text:
The City of Hartford and the Unit/Opinion of the Court

Freedom from fault is a good defence in a cause of collision, even when the suit is promoted to recover compensation for injuries received by an unoffending party; but the innocent party, if the collision was occasioned by the fault of the other vessel or vessels, is always entitled to full compensation for the injuries received, unless the loss exceeds the amount of the interest which the owners have in the offending ship or ships and the freight pending at the time of the collision. 9 Stat. 635; The Atlas, 93 U.S. 302.

Sufficient appears to show that the schooner was on a voyage from Baltimore to Portsmouth, N. H., laden with a cargo of corn, and that she put into the port of New York, by reason of stress of weather; that while there those in charge of her navigation employed the steam-tug to tow her from her anchorage through the pass called Hell Gate, and that the steam-tug undertook to perform that service for a reasonable compensation; that the steam-tug accordingly took the schooner in two and proceeded on the route; that while so proceeding, and when in East River, the two vessels came in sight of the steamer 'City of Hartford,' then coming down the river; and the charge of the libel is that the steamer and steam-tug were so negligently, carelessly, and unskilfully manoeuvred and navigated that the steamer collided with the schooner, and caused her to sink, and that she, with her cargo and property on board, became a total loss.

Bad seamanship and unskilful navigation are imputed both to the steamer and the steam-tug, and the claim is that they are both bound to make good the damage sustained by the libellants.

Process was issued, and both the steamer and the steam-tug were attached by the marshal. Interlocutory proceedings will be omitted, as they are not material to the questions involved in the assignment of errors, except to say that the respective claimants of the respondent steamers appeared and filed answers to the libel. Testimony was taken on both sides; and after hearing, the District Court ordered a decretal order against the steamer, in favor of the libellants, and dismissed the libel as to the steam-tug, holding that the steamer was wholly in fault.

Owners of the cargo in such a case may, if they see fit, join with the owners of the vessel in promoting the cause of collision, or they may sue separately, at their election. In this case they filed a separate libel, in which they charged that the collision was occasioned both by the steamer and the steam-tug, and that both were bound to make good their loss. Service was made, and the claimants of both respondent vessels appeared and filed answers. Proofs being taken, they went to hearing; and the District Court entered a decree as in the preceding libel, holding that the steamer was wholly in fault, and dismissed the libel as to the steam-tug. Separate references were made to the master, whose respective reports were subsequently confirmed by the court.

By the final decree, the libellants in the first case recovered $4,119.04, with taxed costs, and the libellant in the second case recovered $3,704.79, with interest and taxed costs; and all parties except the libellant in the second case appealed to the Circuit Court.

Hearing was again had; and the Circuit Court reversed the decree of the District Court in the first case, dismissing the libel as to the steam-tug, and adjudged and decreed that both the steamer and the steam-tug were in fault, and that the damages and costs should be equally apportioned between the offending vessels.

Pursuant to that order, the decree against the steamer was for the sum of $2,080.67, for half the damages sustained by the libellants, including interest, with costs as therein taxed; and the charge against the steam-tug was for the same sum, with interest and costs, as in the case of the steamer. In the second case, also, the decree was in favor of the libellants, upon the ground that both the steamer and the steam-tug were in fault, as in the other case, where the libel was promoted by the owners of the schooner.

Due computation of the loss sustained by the owner of the cargo, who was the libellant in the second case, was made in the District Court, and the Circuit Court adopted that computation as correct. As there made, it amounted, with interest, to the sum of $3,713.13, besides costs as taxed; but the Circuit Court adjudged and decreed that the libellant recover of the steamer the sum of $1,856, being one-half of the damages sustained by the libellant, including interest to date of the decree in the District Court, and the sum of $337.14, 'for interest on half-part' to the date of the decree, with costs and interest thereon, as more fully set forth in the decree.

Evidence of a decisive character appears in the record to show that the circuit judge concurred with the District Court that the steamer was in fault, and that her fault contributed to the collision which caused the loss sustained by the respective libellants, but that he was unable to concur that the steam-tug was without fault. Instead of that, he was of the opinion that those in charge of the navigation of the steam-tug saw the steamer as she was coming down the river, at such a distance as would have enabled the steam-tug to have made any necessary manoeuvre to avoid the collision.

Beyond all question, he was of the opinion that both the respondent vessels were in fault, which, by all the authorities, presents a case where each should be adjudged liable for a moiety of the damages. By the decree the steamer is adjudged liable for half the damages; but the libellant, though admitted to be without fault, has no decree whatever for the other half, or for any more than half of the costs.

Appeal was taken to this court, by the claimants of the steamer, from the decree of the Circuit Court in each case. In the second case, the libellant, owner of the cargo, appealed from the decree therein rendered.

Argument to show that the decree of the Circuit Court in the first case is correct is scarcely necessary, as both courts concur that the steamer was in fault, and the owners of the steam-tug have not appealed.

Suggestion is sometimes made that this court will, as a matter of course, affirm the decree of the Circuit Court where the decree of the Circuit Court affirms the decree of the District Court; but the court has never adopted any such rule of practice.

Where the appeal involves a question of fact, the burden in such a case is on the appellant to show that the decree in the subordinate court is erroneous; but it is a mistake to suppose that this court will not re-examine the whole testimony in the case, as the express requirement of the act of Congress is that the Supreme Court shall hear and determine such appeals, and it is as much the duty of the court to reverse the decree from which the appeal is taken for error of fact, if clearly established, as for error of law. The Baltimore, 8 Wall. 377; The Maria Martin, 12 id. 31; The Lady Pike, 21 id. 1.

Neither the evidence exhibited in the record nor the suggestions of counsel contained in the brief filed by the appellants have had the effect to create any doubts in the mind of the court that the conclusion of the subordinate courts that the steamer was in fault is correct. Nor do we deem it necessary to repeat the reasons given by those courts in support of the decrees in that regard.

Other manoeuvres to avoid a collision failing, it was the clear duty of the steamer to stop and reverse. Both vessels were in plain view of each other, in a water where there was plenty of sea-room, which of itself is sufficient to afford a strong presumption that both were in fault. Enough appears to justify the conclusion that if the steamer had stopped her engines the collision never would have occurred, and it is hardly less probable that it would have been avoided if she had put her helm hard-a-port; but it is not necessary to enter into speculations upon the subject, as it is highly probable, to say the least, that the collision might have been avoided if either of the offending vessels had performed its duty.

Before examining the appeal and cross-appeal in the other case, it should be remarked that it is settled law that wrongful acts done by the co-operation and joint agency of two or more parties constitute them all wrong-doers, and that parties in a collision case, such as shippers and consignees, bear no part of the loss in such a disaster, and are entitled to full compensation for the damage which they suffer from the wrong-doers, except in the case where their loss exceeds the amount of the interest which the owners of the offending ship or ships have in them, and in the freight then pending.

Suppose the value of each vessel in such a case is equal, or more than equal, to a moiety of the damages, interest, and costs found due to the libellant, then it is clear that the decree should be for a moiety of the same against each of the offending vessels, with a provision that if either party is unable to pay his moiety of the damage, interest, and costs, the libellant shall have his remedy over against the other party. The Atlas, 93 U.S. 302; The Alabama and the Game-cock, 92 id. 695; The Washington and the Gregory, 9 Wall. 513; The Virginia Ehrman and the Agnese, supra, p. 309.

Apply that rule to the present case, and it is clear that the decree in the second case should be modified by inserting the provision, that if either party is unable to pay his moiety of the damage, interest, and costs, the libellant may have his remedy over against the other; and that a further decree be entered, that the libellant do recover against the steam-tug, her tackle, apparel, and furniture, the sum of $1,851.66, being one half-part of the damages sustained by the libellant by reason of the collision in the pleadings mentioned, including interest thereon to the date of the decree of the District Court, and the sum of $337.14 for the interest on said half-part to the date of the Circuit Court decree; and that the libellant do also recover of the steam-tug one-half of the costs of said libellant incurred in the District Court in the seizure of the steam-tug, with interest on the same to the date of the Circuit Court decree, together with one-half of the costs of the Circuit Court as there taxed; and that the steam-tug, her tackle, apparel, and furniture, be condemned therefor, with the provision that if either of the offending vessels is unable to pay her moiety of the damage, interest, and costs, the libellant shall have a remedy over against the other offending vessel for any such balance,-from which it follows that the decree in the first case is correct, that the appeal of the owner of the cargo must be sustained for the purpose of modifying the decree in the second case, and for the purpose of making the addition thereto as specified in the opinion, and that the decree in that case as modified, and with the addition thereto specified, be affirmed; The Dundee, 2 Hagg. 137; The Atlas, 93 U.S. 302.

Owners of ships and vessels are not liable, under existing laws, for any loss, damage, or injury by collision, if occasioned without their privity or knowledge, beyond the amount of their interest in such ship or vessel and her freight pending at the time the collision occurred; but the decree in a proceeding in rem against the vessel is not a decree against the owner, nor will it render the owner liable in such a case for any greater amount than what the act of Congress limiting the liability of such owners allows. Such a decree in such a case is merely the ascertainment of the damage, interest, and costs which the libellant has sustained by the collision, and which he is entitled to recover, provided the interest of the owners in the colliding vessel or vessels is sufficient to pay it, and not otherwise.

