text:
Town of South Ottawa v. Perkins Supervisors of Kendall County/Opinion of the Court

The first of these actions was brought by Perkins, the plaintiff below, to recover the amount due upon two negotiable bonds of the town of South Ottawa, in the usual form, for $1,000 each, made payable to the Ottawa, Oswego, and Fox River Valley Railroad Company, or bearer, in three years from July 1, 1869, with coupons for the semi-annual payment of interest attached. They each contained recitals as follows:--

'This bond is one of a series of twenty bonds, bearing even date herewith, each for the sum of $1,000,. . . and is issued in pursuance of an election held in said town, on the eighth day of October, 1866, under and by virtue of a certain act of the legislature of the State of Illinois, approved Feb. 18, 1857, entitled 'An Act authorizing certain cities, counties, incorporated towns and townships to subscribe to the stock of certain railroads,'. . . at which election a majority of the legal voters participating in the same voted 'for subscription' to the capital stock of said railroad in the sum of $20,000, and to issue the bonds of said town therefor; and the said election was by the proper authorities duly declared carried 'for subscription,' previous application having been made to the townclerk of the town, and said clerk having called said election in accordance therewith, and having given due notice of the time and place of holding the same, as required by law and the act aforesaid.'

The second action was brought on a bond issued by the county of Kendall, in Illinois, bearing date the fourth day of May, 1869, in aid of the same railroad, and by virtue of the same act of the legislature, and containing substantially the same recitals, mutatis mutandis, as those in the Ottawa bonds, except that the election authorizing the issue of the bonds is stated to have been held on the thirtieth day of March, 1869. The facts in the two cases are, in other respects, substantially the same.

The only authority claimed for issuing these bonds is the act referred to in the above recital therein. If no such act was ever passed by the legislature of Illinois, the bonds are void. A municipal corporation cannot issue bonds in aid of extraneous objects without legislative authority, of which all persons dealing with such bonds must take notice at their peril. Pendleton County v. Amy, 13 Wall. 297; Kenicott v. The Supervisors, 16 id. 452; St. Joseph Township v. Rogers, 16 id. 644; Town of Coloma v. Eaves, 92 U.S. 484.

It is insisted on the part of the plaintiffs in error in these cases that the law relied on for authority to issue the bonds in question was never passed, no entry of its passage appearing on the journal of the Senate of Illinois.

The Constitution of Illinois, adopted in 1848, contains the following provisions:--

'ART. 3, SECT. 1. The legislative authority of the State shall be vested in a general assembly, which shall consist of a senate and house of representatives, both to be elected by the people.' 'SECT. 3. Each house shall keep a journal of its proceedings, and publish them. . . .'

'SECT. 21. . . . On the final passage of all bills, the vote shall be by ayes and noes, and shall be entered on the journal; and no bill shall become a law without the concurrence of a majority of all the members elect in each house.'

The Constitution also provides that all bills passed shall be signed by the speakers of the two houses, and approved and signed by the governor, or, in case of his refusal, shall be repassed by a majority elected to each house. The general laws of the State provide for depositing all acts of the legislature, and the original journals of the two houses, in the office of the Secretary of State, who is charged with having them printed; and the printed statute-books are made evidence of the acts contained therein.

In the construction of the constitutional provisions above recited, the Supreme Court of Illinois, by a long course of decisions, has held that it is necessary to the validity of a statute that it should appear by the legislative journals that it was duly passed in the manner required by the Constitution.

