text:
Cawood Patent/Opinion of the Court

These five cases may very conveniently be considered together, since they all present, in the main, the same questions.

The Cawood patent, for alleged infringements of which the suits were brought, has heretofore been the subject of consideration in this court, where it has been at least partially construed, and its limits have been defined. 1 Wall. 491. It is a patent 'for an alleged new and useful improvement in the common anvil or swedge-block, for the purpose of welding up and re-forming the ends of railroad rails when they have exfoliated or become shattered from unequal wear.' Such is the general description given by the patentee in his specification, followed by a more detailed one, which needs careful consideration, in order to discover what the invention claimed distinctively was. The patentee refers to an annexed drawing, made a part of the specification, and claimed as giving a perspective view of the machine or invention. It represents a bed-sill on which is placed an anvil or swedge-block of cast-iron, across the face of which there are recesses or dies shaped like the side of the rail to be repaired. A solid and fixed block, cast as a part of the anvil, is also represented, with its side face shaped to the side of the rail when placed in its natural position, and a movable press-block held down upon the anvil by dovetailed tongues and grooves, and operated by two eccentric cams, moving it back and forward, toward and from, the fixed block. The face of the movable block is also shaped to fit the side of the rail next to it, and the two blocks grasp the rail on each side while its ends are being re-formed, the movable one having sufficient travel to allow the rail to be extricated without altering its vertical position. A rail of the T form is also represented in position between the two press-blocks. Having thus exhibited his invention by the drawing, the patentee proceeds to describe how he usually makes it, and the manner of its use. After having stated that he usually makes his improved anvil and swedge-block between four and five feet long, and sixteen inches wide across the face, with two forms or recesses at one end, right and left, of a form corresponding to the sides of the rail, he adds:--

'Close to these is a cast or raised block nearly as high as the rail, and with its farther edge also shaped to fit the sides of the rail, when it lies across the anvil in its natural position. Next this [says he] I attach to the face of the anvil, by dovetailed tongues and grooves, or in any other convenient manner, what I call a movable press-block with a similar but reversed shaped edge, lying opposite the other, so as to enclose the rail between the two, as in the jaws of a vise. The blocks I work by eccentric cams on a shaft which is attached to the anvil by two standards, with bearings either cast on or bolted to the edge of the same, so that half a turn of the crank will move the press-block over a space a little more than half the width of the rail.'

The mode of use is then described. The rail and the piece of iron to be welded on having been heated, the former is swung from the fire into the space between the blocks, when, by half a turn of the cams, the blocks are closed upon it. The welding piece is then laid on top of the rail and levelled up by a swage held by the smith, of the form of that section which projects above the blocks. Such is the description. It is succeeded by the claim, as follows:--

'I do not claim the anvil-block nor its recesses, but what I do claim as my invention, and desire to secure by letters-patent, is the movable press-block, having its edge formed to the sides of the rail in combination with another block with its edge of a similar but reversed form (the movable block to be operated by two cams, or in any other convenient manner), for the purpose of pressing between them a T or otherwise shaped rail, thereby greatly facilitating the difficult operation of welding and renewing the ends of such rails after they have been damaged, in the manner herein described and set forth.'

What, then, in view of this specification and claim, was the invention patented? In Turrill v. ''Michigan Southern, &c. Railroad Co.'', 1 Wall. 491, this court declared it to be 'such a movable press-block as is described, having its edge formed to the side of the rail, in combination with such other block as is described, with its edge of similar but reversed form, arranged as described, and combined and operating in the particular way described, for the special purpose of effecting the desired result.' This was enough for that case as it then appeared. But the present case requires a more minute analysis. Viewing the claim as interpreted by the preceding description, to which it refers, and by the drawing, it is not difficult to discover what the patentee supposed he had invented. It was not any kind of movable press-block combined and operating in any way, with any kind of fixed block, to effect any useful result. His avowed purpose was to form a mechanism for welding up and re-forming the ends of exfoliated and crushed rails, or, rather, to hold them in a convenient position for such welding and re-forming, at the same time preserving their shape. His manner of accomplishing this result was evidently considered by him as of the very essence of his invention. On one side of the rail, when on the anvil, it is to be supported by a fixed block, part of the anvil itself, shaped reversely so as to fit the shape of the rail, and on the other it is to be supported and held in place by a movable block with a face adjusted to the shape of the rail on that side, the movable block capable of advance towards the fixed blocks, and of retrogradation after the rail is placed on the anvil. The rail is also, when in place, to be supported under its base by the anvil. This is fairly deducible from the manifest purpose of the inventor, from his drawing, and from his specification. It is necessary to the result supposed to have been obtained, for, unless supported at the base, the heated end of the rail would be in danger of being driven downward between the blocks by the blows of the sledge or hammer used in welding, while the part of the rail not operated upon, being cooler, would remain suspended between the blocks. And that the invention contemplates a bottom support for the rail on the anvil is made clear by the drawing. That shows no space between the anvil and the base of the rail. On the contrary, it exhibits a bottom support on the anvil, as well as lateral support by the modelled faces of the two blocks. The rail is thus confined on three of its sides, as in a mould. And the words of the specification, fairly construed, convey the same meaning. Thus it is said the fixed block is cast nearly as high as the anvil, with its farther edge shaped to fit the side of the rail, when it lies across the anvil in its natural position. The rail, then, is to lie upon the anvil, having the anvil as a bottom support. Unless it does, the shaped edge of the blocks cannot fit its side.

Having thus endeavored to ascertain what is the true idea of the patent, we are prepared to examine the devices which the appellants contend were in existence and use before Cawood made his invention. Of these there are three only that have been pressed upon our attention. The first is the angle-iron machine. Between this and the Cawood machine there are points of resemblance, but there are also very substantial differences. The purposes and objects sought to be accomplished by the machines are entirely unlike. It is always of importance to consider the object an inventor of a machine had in view, because thus the operation of its different parts and the functions performed by each can be better understood. The purpose of the angle-iron machine is to facilitate making angle-iron. That of the Cawood is to aid in mending rails already made. The angle-iron machine is a device to assist in welding together, at right angles with each other, two iron bars, making a fillet in the interior angle to strengthen the rail when made. To effect this, the fixed block on the anvil has necessarily a peculiar construction, unlike that in the Cawood machine. It is bevelled, or rounded off, at the top of the face opposite the movable block, so as to give room for the formation of the fillet. Consequently, that face cannot answer reversely to the face of the movable block. And not only is the face of the fixed block uniformly and necessarily unlike that of the fixed block in the Cawood machine, but its function is entirely different. It is to furnish support for one of the two bars designed for the formation of the angle iron. One entire limb of the angle iron is laid upon top of the block, unconfined laterally, and there exposed to the hammer, the block being the anvil. The iron is thus left free to spread out in both directions, instead of being prevented from spreading laterally by the press-block, as in the Cawood machine. There is nothing to preserve a shape already formed. The other bar of the angle iron, or its other limb, hangs suspended from the upper edge of the fixed block, and is not supported against the blows of the hammer at any other part of its height than the under side of the limb which lies on the block, instead of being supported concurrently at two parts of its height by the grasp of the two blocks, and supported also under its base. In the Cawood machine, the hammering is not over the blocks or upon them, but exclusively on the rail between them. The fixed block in that is not cast quite so high as the rail, and the new piece is welded on and shaped, not on or over either block, but yet above the surface of that part of the anvil that constitutes the block. The patentee, after stating that the raised block of the anvil is cast 'nearly as high as the rail' (the two blocks thus being made to support the under side of the crown of the rail, and confining the lower half of the crown laterally), says, 'the welded piece is laid on top of the rail in the usual way, and levelled up and shaped by a swedge held by the smith, of the form of that section which projects above the blocks.' Thus the iron is not permitted to spread laterally under the blows of the hammer over the press-blocks and down between them. In fact, the blocks have nothing to do with the formation of that section of the rail that projects above them. It is very evident, therefore, that the fixed block in the angle-iron machine is not intended or adapted to perform the office which the fixed block does perform in the Cawood. In fact, it cannot perform it. Besides, in the angle-iron machine, no provision is made for a bottom support of a rail. The height of the blocks above the body of the anvil is not regulated with reference to any bottom support, and the bar between the jaws is held as in a vise. Support beneath the flange or base of the rail, when in place for reparation, is, as we have seen, a feature of the Cawood improvement. It would defeat the purposes and uses of the angle-iron machine. The bottom serves for an anvil in the Cawood, to resist the downward force of the blows on the top of the rail and to prevent forcing the heated iron into the neck of the rail and increasing its length. But one of the objects, and a result secured in the angle-iron machine, is increasing the length and width of that portion of the bar operated upon by the hammer, the part which lies upon the fixed block. There is also a wide difference in the functions of the movable blocks of the two machines. That of the angle-iron machine is principally to act as one of the jaws of a vise to hold the bar against the fixed block or raised part of the anvil, while the welding is being made and while the fillet is being informed in the interior angle. It is not to preserve the shape of an already formed rail, or to resist the lateral pressure caused by the hammering. Yet such are the functions of the Cawood movable block. We think, therefore, that if the purposes of the two devices be considered, as well as their possible modes of use, the arrangement of their several parts respectively to each other, and the different functions of those parts, it cannot be held that the angle-iron machine contained the invention or involved the principle of the inve tion described in the patent granted to Cawood.