Suffice it to say that the libellant in such a case and in such a proceeding is entitled to recover for the loss which he sustained by the collision, whether the offending vessel is or is not of a value sufficient to discharge the amount. Admiralty courts, where there are two offending vessels, may undoubtedly divide the damages between them; but the libellant in such a case is entitled to full compensation if the offending vessels are of sufficient value, and in that event the decree in each case should provide that the libellant is entitled, if either party is unable to pay his moiety of damage, to have his remedy over against the other offending vessel. The Atlas, supra.

The decree in the first case, and that in the second, as the same is modified and enlarged, by adding thereto a decree against the steam-tug for one-half part of the damage, interest, and costs sustained by the libellant, will be affirmed; and it is

So ordered.


text: Talk:The City of Hartford and the Unit/Opinion of the Court

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


text:
Insurance Company v. Harris

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

On the 9th of September, 1872, two actions were brought by the assignee of William H. Brune, against The Mutual Life Insurance Company of New York, on two policies issued by it in January of that year, in the name of said Brune, on the life of John S. Barry. Barry died in March, 1872. By consent, the actions were consolidated and tried together. The defendant pleaded the general issue; and the parties agreed that either of them might offer in evidence any matter that would be admissible if it had been specially pleaded, and leave was subsequently granted the defendant to file a plea of puis darrein continuance. There was also an agreement which provided for the admission of certain papers and records, and stipulated that any further proceedings in a then pending suit, commenced April 4, 1872, in the Supreme Court for the city and county of New York, by Rosalie C. Barry, widow of said John, against said company, said Brune and his assignee, which either party should deem material, might be filed as a part of the agreement, at any time before the trial. The matter involved in that suit, and the decree which was rendered therein by the said court Nov. 26, 1873, are set out in the opinion of this court.

The issue was, by stipulation, submitted for trial to the court. On the 25th of November the plaintiff below stated his case; but, before any evidence was given, further action in the premises was postponed until the 29th of that month, when the defendant, before the plaintiff had submitted any evidence, filed with the clerk of the court a duly certified transcript of said decree.

On the trial, the defendant asked leave to set up the matter of that suit and decree by way of plea, or put it in evidence, under the agreement; but the court refused the leave, and the defendant excepted.

Judgment was rendered in favor of the plaintiff for the amount of the policies; and the defendant sued out this writ, and assigned for error that the court below erred: 1, in its refusal to grant the leave asked for; and, 2, in rendering judgment for the plaintiff upon the agreed statement of facts.

Whitridge, the original assignee, having died, Harris, the defendant in error, was substituted in his stead.

Mr. Edward Otis Hinkley and Mr. Henry E. Davies for the plaintiff in error.

Mr. J. Morrison Harris and Mr. F. W. Brune, contra.

MR. JUSTICE STRONG delivered the opinion of the court.

title: Insurance Company v. Harris


text: Talk:Insurance Company v. Harris

title: Talk:Insurance Company v. Harris


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

The first assignment of error is that the Circuit Court refused to allow the matter of the decree of interpleader in the New York case, which is mentioned at the end of the first bill of exceptions, to be set up in any manner, either by way of plea or in evidence. To understand this assignment, it is necessary to observe carefully what the New York case was. It was a bill filed on the 4th of April, 1872, in the Supreme Court of New York, wherein Rosalie C. Barry was complainant, and The Mutual Life Insurance Company, together with William H. Brune and Horatio L. Whitridge, were defendants. The bill averred, in substance and effect, that two policies of insurance, one for $20,000 and the other for $5,000, on the life of John S. Barry, the complainant's husband, dated Jan. 18, 1872, issued by the insurance company to Brune, belonged in equity to her; that they were substitutes for or continuations of policies the company had previously issued to her, upon which she had paid the premiums for a number of years, and which, by the compulsion and misrepresentations of her husband, she had been induced to assign to Brune without any consideration; that afterwards Brune arranged to have the policies surrendered, and those of Jan. 18, 1872 (which are the same as those upon which the present suit has been brought), issued to him in lieu of the surrendered ones; that this arrangement was carried out; that the new policies were issued bearing the same numbers as those of the old, calling for the same premiums, insuring the same amounts; that no consideration was paid for them other than the surrender; that the premiums were paid as of the times when they were due on the surrendered policies; that such payment was made principally by the application on account thereof, without her knowledge or consent, of the cash value of the dividends to which she was entitled in virtue of the former policies issued to her, and with which she had been credited by the company. The bill also charged that Brune paid in money only the difference between such cash value of her dividends and the aggregate amount of the annual premiums, and that the cash was furnished to him, at his request, by the complainant's husband, on her account. The prayers of the bill were that the insurers should be enjoined against making any payment of such insurance to Brune or to Whitridge (who claimed some right as assignee of Brune), and that payment to her should be decreed. She also prayed that it might be adjudged she had not parted with or been divested of her rights under said policies, and that the defendants, Brune and Whitridge, might be decreed to have acquired no right or interest therein.

On the 27th of June next following, Brune filed an answer, and at the same time Whitridge also answered. In neither answer was there a denial of most of the averments of the bill. Brune denied that Mrs. Barry's assignments were involuntary, and claimed that the first policies were taken by him as collateral securities for loans which he had made to her husband; that if the assignments were improperly made, it was without his knowledge or belief; asserted that he had assigned the substituted policies to Whitridge, and insisted that the court should decree a dismissal of the complainant's bill, and should give judgment in favor of Whitridge's right to collect the sums due under the policies. The answer of Whitridge was similar in substance.

Subsequently the company put in an answer to Mrs. Barry's bill, accompanying it with a petition for an interpleader. The answer conceded the company's liability to pay the sums due upon the policies (those issued to Brune, and the same as those in suit in the present case); averred readiness to pay to the person or persons lawfully entitled to receive payment, and to whom payment could be made with safety; and offered to pay into court. The petition prayed that the company might be permitted thus to pay; that thereupon it might be discharged; and that Brune, Whitridge, and Mrs. Barry might be ordered to interplead.

The case in the Supreme Court of New York, therefore, though not strictly a bill of interpleader, was in effect that, and more. It was in the nature of such a bill, and was, under the practice of that State, a proper proceeding to determine the rights of the parties. Badeau v. Rogers, 2 Paige (N. Y.), 209. Brune and Whitridge, as well as Mrs. Barry and the company, were parties to it, and all of them appeared and pleaded. The court thus had complete jurisdiction alike of the insuring company, of Whitridge, Brune, and Mrs. Barry, the persons claiming as assured by the policies, and also of the subject,-the liability of the company to the claimants.

On the twenty-sixth day of November, 1873, a decree was entered in the case, which was a final determination of the rights of Whitridge, Brune, and Mrs. Barry, or either of them, as against the company. So far as it is necessary to refer to it, it was as follows:--

'It is further ordered that the defendants, The Mutual Life Insurance Company, within three days next hereafter, deposit the residue of said $25,000 with the United States Trust Company of New York, to the credit of this action, for the benefit of the plaintiff, or either of the other defendants herein who shall be found to be entitled thereto, and that said defendants, The Mutual Life Insurance Company, so depositing said amount with said trust company to the credit of this action, be dismissed from the further defence of this action, and thereupon be released, acquitted, and discharged from all claims or liabilities to the said Rosalie C. Barry, plaintiff, and William H. Brune and Horatio L. Whitridge, defendants herein, or any or either of them, for, upon, or by reason of the said sum of $25,000, or upon said policies of insurance, on the payment of said amount, less said adjusted costs as aforesaid, to the said The United States Trust Company of New York.'

It was further ordered that the several claimants be enjoined from bringing any other action or proceedings against the defendant, The Mutual Life Insurance Company of New York, upon the said policies of insurance; and the claimants were also ordered to interplead upon the pleadings already interposed.

On the same day the insurance company paid to the United States Trust Company, to the credit of the action, as ordered, the amount of the policies.

It was this judgment of the New York Supreme Court which the plaintiffs in error offered to plead at the trial in the Circuit Court puis darrein continuance, and also offered to give in evidence, under an agreement between the parties, and, still further, independently of any agreement. But the court refused to allow it to be pleaded, or to be given in evidence; and this refusal is assigned as error.