As early as 1853, it was decided, in Spangler v. Jacoby, 14 Ill. 297, that it was 'competent to show from the journals of either branch of the legislature that a particular act was not passed in the mode prescribed by the Constitution, and thus defeat its operation altogether. The Constitution requires each house to keep a journal, and declares that certain facts, made essential to the passage of a law, shall be stated therein. If those facts are not set forth, the conclusion is that they did not transpire. The journal is made up under the immediate direction of the house, and is presumed to contain a full and complete history of its proceedings. If a certain act received the constitutional assent of the body, it will so appear on the face of its journal. And when a contest arises as to whether the act was passed, the journal may be appealed to to settle it. It is the evidence of the action of the house, and by it the act must stand or fall. It certainly was not the intention of the framers of the Constitution that the signatures of the speakers and the executive should furnish conclusive evidence of the passage of a law. The presumption, indeed, is, that an act thus verified became the law, pursuant to the requirements of the Constitution; but that presumption may be overthrown. If the journal is lost or destroyed, the presumption will sustain the law, for it will be intended that the proper entry was made on the journal. But when the journal is in existence, and it fails to show that the act was passed in the mode prescribed by the Constitution, the presumption is overcome, and the act must fall.'

This case was followed, in 1855, by Turley v. County of Logan, 17 id. 151. There, a law was supposed to have been passed at the session of the legislature in 1853, for the removal of the seat of justice of Logan County, by a vote of the people. In the fall after, a vote was taken, which resulted in favor of the removal. Turley and his associates then filed their bill to restrain the county officers from erecting county buildings at the new location, on the ground that, as appeared by the journal, the act had not been read in the House of Representatives the full number of times required by the Constitution, and so was no law. The fact being as alleged, the injunction was, in the first instance, allowed, but afterwards, in February, 1854, the same legislature met in extra session, and, on recollection of members, and by the manuscript notes of the clerk, the House of Representatives amended its journal so that it showed the bill had been read the requisite number of times. Thereupon the Supreme Court, when the case came there, while recognizing fully the authority of Spangler v. Jacoby, affirmed a decree dissolving the injunction and dismissing the bill, for the reason that it was within 'the power of the same legislature, at the same or a subsequent session, to correct its own journals, by amendments which show the true facts as they actually occurred.'

The same question was also considered by the same court in Prescott v. The Trustees of the Illinois & Michigan Canal, 19 id. 324, decided in 1857. There, Prescott and Arnold were entitled to purchase, at the appraised value, certain lots in Chicago, which had been appraised twice; and the point to be decided was, whether they should pay according to the first or second appraisal. The second appraisal was made under a law supposed to have been passed Feb. 14, 1851, but which the journals showed had never in fact passed either branch of the general assembly. Accordingly, the court held, upon the authority of Spangler v. Jacoby, that the second appraisal was invalid, and that the parties had the right to purchase under the first.

In the case of The Supervisors of Schuyler County v. The People, 25 id. 181, which came before the court in 1860, it was objected that the Senate journal did not show that the bill incorporating the railroad company was read three times in that body before it was put on its final passage; but the court, while still approving Spangler v. Jacoby, held that the Constitution did not require the fact that the bill had been read three times to be entered on the journals, and, consequently, that the validity of the law could not be impeached on that ground.

In 1864, in the case of ''The People ex rel. Barnes v. Starne'', 35 id. 121, an application was made for a mandamus to compel the treasurer of the State to countersign, register, and pay a warrant issued upon him in favor of Barnes, the relator, by the auditor of public accounts. The warrant was issued upon the authority of what was supposed to be a statute of Illinois, approved Feb. 14, 1863, as compensation for transporting and bringing home certain wounded soldiers belonging to the State; but it being shown that the journal of the House of Representatives did not contain entries to the effect that the bill was passed by a majority of the members elect, or that the vote was taken by ayes and noes upon the final passage, the mandamus was refused. In the opinion of the court the authorities are extensively reviewed, and the rulings in the previous cases reaffirmed.

These cases were all decided before the issue of the bonds sued on in this case. But since that time two cases have arisen under the very law now in question, in which the Supreme Court of Illinois has decided that it was never passed, and is not an act of the legislature of that State. The first of these cases Ryan v. Lynch, 68 id. 160, was decided in 1873. Certain tax-payers of the town of Ottawa sought to enjoin the tax-collector from collecting a tax which had been levied to pay interest upon bonds issued in aid of the Ottawa, Oswego, and Fox River Railroad Company, upon the ground that the act under which the bonds were issued, that of Feb. 18, 1857 (the same which is now under consideration), had not been enacted in conformity with the requirements of the Constitution. At the hearing in the court below it was proved that the journal of the Senate did not show that the bill had ever passed that body. Upon this proof, the court, recognizing the authority of Spangler v. Jacoby and other cases which followed it, granted the injunction asked for. In the Supreme Court, on appeal, it was insisted that the decree ought to be reversed, because the bondholders had not been made parties. The objection was overruled, and the action of the court below affirmed.