The second device, which the appellants insist anticipated the Cawood invention, is what is denominated the bayonet-machine, used at the Springfield Armory before 1850 and since, for forging parts of bayonets. In some particulars there are resemblances between the devices; but there are obvious dissimilarities, not only in the purpose and results sought to be obtained, but in the relation of the parts to each other, in the work to be done by those parts, in the manner and effect of their combination, and in their mode of operation. The differences are sufficient, in our opinion, to justify the conclusion that the machines are different devices, embodying distinct principles. The bayonet-machine is in form and in substance nothing but a hinge-vise, with a peculiar shape of the jaws, intended to facilitate operations upon the shank and socket of a bayonet. The jaws are fitted to hold the bayonet in place, while the shank is turned upward, through and above their upper surface, in order that a flat piece of iron may be welded upon the shank and prepared to be afterwards converted into a socket. The lateral surfaces of the jaws come into actual contact with each other, except for a short space, equal to the diameter of the bayonet-shank. They hold only the lower segment of the shank, allowing the upper segment to project a considerable distance above the upper surface. The inner surfaces do not constitute a mould. They do not maintain the shape of the shank, enclosed within and between them during the process of top-welding and shaping. They are intended for no such purpose, nor are they fitted for it. Their sole function appears to be to sustain the shaft of the bayonet in an upright position, while a flat piece of iron is being welded upon its end. It is only in a very limited sense that the machine can be called an anvil. One side of it is stationary, the upper portion of its front forming what may be called a fixed jaw. The other side, being merely an arm, vibrates upon a hinge, or upon journals attaching it to the fixed side, at or near its base. Such are the leading features of the machine. Comparing them and the operation of the machine with those of the Cawood, it is very evident the devices are not substantially the same. The Cawood is an improved anvil, not a vise. It has a fixed block cast upon an anvil, and its movable block rests upon the anvil, attached to it, and moving towards and from the fixed block horizontally, in a plane parallel with the anvil's upper surface, instead of moving on the arc of a circle. The two blocks together form a mould, and they are combined with each other through the anvil. These are very substantial differences from the bayonet-machine. The combination through the anvil is essential for the work intended to be done. It gives the immediate support of the anvil to the bottom of the rail, as its tread or crown is being hammered; while in the bayonet-machine the iron enclosed is supported from beneath, during the process of welding, exclusively by the jaws, at a considerable distance from the point of connection between them. Again, in the Cawood, the inner surface of the blocks is designed and fitted to maintain the shape of the rail while it is hammered,-an office not contemplated for the jaws of the bayonet-machine. The bayonet-socket is fashioned to its desired shape, after the release of the iron from the jaws. So, also, the relation of the blocks and jaws to the rail or iron, when in place to be operated upon, is different in the two machines. In the Cawood, the blocks come nearly to the top of the rail, affording lateral support to almost the whole of each side, while in the other there is no such lateral support. And the hammering is entirely between the blocks, instead of being partly over or upon them.

Still another important difference is apparent. In the bayonet machine the movable jaw is pushed back by a spring interposed between the two arms of the vise, and forced forward by leverage sufficient to overcome the resistance of the spring, and hold it compressed while the jaws are in contact with each other. It is obvious that no such means of moving the movable block would answer for Cawood's machine. It is true he did not claim operating it by cams exclusively. He claimed moving the block by cams, or 'in any other convenient manner;' but that meant by means adapted to the work the machine was intended to perform. These several differences are too many and too great to be considered merely formal. Not only the object of Cawood's device was novel, but so, also, was the function of the blocks, their combination with each other, and the mode of operation. The general appearance of the boyonet machine, and, as we have said, its distinctive character, was that of a vise. We think, therefore, it cannot be regarded as containing the principle embodied in the Cawood invention. We cannot think it could teach how to make the improvement in the common anvil or swage-block for re-forming and welding the ends of railroad rails, which was devised by Cawood, and which has gone into large use.

It is next contended that the patent was anticipated by the Church machine, patented in England in 1846. We have before us the specification, and a model constructed from that specification. It requires but little attention. It is described as a machine which may be usefully employed for straightening and flattening the rails for railways, as well as other similar uses. As the model represents it, the machine is totally incapable of performing the work of the Cawood machine. It is not an anvil. There is no fixed block cast as a part of an anvil. There is a stationary die, part of a frame against which one side of the rail is placed, to resist the lateral pressure exerted upon it by a sliding lateral die on the other side of the rail, and above is a horizontal bar which is forced downwards by a series of jointed levers, carrying another die upon the upper surface of the rail. It is plain this description and this model could never have informed any one of the device Cawood invented. It does not show how the blocks or jaws can be combined so as to leave the upper face of the rail to be repaired exposed for the action of a swage and a hammer. It is said, however, if the upper horizontal bar with its die and jointed levers were taken away, a mechanic might understand how the remanant could be altered and employed as a Cawood machine is employed, and for the same uses. That, however, evades the question to be answered, which is, whether the specification was sufficient to enable a mechanic skilled in mechanical arts to construct and carry into practical use the Cawood machine; or, in other words, whether whatever is essential to the Cawood machine could be read out of the prior specification. We think no such information was given by the English patent.

That the old slide vise contains the principle of the Cawood machine has not been contended with much earnestness, and certainly it cannot be successfully. Nothing, then, is found in the case sufficient to show that the patent is void for want of novelty of the invention, and the court was not in error in holding it valid.

We come next to the question whether machines employed by the defendants in repairing the ends of railroad rails are infringements of the patent. Those which have been used by the several companies defendants, and which are claimed to have been infringements, were, in addition to the Cawood, seven in number. They were the 'Illinois Central,' the 'Etheridge,' the 'Whitcomb or Cleaveland block,' the 'Michigan Southern,' the 'Bayonet vise,' the 'Beebee and Smith,' and the 'Blaine reversible rolls,' all of which, except the last, were held by the Circuit Court to be infringements. Of these, the Illinois Central Railroad Company has used only the 'Illinois Central,' the 'Bayonet vise,' and the 'Beebee and Smith;' the Pittsburg, Fort Wayne, and Chicago Railroad Company has used the Whitcomb or Cleaveland block; the Chicago and Alton Railroad Company as used only the Whitcomb; the Chicago, Burlington, and Quincy Railroad Company has used only the Cawood and the Etheridge; and the Michigan Southern and Northern Indiana has used only the Beebee and Smith, the Bayonet vise, and the Whitcomb. We have had before us models and drawings of them all, and we have considered the testimony respecting them which is found in the records. It is but faintly contended, if at all, that the Illinois Central, the Etheridge, and the Whitcomb machines are not infringements of the Cawood. The principle of each of them, the object sought for, the combination and arrangement of the parts, and the mode of operation for the purpose of effecting the described result, are so manifestly the same as that described in the complainant's patent that a detailed examination of them is unnecessary. But it is earnestly insisted that neither the use of the Bayonet vise, nor that of the Michigan Southern machine, nor that of the Beebee and Smith, used by some of the defendants, can rightfully be held to infringe the patent; and such is our opinion. We have already called attention to the fact that a very limited construction must be given to the claim of the Cawood patent, in view of the state of the art when the patent was granted, and of the explanations contained in the specification. It was said in Turrill v. ''Michigan Southern, &c. Railroad Company, supra'', 'special devices are described as combined and arranged in a particular manner, and operating only in a special and peculiar way, for a special purpose, and to effect a special result.' To repeat the definition of the invention given in that case, it is 'of such a movable press-block as is described, having its edge formed to the side of the rail, in combination with such other blocks as is described, with its edge of similar but reversed form, arranged as described, and combined and operating in the particular way described, for the special purpose of effecting the desired result.'

If the claim be thus limited, if such was the invention Cawood made, the use of the Bayonet vise and of the Michigan Southern, cannot, we think, be regarded as an infringement. Both the machines were manifestly copied from the Springfield machine, which we have endeavored to show did not anticipate or contain the principle of Cawood's invention. Each is substantially a vise, and not an anvil. The combination of the blocks is unlike that of the Cawood improved anvil. It is not through the anvil, and the rail when in place for welding and shaping does not rest on the anvil. The iron to be hammered rests upon the jaws, and consequently it is much more liable to displacement than it would be if arranged as described by Cawood. In each only a part of the force of the blows reaches the anvil; for the movable block is supported by an arm attached by a hinge, or by journals, to the base of the block. It is true that by the change in the shape of the jaws one of the functions of the Cawood machine is secured,-that of preserving the shape of the rail during the process of hammering; but that is only one of the elements of the Cawood. Neither of these two machines can be said to be an improved anvil or swage-block. In neither are the two blocks combined by means of an anvil. In neither is a raised block cast as a part of the anvil. In neither is there any such movable press-block attached to the anvil as is described in the Cawood patent, combined and operating with the other parts of the machine in the manner described. And in neither of them is there any part of an anvil immediately below and fitted to support the rail when in place for being repaired. Each of them has, however, all the parts and substantially the arrangement and combinations of the Springfield machine, and in principle they are identical with it, the only appreciable difference being in the shape of the jaws. If, therefore, they are infringements of the Cawood patent, that patent is void for want of novelty, for it was anticipated by the Springfield. If, on the other ha d, the Cawood machine was novel, as we think it was, if it was not anticipated by the Springfield, the conclusion is inevitable, that neither the Michigan Southern nor the Bayonet vise is an infringement.