The argument submitted to us has taken a very wide range. Much has been said which, in our opinion, has no bearing upon the exact question before us. It may be admitted that the pendency of an action between the same parties and for the same cause, in a foreign jurisdiction, is pleadable only in abatement. So it may be admitted that even a plea in bar, puis darrein continuance, cannot be received without verification. But the question here is, whether a final judgment determining the rights of the parties against each other, made by a court having jurisdiction both of the parties and of the subject of controversy, was admissible, either as evidence under the general issue in assumpsit, or when specially pleaded, or in consequence of any agreement made. The decree made by the Supreme Court of New York, if admissible, was certainly material. It will not be denied that its effect was the creation of a complete bar against the recovery of any other judgment in that State on these policies of insurance, against the plaintiff in error. The claim of Brune or Whitridge became merged in the judgment of that court. It is perfectly immaterial whether the New York court first obtained jurisdiction of the subject and the parties, as in fact it did. When the final judgment was rendered it closed the controversy, and after that the person assured by the policies could not have maintained a suit on them in that State, in the same or any other court; and if not, he cannot now in any other State of the Union. This is settled by the act of Congress of May 26, 1790, which declares that the records and judicial proceedings of the courts of any State, when authenticated, shall have such faith and credit given them in every court within the United States as they have by law or usage in the courts of the State from whence they are taken. The meaning of this is, that when a judgment or decree has been given in one State by a court having jurisdiction of the parties and the subject, it has the same force and effect when pleaded or offered in evidence in the courts of any other State. Mills v. Duryee, 7 Cranch, 481; Mayhew v. Thatcher, 6 Wheat. 129; Habich v. Folger, 20 Wall. 1; Burnley v. Stephenson, 24 Ohio, 474; Dobson v. Pearce, 12 N. Y. 156.

If, then, the record of the decrees of the New York court was pertinent to the issue in the case in the Circuit Court, as we have seen it was, and was material, why should it not have been received? There was nothing in the pleadings, nor in the agreement of the parties, we think, that stood in the way of its admission. The defendant below, now plaintiff in error, had pleaded the general issue, and, under that in assumpsit, a judgment recovered may be given in evidence. 2 Stra. 733; 1 Saund. Williams's notes, 67 a; Stafford v. Clark, 2 Bing. 377; Young v. Black, 7 Cranch, 565. And if this were not the general rule, there was an agreement of the parties filed in the case, by which it was stipulated that either party might offer in evidence, under the general issue, any matter admissible, as if specially pleaded. Of course, this agreement did not mean that an offer of evidence might be made that could have no legitimate bearing upon a proper decision of the case, and that such evidence should be received. But it did mean that whatever would be admissible under any plea should, if offered, be received under the plea of non assumpsit.

This, however, was not all. The parties entered into another agreement, that the two causes (viz. suits on the two policies) should be consolidated; that a special plea before filed by the defendant should be waived; that either party should have leave to offer in evidence any matter admissible, as if specially pleaded; and that certain facts, papers, and records were admitted and agreed to, for the purpose of taking the court's opinion in the case as to the plaintiff's right to maintain the action. Among the papers and records was the record of the case in the Supreme Court of New York, including the original petition of Mrs. Barry, and subsequent proceedings, together with the answer of the company and the petition for an interpleader. This agreement was made on the 18th of November, 1873, before the decree discharging the defendants was entered in the New York court. But the tenth clause provided for the use of any subsequent action in that case. It was as follows:--

'10th. And the said case, wherein Rosalie C. Barry is plaintiff, and The Mutual Life Insurance Company of New York and William H. Brune and Horatio L. Whitridge are defendants, is still pending in New York, and if there should be any further proceedings therein which either party may think material, they may be filed as part of this agreement at any time before the trial of this case.'

The decree of the New York court was a further proceeding in that case, and by the agreement it was stipulated that it might be filed and submitted to the court as an agreed fact in the case. It is true the agreement allowed filing at any time before the trial, and the case was called for trial on the 25th of November, 1873. On that day, after the plaintiff had stated his case, but before any evidence was read, the further hearing was postponed until November 29; and on the 29th, before any evidence was read, the copy of the final order and decree made on the 26th of November by the Supreme Court of New York was filed with the clerk of the Circuit Court. It is now contended that it was filed too late. We do not think so, though the learned judge of the Circuit Court said he would consider the trial as having begun on the 25th. Technically, it may be the trial commenced on that day, but it advanced then only to an oral statement of what was submitted for trial. All the evidence was given after the record was filed. The substantial trial was afterwards. The agreement between the parties should not have been construed technically, but rather in accordance with its spirit and in furtherance of justice.

And if the filing, when it was filed, of the final decree of the New York court as a part of the agreed facts was not allowed by the tenth clause of the agreement of November 18, the decree was still admissible in evidence. That agreement stipulated that either party might offer in evidence any matter admissible as if specially pleaded. It did not require the court to enter judgment upon the admitted facts alone.

It is argued by the defendant in error that the decree rejected by the court was not filed, and that the offer of the plaintiff in error was only to show a lis pendens. It is true the record did not show that the interpleading between Mrs. Barry and Brune and Whitridge had terminated. But the decree was a final determination of the claim of all and each of them against the defendant in the present case, upon the policies now in suit. The claim against the company is no longer open to litigation.

Upon the whole, therefore, we conclude that the first assignment of error must be sustained, and what we have said renders it unnecessary to remark upon the second.

The judgment of the Circuit Court must be reversed, and the record remitted for a new trial; and it is

So ordered.


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


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Emigrant Company v. County of Wright

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

The facts are stated in the opinion of the court.

Mr. J. A. Harvey and Mr. C. C. Nourse for the appellant.

Mr. D. D. Chase, contra.

MR. JUSTICE MILLER delivered the opinion of the court.

title: Emigrant Company v. County of Wright


text: Talk:Emigrant Company v. County of Wright


text:
Emigrant Company v. County of Wright/Opinion of the Court

On the 28th of September, 1850, Congress passed an act (9 Stat. 519) granting all the swamp and overflowed lands, made unfit thereby for cultivation, to the States in which they were situated. This grant was made to enable the states to reclaim those lands; and a proviso to the second section declares 'that the proceeds of said lands, whether from sale or by direct appropriation in kind, shall be applied exclusively, as far as necessary, to the purpose of reclaiming said lands by means of the levees and drains aforesaid.' The Secretary of the Interior was required to make out accurate lists and plats of the lands described as aforesaid, and transmit the same to the governors of the States; and at the request of the governors to cause patents to be issued, which should vest the fee-simple to said lands in the States, subject to the disposal of their respective legislatures.

For some reason, not necessary to be inquired into now, but which has been the source of much controversy between the States and the Department of the Interior, and also of much litigation between parties claiming under the grant and those claiming adversely to it, the Secretary failed to make any such selections and lists of swamp lands as the act contemplated, except as he was induced to make partial and imperfect lists at the suggestion of persons acting for the States on various occasions.

The State of Iowa, by the act of Feb. 2, 1853, granted these lands to the counties of that State in which they might be found, with an injunction that the lands and their proceeds should be appropriated to reclaiming the swamp lands; and if, when this was accomplished, any thing was left, to building roads and bridges over the same; and, lastly, the remainder to be used in building roads and bridges in other parts of the county.

By subsequent legislation of the State the counties were authorized to depart from this injunction, and to use the lands for public buildings and internal improvements; but the assent of the majority of the voters of the county to such purpose was required. It also authorized the sale of all said lands to any person or corporation by a written contract, to be in like manner submitted to the vote of the county; but such sale was subject to the following proviso: 'That no sale, contract, or other disposition of said swamp or overflowed lands shall be valid, unless the person or company to whom the same are sold, contracted, or otherwise disposed of, shall take the same, subject to all the provisions of the act of Congress of Sept. 28, 1850, and shall expressly release the State of Iowa and the county in which the lands are situate from all liability for reclaiming said lands.'

On the ninth day of July, 1862, a written contract for the sale of the swamp lands of Wright County, and all interest therein, and of the claim of the county for indemnity against the United States for swamp lands which had been sold by the government, was signed by the supervisors of the county of Wright and the American Emigrant Company, by their agent, H. C. Crawford, and attested by the clerk and seal of Wright County. This contract was submitted to the vote of the county, and affirmed by a majority. It appears that ninety votes were cast, and all of them but one were for affirming the contract. On the seventh day of January, 1867, the county, in fulfilment of the contract, made a deed of conveyance of a large list of lands to that company.

The case before us is a bill in chancery to set aside said contract and deed, and for an accounting, so far as the company has sold lands or received money on account of swamp lands due to said county. On final hearing, the court made a decree to that effect.

The American Emigrant Company claims to be organized as a corporation under the laws of the State of Connecticut, and its professed object is to aid the immigrantion of foreigners to this country, by settling them on farm lands in the West. It does not appear that during the fifteen or twenty years that it has been in existence it has done much, if any thing, in the way of promoting immigration. But it does appear that in the State of Iowa it has done a very large business in purchasing from the counties their contested claims for swamp lands, under the act of Congress and the statutes of the State to which we have referred.

How far this company was instrumental in procuring the legislation authorizing the counties to sell out these unascertained interests in the swamp-land grant, and to connive at a diversion of the lands from the purposes of the grant, we are not informed.

Some of the peculiar provisions of the act of 1858, passed about the time this company was organized, by which the counties were authorized to sell these lands, and claims for land, to corporations, and to take from the purchaser an obligation to hold the State and county harmless for any diversion of the grant from its original purpose, when taken in connection with the policy of the company as revealed in the depositions of its officers, leave strong ground of suspicion that those who alone have profited by the statute had something to do with its enactment.

The present bill is based upon three principal propositions, to wit: 1. That the contract is void on its face, because it is not authorized by the statute, and contemplates a diversion of the fund, in violation of the original grant. 2. That the vote of the county affirming it is void, because of want of legal notice of the time and place of voting. 3. Because of fraud in the manner in which the contract was procured.