Following this is the case of Miller & Paddock v. Goodwin, 7 Chicago Legal News, 294, not yet reported in the regular series of the reports of the State. It being shown in this case, as in Ryan v. Lynch, that the journals did not contain the requisite evidence of the passage of the law, it was again adjudged invalid. This was in January, 1875. An effort was made in this last case to impeach the transcript of the legislative journals; but it was unsuccessful. The court repeated what it had said in the case of Ryan v. Lynch, using this language: 'The bill never became a law, and the pretended act conferred no power. It follows that the bonds were not merely voidable, but that they were absolutely void, for want of power or authority to issue them; and consequently no subsequent act or recognition of their validity could so far give vitality to them as to estop the tax-payers from denying their legality.' This opinion, it is true, was delivered after the trial of the case now before us. But it goes to show that up to the very moment of that trial, there had been no vacillation in the State court as to the construction and effect of the Constitution of Illinois.

When the cases now under consideration came on for trial in May, 1874, the defendants below offered to prove, by the journals of each house of the legislature, that there was no entry in the same of the passage by the Senate of the act of Feb. 18, 1857. The testimony was objected to, and ruled out. Substantially the same questions were raised by demurrer to a plea. The ground of this decision seems to have been, that the holder of the bonds was a bona fide purchaser of them without notice of any objection to their validity; that the first instalment of interest was paid at maturity; and, therefore, that the defendant was estopped from offering any evidence to show that the act was not passed, the same having been duly published among the printed statutes as a law, and being therefore prima facie a valid law: in other words, that although the act might not have been duly passed, the town, under the circumstances of the case, was estopped from denying its passage.

We cannot assent to this view. There can be no estoppel in the way of ascertaining the existence of a law. That which purports to be a law of a State is a law, or it is not a law, according as the truth of the fact may be, and not according to the shifting circumstances of parties. It would be an intolerable state of things if a document purporting to be an act of the legislature could thus be a law in one case and for one party, and not a law in another case and for another party; a law to-day, and not a law to-morrow; a law in one place, and not a law in another in the same State. And whether it be a law, or not a law, is a judicial question, to be settled and determined by the courts and judges. The doctrine of estoppel is totally inadmissible in the case. It would be a very unseemly state of things, after the courts of Illinois have determined that a pretended statute of that State is not such, having never been constitutionally passed, for the courts of the United States, with the same evidence before them, to hold otherwise.

It is declared by the Judiciary Act as a fundamental principle 'that the laws of the several States, except where the Constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States in cases where they apply.' Sect. 34. And this court has always held that the laws of the States are to receive their authoritative construction from the State courts, except where the Federal Constitution and laws are concerned; and the State Constitutions, in like manner, are to be construed as the State courts construe them. This has been so often laid down as the proper rule, and is in itself so obviously correct, that it is unnecessary to refer to the authorities.

If, therefore, the law in question had never been passed upon by the State courts, the courts of the United States would nevertheless be bound to give to the Constitution of Illinois the same construction which the State courts give to it, and to hold a pretended act of the legislature void and not a law which the State courts would hold to be so. Otherwise, we should have the strange spectacle of two different tribunals, having co-ordinate jurisdiction in the same State, differing as to the validity and existence of a statute of that State, without any power to arbitrate between them. In speaking, however, of their jurisdiction as being co-ordinate, it is only meant that one has no power to enforce its decisions upon the other. As a matter of propriety and right, the decision of the State courts on the question as to what are the laws of the State is binding upon those of the United States.