Much of what we have said is applicable to the Beebee and Smith machine, the use of which the Circuit Court also held to be an infringement of the Cawood patent. To the inquiry, what constitutes an infringement of that patent, it is indispensable to keep in mind what the invention patented is. It is not, we repeat, any mode by which the result sought and obtained is secured, but a machine that attains the desired end by means of described agencies, combined in a described manner and operating in a described way. Thus the patent was considered in 1 Wallace. Now, we think the Beebee and Smith machine, though arriving at the same result, does not profess to attain it by means of the agencies described in the Cawood patent, or any agencies that can be regarded as equivalents combined in the manner described by Cawood, and operating in the same or an equivalent way. True, it is a machine for holding a rail while the exfoliated or crushed end thereof is undergoing reparation, but it performs its functions in a manner peculiar to itself, unlike the mode in which the Cawood operates. The construction of the two machines is very dissimilar. In the Beebee and Smith there is no fixed block or jaw a part of the anvil. Neither is there any movable block or jaw attached in any manner to the anvil, or connected in any manner with a fixed block or with the anvil. There are two jaws sliding up and down in a V-shaped notch in an anvil entirely unconnected with each other, and kept in place only by their own weight and that of the superincumbent rail. They are not advanced towards each other, or retired by cams or any equivalent mechanism. When by force of gravity they descend into the V-shaped cavity, and thus approach each other, the rail rests upon them and not on the anvil; and when grasped by them, all the force of the blows necessary in welding is expended upon them through the rail, and only remotely upon the anvil. Bringing the jaws together by their gravity cannot be said to be an equivalent for cams or levers, or any other mechanical device. The Beebee and Smith machine, then, has neither such a fixed block nor such a movable press-block as is described in the Cawood machine, nor are the two blocks combined in substantially the same way, and the mode of operation is substantially unlike that described by Cawood. It is impossible, therefore, to hold that its use is an infringement of the complainant's patent.

We do not care to expend much time in refuting the argument of the appellee that a bottom support for the rail in the use of the Cawood invention is injurious, and that it is, therefore, no essential part of the device patented to him. Considerable evidence has been given tending to show that the face of the anvil under the jaws has been chipped off, or cut out, and that thus altered the thing invented works as well, if not better, than it would if the alteration had not been made. In the nature of things, this is impossible, and no amount of testimony can convince us that such is the fact. Manifestly, the chipping off was made to evade the patent. The best mode of using the device would doubtless be to construct the blocks so as to fit exactly the sides of the rail. Thus, its shape and its height would be maintained during the process of hammering and shaping the crown. But this exact fit may not always occur, and whenever it does not, the bottom support on the anvil is of importance. This is made evident by the fact that when experiments have been made by chipping off the anvil at the bottom of the blocks or jaws, if more than about three-eights of an inch was removed, it has been found advisable to support the rail by a roller, as in the Cleaveland vise, or by introducing a key. It proves nothing to show that rails may be repaired without any support at their base. Because the inventi n has been used in an imperfect condition, or altered slightly in one particular without serious loss, is no proof that it was no invention, or that the use of it in its altered condition was no infringement.

It follows, from what we have said, that the decrees must be reversed and set aside, so far as the defendants have been held accountable for the use of the Beebee and Smith machine, or the Bayonet vise, or the Michigan Southern. But so far as the Whitcomb, the Etheridge, the Cawood, or the Illinois Central have been used, the defendants are answerable to the complainant.

We come, then, to the inquiry whether there was error in the ascertainment of the profits made by the use of those devices. This inquiry is exceedingly embarrassed by the very unusual manner of proceeding in the court below. After having determined that the Cawood patent was valid, the court, instead of deciding whether there had been any infringement, by a decretal order referred to a master to find what machines used by the defendants were infringements, and to state an account between the parties. In obedience to this order, the master reported that seven machines used by the defendants infringed the patent, and on that assumption he returned stated accounts. This report the court corrected, holding that one of the seven machines was not an infringement; and sent the case back to the master to report the damages sustained by the plaintiff from the use by the defendants of the other machines, giving him liberty to reconsider his finding as to the cost of fuel and labor in repairing rails on the common anvil and the plaintiff's machine, with liberty also to hear additional evidence, and report such conclusions as might be warranted by the whole testimony. Under this second reference, the master submitted another report, to almost the whole of which exceptions were taken. The court sustained those which related to the ascertainment of profits made by the defendants, and the measure thereof; and also sustained those which related to the allowance of profits for the use of the complainant's machine by the defendants before he had title to the patent, or any part or interest therein. The effect of this was to set aside the entire report of the master, so far as it stated an account between the parties. That subject was then all at large; and without further reference the court proceeded itself to find the amount of profits the defendants had respectively made by the use of the invention owned by the plaintiff, and found the same to be that for which the final decrees were subsequently entered. The decree in each of the cases was for much less than the master had reported. But how it was made up we are not informed. No account was stated accompanying the decrees. Though the bill prayed for an account, and though an account was decreed, the record shows no account. Nothing in the decree shows us how many fails had been repaired, or rails had been repaired, or in the decree exhibits what was the comparative cost of repairing with the patented machine and with the common anvil. The cases have come to us, therefore, in such a condition that we are called upon to perform the duties of a master. This ought not so to be; and probably we would be justified in reversing all the decrees, and sending the cases back for a statement of accounts. But the litigation has been long protracted, at great expense to the parties; and this consideration has induced us to examine the evidence submitted to the master, and reported by him, in order to discover whether there has been an overestimate of profits in those cases where the defendants used only the machines the use of which was a plain infringement of the Cawood patent. Without entering into details, we are constrained to say, that, in our opinion, there has been no such overstimate. We think the weight of the evidence leads to the conclusion that the number of feet mended on the infringing machines, the gain in mending, compared with the cost of mending on the common anvil (which the court must have determined was about thirty-six cents per foot), considering the saving of labor and fuel, were such as justified the decrees that were made. There are undoubtedly great differences in the statements of the witnesses, but we think it is not difficult to see where is the preponderance of the evidence. The master's estimate was manifestly too high. We cannot say that of the court was. And, after the action of the court upon the master's first report, it must be presumed that no profits were allowed for any use of the Cawood patent before the plaintiff became its owner.

There is nothing more in these cases that we feel called upon to notice, except the suggestion that repairing railroad rails was unprofitable, compared with what might have been done. It has been argued that it would have been better for these defendants, if, instead of repairing the crushed and exfoliated ends of the rails, they had cut off the ends and relaid the sound parts, or had caused the rails to be re-rolled. Experience, it is said, has proved that repairing worn-out ends of rails is not true economy, and hence it is inferred that defendants have derived no profits from the use of the plaintiff's invention. The argument is plausible, but it is unsound. Assuming that experience has demonstrated what is claimed, the defendants undertook to repair their injured rails. They had the choice of repairing them on the common anvil or on the complainant's machine. By selecting the latter, they saved a large part of what they must have expended in the use of the former. To that extent they had a positive advantage, growing out of their invasion of the complainant's patent. If their general business was unprofitable, it was the less so in consequence of their use of the plaintiff's property. They gained, therefore, to the extent that they saved themselves from loss. In settling an account between a patentee and an infringer of the patent, the question is, not what profits the latter has made in his business, or from his manner of conducting it, but what advantage has he derived from his use of the patented invention.

We will pursue the subject no farther. It follows from what we have said that in those cases in which the defendants have been charged with the profits made from the use of the 'Bayonet vise,' or the 'Michigan Southern' machine, or the 'Beebee and Smith' machine, the decrees of the Circuit Court are erroneous; while in the other cases, the defendants having used only the Cawood, or the Etheridge, or the Illinois Central, or the Whitcomb (the infringing machines), we discover no error. Our judgments, therefore, are as follows:--

In Illinois Central Railroad Company v. Turrill, and Michigan Southern and Northern Indiana Railroad Company v. Same,

Decrees reversed, and causes remanded for further proceedings in accordance with this opinion.

In Chicago and Alton Railroad Company v. Same, Chicago, Burlington, and Quincy Railroad Company v. Same, and Pittsburgh, Fort Wayne, and Chicago Railroad Company v. Same,

Decrees affirmed.

MR. JUSTICE FIELD, with whom concurred MR. JUSTICE SWAYNE, dissenting.

title: Cawood Patent/Opinion of the Court


text: Talk:Cawood Patent/Opinion of the Court

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

title: Talk:Cawood Patent/Opinion of the Court


text:
Cawood Patent/Dissent Field

MR. JUSTICE FIELD, with whom concurred MR. JUSTICE SWAYNE, dissenting.

I dissent from so much of the opinion and judgment in these cases as approves the estimate of damages made by the court below.

title: Cawood Patent/Dissent Field


text: Talk:Cawood Patent/Dissent Field

title: Talk:Cawood Patent/Dissent Field


text:
Pike v. Wassell

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

Mr. Luther H. Pike for the appellants.

Mr. William M. Randolph for the appellees.

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

title: Pike v. Wassell


text: Talk:Pike v. Wassell

title: Talk:Pike v. Wassell


text:
Pike v. Wassell/Opinion of the Court

In Wallach v. Van Riswick, 92 U.S. 207, 208, we decided that after a seizure and an adjudicated condemnation and sale, under the Confiscation Act of July 17, 1862, 12 Stat. 589, of the lands of one engaged in rebellion against the United States, there was 'left in him no estate or interest of any description which he could convey by deed, and no power which he could exercise i favor of another.' We also held, p. 213, that the joint resolution passed contemporaneously with the approval of the act, 12 Stat. 627, was 'intended for the benefit of his heirs exclusively, to enable them to take the inheritance after his death.' As to him, the forfeiture was complete and absolute; but the ownership, after his death, was in no wise affected, p. 209, except by placing it beyond his control while living.