In regard to the second of these propositions, which charges want of notice of the vote, we do not think it is established, so far as to render the vote void.

As regards the first proposition, it is not necessary to decide it in this case, and we do not decide that the contract is, for that reason alone, void. But we are of opinion that any purchaser of these lands from the county, or of the claim of the county to indemnity, must be held to know that in the hands of the county they were impressed with an important public trust, and that, in examining into the fairness and honesty of such a purchase, this consideration constitutes an important element of the decision. This is especially so when both the county and the purchaser agree in writing that the latter shall bear all responsibility, and shall indemnify the former for any violation of that trust.

In entering upon this inquiry, the first thing that strikes one upon the face of the record is the very vague idea which the supervisors of the county, and still more the citizens who voted on the proposition, must have had of the value of the thing they were selling. What lands were swamp lands had never been clearly settled by the department, and how many acres were or ever had been embraced by the grant in Wright County was still more uncertain. It was obviously the dictate of ordinary prudence in dealing with a case like this that the citizens of the county should know what they were selling, as well as what they were going to get for it. It is clear they knew neither. They were selling the chances in a controversy with the government of the United States. A claim which would probably be good for several hundred acres, and which resulted in the allowance of over six thousand acres. What were they to get for it? The sum of $500, in public improvements. The nature and character of these improvements, the price of the work, and the time of its completion were left unsettled.

The result is that none have been built, and the Emigrant Company secures about six thousand acres of land of the value of $1.25 per acre, and $981 in cash. Over $8,000 for the vague promise of doing $500 worth of public improvements. The very inadequacy of the consideration is enough to throw the strongest suspicion on the fairness of the transaction.

The county of Wright, by the census of 1860, had a population of six hundred and fifty-three souls, and the vote that was given amounted only to ninety. Of these, taking the usual proportion, probably less than one-half had any real interest in the county.

What a chance for the exercise of the arts of persuasion in procuring a contract, all the advantages of which should be on one side, but which must affect the interests of the county after it should have become well populated.

But we are not left to surmise on this subject. This small population was divided into seven civil townships, each one of which had a supervisor; and these supervisors, when assembled at the county seat, constituted the governing body of the county. When the Emigrant Company began their operations with Wright County, they did not lay their proposition before the board of supervisors at a regular meeting; but their agent, a man by the name of Crawford, who signed the contract for the company, taking with him a jug of whiskey, went round to the house of each of these men, and thus gaining their assent to his project, brought them together in his own wagon to the county seat, on a day not provided by law, nor authorized by any previous order or notice, and there induced them to sign this contract. Whether a like influence attended the subsequent voting at precincts, where the average vote was twelve to a township, we are not informed. But there is no reason to doubt that the arguments used with the supervisors were potent with the voters.

It appears that for some time before this contract was made the county had been urging her claim to swamp lands, before the department at Washington, through Savary, who acted as her agent. A short time before this contract was made, he informed the authorities of the county that their claim had been rejected, and that this rejection was accompanied by the announcement of a rule which left but little to hope for on the part of the county. Very shortly after this, Crawford, as the agent of the Emigrant Company, made his appearance in the county, and procured the contract we have mentioned.

As soon as this was done, Savary, as the agent of the Emigrant Company, by the assistance, as he says, of able lawyers, and in the cases of other counties with which the company had similar contracts, inaugurated proceedings to procure the reversal of the rule announced by the department. Succeeding in this, he presented the renewed claim of Wright County, and secured the allowance of several hundred acres still unsold in the county, and money and scrip for six thousand acres to be located elsewhere, in lieu of swamp lands sold by the government.

It is not a violent presumption, under all the circumstances of this case, that when, just after Savary had made the impression on the supervisors of Wright County that their case was hopeless, Crawford appeared in Wright County, he had some information of a different character on which he acted, and which was not communicated to the supervisors.

The record in this case is a voluminous one, consisting largely of depositions of witnesses. We are not convinced that any false representations were made by the agents or officers of the Emigrant Company. But the impression made upon us by the whole testimony is, that the officers and citizens of the county were in gross ignorance of the nature and value of what they were selling; that the Emigrant Company, on the other hand, were well informed in regard to both, and withheld this information unfairly from the officers of the county; that the sudden change of the relationship of Savary from an unsuccessful agent of the county to a successful agent of the company requires an explanation which has not been satisfactorily given; that the fact that all parties knew they were dealing with a trust fund devoted by the donor to a specific purpose demanded the utmost good faith on the part of the purchaser; that so far from this, there is a provision for a diversion of the fund to other purposes, a gross inadequacy of consideration, and a successful speculation at the expense of the rights of the public.

For these reasons we concur with the Circuit Court that the contract should be rescinded, and that, saving the right of intermediate purchasers, there should be an accounting and a reconveyance, so far as may be.

Decree affirmed.

MR. CHIEF JUSTICE WAITE and MR. JUSTICE STRONG dissented.


text: Talk:Emigrant Company v. County of Wright/Opinion of the Court


text:
Martin v. Marks

ERROR to the Supreme Court of the State of Louisiana.

The facts are stated in the opinion of the court.

Mr. Edward C. Ingersoll and Mr. F. P. Cuppy for the plaintiff in error.

Mr. Thomas J. Durant and Mr. C. W. Hornor, contra.

MR. JUSTICE MILLER delivered the opinion of the court.

title: Martin v. Marks


text: Talk:Martin v. Marks

title: Talk:Martin v. Marks


text:
Martin v. Marks/Opinion of the Court

This was an action in the nature of ejectment, brought by Marks, the plaintiff below, who asserted title under the swampland act of Sept. 28, 1850, and the earlier act of March 2, 1849, in regard to the same class of lands in the State of Louisiana. The defendant relied on a patent from the United States, dated May 20, 1873. The evidence of plaintiff's title under the act of 1850, which is all we shall now consider, is as follows:--

'NORTH-WESTERN DISTRICT, LA.

'A.-List of swamp land unfit for cultivation, selected as inuring to the State of Louisiana under the provisions of an act of Congress approved 28th September, 1850, excepting such as are rightfully claimed or owned by individuals.

'To. 20 N., R. 14 W., west side of Red River.

Parts of section. Section. Area. area. Remarks.

'SURVEYOR-GENERAL'S OFFICE,

'DONALDSONVILLE, LA., May 18, 1852.

'Examined and approved.

(Sig.) 'R. W. BOYD,

Surveyor-General, La.

To this was attached a certificate of S. S. Burdett, Commissioner of the General Land-Office, dated Department of the Interior, General Land-Office, April 30, 1875, that the foregoing was truly copied from a list of the swamp lands returned to that office by the surveyor-general of Louisiana. This was followed by sufficient evidence of title under the State of Louisiana. Neither this certificate nor any thing in the record shows precisely when this list was filed in the General Land-Office at Washington.

In Emigrant Company v. County of Wright (supra, p. 339) we had occasion to comment on the failure of the Secretary of the Interior to make out and certify to the States lists of the swamp lands to which they were severally entitled, and the expedients to which they were compelled to resort to obtain the evidence of their title to those lands. We also held in previous cases that, when this was ascertained and the lands were identified by proper authority, the title related to the date of the grant, namely, Sept. 28, 1850, and superseded any subsequent grant or evidence of title issuing from the United States. Railroad Company v. Smith, 9 Wall. 95; French v. Fyan et al., 93 U.S. 169.

The above certificate of what took place in the office of the surveyor-general shows what was the course adopted in Louisiana to secure the identification and lists of swamp lands in that State, and a similar course was elsewhere pursued. But these selections, though approved by the surveyor-general, who was merely a local officer, still lacked the authentication of the Secretary of the Interior, to whom alone Congress had confided the duty of confirming them, or making them for himself.

It will be observed that the selection in the present case was approved by the surveyor-general in May, 1852. It seems that, seven years after the passage of the swamp-land grant, this failure of the Secretary to act had become a grievance, for which Congress deemed it necessary to provide a remedy, by the act of March 3, 1857 (11 Stat. 251), which declares that the selection of swamp and overflowed lands granted to the States by the act of 1850, heretofore made and reported to the Commissioner of the General Land-Office, so far as the same shall remain vacant and unappropriated, and not interfered with by an actual settlement under any existing law of the United States, be and the same are hereby confirmed, and shall be approved and patented to the States in conformity to the provisions of said act.

If the paper signed by the surveyor-general, dated May 18, 1852, was on file in the General Land-Office at Washington, March 3, 1857, we have no doubt that the act completed and made perfect the title of the State of Louisiana to the land in controversy. If this were so, the title of the plaintiff below was superior to the patent issued subsequently to the defendant; for after the passage of that act the Land Department had no right to set aside the selections. The approval of them and the issue of patents to the State were mere ministerial acts, in regard to which that department had no discretion, unless it was found that the lands were not vacant, or had been actually settled on adversely to the swamp-land claim. The act of 1850 was a present grant, subject to identification of the specific parcels coming within the description; and the selections confirmed by the act of 1857 furnished this identification, and perfected the title.