But the law under consideration has been passed upon by the Supreme Court of Illinois, and held to be invalid. This ought to have been sufficient to have governed the action of the court below. In our judgment it was not necessary to have raised an issue on the subject, except by demurrer to the declaration. The court is bound to know the law without taking the advice of a jury on the subject. When once it became the settled construction of the Constitution of Illinois that no act can be deemed a valid law, unless, by the journals of the legislature, it appears to have been regularly passed by both houses, it became the duty of the courts to take judicial notice of the journal entries in that regard. The courts of Illinois may decline to take that trouble, unless parties bring the matter to their attention; but, on general principles, the question as to the existence of a law is a judicial one, and must be so regarded by the courts of the United States.

This subject was fully discussed in Gardner v. The Collector. After examining the authorities, the court in that case lays down this general conclusion, 'that whenever a question arises in a court of law of the existence of a statute, or of the time when a statute took effect, or of the precise terms of a statute, the judges who are called upon to decide it have a right to resort to any source of information which in its nature is capable of conveying to the judicial mind a clear and satisfactory answer to such question; always seeking first for that which in its nature is most appropriate, unless the positive law has enacted a different rule.' 6 Wall. 511.

Of course, any particular State may, by its Constitution and laws, prescribe what shall be conclusive evidence of the existence or non-existence of a statute; but, the question of such existence or non-existence being a judicial one in its nature, the mode of ascertaining and using that evidence must rest in the sound discretion of the court on which the duty in any particular case is imposed.

Not only the courts, but individuals, are bound to know the law, and cannot be received to plead ignorance of it. The holder of the bonds in question can claim no indulgence on that score, and can take no advantage from the allegation that he is a bona fide purchaser without notice. He would, it is true, be precluded from doing so on another ground; namely, the want of any legislative authority in fact in the town to issue the bonds in question. Want of such authority is a fatal objection to their validity, no matter under what circumstances the holder may have obtained them.

Thus far we have not adverted to the argument attempted to be drawn by the defendants in error from the fact that the act in question was referred to in two subsequent acts of the legislature as an existing law. One of these was passed on the twenty-seventh day of March, 1869, entitled 'An Act to amend an act, entitled 'An Act to incorporate the Ottawa, Oswego, and Fox River Valley Railroad Company." This act authorized the company to build a railroad from the town of Wenona to the city of Peoria; and, by the second section, it was enacted 'that any city, county, town, or township near to or through which said road is now or may hereafter be located is hereby authorized to subscribe to the capital stock of said railroad, upon the terms and conditions prescribed in an act entitled 'An Act to authorize certain cities, counties, towns, and townships to subscribe to the stock of certain railroads,' in force Feb. 18, 1857.' The title here recited is not the title of the act in question. It differs from it in several respects, though this was probably the one that was intended to be referred to. Supposing it to have been the one referred to, it is not pretended that this act of March 27, 1869, embraces the town of South Ottawa, or the county of Kendall, whose bonds are the subject of the present suits. But it is urged that the reference to the act of 1857 is such a recognition of that act as to give it validity, if it had none before. This was certainly not the purpose of the act of 1869, nor do we think that such was its effect. The legislature could not thus, in 1869, give validity to a void act as an act passed in 1857, which was not constitutionally passed in that year; for that would be an evasion of the Constitution. It could at most give it vitality as a new act from the date of the act of 1869. But this it does not profess to do: it only adopts its provisions for the purposes of the act then passed. And if the legislature of 1869 could have validated all proceedings had under the supposed act of 1857, it did not do so. It did not profess to do it. No such purpose is indicated in it. The most that can be said is, that, in referring to the act of 1857, the legislature inadvertently supposed that it had been regularly passed. Whether such inadvertence was the result of a false suggestion by interested parties, or otherwise, is of no consequence. No intent to validate and establish the act of 1857, as a law, can be gathered from the terms of the act of March 27, 1869. To give to such a reference in a subsequent act, as is here relied on, the effect of validating or reviving or vitalizing a void or repealed statute, when no such intention is expressed, would be dangerous, and would lay the foundation for evil practices. The legislature might in this way be entrapped into the enactment or re-enactment of laws when it had no intention, or even suspicion, that it was doing so.