A seizure of the property was necessary to give the court jurisdiction for its condemnation. Miller v. United States, 11 Wall. 294, 296; Pelham v. Way, 15 Wall. 201; Brown v. Kennedy, id. 597; The Confiscation Cases, 20 Wall. 108. The proceedings in behalf of the United States were commenced by the seizure, and the decree of condemnation and sale, without any doubt, vested in the United States, or the purchaser at the sale, the interest which the person proceeded against had in the property when the seizure was made, free from all intermediate conveyances or incumbrances, whether the result of the voluntary act of the owner or the action of his creditors against him. Whatever interest he had in the property had been seized, as forfeited to the United States, and placed, pending the suit, beyond his reach, or that of his creditors. All subsequently acquired rights were subject to the prior claim of the United States, if perfected by a decree of condemnation.

In this case, it appears that the United States seized lot 10, nine feet off the east side of lot 9, and two and one-half feet off the west side of lot 11, in block 1, west of the Quawpaw line, and the undivided half of the west half of lots 1, 2, and 3, in block 81, Feb. 16; and on the next day filed their libel of information against this property in the District Court. A warrant of arrest and monition was issued on the next day, and duly served. The lots thus proceeded against were not levied upon under the attachment issued out of the Pulaski Circuit Court until March 9. Consequently, as to this property the attachment was defeated by the decree of condemnation, and the defendants acquired no title through the proceedings in the State court. All the interest they have in it comes through the confiscation sale, and terminates upon the death of Albert Pike, to whom it belonged when seized.

But as to the remainder of the property, there never was any seizure by the United States; and the amendment to the libel, upon which alone the decree of condemnation rests, was made long after the levy of the attachments. When levied upon, therefore, the property was open to attachment; and the subsequent condemnation, without a previous seizure, did not divest the attaching creditors of any rights acquired by their proceedings. As to them, the court had no jurisdiction, because it had never taken the property, and had never issued its warrant of arrest or monition. The affirmance of the decree under the writ of error to the Circuit Court, prosecuted by Albert Pike, operated only upon him. The creditors were no more a party to the proceedings in error than they had been to the original suit.

The appearance of Albert Pike to the attachment suits did not, under the law of Arkansas, discharge the lien of the attachment. No bond was given, such as was required for that purpose. Gould's Dig. c. 17, sect. 15, p. 171; Delano v. Kennedy, 5 Ark. 459.

It follows, therefore, that the interest covered by the attachments levied upon the part of the property not seized by the United States has never been confiscated, and that the title which Wassell has since acquired under it may be enforced against the heirs of Albert Pike after his death, notwithstanding the confiscation. It is unnecessary to decide what would have been his rights if a seizure had actually been made by the United States after the attachments.

Our conclusion, then, is, that as to the property actually seized by the United States and condemned by the decree the defendants hold only by virtue of the confiscation sale, but that as to so much as was not actually included in the seizure the defendant Wassell did acquire, by the proceedings in the State court, all the title of Albert Pike at the time of the levy of the attachments.

It only remains to inquire whether the children of Albert Pike stand in such a relation to the property confiscated, and not affected by the attachment proceedings, that they may maintain an action to require the defendants to keep down the taxes during the life of their father.

There can be no doubt but the defendants, as tenants for life, are bound in law to pay the taxes upon the property during the continuance of their estate. Vamy v. Stevens, 22 Me. 334; Cairns v. Chabut, 3 Ed. (N. Y.) Ch. 312. This the defendants do not dispute; but they insist that, until the death of the father, the children have no interest in the property, and, therefore, cannot appear to protect the inheritance.

It is true, as a general rule, that so long as the ancestor lives the heirs have no interest in his estate; but the question here is as to the rights which the confiscation act has conferred upon the heirs apparent or presumptive of one whose estate in lands has been condemned and sold. In Wallach v. Van Riswick, without undertaking to determine where the fee dwelt during the life-estate, we decided that it was withheld from confiscation exclusively for the benefit of the heirs. They, and they alone, could take it at the termination of the life-estate. The children of Albert Pike, as his heirs apparent, are also apparently the next in succession to the estate. Either they or their representatives must take the title when their father dies. If they do not hold the fee, they are certainly the only persons now living who represent those for whose benefit the joint resolution of Congress was passed. They, at least, appear to have the estate in expectancy. Under these circumstances, as there is no one else to look after the interests of the succession, we think they may properly be permitted to do whatever is necessary to protect it from forfeiture or incumbrance.

The defendants admit that they have determined not to pay the taxes upon the property. The danger of incumbrance by reason of this failure to perform their duties as tenants for life is, therefore, imminent, and the case a proper one for a court of equity to interfere and grant appropriate relief. In Cairns v. Chabut, supra, when the tenant for life failed to keep down the taxes, an order was made for the appointment of a receiver of so much of the rents and income of the estate as should be necessary to pay off and discharge the amounts then in arrear. We see no reason why similar relief may not be granted in respect to the accruing taxes, in case the tenants fail to perform their duties in that behalf; but, without undertaking to direct specifically as to the form in which the protection asked shall be secured, we shall reverse the decree, and remand the cause to the Circuit Court, with instructions to proceed in conformity to this opinion, as law and justice may require; and it is

So ordered.

title: Pike v. Wassell/Opinion of the Court


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Memphis v. Brown (94 U.S. 715)

On motion, 1. To dismiss a writ of error to the Circuit Court of the United States for the Western District of Tennessee. 2. To vacate the supersedeas.

Brown obtained a decree in the Circuit Court of the United States for the Western District of Tennessee against the city of Memphis for $292,000, in conformity with the opinion of this court in the case reported in 20 Wall. 289.

Upon his petition, that court ordered, March 30, 1875, the issue of a peremptory writ of mandamus against the city, directing the levy of a tax for his benefit upon all the taxable property of the city. Under the laws of Tennessee, taxable personal and real property, other than merchants' capital, is embraced in one tax-list, and merchants' capital in another. In March, 1876, Brown discovered that the tax-collector, pursuant to an ordinance passed by he city Dec. 10, 1875, levying 'a special tax of fifty-four cents on the $100 worth of property,' was collecting the tax levied for his account on personal and real property, but not on merchants' capital, although the city, for all other purposes, was collecting a tax on merchants' capital.

It appearing that the tax upon the personal and real property alone would not be sufficient to raise the required sum, a motion was made in the original suit by Brown for a further peremptory mandamus, requiring the city to include in the property to be taxed for his benefit the taxable merchants' capital, as returned and assessed for taxation for other purposes in the year 1875. This motion was granted March 2, 1876, and a judgment entered accordingly. Afterwards, during the same term, May 20, the city appeared and moved the court to set aside the order of March 2; but this motion was refused, and that order re-entered as the final judgment of the court in the premises. A writ of error was sued out upon this last judgment, and a supersedeas perfected, by giving the required bond within sixty days thereafter.

Mr. P. Phillips and Mr. W. M. Randolph in support of the motions.

By art. 2, sect. 28, of the Constitution of the State of Tennessee, all property is taxable. No one species is to be taxed higher than another of equal value, and all taxation is to be equal and uniform throughout the State.

The judgment of March 30, 1875, requiring that the tax should be levied on all the taxable property of the city, was rendered in a direct proceeding, to which the city was a party.

The subsequent orders were mere declarations of what that judgment contained, and to neither of them does error lie.

The only judgment which can be reviewed is that of March 30, 1875, which settled definitively the rights of the parties, and to which the city may now prosecute a writ of error. Her right to do so demonstrates that the present writ cannot be sustained.

The supersedeas is only to the order of May 20, 1876. Neither the judgment of March 30, 1875, nor the order of March 2, 1876, is affected by the present proceedings.

It is very evident that, if either March 30, 1875, or March 2, 1876, be adopted as the day on which the final determination was had, the supersedeas cannot be maintained, as more than sixty days from either date had elapsed before the filing of the writ and bond.

Mr. W. Y. C. Humes, contra.

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

title: Memphis v. Brown (94 U.S. 715)


text: Talk:Memphis v. Brown (94 U.S. 715)

title: Talk:Memphis v. Brown (94 U.S. 715)


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Memphis v. Brown (94 U.S. 715)/Opinion of the Court

We think that the order made by the Circuit Court, May 20, 1876, upon the motion to subject merchants' capital to the tax was such a final judgment as may be brought here for re-examination by a writ of error. The precise question decided by that order had never before been presented in the cause. The city was then for the first time required, in express terms, to subject this particular class of property to the adjudged taxation. The writ was, therefore, properly sued out upon the judgment.

Under the ruling in Brockett v. Brockett, 2 How. 241, the motion made during the term to set aside the judgment of March 2 suspended the operation of that judgment, so that it did not take final effect for the purposes of a writ of error until May 20, when the motion was disposed of. In addition to this, the form of the entry of May 20 is equivalent to setting aside the judgment of March 2, and entering it anew as of that date. This the court had the right to do during the term, and for the very purpose of giving it effect for a ''supersedeas. Sage et al. v. Central Railroad Company of Iowa et al.'' 93 U.S. 412. As the writ was issued on the day of the order, and its allowance embraced in the entry recording the order itself, there cannot be any doubt of the intention of the court to give the judgment at that time such an effect.

Motions denied.


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Chesapeake and Ohio Railroad Company v. Virginia

ER OR to the Supreme Court of Appeals of the State of Virginia.

The Chesapeake and Ohio Railroad Company was incorporated in the year 1868, by the action of joint commissioners of Virginia and West Virginia, in pursuance of the legislation of those States. The object of the incorporation was to construct a railroad from Covington in Virginia, through their territory, to the Ohio River. The Virginia Central Railroad Company was then operating a continuous line from Richmond to Covington, composed of the Blue Ridge road and of its own road, running westward until it connected with that road, which was the property of the State, and so used by arrangement with the State.