But, as we have said, there is in the record no conclusive evidence that this selection was on file in the General Land-Office at the passage of the act. It had been filed with and approved by the surveyor-general in Louisiana in 1852, and was found in that office when a copy was applied for in 1875. If objection had been taken to this defect of proof on the trial, the plaintiff would probably have been required to show when this list was reported to the commissioner. But no such objection was then made. Sitting here as an appellate court, two removes from that which tried the case originally, we hold: 1, that the jury or the court, if the latter tried the issue of fact, had a right to presume that the surveyor-general did his duty, and forwarded this list to the General Land-Office some time between May, 1852, and March 3, 1857; and, 2, that this question of evidence is not of that Federal character which authorizes us to review the decision of the Supreme Court of Louisiana upon it.

Judgment affirmed.

title: Martin v. Marks/Opinion of the Court


text: Talk:Martin v. Marks/Opinion of the Court


text:
Marsh v. Seymour Same

APPEALS from the Circuit Court of the United States for the Eastern and the Western District of Pennsylvania.

The bill in the first case was filed in the Circuit Court of the United States for the Eastern District of Pennsylvania, by William H. Seymour and Dayton S. Morgan, of New York, to restrain the respondents, James S. Marsh, Elisha C. Marsh, Charles C. Marsh, and John A. Grier, from infringing reissued letters-patent No. 72, dated May 7, 1864, and No. 1683, dated May 31, 1864, for new and useful improvements in reaping-machines, and reissued letters No. 1682, dated May 31, 1864, for a new and useful improvement in harvesters,-all of which were granted to William H. Seymour and others, but of which he and Morgan are by assignment the owners. In the second case, the bill, which also alleges the infringement of the reissues above referred to, was filed by the same complainants in the Circuit Court for the Western District of Pennsylvania, the respondents being James S. Marsh, Charles C. Shorkley, Elisha Shorkley, and D. S. Kremer.

In each case there was a decree for the complainants, and the respondents appealed here.

The remaining facts are stated in the opinion of the court.

Mr. J. J. Coombs and Mr. J. O. Parker for the appellants.

Mr. George Harding, contra.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

title: Marsh v. Seymour Same


text: Talk:Marsh v. Seymour Same

title: Talk:Marsh v. Seymour Same


text:
Marsh v. Seymour Same/Opinion of the Court

Owners of a patent, whether patentees or assignees, may seek redress for the unlawful use of the improvement which it secures, in the Circuit Court, by a suit at law or in equity, at their option; but in either form of proceeding they must allege and prove that they, or those under whom they claim, are the original and first inventors of the improvement, and that the opposite party or parties have infringed their exclusive right to make or use the same, or vend it to others to be used. Both allegations must be proved; but the letters-patent, if introduced and in due form, afford a prima facie presumption that the first allegation is true, which casts the burden of proof upon the defending party.

Patents, when inoperative or invalid, may in certain cases be surrendered and reissued; but the new patent in such case must be for the same invention as the original patent; and if it is for a different invention, the reissue is invalid, for the reason that it was granted without authority of law.

Redress is sought in two suits in equity by the complainants for the infringement of five of the patents which they own, their title to the same not being in controversy. Service was made, appearance entered, answers and replications filed, proofs taken, hearing had; and the Circuit Court entered a decree, sustaining the validity of three of the patents, and that the complainants recover of the respondents the profits, gains, savings, and advantages they made in consequence of the infringement, together with the damages they sustained thereby, with costs and charges.

Such a decree was entered in each case, with a further decree, that the cause be referred to a master to compute the profits, gains, savings, and advantages made by the respondents. Both parties excepted to the report of the master in each case; and the court overruled their respective exceptions, and decreed that the complainants do recover of the respondents in the first case the sum of $6,280 damages for machines made and sold, adding six cents as nominal damages for machines not sold, with costs as taxed; and that the complainants do recover of the respondents in the second case the sum of $13,085.06, with costs as taxed,-the master having allowed $5, a sum equal to a license fee, for each machine sold, amounting to $13,085.06 nominal damages for machines manufactured and not sold.

Immediate appeal was taken by the respondents to this court, and they now assign the following errors: 1. That the first two, to wit, No. 1682 and No. 1683, are invalid, and that the Circuit Court erred in not sustaining the defence that the respective inventions were neither useful nor practical. 2. That the patent No. 72 is invalid, and that the Circuit Court erred in not sustaining the defence that the patentee was not the original inventor of the improvement. 3. That the Circuit Court erred in holding that the reissued patent No. 72 was for the same invention as the original patent. 4. That the Circuit Court erred in overruling the exceptions of the respondents to the master's report.

Three patents only are involved in the present investigation, as exhibited in the assignment of errors, as follows: 1. Reissue No. 72, which has but a single claim; to wit, for a quadrant-shaped platform of a reaping-machine, arranged relatively to the cutting apparatus, substantially as described and for the purpose set forth. 2. Reissued patent No. 1683, the charge of infringement being limited to the second claim, which is as follows: The combination in harvesting machines of the cutting apparatus with a quadrant-shaped platform in the rear of the cutting apparatus, a sweep-rake mechanism for the operating of the same, and devices for preventing the rise of the rake when operating on the grain, those five members being and operating substantially as set forth. 3. Reissue No. 1682, the charge of infringement extending only to the first claim of the patent, which is as follows: The combination of the cutting apparatus of a harvesting machine with a quadrant-shaped platform arranged in the rear thereof, a sweep-rake operated by mechanism, in such a manner that its teeth are caused to sweep over the platform in curves when acting on the grain, these parts being and operating substantially as set forth in the specification.

Two of the patents, to wit, the first and the second, are reissues from the original patent granted to the first-named complainant,-No. 72, dated May 7, 1861, being a reissue of one of the three parts of a prior reissue of the original patent, and No. 1683, dated May 31, 1864, being a reissue of another of the three parts of the prior reissue of the same original patent granted to the original patentee. Reissue No. 1682, dated May 31, 1864, is a second reissue from a prior reissue, when the original patent granted to Palmer and Williams was divided into two parts, and reissued on an amended specification.

Properly construed, the defences to the charge of infringing patent No. 72 are as follows: 1. That the patentee was not the original and first inventor of the improvement. 2. That the reissued patent is not for the same invention as the original patent. 3. That the respondents have not made, used, or sold machines constructed in accordance with the mechanism described in the complainants' patent.

Attempt is not made to call in question the correctness of the construction given to the patent when the court here was required, five years ago, to define its specification; and being satisfied that the views then expressed were correct, they are adopted in the present case.

No. 72 consists in constructing the platform of a reapingmachine, upon which the cut grain falls as it is cut, in the shape of a quadrant or of a sector of a circle, placed just behind the cutting apparatus, and in such relation to the main frame that the grain, whether raked off by hand or by machinery located behind the cutting apparatus, can be swept around on the arc of a circle, and be dropped heads formost on the ground, far enough from the standing grain to leave room for the team and machine to pass between the gavels and the standing grain, without the necessity of taking up the gavels before the machine comes round to cut the next swath.

Infringers, if they give due notice of such a defence, may show that the patentee is not the original and first inventor of the improvement; and if they establish that allegation, the prosecuting party is not entitled to recover, but the burden to prove the defence, if the patent is introduced in evidence, is cast upon the defending party to prove the affirmative of the issue. Seymour v. Osborne, 11 Wall. 516. Apply that rule to the case, and it is clear that the burden of proof under this issue is upon the respondents, as the patent of the complainants is made an exhibit in the record.

Appellants set up want of novelty, and refer, in the first place, to the machine of Nelson Platt in support of their theory. Precisely the same defence was set up in the prior case founded on this patent, in respect to which decision the respondents admit that it is an authority in this case to the extent that the issues and facts are the same. Properly understood, say the court in that case, the machine referred to does not contain a combination of the quadrant-shaped platform with the cutting apparatus, in any practical sense. On the contrary, it has a square platform combined with the cutting apparatus, and the quadrant-shaped platform is combined with the square platform; nor does it contain any quadrant-shaped platform to receive the grain as it falls, the court holding that the ingredients of the patent in that case, as well as the combination, are different from those exhibited in the complainants' machine, and that the mode of operation is also different.

Support to that theory, of a decisive character, is also found in the testimony of the expert witness called by the respondents. He admits in his cross-examination that there are material and substantial differences between the machine represented in the respondents' exhibit and that of the complainants; that he does not find in the respondents' exhibit the quadrant or sector-shaped platform arranged as in the complaints' machine, so that the grain falls thereon as it is cut by the cutting apparatus; that the quadrant-shaped part of the platform shown in the respondents' exhibit has the grain conveyed to it from a rectangular platform, which is in the rear of the cutting apparatus, the quadrant-shaped part being immediately connected to the rectangular platform.

They, the respondents, refer also to the machine of Obed Hussey as anticipating the patented quadrant-shaped platform of the complainants, which is also the same defence as that made in the prior suit founded on this patent. Hussey, as the court remarked in that case, was much engaged, for a time, in the manufacture of reaping-machines of various kinds. Most of his machines, however, were constructed without any reel and with square platforms, so as to drop the cut grain at the rear of the platform, differing so widely from the patented machine of the complainants as to require no argument to show that they do not afford support to the present defence.