The other act relied on was passed on the twentieth day of April, 1869, and is entitled 'An Act to amend an act entitled 'An Act authorizing certain cities, counties, towns, and townships to subscribe to the stock of certain railroads,' in force Feb. 18, 1857;' being the act in question, if the words 'in force' are construed to refer to the date of its supposed passage. This amendatory act declares that in addition to the cities, counties, towns, and townships authorized by the said act to which this is an amendment, to subscribe to the stock of the Ottawa, Oswego, and Fox River Valley Railroad, the following portions of cities, counties, towns, and townships be authorized to subscribe to the capital stock of said railroad in manner as provided in said act, except as hereinafter provided. The act then proceeds to designate the portions of towns referred to.

The same observations apply to this act which have been made in regard to the act of March 27, 1869. It does not profess or purport to give any new force or validity to the supposed act of 1857, or to validate any proceedings had under that act. It takes for granted-mistakenly, as we have seen-that the act was duly passed, and does nothing more.

The last-mentioned act could not, in any event, by any prospective effect, aid the holders of the bonds in suit; for the elections called to authorize their issue were held before this act was passed, as appears by the recitals in the bonds themselves. Indeed, the election authorizing the Ottawa bonds was held in 1866,-long before the passage of either of the acts referred to; and, in the absence of any expression in the laws themselves, evincing such an intention, it can hardly be claimed that these laws gave any retroactive validity to elections which were without authority, and void, when they were held.

It is to be observed that these statutes were before the Supreme Court of Illinois when deciding the case of Miller & Paddock v. Goodwin, being set up and relied on in the answer of the defendants in that case; but the court evidently did not regard them as having the effect claimed. The bonds were held to be void, and the collection of taxes to pay them was perpetually enjoined.

We do not perceive that the act of Congress, prescribing the mode in which the public acts, records, and judicial proceedings in each State shall be authenticated so as to take effect in every other State, has any bearing whatever on the case. The authentication thus provided for was intended as evidence only of the existence of such acts and records, and not to give them any greater validity or effect than that which they had in the State from which they were thus accredited. The act expressly declares that, when thus authenticated, they shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the State from whence they are taken. It merely provides a mode of proving public records, leaving them, when proved, invested with the same force and effect (and no other) which they have at home. But when a court of the United States is held in any State, it is bound to know the laws of such State the same as the domestic courts are.

Judgments reversed, and records remanded with directions to award in each case a venire facias de novo.


text: Talk:Town of South Ottawa v. Perkins Supervisors of Kendall County/Opinion of the Court

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


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Muller v. Dows

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

On motion of Mr. Thomas F. Withrow, for the appellees, to take up and consider the appeal as submitted under the twentieth rule.

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

title: Muller v. Dows


text: Talk:Muller v. Dows

title: Talk:Muller v. Dows


text:
Muller v. Dows/Opinion of the Court

Stipulations between counsel relative to the course of proceeding in a cause pending in this court cannot be withdrawn by one party without the consent of the other, except by leave of the court upon cause shown. The counsel in this case stipulated in writing, on or before July 5, 1876, to submit the cause on printed arguments, under rule 20, during the first ninety days of this term. This stipulation was filed here July 5; but, Oct. 21, the counsel for the appellants notified the counsel for the appellees that he withdrew his agreement.

The counsel for the appellees having filed a printed argument within the ninety days, now asks that the cause be taken up and considered by the court as submitted under the rule.

This we might with propriety do, as, if the desired withdrawal is not assented to, application for the vacation of the stipulation ought to be made here in time to have it disposed of before the expiration of the ninety days. But as we have never before been called upon to settle the practice applicable to this class of cases, it is now ordered that the appellants cause a printed argument to be filed in their behalf on or before March 6, next, or show good cause why the stipulation for submission made by their counsel should not be enforced against them; and, in default, that the cause be taken up and considered as submitted under the rule, without argument by the appellants.

title: Muller v. Dows/Opinion of the Court


text: Talk:Muller v. Dows/Opinion of the Court


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Commissioners of Marion County v. Clark

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

Mr. A. L. Williams for the plaintiffs in error.