The extension of railroad communication between Covington and the Ohio River, through territory then all her own, had been some time before undertaken by Virginia, and a large amount of money and labor expended on the enterprise by the State Board of Public Works, operating as a corporation styled the Covington and Ohio Railroad Company; but the work had been arrested by the war in 1861.

Subsequently, West Virginia was taken from Virginia by a line which cuts the proposed route some sixteen miles west of Covington, leaving within the limits of Virginia about two hundred and eight miles of completed road from Richmond to Covington, and about sixteen miles beyond Covington, over which the road was yet to be constructed. The distance from Covington to the Ohio, over which the road was to be carried, is about two hundred and fifteen miles.

After the separation, Virginia passed an act, approved Feb. 26, 1866, by which any responsible capitalists, who would accept the benefits of the charter thereby created, and become organized according to its terms, should constitute a corporation under the same style of the Convington and Ohio Railroad Company. When fully organized, the company was to have 'all the rights, interests, and privileges of whatever kind, in and to the Covington and Ohio Railroad, and appurtenances thereto belonging, now the property of the State, upon condition that it shall, within six months after its incorporation, as provided in the tenth section of this act, commence, and within six years complete, equip, and operate a railroad, from some point at or near Covington in Alleghany County, Virginia, and connecting with the Virginia Central Railroad, by the way of the White Sulphur Springs and the valleys of Greenbrier River, New River, and Kanawha River, to a point at or near the mouth of Scary Creek, and thence to the Ohio River.' 'But this grant is not intended to include the unexpended amount appropriated by the State of Virginia to this work.'

It further provides, 'that the rates of charge by said company for passengers and freight transported on the main line and branches shall never exceed the highest allowed by law to other railroads in the State of Virginia, and no discrimination shall be made in such charge against any connecting railroad or canal company in which the State has an interest, and no taxation upon the property of the said company shall be imposed by the State until the profits of the company shall amount to ten per cent a year on its capital.'

Commissioners were appointed by the act (and, if a like number should be appointed by West Virginia, the whole were to act in conjunction), 'to offer the benefits of the charter for the acceptance of capitalists, to insure the speediest and best construction, equipment, and operation of said railroad. To this end they are hereby empowered to make a contract with any parties who shall give the best terms and the most satisfactory assurances of capacity and responsibility, and to introduce into the said contract such additional stipulations for the benefit of the State, and in furtherance of the purposes herein declared, and not inconsistent with this act; which said contract shall be, to all intents and purposes, as much a part of this charter as if the same had been herein included at the time of the passage of this act.' Virginia Session Acts, 1865-66, p. 317.

This act was, March 1, 1866, met by corresponding legislation on the part of West Virginia, and the benefits of the charter were offered to capitalists by the joint commissioners of the States, but not accepted; and no company was ever organized as contemplated under the authority of the laws so passed.

Afterwards laws were passed by the States for the further encouragement of the enterprise, by which the Covington and Ohio Railroad Company, when organized under the preceding acts, was authorized to conslidate with the Virginia Central Railroad Company, and other companies named (all or either of them), upon terms to be agreed upon between them. The companies thus consolidated were to constitute one corporation, to be vested with all the rights, privileges, and franchises, and property which may have been vested in either company prior to the act of consolidation, the new corporation to be known as 'The Chesapeake and Ohio Railroad Company.' The new company was further authorized, within two years after its organization, to purchase the stock held by the State in the company, and also the right to the State in the Blue Ridge Railroad. Further, it was provided, that 'The Virginia Central Railroad Company may contract with the Covington and Ohio railroad commissioners for the construction of the railroad from Covington to the Ohio River; and, in the event such contract be made, the said Virginia Central Railroad Company shall be known as the Chesapeake and Ohio Railroad Company, and shall be entitled to all the benefits of the charter of the Covington and Ohio Railroad Company, and to all the rights, interests, and privileges which by this act are conferred upon the Chesapeake and Ohio Railroad Company when organized.' Acts of Virginia, 1866-67, p. 705.

The contract thus authorized to be made between the joint commissioners and the Virginia Central Railroad Company, was made by them on the 31st August, 1968; and it is a conceded fact, that the exemption from taxation provided for in the acts hereinbefore referred to was held out to the Virginia Central Railroad Company by the commissioners appointed by said acts as one of the inducements to the company to unite in the contract with them for the construction of the railroad from Covington to the Ohio River, it being supposed by said commissioners and the Virginia Central Railroad Company that such exemption would apply to the whole line from Richmond to the Ohio River.

Under this contract the Chesapeake and Ohio Railroad Company was duly organized. It took the interest of the State in her uncompleted work on the line west of Covington, and constructed and equipped a railroad thence to the Ohio River, according to its charter; and, within two years after its organization, purchased the Blue Ridge Railroad from the State, and has ever since operated a continuous line of road from Richmond to the Ohio River.

The profits of the company have never amounted to ten per cent per annum on its capital.

Certain proceedings, under the assessment and tax acts of Virginia, were instituted in the Circuit Court of the City of Richmond, against the company, for failing to report to the auditor of public accounts, on the first day of February, 1871, the estimated value of its real and personal property of every description; and for failing, also, to report quarterly, on the first day of February, May, August, and November, of that year, the net earnings of the road for the preceding three months; and for failing to pay the taxes imposed thereon by law into the treasury at the time fixed for making said report.

The company contended that those acts did not apply to it; and, if they did, that they were in violation of the tenth section of the first article of the Constitution of the United States, as by the charter no taxation was to be imposed upon its property until its profits should amount to ten per cent a year upon its capital. The court sustained the claim of exemption set up by the company, the dismissed the pr ceedings. The judgments of that court were reversed by the Supreme Court of Appeals of the State of Virginia; whereupon the company brought the cases here.

Mr. William M. Evarts and Mr. William J. Robertson for the plaintiff in error.

Mr. R. T. Daniel, Attorney-General of Virginia, contra.

MR. JUSTICE STRONG delivered the opinion of the court.


text: Talk:Chesapeake and Ohio Railroad Company v. Virginia


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Chesapeake and Ohio Railroad Company v. Virginia/Opinion of the Court

Each of these cases presents the same question. That a contract for some exemption from taxation was made by a legislative offer of the State, and an acceptance of the offer by the company, is not controverted; but the extent of the exemption is the matter in question between the parties. To ascertain what that was, it is necessary to review the legislative acts which made the offer accepted by the company. Preparatory to such an examination, it may be well, also, to notice some antecedent facts stated in the record.

On the fifteenth day of February, 1853, an act of the legislature of Virginia was passed, authorizing the board of public works of that State to construct a railroad from Covington to the Ohio River, on State account, under which act the construction was commenced and prosecuted by means of State appropriations, made from time to time, until the work was arrested by the late civil war. The completion of the road, however, was deemed an object of great importance to the people of Virginia, and on the 26th of February, 1866, an act was passed, entitled 'An Act to incorporate the Covington and Ohio Railroad Company,' the provisions of which we shall presently notice. The State having then been divided, the legislature of West Virginia, to which State the road was deemed equally important, a few days afterwards passed a similar act, also entitled 'An Act to incorporate the Covington and Ohio Railroad Company.' The object of both these statutes was the completion of the same road by one and the same corporation. The act of Virginia declared that the persons upon whom the benefits of the charter might thereafter be conferred, and who might be organized as thereinafter provided, should thereupon be constituted a corporation, under the name of 'The Covington and Ohio Railroad Company,' and should have all the rights, interests, and privileges in and to the Covington and Ohio Railroad, and its appurtenances, then belonging to the State of Virginia, on certain conditions, not now necessary to be noted. By the seventh section of the act, the State reserved a right to connect, at any point within its limits, with the railroad of the said company, or any of its branches, any canal or railroad in which the State had an interest; and the section declared that 'no taxation upon the property of said company shall be imposed by the State until the profits of the company shall amount to ten per cent a year on its capital.' The ninth section appointed five commissioners, to act in conjunction with an equal number who might be appointed by West Virginia, whose duty it was made to offer the benefits of the charter to capitalists, so as to secure the speediest and best construction, equipment, and operation of the railroad. To this end they were empowered to contract with any parties, and to introduce into the contract any additional stipulations for the benefit of the State, in furtherance of the purposes declared, and not inconsistent with the act. And it was further enacted, that such contract should be to all intents and purposes as much a part of the charter as if it had been included in the act at the time of its passage.

The act of Feb. 26, 1866, proved ineffectual. The Covington and Ohio Railroad Company was not formed. The commissioners were unable to find parties able and willing to accept the charter, and contract with them on the terms proposed by it. Accordingly, on the 26th of February, 1867, the legislature of West Virginia, and on the 1st of March, 1867, the legislature of Virginia, each passed another act, entitled 'An Act to provide for the completion of a line or lines of railroad from he waters of the Chesapeake to the Ohio River.' The two acts were of like import. That of Virginia, as well as that of West Virginia, held forth two alternative propositions. The first was, that the Covington and Ohio Railroad Company, which might be organized under the first act, might consolidate with the Virginia Central Railroad Company, the South-Side Railroad Company, and the Norfolk and Petersburg Railroad Company, or with one or more of them; the consolidated companies constituting one corporation, to be known as the Chesapeake and Ohio Railroad Company, and to have a capital not exceeding $30,000,000. The act also contained some new provisions respecting the organization of the Covington and Ohio company. The second section gave to the consolidated company, in case consolidation should be effected, all the rights, privileges, and franchises and property which might have vested in either company prior to the act of consolidation. The fourteenth section authorized the new, the consolidated company, to purchase stocks held by the State, to pay debts due to the State from either of the companies named, and to purchase the Blue Ridge Railroad, belonging to the State, by the surrender of State bonds equal in amount to the stocks purchased, the debts paid, and the valuation of the Blue Ridge Railroad, respectively. Such was the first alternative proposition.