Apart from these, he made the one set up as a defence in this case, which has a square rectangular platform, to which is bolted an angular addition, giving the rear part, when the addition is attached, an angular form. Examined when the addition is bolted to the main platform, irrespective of the other ingredients of the combination, it approaches much nearer to the invention of the complainants than the other exhibit given in evidence. Undoubtedly it was built during the autumn prior to the harvest season, during which the inventor of the complainants made his invention of the quadrant-shaped platform; but the proofs introduced by the respondents show that the square platform of Hussey, to which was bolted the angular addition, was not used for cutting grain during the harvesting season of its manufacture.

Proofs were introduced in the former case to support the theory that that exhibit anticipated the complainants' patent for the quadrant-shaped platform; but the court overruled that defence, upon two grounds: 1. That the two machines were substantially different. 2. That the machine as constructed was merely an experiment, and that it was never reduced to practice as an operative machine.

In support of the latter proposition, the court in that case remarked that the evidence showed that it was sent to the railroad depot, to be transported to some other place for trial; that there was no positive evidence that it was ever forwarded or used, or that it was capable of any beneficial use; that when it was transported from the depot, if at all, did not appear, but that it did appear that it was returned the next year, and was set against the wall by the side of the street in front of the shop, where it remained for some time; that it was then removed to the new shop of the maker, where it remained until it was taken to pieces and broken up by his order, and that it was never restored till long subsequent to the complainants' patent.

Three witnesses established the views there expressed, but the respondents contend that one of the three witnesses has since recalled certain important facts which he did not recollect at the time of his examination in the prior case. Proof was introduced by the respondents tending to show that the witness had seen, in the manufactory of the party last named, certain machines having an extra platform, with an angular guideboard bolted to the rear of the original platform, prior to the date of the complainants' invention, as shown in the evidence. Being asked whether he was not examined in the prior suit, the witness answered that he was; and he admits that he then stated that he did not remember but one machine with such a platform, and that he then stated that he had no knowledge what became of it, and he now testifies that those answers are correct.

During his examination-in-chief he testified to the effect that when it became necessary to have more room between the gavels and the standing grain, so as to employ two horses abreast, an additional angular piece was attached to the back part of the platform, which finally developed itself into a part of a circle, the guide-board being sawed so that it could be easily bent.

In respect to that, he was asked if he made any statement of the kind in his deposition in the prior case, and his answer was that he did not; and when asked why he did not, his answer was that he did not think of it. Suffice it to say, that the subsequent explanations given by the witness as to the inconsistency of his statements, when one deposition is compared with the other, are not entirely satisfactory.

Taken as a whole, we are all of the opinion that the evidence of that witness is not sufficient to warrant the conclusion that the patent of the complainants is invalid, for at least two reasons: 1. Because the facts stated by the witness are, in view of the circumstances, too indefinite and uncertain to show that the machines which the witness saw embodied the same principle and mode of operation as the mechanism described in the complainants' patent. 2. Because the statements of the witness do not show that the machines were any thing more than abandoned experiments.

Two or three observations will be sufficient to show that the defence set up by the respondents, that the McCormick machine anticipates the complainants' invention of a quadrant-shaped platform, is entirely without merit. Both the specifications and the drawings of the patent afford abundant evidence to support that proposition. From these it appears that the grain cut by the machine is raked by the operator transversely across the machine, and that the raker, when in the act of discharging the cut grain upon the ground, endeavors to sweep it as near as possible into a position with the heads from the machine; but the platform is not so configured as to aid him in accomplishing that result, every thing in that regard depending upon the skill of the operator, and his physical ability to give the rake the right sweep at the right moment. Further discussion of the matter is deemed unnecessary, and the defence depending upon that machine is overruled.

Patents, in a proper case, may be surrendered and reissued, but the reissued patent must be for the same invention as the original patent, else the reissue is invalid; but the patentee may redescribe his invention, and include in the description and claims of the specification not only what was well described before, but whatever else was suggested or substantially indicated in the old specification, drawings, or patent-office model, which properly belonged to the invention as actually made and perfected. Corrections may be made in the description, specification, or claims of the patent where the patentee has claimed as new more than he had a right to claim, or where the description, specification, or claim is defective or insufficient; but he cannot, under such an application, make material additions to the invention which were not described, suggested, nor substantially indicated in the original specifications, drawings, or patent-office model.

Extended discussion of those principles is unnecessary, as they are well settled by the repeated decisions of this court, and when properly applied to the case before the court, they show that the third assignment of error must be overruled, for the reason that the new patent does not contain any thing beyond what was well described or suggested in the specification of the original patent.

Passing for the present the question of infringement, the errors assigned in respect to the reissued patent No. 1682 will next be considered. They are as follows: 1. That the patent is invalid. 2. That the invention is neither useful nor practical.

Much discussion of the first error assigned cannot be required, as it is too indefinite to convey any distinct idea as to what is meant. Patents may be invalid because the patentee is not the original or first inventor of the improvement, or for the reason that the written description of the same is not in such full, clear, concise, and exact terms as to enable any person skilled in the art or science to which it appertains to make, construct, compound, or use the same; or a reissued patent may be invalid because it is not for the same invention as the original. None of these defences, however, if made, could be supported; and in view that no more explicit cause of error is assigned, the first assignment of error must be overruled.

Explicit explanation is made in the brief as to what is meant by the second assignment of error, which is, that the patent does not in terms describe any device to prevent the rake from rising when operating upon the grain, and enough appears to show that the rake in the first machine made by the complainants was not of sufficient weight to prevent it from rising when the teeth came in contact with heavy grain. Brief experiment, however, was sufficient to disclose the defect, which was immediately remedied by adding a spring of proper stiffness to hold the rake down without impairing the other operating devices to enable the rake to perform the function of removing the cut grain from the platform, and causing it to drop in gavels in the proper place.

None of these facts are controverted; but the respondents contend that the spring was a new invention, and that any one may make and use the patented machine, or vend the same to others to be used, without the spring, and not be liable as infringers; but the court is entirely of a different opinion, as the addition of the spring for the purpose suggested is nothing more than any practical mechanic or operator would supply as soon as the difficulty was discovered.

Viewed in the light of these suggestions, it is clear that the defence to the second patent must be overruled.

Like defences are set up to patent No. 1683, which must also be overruled for the same reasons, the opinion of the court being, that all three of the patents described in the bill of complaint are valid.

Suppose that is so, still it is insisted by the respondents that they have not been guilty of infringement, as charged in the respective bills of complaint.

Conclusive evidence is reported in the record, showing that the respondents were largely engaged in manufacturing machines of the description referred to by the two expert witnesses examined in the case. Exhibit 1, it is conceded by the respondents, is an accurate representation of the machines which they made and sold, and the complainants accept the admission as correct. Great certainty, therefore, attends the present inquiry, and there is very little, if any, more difficulty in ascertaining the proper construction of the complainants' machines, so that the principal matter of investigation under this issue is whether the machines made and sold by the respondents infringe the patented machines of the complainants in the respect charged in the bill of complaint.

Reissue No. 72 has but one claim, and the charge is that that claim is infringed by the respondents, and the complainants also charge that the respondents infringe the first claim of the patent No. 1682 and the second claim of No. 1683.

Investigations of the kind are ordinarily best conducted by comparing the machine made by the respondent with the machines described in the complainants' patent, or patents, where more than one is embraced in the same suit. Due comparisons of the kind have been made; and the court is of the opinion that the several inventions of the complainants, excepting the claims pointed out as not infringed, are embodied in the machines made and sold by the respondents.

Decided support to that proposition is derived from the testimony of the expert witnesses examined by each of the contesting parties. Direct testimony to that effect is given by the complainants' expert witness. He says that he finds in Exhibit 1 the improvement described and specified in reissue No. 72; that the exhibit mentioned shows the quadrant-shaped platform arranged relatively to the cutting apparatus substantially as described in reissue No. 72, for the purpose of receiving the cut grain as it is severed and falls upon the platform and is swept in a circular form, heads foremost, upon the ground in the are of a circle, out of the way of the team on the next round.

Speaking of the other two reissued patents, the witness says that he finds in that exhibit of the respondents the combination of a cutting apparatus of a harvesting machine with a quadrant-shaped platform arranged in the rear thereof, and a sweep-rake, operated by mechanism in such a manner that its teeth are caused to sweep over the platform in curves when acting on the grain, substantially as described in the complainants' reissued patents. When specially interrogated, he said he applied those remarks to both the other patents; and the expert witness examined by the respondents, in his cross-examination, fully confirms the substance and effect of those statements, and they accord with what this court decided in the former case, and are believed to be correct. Seymour v. Osborne, supra.

Grant that, and still it is insisted by the respondents that the rake which they employ does not infringe the rake of the complainants; but the court is not able to sustain the proposition, as the rake of the respondents is combined with a quadrant-shaped platform, and performs the same function in substantially the same way as it sweeps over the platform to remove the cut grain from the same, and cause it to be deposited in gavels, as described in the complainants' patents.

