who filed an answer.

This brings us to the merits of the motion. We have many times decided that an appeal will not lie from a decree dissolving an injunction without dismissing the bill.

In this case the bill was not dismissed. It may have been the intention of the court to dispose of the whole case by the entry as made, but that intention is certainly not expressed. A motion was made to dissolve the injunction upon the bill and answer filed. It does not appear that the case was heard except upon this motion, and there is nothing in the record to show that it will not be still within the power of the Circuit Court upon the dismissal of the appeal to grant the complainants all the relief they ask. The case is still open on its merits. It is only the interlocutory order that has been disposed of.

APPEAL DISMISSED.


text: Talk:Thomas & Company v. Wooldridge/Opinion of the Court


text:
Page:Babeuf's Conspiracy.djvu/11

iv to prosecute his studies, or, what is more probable, from a hatred of the servilities and hypocrisy necessary to make a good courtier, he declined the latter offer. "The desire of enriching himself," observes one of his Tory biographers, "seems never to have possessed him; his errors were of a very different character." Unfortunately for Buonarroti's own prospects, they were indeed of a very different character; for if to unite, to a thorough knowledge of the causes of human misery, an ardent love of his fellow-creatures, and a burning desire to rescue them from tyranny and slavery, at the risk of every personal sacrifice and danger be an error, no man was ever more deeply involved in error than Buonarroti. His life was a continued error of this kind. Hence the many difficulties and perils of his revolutionary career; hence his participation in Babeuf's "Conspiracy for Equality;" and hence is now devolved on the writer of this the task of aiding to transmit this last monument of his patriotism and glory to the admiration, we trust, of the good and the oppressed of all nations.

When the French Revolution broke out, it was natural that a mind constituted like Buonarroti's should catch the electric spark that thrilled all generous hearts with the hope of a new era. He accordingly entered into it with all the ardour of an Italian, and with an energy of character which showed that the soul of Michael Angelo was inherited by his illustrious descendant. Making no secret of his feelings, he boldly announced, and became a propagator of, the new principles. The Grand Duke was soon alarmed; his predilections for Buonarroti as a man were lost in the terrors he inspired as a politician. To the Duke's own fears were added those of his courtiers and ministers. Buonarroti was, of course, calumniated and defamed. He was accused of ingratitude, as though the Grand Duke had a right to his conscience, in return for the Order of Knighthood conferred on him; and, by way of marking the Court's abhorrence of revolutionary principles, Buonarroti was exiled from Tuscany. From this period commenced at once his career of misfortune and glory.

He first took refuge in Corsica with his wife and children, and soon after his arrival began to publish a

title: Page:Babeuf's Conspiracy.djvu/11