The second was made to the Virginia Central Railroad Company alone, and it was made in the fifteenth section of the act, which is as follows:--

'The Virginia Central Railroad Company may contract with the Covington and Ohio Railroad commissioners, for the construction of the railroad from Covington to the Ohio River; and, in the event such contract is made, the said Virginia Central Railroad Company shall be known as the Chesapeake and Ohio Railroad Company, and shall be entitled to all the benefits of the charter of the Covington and Ohio Railroad, and to all the rights, interests, and privileges which by this act are conferred upon the Chesapeake and Ohio Railroad Company when organized.'

No such consolidation as that proposed by this statute ever took place. It was impossible, because the Covington and Ohio Railroad Company never came into existence. But the second alternative proposed was accepted. The Virginia Central did enter into a contract with the railroad commissioners, as authorized by the fifteenth section, and thus became the Chesapeake and Ohio Railroad Company. By the contract, it undertook to construct the unfinished railroad; and the commissioners, on behalf of the State, engaged that it should be 'entitled to all the benefits of the charter of the Covington and Ohio Railroad, and to all the rights, interests, and privileges, which, by the statute aforesaid, were conferred upon the Chesapeake and Ohio Railroad Company when organized.' The statutes referred to were those passed by the legislatures of Virginia and West Virginia in 1866 and 1867, which we have mentioned.

Thus the contract between the State and the company was formed, and such were its terms. The question now is, How far did the contract exempt the property of the Virginia Central (now the Chesapeake and Ohio) Company from taxation, or rather what property did it exempt?

This is to be answered in view of the statute alone. The contract with the railroad commissioners made no attempt to confer upon the company any greater or other rights, privileges, or immunities than those described in the statutes. By virtue of it, the company obtained two classes of rights: First, the benefits which the act of Feb. 26, 1866, amended by the act of 1867, would have conferred upon the Covington and Ohio Railroad Company had it been formed; and, second, the rights, interests, and privileges of the corporation contemplated by the first alternative proposition namely, the corporation formed by consolidation of the companies mentioned-would have possessed had such consolidation been made. What, then, were those rights, benefits, interests, and privileges? The Covington and hio Company, had it been formed, would have been exempt from all State taxation of its property; but its charter gave exemption to no other property. Had a consolidation taken place between it and the Virginia Central, and had the two companies become one corporation, together owning the property of both, that portion of the property brought by the Covington and Ohio into the aggregate would have continued exempt. But exemption of other property was not contemplated by the charter. So much is settled by repeated decisions of this court. Philadelphia, Wilmington, & Baltimore Railroad Co. v. Maryland, 10 How. 377; The Delaware Railroad Tax Case, 18 Wall. 206; Tomlinson v. Branch, 15 Wall. 460; Central Railroad and Banking Co. v. Georgia, 92 U.S. 665. In most, if not in all, of these cases the statutes which authorized the consolidation or union of the companies declared that the consolidated or united companies should possess all the rights and privileges which each of the companies enjoyed under its charter. Yet, it was ruled that those rights and privileges did not extend beyond that portion of the aggregated property which each had held under its charter.

There was no express provision in either of the statutes that the property of the Virginia Central shall, in any contingency, be exempt from taxation, and certainly, in our opinion, nothing they contain raises an implication of such an exemption. What was exempted was that which the legislature provided might be the property of another company. The right or immunity of that company was a limited right or immunity, and the Virginia Central, when it acquired it, took it with its limitations.

Nor was there any thing in the grant to the Virginia Central, made by the contract under the fifteenth section of the act of 1867, of all the rights, interests, and privileges which by that act were conferred upon the Chesapeake and Ohio Railroad Company when organized (that is, upon the Chesapeake and Ohio, if such a company should be formed by consolidation), from which can be inferred an exemption from taxation of any thing except what would have been brought into the common stock, if the proposed Covington and Ohio Company had been organized, and had become a party to the consolidation. The consolidated corporation would have acquired, as we have seen, no greater immunities from taxation than the constituent companies had prior to the union, and would have held them distributively; that is to say, whatever privileges and advantages either of them possessed would have been held by the new company to the extent of the road occupied by each respectively upon the consolidation. It would have stood in their place, and have possessed the powers, rights, privileges, and immunities the constituent companies had severally enjoyed in the portions of the road which had previously belonged to them.

If it be asked, why, then, were the rights of the consolidated Chesapeake and Ohio conferred upon the Virginia Central, if they were only such as the Covington and Ohio had,-those rights having been granted by the other provision of the statute and of the contract,-the answer is at hand. By the fourteenth section of the act, other rights were promised to the consolidated corporation when organized. We have already called attention to them. Among them was the right to pay the debts of the several companies, and buy the State stock therein with State bonds, and the right to buy the Blue Ridge Railroad; and thus acquire a continuous line of railroad from Richmond to the Ohio River. All these rights passed to the Virginia Central; but none of them had any reference to exemption from liability to taxation of any property other than that which would have belonged to the Covington and Ohio Railroad Company had it come into existence.

No doubt the extension of a railroad from Covington to the Ohio River was a favorite project of the State; and it was intended to offer terms which, it was supposed, would induce the Virginia Central Co pany to undertake its construction; but what the terms were must be gathered from the acts of the legislature, and from the contract with the railroad commissioners.

In the agreed statement of facts, it appears that the exemption from taxation provided for in the statutes was held out to the Virginia Central by the railroad commissioners, as one of the inducements to enter into the contract to construct the road, it being supposed by the commissioners and by the company that the exemption covered the whole line from Richmond to the Ohio River. This fact, however, can be of no importance to the decision we feel constrained to make. No such stipulation was inserted in the contract; and even if such a representation was made to the company, it was but the expression of an opinion respecting the meaning of a statute, in regard to which the company had the same knowledge that the commissioners had.

It will be seen from what we have said, that, in our opinion, the Court of Appeals of Virginia construed the acts of 1866 and 1867 correctly, and that no attempt has been made to impair the obligation of a contract.

Judgment affirmed.


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Blake v. Robertson Robertson

APPEALS from the Circuit Court of the United States for the Eastern District of New York.

The facts are stated in the opinion of the court.

Mr. H. T. Blake for Blake.

Mr. B. E. Valentine, contra.

MR. JUSTICE SWAYNE delivered the opinion of the court.

title: Blake v. Robertson Robertson


text: Talk:Blake v. Robertson Robertson

title: Talk:Blake v. Robertson Robertson


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Blake v. Robertson Robertson/Opinion of the Court

These are cross-appeals in the same cause. Both involve questions in mechanbics. These being determined, the legal propositions which apply are so well settled as to admit of no controversy.

A patent was granted to Blake on the 15th of June, 1858, by the United States, for a stone-breaker. On the 9th of January, 1866, the same authority reissued the patent to him, with amended specifications. It was extended on the 15th of June, 1872. The bill in this case is founded upon the latter patent. It charges infringement.

The answer avers that the machine decribed is of no practical utility, denies the novelty of the invention, and also the alleged infringement.

The description in the specification sets forth three things as the essential characteristics of the machine:--

1. Two jaws, within which the stones are to be broken. Their faces are to be so nearly in an upright position that the stones will descend between them automatically. The jaws are to be so far convergent that the interspace at the top will be sufficient to receive the stones, and that at the bottom only such as will allow the fragments to escape when broken of the required size.

2. A revolving shaft, driven by steam or other motive power, imparting to one of the jaws a continual vibratory movement, causing it alternately to approach toward and recede from the other jaw, through a short and definitely limited space, so that, when a stone is put in, the movable jaw will advance and crush it, then, receding, liberate the fragments, which again descend, and, if too large, are rearrested and crushed again; and so on, until the fragments have passed out through the open space at the bottom. The distance between the jaws is to be adjustable at pleasure, so that the stone can be broken of any desired size.

3. A fly-wheel is combined with the revolving shaft and movable jaw, for the purpose of rendering the strain upon the power more equal.

The claim is for—

A combination of a stone-breaking machine of upright converging jaws with a revolving shaft and mechanism imparting a definite reciprocating movement to one of the jaws from the revolving shaft, the whole being and operating as set forth.

The combination in a stone-breaking machine of the upright movable jaw with the revolving shaft and fly-wheel, the whole being and operating as set forth.

In combination with the upright converging jaws and revolving shaft imparting a definitely limited vibration to the movable jaw, so arrani ng the jaws that they can be set at different distances from each other at the bottom, thus producing fragments of every desired size.

A moment's glance at the model furnishes a sufficient answer to the objection of the want of practical value. It would be passing strange if a machine of that character could have gone through the severe conflicts of litigation which this patent has encountered, and have come forth victorious from every contest. It has proved equal to every ordeal to which it has been subjected. The number sold by the complainants, as shown by the record, is conclusive upon the subject.

The patent to Hobbs & Brown of the 4th of September, 1849, and the patents to Hamilton of the 30th of January, 1854, and the 5th of January, 1855, antedate the patent to Blake. It is insisted that each of them is for a machine substantially the same with the one described in Blake's patent, and that they are fatal to his claim of the requisite novelty of his alleged invention.