Differences exist in the mode of attaching the arm to the machine, and in the means employed for its return preparatory for another sweep; but in he performance of the function of removing the cut grain and depositing the same in gavels, the two devices are substantially the same in the sense of the patent law; nor can it benefit the respondents if their mode of returning the device for a second operation is better than the complainants', as that cannot give them any right to make, use, or vend what is patented to another.

Nothing remains but to examine the exceptions to the master's report as confirmed by the Circuit Court.

Separate decrees were entered in the two cases, and the master made separate reports. He found in the first case that all claim for profits was waived by the complainants, the respondents contending and offering proofs to show that they made no profits. Hearing was had, and the master also found that the respondents had made fourteen hundred and sixty-two machines which infringed the complainants' patents, two hundred and six of which had not been sold. Of course, they made and sold twelve hundred and fifty-six machines, for which the master estimated the damages on the basis of the license fee of five dollars each machine, amounting to $6,280, to which he added six cents as nominal damages for the machines made by the respondents and not sold.

Pending the proceedings before the master in the second case, the complainants also withdrew their claim for profits, for the same reason as in the other case, and made claim for damages as for a license fee. Accordingly, the master found that the respondents had built twenty-eight hundred and seventeen machines which infringed the complainants' rights, of which two hundred were not sold. Adopting the same rule as in the other case, he found as damages the license fee of five dollars on each of the machines made and sold, amounting to $13,085, to which he added six cents as nominal damages for the machines made and not sold.

Damages of a compensatory character may be allowed to a complainant in an equity suit, where it appears that the business of the infringer was so improvidently conducted that it did not yield any substantial profits, as in the case before the court. 16 Stat. 206; Rev. Stat., sect. 4921; Birdsall et al. v. Coolidge, 93 U.S. 64.

Without more, these explanations are sufficient to show that none of the exceptions to the master's report can be sustained, and they are respectively overruled.

The decree in each case will be affirmed; and it is

So ordered.


text: Talk:Marsh v. Seymour Same/Opinion of the Court


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Stewart v. Salamon (97 U.S. 361)

MOTION to dismiss an appeal from the Circuit Court of the United States for the Southern District of Georgia.

At its October Term, 1876, this court, in Stewart v. Salamon (94 U.S. 434), reversed the decree of the court below, and remanded the cause for further proceedings, in accordance with the opinion then delivered. After the mandate was filed in the Circuit Court, Stewart and Cutts petitioned for leave to file a plea of lis pendens, and an amended answer to the original bill. The petition having been overruled, and a final decree entered in accordance with the mandate, they appealed here. The appellees now move to dismiss the appeal.

Mr. Philip Phillips in support of the motion.

Mr. Alexander H. Stephens and Mr. Charles P. Culver, contra.

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

title: Stewart v. Salamon (97 U.S. 361)


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title: Talk:Stewart v. Salamon (97 U.S. 361)


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Stewart v. Salamon (97 U.S. 361)/Opinion of the Court

An appeal will not be entertained by this court from a decree entered in the circuit or other inferior court, in exact accordance with our mandate upon a previous appeal. Such a decree, when entered, is in effect our decree, and the appeal would be from ourselves to ourselves. If such an appeal is taken, however, we will, upon the application of the appellee, examine the decree entered, and if it conforms to the mandate, dismiss the case with costs. If it does not, the case will be remanded with appropriate directions for the correction of the error. The same rule applies to writs of error. This is not intended to interfere with any remedy the parties may have by mandamus.

This is an appeal from a decree entered upon our mandate. No complaint is made as to its form, and it seems to be in all respects according to our directions. The effort of the appellant was to open the case below, and to obtain leave to file new pleadings, introducing new defences. This he could not do. The rights of the parties in the subject-matter of the suit were finally determined upon the original appeal, and all that remained for the Circuit Court to do was to enter a decree in accordance with our instructions, and carry it into effect. If in the progress of the execution of the decree, after its entry, either party is aggrieved, he may appeal from the final decree in that behalf; but such an appeal will bring up for re-examination only the proceedings subsequent to the mandate.

The appeal will be dismissed with costs; and it is

So ordered.

MR. JUSTICE CLIFFORD dissenting.


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Stewart v. Salamon (97 U.S. 361)/Dissent Clifford

MR. JUSTICE CLIFFORD dissenting.

Second appeals or writs of error, as the case may be, will lie in certain cases where it is alleged that the mandate of the appellate court has not been properly executed; but the appeal or writ of error in such a case will bring up nothing for re-examination except the proceedings subsequent to the mandate. Needful explanations may be derived from the original record, but the re-examination cannot extend to any thing that was decided in the antecedent appeal or writ of error. The Lady Pike, 96 U.S. 461; Supervisors v. Kennicott, 94 id. 498; Himley v. Rose, 5 Cranch, 313; The Santa Maria, 10 Wheat. 431; Ex parte Sibbald, 12 Pet. 492; Roberts v. Cooper, 20 How. 481; Tyler v. Magwire, 17 Wall. 253.

Authorities to that effect are very numerous, unanimous, and decisive; but cases coming into this court from the Circuit Court, under the twenty-second section of the Judiciary Act, where no question for re-examination is presented, whether brought here by writ of error or appeal, are not to be treated like a case with a similar record which comes up from a State court, under the twenty-fifth section of the same act, for the reason that it is the writ of error or the appeal which gives the jurisdiction under the twenty-second section of the act in all cases where the proceedings in bringing up the record are correct.

Instead of that, it is the question that gives the jurisdiction in cases brought here from a State court, under the twenty-fifth section of the same act. Consequently, in a case which comes here from a State court, it must appear by the record that some one of the questions stated in that section arose in the court below, and that it was determined as there required, otherwise this court is wholly without jurisdiction, and can only dismiss the writ of error.

Unlike that, if the case is brought up from a Circuit Court by writ of error or appeal, it is the writ of error or appeal which gives this court jurisdiction; and if the proceedings in bringing up the case are correct, the jurisdiction of the court is beyond question, and by the express words of the section the Supreme Court must reverse or affirm. 1 Stat. 84; Taylor v. Morton, 2 Black, 484.

Nor is there any alteration of that provision in that regard, except that the appellate court may affirm, modify, or reverse the judgment; the rule still being, that it is the writ of error or appeal in such cases that gives the jurisdiction, and that the appellate court can only affirm, modify, or reverse the judgment, or decree, where there is no error in bringing up the case. 17 Stat. 147.

Reported cases almost without number decide that a case regularly brought up under the twenty-second section of the Judiciary Act cannot be dismissed because the record presents no question for re-examination; the universal rule being, that the plaintiff or appellant is entitled to be heard in order that he may show, if he can, that the error of which he complains appears in the record; and whether it does so appear or not cannot be inquired into in the form of a motion to dismiss. Minor v. Tillotson, 1 How. 287; Stevens v. Gladding & Proud, 19 id. 64; Suydam v. Williamson et al., 20 id. 427.

Parties who sue out writs of error or take appeals for delay may be subjected to ten per cent damages in addition to interest, under the present rule of the court, which, in my judgment, is a much more appropriate remedy for the abuse of process than the one now prescribed by the majority of the court.

Writs of error or appeals sued out under the twenty-second section of the Judiciary Act may be dismissed for irregularities in bringing the case up; but if the proceedings in bringing the case up are regular, the court here is always bound to affirm, modify, or reverse the judgment or decree, except in a limited class of cases, where there has been a mistrial; and even in that class of cases it is usually necessary to reverse the judgment or decree in order to open the pleadings to a new trial. Barnes v. Williams, 11 Wheat. 445; Carrington v. Pratt, 18 How. 63; Prentice v. Zane, 8 id. 484.

Judgments or decrees of the Circuit Courts, brought there by original process, or removed there by writ of error or appeal from a District Court, where the matter in dispute exceeds the sum or value of $5,000, exclusive of costs, may be re-examined and reversed, modified, or affirmed in the Supreme Court. 1 Stat. 84; id. 244; 17 id. 197; 18 id. 316; Rev. Stat., sect. 701.

Certain conditions and proceedings are prescribed for bringing up such judgments and decrees; and if there is any material error in those proceedings, not amendable, the writ of error or appeal may be dismissed on that account as if the writ of error or appeal was not sued out or taken within two years from the rendition of the judgment or the entering of the decree; or if error was brought instead of appeal, or appeal instead of a writ of error, or if the judgment of decree did not exceed the sum or value of $5,000, the writ of error or appeal may be dismissed.

Cases of the kind frequently occur; but if the case is well brought up, and the matter in dispute exceeds the sum or value of $5,000, the writ of error or appeal, if sued out or taken within two years from date of the judgment or decree, gives this court jurisdiction to re-examine the alleged error or errors; and the act of Congress requires that this court shall reverse, modify, or affirm the judgment or decree.

Experience shows that cases are sometimes brought up for delay; but the remedy provided by Congress for such an abuse of process is that the Supreme Court may award to the respondent just damages for his delay, and single or double costs, in their discretion. 1 Stat. 84.