The machine of Hobbs & Brown is for 'improvements in the application of well-known mechanical means for the purpose of crushing ice.'. . . The 'improvements consist in applying a hopper with one diagonal fixed side and two parallel sides, to contain the ice, and compressing the ice by a movable fourth side, the fixed diagonal side and moving side having within them dental projections cut or cast on, to operate downward and prevent the ice from rising in the hopper when compressed, and also to enter and split the ice.'

The machine is operated 'by the combination with these parts of a lever fitted with an eccentric or cam-formed point.'

There is in this description neither of the ingredients nor the compound of the Blake machine. Every element and the combination are wanting. There is no mention of the converging adjustable jaws, of the revolving shaft, nor of the fly-wheel. The differences are as marked in the mode of operation as in the structural elements of the machine.

The Hobbs & Brown machine does its work by the downward and sweeping movement of the jaw, and the grasping and splitting by the teeth. The motive power is supplied and applied by a hand-lever, which gives a motion irregular, and varying with the varying exigencies of the ice during the process to which it is subjected.

The Blake machine performs its functions by the short, regular, and unvarying vibrations of the smooth-faced adjustable jaw, driven without intermission by the revolving shaft.

It is obvious that the Hobbs & Brown machine could not be applied with effect to the purpose of breaking stones, without essential changes of principle and details.

Hamilton's machine was 'for crushing and grinding quartz or other substances.'

In the specification annexed to his original patent, he says: -

'My invention consists in the use of a cylindrical nut or pestle in a similarly formed basin, the pestle having a partial rotary and crushing motion communicated to it by means of a lever attached thereto.

"A is a basin, the lower part of which is made circular, and the sides parallel to each other. b b' are flat ends or heads secured to the basin by bolts.

"C is the shaft carrying the cylindrical pestle, d.'

"E is a lever attached to or formed with the pestle d,' the upper end being connected by a joint '2' to a pitman, passing to a crank, eccentric, or other suitable mechanical contrivance, to give the arm E an oscillating movement, and the pestle a partial rotary motion on its shaft 'C."

The claim of this patent is for 'the means herein described and shown for crushing and grinding metallic ores, consisting of the cylindrical pestle, d,' provided with grooves in its upper part to crack the lumps of ore, and set on a shaft, C,' on which it has a partial rotary motion, and operating in connection with the basin, 'A,' in which said pestle moves to grind the ore into powder by the gradual approach of the sides of said basin to the cylindrical pestle, sad pestle being also provided with a scrapter or agitator, '5,' in its lower surface, to operate as specified.'

The second patent is declared to 'consist in providing means for keeping the pestle down with sufficient force to pulverize the material operated on, and also to prevent the pestle from grinding too finely; i.e., to furnish material for simply cracking the ore or other material into small lumps of any desired size, instead of grinding the same to a powder, thereby adapting the machine to different characters of metallic ores or other substances.'

We have here no reflex or embodiment of either of the ideas that found expression in the Blake machine. The converging jaws, the revolving shaft, and the fly-wheel, are all wanting, as in the Hobbs & Brown machine. Instead, there is a cylindrical nut or pestle, having a partial rotary and crushing motion communicated to it by means of a lever attached thereto. The pestle rotates on a central axis within an eccentric concave. The work is done by this pestle. There is nothing of the vibratory motion of a movable jaw, alternately advancing and receding, as in the Blake invention.

The difference is not that of mere mechanical equivalents. It is radical, and goes to the essence of the organisms. These considerations are so obvious, that further remarks upon the subject are unnecessary.

The proofs show that but two of the Hamilton machines were ever made. Practically, the invention was abandoned.

This brings us to the question of infringement.

There are numerous points of similarity, and, indeed, of identity, in the respondent's machine, which are not controverted. It is for breaking stone. It has two upright jaws for this purpose, one fixed and the other movable. The jaws converge. The breaking is effected by the convergence. The movable jaw alternately approaches towards and recedes from the fixed one. This movement is produced by a short and powerful vibratory motion communicated by a revolving shaft, with a fly-wheel upon it. There is an opening at the upper end of the jaws, where the stones are received, and one below, where they are discharged.

The only point of diversity insisted upon by the respondents, is, that the vibratory movement in the Blake machine is limited and unvarying, while in the machine of the appellants it is not of this invariable character.

In the Blake machine, the movable jaw receives its movement from the revolving shaft, through iron rods and levers. In the respondent's machine, it is communicated from the revolving shaft, through a confined column of water.

In the appellant's model, the revolving shaft is not shown. In their machine, it works the plunger of the pump, from which the water is conveyed to a cylinder behind the movable jaw, whence it is applied to that jaw by means of a ram, the ram taking the place of the piston in an ordinary engine. Thus the vibrating arm, the toggle, the toggle-joint, and the pintals in the Blake machine are dispensed with, and their place supplied by the hydraulic arrangements we have described.

What is so employed in the appellant's machine is the obvious and exact equivalent of what is so dispensed with in the Blake machine. The liability of the packed joints to leakage is a serious objection to such use of water. Any considerable leakage would stop the machine. It could not be used while that condition existed. Constant care and vigilance are necessary in such cases to prevent the frequent occurrence of this evil. Water does not escape from a safety-value with the same celerity or effect as steam.

The Blake machine has a decided advantage, in the greater simplicity and cheapness of its equivalents.

It is difficult to resist the conclusion that the change had no motive or purpose but evasion.

If there be no extraneous obstruction, the vibratory motion will be exactly the same in both cases. If there be such obstruction, the safety-valve in the appellant's machine might possibly be brought into use with good effect. But if this were so,t he valve would be only an addition and an improvement of the machine. The value, therefore, is, in any view, quite immaterial to the inquiry we are pursuing.

Where an original machine and an improvement upon it are both patented, neither patentee can use what does not belong to him, without the requisite authority from the owner. The appellants having embodied all the ideas of Blake's invention in their machine, the value which supplemented it, whether good or bad, is outside of the case, and cannot affect the result.

We think the infringement is clearly made out.

It remains to consider the question of damages. A few remarks upon that subject will be sufficient.

The proof is meagre and indefinite.

The infringers made but four machines.

No license fee charged by the complainant is shown. The burden of proof rests upon him. Damages must be proved; they are not to be presumed. The complainant made a profit of forty dollars an inch on the width of the jaws of the numerous machines he had sold.

But inventions covered by other patents were embraced in those machines. It was not shown how much of the profit was due to those other patents, nor how much of it was manufacturer's profit. The complainant was, therefore, entitled only to nominal damages. This the court gave him. It was all the state of the evidence warranted. It would have been error to give more.

Decree affirmed, and the costs of each appeal are adjudged against the party taking it.


text: Talk:Blake v. Robertson Robertson/Opinion of the Court


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Jerome v. McCarter (94 U.S. 734)

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

The case is fully stated in the opinion of the court.

Argued by ''Mr. Matt. H. Carpenter and Mr. George Norris'' for the appellants.

Mr. George F. Edmunds and Mr. Alfred Russell, contra.

Mr. JUSTICE STRONG delivered the opinion of the court.

title: Jerome v. McCarter (94 U.S. 734)


text: Talk:Jerome v. McCarter (94 U.S. 734)

title: Talk:Jerome v. McCarter (94 U.S. 734)


text:
Jerome v. McCarter (94 U.S. 734)/Opinion of the Court

There are no less than twenty-seven assignments of error in this case, but the subjects of real controversy are few. The bill is an ordinary one for the foreclosure of a junior mortgage covering the canal and franchises of the Lake Superior Ship Canal, Railroad, and Iron Company, and covering also two separate bodies of land, each containing two hundred thousand acres. The mortgage was given expressly subject to two prior mortgages, one, dated July 1, 1865, upon the canal and one of the bodies of land, and the other, dated July 1, 1868, upon the canal and the other body of two hundred thousand acres of land. Each of these prior mortgages was made to secure the payment of the company's bonds of even date therewith, amounting to the sum of $500,000; and all the bonds were issued, and they are now outstanding. The first of these prior mortgages is known as the Sutherland mortgage. Default having been made in the payment of interest upon the bonds secured by that, John L. Sutherland, the trustee, filed his bill to foreclose it, making all the subsequent mortgagees parties; and they all appeared. In that case, Isaac H. Knox was appointed receiver of all the property covered by the several mortgages, and subsequently, in order to obtain the money necessary for completing the canal by order of the court, he was authorized to create, issue, and sell certificates of indebtedness to the amount of $500,000, to be secured by a mortgage, which he was empowered to make, covering all the property, and which was to be prior in right to all other mortgages. Pursuant to this authority, the receiver did issue and sell such certificates, and for their security executed the mortgage directed by the court. These certificates are now all outstanding.

Such was the condition of affairs when the present bill was filed. But the company having afterwards gone into bankruptcy, a supplemental bill was exhibited making the assignees in bankruptcy parties defendant; and they appeared and made defence, and they are the only parties appellant.

It is now contended, on their behalf, that the bill cannt be sustained, because the prior mortgagees were not made parties. This position cannot be sustained. It is undoubtedly true there are cases to be found in which it was ruled that prior incumbrancers were necessary parties to a bill for the foreclosure of a junior mortgage, but in most of these cases the circumstances were peculiar. Where the effort of the junior mortgagee is to obtain a sale of the entire property or estate, and not merely of the equity of redemption, there is reason for making the prior incumbrancers parties, for they have an immediate interest in the decree. And so, when there is substantial doubt respecting the amount of the debts due prior lien creditors, there is obvious propriety in making them parties, that the amount of the charge remaining on the land after the sale may be determined, and that purchasers at the sale may be advised of what they are purchasing. But the case in hand has no such peculiarities. The prior mortgages were not due when this bill was filed; and, without the consent of those mortgagees, nothing more than the equity of redemption could be sold under any decree made in the case, or under the decree which was sought. Nor is there any doubt entertainable respecting the amount due under the prior mortgages. Indeed, the company is estopped by the provisions of its mortgage, of which the complainant is trustee, from asserting that the entire amount of the two $500,000 mortgages, and of the receiver's mortgage, was not outstanding when the present mortgage was made. The full indebtedness was acknowledged by making the junior mortgage expressly subject to it, and as there is no evidence that any portion of it has been paid, it is not admissible for the mortgagors or their assignees in bankruptcy to deny it now. Bronson v. The LaCrosse & Milwaukee Railroad Co., 2 Wall. 283.

Apart from the exceptional cases, we understand the general rule to be, that, in a suit by a junior mortgagee to foreclose a mortgage, prior mortgagees are not necessary parties. So it has been held in England in Rose v. Page, 2 Sim. 471; Richards v. Cooper, 5 Beav. 304; Delabere v. Norwood, 3 Swanst. 144.

Such, also, is the rule asserted in this country, where the bill of a junior mortgagee, as in this case, seeks only a foreclosure or sale of the equity of redemption. Edwards on Parties, p. 91, and cases cited; Gihon v. Bellville, 3 Halst. (N. J.) Ch. 531; Williamson v. Probasco, 4 id. 571.

The subject has been under consideration by this court in Hagan v. Walker et al., 14 How. 37, in which it was shown that it is not necessary in all cases to make a prior mortgagee a party. And it is not easy to see why it should be in any case, when the decree asked cannot injure or affect him. In Payne v. Hook, 7 Wall. 432, it was said, 'It can never be indispensable to make defendants of those against whom nothing is alleged, and from whom no relief is asked.' See also French v. Shoemaker, 14 Wall. 315. We think this is the correct rule. It is certainly consonant with reason, and we see nothing in the present case that justifies a departure from it. We hold, therefore, that the bill is not defective for want of proper parties.

The appellants next contend that the decree is erroneous, because the mortgagors were declared bankrupt after the bill was filed, and before the decree was entered; and it is urged that the bankrupt court had absolute and exclusive jurisdiction, and was entitled to the entire administration of the bankrupts' property. That this objection is without merit was shown in Marshall v. Knox, 16 Wall. 551, and Eyster v. Gaff et al., 91 U.S. 521, to which we need only refer.

A further objection insisted upon is, that while the property was in the charge of a receiver appointed in the suit brought by Sutherland to foreclose the first mortgage, and therefore, as it is said, was in custodia legis, this bill was filed without leave of the court. If there could, under any cic umstances, be any force in this objection, there is none now. Both suits were brought in the same court; these appellants appeared, answered, and cross-examined witnesses, and made no allegation that the suit had been brought without leave until about a year and a half afterwards. It was then too late. They must be held to have acquiesced; and, if not, leave of the court to commence and prosecute the suit must be presumed after the orders made to facilitate its progress.

The only remaining assignments of error that require particular notice relate to the ascertainment of the liens on the property of the company anterior to the mortgage now in suit, to the determination of their relative priority, and to the adjudication of the amount of the debt for the payment of which that mortgage is a security. The court decreed not only that the two five hundred thousand dollar mortgages, one dated July 1, 1865, and the other dated July 1, 1868, are liens for the full amounts specified in them, and prior in right to the complainants' mortgage, but that the lien of the mortgage given by the receiver appointed in the suit of Sutherland against the company, in pursuance of the direction of the court in that case, is also a prior lien to the extent of the certificates issued by the receiver; namely, to the extent of $500,000 and interest. This portion of the decree, it is now insisted, was erroneous. But if the receiver's certificates, issued by order of the court which had the property in charge, are liens at all, what have the appellants, who stand in the place of the company, to do with the order of priority of liens? What difference does it make to them whether the certificates be paid before any other liens are discharged, or after all the debts secured by any mortgage shall have been satisfied? The assignees can get nothing until all the liens on the assigned property have been removed. If the Circuit Court has made a mistake in determining in what order the incumbrances are entitled to payment, that is a matter for the consideration of the incumbrancers, in which neither the company nor the appellants have any interest. We do not understand the appellants to contend that the entire sum of $500,000, for which the receiver's certificates were issued, is not due, or that the receiver was not authorized to make the issue and secure it by mortgage, as he did. This is admitted in the pleadings, and there is positive proof of it in the record. It would be superfluous to spend much time in considering the power of the court to confer the authority upon its receiver that it attempted to confer. As a court of equity, having the mortgaged property in charge, it was its plain duty to preserve it, not only for the benefit of the lien creditors, but also for the benefit of the company whose possession the court had displaced. Under the provisions of the acts of Congress granting the lands covered by the mortgages, the lands reverted to the United States, unless the ship canal should be finished within a fixed period, and that period was passing away when the order was granted to the receiver to raise money for completing the canal by the issue of certificates secured by his mortgage. The canal was unfinished, and there were in the receiver's hands no funds to finish it. Hence there was a necessity for making the order which the court made,-a necessity attending the administration of the trust the court had undertaken. The order was necessary alike for the lien creditors and for the mortgagors. Whether the action of the court could make the receiver's mortgage superior in right to the mortgages which existed when it was made, it is needless to inquire. None of the creditors secured by those other mortgages objected to the order when it was made, though they were all then in court. None of them object to its lien or its priority now. And we think the appellants, either as representatives of their assignors, or of general creditors, cannot be heard to object. Beyond doubt, they would not be entitled to a returno f the property discharged from liability for the receiver's certificates remaining unpaid, even if all the other mortgages were satisfied. As against them the certificates are certainly charges upon the property, and they have, therefore, no right to complain of the decree, which gives the certificates priority to other liens.

That all the bonds secured by the first two mortgages are outstanding and due, is, we think, an established fact. We have observed that the mortgage upon which the present suit has been brought was made subject expressly to those two prior mortgages. In it the mortgagors recited that the company did, simultaneously with those mortgages, 'execute, issue, negotiate, and sell' all the bonds covered thereby, and declared that they were an outstanding and subsisting lien. How can these appellants, who stand in the shoes of the mortgagors, be heard to deny these recitals? Yet, if they can, we find no evidence that all those bonds are not now a subsisting debt of the company to the full extent of the sums named in them. There is some proof that, when the company became bankrupt (Aug. 28, 1872), some of the bonds were held as collaterals for loans made to the company smaller in amount than the bonds pledged. But the bonds were subsequently sold by the pledgees, and the present holders hold them by absolute right. The position that the pledgees could not sell the pledge after the adjudication in bankruptcy, is quite untenable. It is sustained by nothing in the Bankrupt Act. The bonds were negotiable instruments. They passed by delivery, and even were there no expressed stipulation in the contracts of pledge, that the pledgee might sell on default of the pledgor, such a right is presumable from the nature of the transaction. Certainly the Bankrupt Act has taken away no right from a pledgee secured to him by his contract.

In regard to the bonds covered by the McCarter mortgage, which is the one now in suit, we find no error in the decree of which the appellants can complain. Most of those bonds, though at first issued as collaterals for loans made to the mortgagors, have been sold, and they are now owned by the purchasers. There are some, it is true, that are still held in pledge; but the pledgees have a clear right to use them, either by sale or by collection, until the full amount of the debts due from the mortgagors is satisfied. We cannot close our eyes to the patent fact that the entire property mortgaged is insufficient to pay the debts with which it is incumbered. The holders of the bonds covered by the Union Trust Company will obtain nothing, and none of the bondholders under the McCarter mortgage will obtain full payment. At least, such is the strong probability. If, therefore, the holders of the McCarter bonds, who hold them as collaterals, are allowed to hold them only for the sums for which they have been pledged, the bonds may, and probably will, prove an insufficient security for the debts actually due from the obligors to the holders. They will prove insufficient, unless the mortgaged property shall bring at the sale enough to pay in full all the bonds held by purchasers, and also all the debts for which the pledged bonds are held. If the sale produces less, there must be a ratable abatement. On the other hand, if the pledgees are allowed to prove the bonds held by them for their full face, these appellants are not injured. If, at the sale, the mortgaged property shall bring more than sufficient to pay the debts for which the bonds are held in hypothecation, the proceeds of the sale will be under the control of the Circuit Court, and it will taken care that a proper distribution is made. And if this were not so, the pledgees would hold any excess they might receive in trust for other incumbrancers, or for the appellants. The only persons, if any, who can possibly be injuriously affected by the decree which was made, are the absolute owners of the McCarter bonds, and they acquiesce in it. It is not for those who are not injured to complain.

Of the only other assignmento f error which requires notice, it is sufficient to say, that, in view of the circumstances of the case, a sale in bulk is the only possible mode of sale which will enable purchasers to buy with confidence. And a sale by parcels, though ordinarily the proper mode, cannot be made, with any hope of justice to the creditors.

Decree affirmed.


text: Talk:Jerome v. McCarter (94 U.S. 734)/Opinion of the Court


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Corcoran v. Chesapeake and Ohio Canal Company

APPEAL from the Supreme Court of the District of Columbia.

The case is stated in the opinion of the court.

Mr. J. D. McPherson, Mr. Conway Robinson, and Mr. Joseph Bryan, for the appellant.

Mr. John P. Poe and Mr. Bernard Carter, for the appellee.

MR. JUSTICE MILLER delivered the opinion of the court.


text: Talk:Corcoran v. Chesapeake and Ohio Canal Company