Beyond doubt, the record shows that the decree in this case was for the sum of $12,280, and that the appeal was taken on the day the decree was entered, and that there was no irregularity in bringing up the case. Nor is any thing of the kind pretended. Instead of that, the only objection is that it is a second appeal, which is not a valid objection.


text: Talk:Stewart v. Salamon (97 U.S. 361)/Dissent Clifford


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Arthur v. Moller

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

The question involved in this case is, whether certain articles imported by the defendants, Charles Moller and Paul E. Vacquerel, into the port of New York, known as decalcomanie pictures, are subject to duties as 'printed matter,' or as 'manufactures of paper, or of which paper is a component material, not otherwise provided for.' 12 Stat. 192; 13 id. 213; Rev. Stat., p. 474, sect. 2504, also p. 479.

The statutes impose the duties in the language following; viz., On 'books, periodicals, pamphlets, blank-books, bound or unbound, and all printed matter, engravings, bound or unbound, illustrated books and papers, and maps and charts, twenty-five per cent ad valorem.' Rev. Stat., supra.

On 'paper, sized or glued, suitable only for printing-paper, twenty-five per cent ad valorem; printing, unsized, used for books and newspapers exclusively, twenty per cent ad valorem; manufactured of, or of which paper is a component material not otherwise provided for, thirty-five per cent ad valorem.' Id., p. 479, sect. 2504.

The goods in question were chromo-lithographs, consisting of landscapes, scenery, and other figures, printed from oil-stones upon paper, with one color printed on top of the other until the picture is finished.

They are used for any purpose to which painting by hand can be applied. There are no letters constituting language upon the face of the paper.

They are made by means of lithographic stones, and printed from the stones successively one after the other, according to the number of colors; the difference between them and a chromo-lithograph being that a chromo is printed positive, while decalcomaine is printed positive and negative, but chiefly negative.

After the picture is printed, it is sometimes covered with a metal leaf, which is also put on by the process of printing; a sizing is printed on from the stone, the metal leaf being placed on top of the sizing by hand, it being too brittle to be placed on by the roller, and it is run through the press, which prints the metal leaf on top of the picture.

Arthur, the collector of the port, imposed and collected a duty of thirty-five per cent ad valorem upon the articles, as a manufacture of paper. The importers paid the duty under protest, and brought suit to recover the excess. The court below decided that the pictures were dutiable as printed matter, and not as manufactures of paper, and gave judgment for the plaintiffs. Arthur then brought the case here.

Mr. Assistant-Attorney-General Smith for the plaintiff in error.

Mr. James B. Craig, contra.

MR. JUSTICE HUNT delivered the opinion of the court.

title: Arthur v. Moller


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title: Talk:Arthur v. Moller


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Arthur v. Moller/Opinion of the Court

We think that the decision of the court below was correct.

In Arthur v. Rheims (96 U.S. 143), it was held that the fact that artificial flowers were a manufacture of cotton did not determine that they were dutiable as components of cotton, but that they were properly taxable under the specific designation of 'artificial flowers.'

The same was held to be true of india-rubber goods, in Arthur v. Davis (id. 135), and of the steel forming a part of spectacles, in Arthur v. Susfield (id. 129).

No one would contend that a picture by an eminent artist painted on canvas would be subject to duties as a manufacture of flax, or that a line engraving of a high order or merit would come under the head of a manufacture of paper, or that a lithograph taken by a single impression does not fall under that branch of the statute which imposes duties on prints or printed matter.

We do not perceive that the fact that the result is produced by several impressions, and of a different color at each time, can make a difference in the conclusion. In country places, we see posted the advertisements of circuses and shows and of political meetings upon sheets of paper of large size, printed in large type of various colors, red, black, and blue, and requiring that the paper should pass more than once through the press. It would be a novel idea that these sheets were not printed matter.

It is not necessary, however, that the characters produced should be letters or numerals, or the result of types or stereotypes, or be reading matter, but the term 'print' or 'printing' includes the most of the forms of figures or characters or representations, colored or uncolored, that may be impressed on a yielding surface.

Webster defines 'to print:'--

2. To take an impression of; to copy or take off the impress of; to stamp.

3. Hence, specifically, to strike off an impression of, or impressions of, from types, stereotype or engraved plates, or the like, by means of a press; or to print books, handbills, newspapers, pictures, and the like.

4. To mark by pressure; to form an impression upon; to cover with figures by a press or something analogous to it; as to print calico, &c.

Print, noun: a mark made by impression; a line, character, figure, or indentation made by the pressure of one body or thing upon another.

3. A printed cloth; a fabric figured by stamping.

Lithograph: a print from a drawing on stone,. . . as a lithographic picture.

Worcester says: 'A mark, form, character; a figure made by impression.'

McElrath's 'Commercial Dictionary,'--

'Prints. . . impressions on paper, or engravings on copper, steel, wood, or stone, representing some particular subject or composition, and which may be either colored or uncolored.

'Lithographs, pictures, or designs printed on paper from the lithographic stone, and on which they are traced or engraved. Both when plain and when printed in colors they are commercially regarded as engravings.'

Homans's 'Encyclopedia of Commerce,'--

'Prints: impressions, on paper or some substance, of engravings on copper, steel, wood, stone, &c., representing some particular subject or composition. Prints, like painting, embrace every variety of subject, but differ very widely in the manner in which they are engraved.'

McCulloch's 'Dictionary of Commerce' uses the same language.

The pictures in question were printed from lithographic stones, by successive impressions, each impression giving a different protion of the view and of a different color. Like other pictures, they are made and used for the purpose of ornament. Equally with engravings, copper-plates, and lithographs, they are printed, and properly fall within the statutory designation of printed matter.

If further argument were needed, it would be found in the principle noscitur a sociis. 'Printed matter' is named in the list with engravings, maps, charts, illustrated papers. With these, printed pictures are naturally associated.

With components and manufactures of paper are paper sized or unsized and glued, used for books and newspapers exclusively. These are descriptions of the article paper itself, and have no natural relation to printed drawings or pictures.

Judgment affirmed.

title: Arthur v. Moller/Opinion of the Court


text: Talk:Arthur v. Moller/Opinion of the Court


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Telegraph Company v. Davenport Telegraph Company

APPEALS from the Circuit Court of the United States for the Southern District of Ohio.

These are suits in equity to compel the defendant, a corporation created under the laws of New York, to replace, in the name of the complainants, certain shares of its capital stock alleged to have belonged to them, and to have been transferred without their authority on its books to other parties; and to issue to them proper certificates for the same; and also to pay to them the dividends received on the shares since such unauthorized transfer. In case the company fail to replace the stock, the complainants ask for alternative judgments for the value of their respective shares.

The facts upon which the suits rest are these: In March, 1865, Charles Davenport, a citizen of Ohio, died, leaving a widow and two minor children, the complainants here, his heirs. He was possessed at the time, besides other property, of eleven hundred and seventy shares of the capital stock of the Western Union Telegraph Company, which, upon the settlement of his estate, were distributed equally between the widow and children, in whose names, respectively, they were entered on the books of the company, and to whom separate certificates were issued. She was appointed guardian of the children. To her, as such, the certificates were delivered, declaring on their face that only upon their surrender and cancellation they were transferable in person or by attorney on the books of the company. On the back of each one was printed a blank form of transfer and power of attorney. She put those belonging to the children, with the one issued to her, and some government bonds, in a tin box, which was locked and deposited in the Fourth National Bank of Cincinnati for safe keeping. Her brother, Robert W. Richey, at that time and for some years afterwards an officer in the bank, had access to the box. He kept the key to it during her absence from Cincinnati, in order to get for collection the coupons attached to the bonds when they became due.

In February, 1871, he took from this box the certificate of three hundred and ninety shares belonging to the complainant, Henry Davenport, and forged his name to the transfer and power of attorney on its back, adding his own signature as that of an attesting witness. In this form he sold the certificate; and the purchasers, using the forged power of attorney, obtained a transfer of the shares on the books of the company. Subsequently, Mrs. Davenport was in Cincinnati, and on one occasion sent for the box, but returned it to the bank without opening it or examining its contents, and being about to depart for Europe, she left the key with her brother. Soon afterwards, he took from the box the certificate of shares belonging to the other complainant, Katharine Davenport, and forged her name to a like transfer and power of attorney, adding, as in the former case, his own signature as that of an attesting witness. In this form her certificate was also sold, and by the purchaser a transfer was obtained under the forged power of attorney on the books of the company. When these forgeries were committed, both children were minors, Henry being seventeen, and Katharine fifteen years of age. Henry was at the time at school in Switzerland, and in the summer of 1871 Mrs. Davenport and Katharine went to Europe. None of them were informed of the pretended transfers of the stock until the spring of 1873, and in 1874 these suits were brought. They were originally commenced in one of the courts of the State of Ohio, and were removed to the Circuit Court of the United States upon application of the defendant. That court rendered a decree for each complainant, and the company appealed to this court.

The cause was argued by Mr. Grosvenor Porter Lowrey and Mr. J. Hubley Ashton for the appellant, and by Mr. John F. Follett for the appellees.

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


text: Talk:Telegraph Company v. Davenport Telegraph Company