Mr. Alfred Ennis, contra.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

title: Commissioners of Marion County v. Clark


text: Talk:Commissioners of Marion County v. Clark


text:
Commissioners of Marion County v. Clark/Opinion of the Court

Power is vested by law in the constituted authorities of counties and other municipal corporations to subscribe for and take stock in any railway company duly organized under the law of the State or Territory, or to loan the credit of the municipality to such a railroad company, subject to the condition that the majority of the qualified voters of the same, voting at the election, shall, at a regular or a special election to be held therein, first assent to the proposal for such subscription; and the provision is that it shall be the duty of the municipal authorities, when the terms of the proposal are so approved, to make subscription to the stock of the railway company. Laws Kansas 1869, 108.

Sufficient appears to show that the railway company became duly incorporated for the purpose of constructing a railway from the northern to the southern line of the State through Davis, Marion, and other counties named in the certificate of incorporation. Tax-payers and citizens of the County of Marion petitioned the county commissioners of the county to submit a proposition to the qualified voters of the county to subscribe for two thousand shares of $100 each of the capital stock of the railway company, to be paid for in thirty-years seven-per-cent bonds of the county. Pursuant to the prayer of those petitioners, the county commissioners submitted that question to the qualified voters of the county, at a special election held at the time and place appointed in the order of the county commissioners; and it appears by the record that the election was duly held at the time and place appointed, and that a majority of the votes cast at the election were in favor of the subscription by the county for two thousand shares of the capital stock of the railway company.

By the terms and conditions of the proposition submitted and adopted, the stock to be subscribed was to be paid for in the bonds of the county, payable thirty years after their date, with annual interest at the rate of seven per cent per annum; and the proposal was that the bonds should be delivered to the railway company as follows: 1. That, on the completion of the grading of the railway from the northern line of the county to Marion Centre, one-half of the bonds should be due and deliverable under the contract. 2. That, upon the completion of the railway from Marion Centre to the village of Peabody, other bonds to the amount of $75,000 should be due and deliverable as a second instalment. 3. That, upon the completion of the railway to the south line of the county, the residue of the stipulated amount of the bonds should be due and deliverable.

Due canvass of the qualified votes cast at the election was made by the county commissioners, and they made the proper entry in their records that the subscription of the stock was then and there made by their board for and in behalf of the county; and it appears that the board did then and there elect one of their number to make the subscription, and that the member so elected entered the same in the books of the railway company.

Beyond all doubt, the subscription was legally made; and it is not controverted that the railway company graded their line of railway from the north line of the county to Marion Centre, and that the authorities of the county executed and delivered to the railway company the bonds of the county to the amount of $100,000, in pursuance of the terms of the subscription, with coupons attached for the payment of interest at the rate of seven per cent semi-annually.

Purchases of the bonds with coupons annexed to a large amount were made by the plaintiff from the First National Bank of Junction City, where they were deposited for sale. Payment of the interest coupons being refused, the plaintiff, as the owner and holder of the same, instituted a suit in the Circuit Court to recover the amount. Two other suits were subsequently instituted by him for a similar purpose; and the three suits in the course of their prosecution were consolidated, the claim of the plaintiff being for the amount of one hundred and ninety-four coupons, each for the sum of thirty-five dollars. Service was made, and the defendants appeared and set up the several defences exhibited in the answer. Special reference to the separate defences as set up in the answers may be omitted, as the questions to be re-examined sufficiently appear in the bill of exceptions.

Questions of fact were submitted to the jury; and the transcript shows that the verdict and judgment were for the plaintiff, in the sum of $6,703.54, and that the defendants excepted to the rulings and instructions of the court.

Two thousand shares of the stock were subscribed; but the bonds were issued in shares of $1,000, with interest coupons attached. On the trial of the cause, the plaintiff, to maintain the issue on his part, offered one of the bonds in evidence, with an overdue coupon attached; and the defendants objected to its admissibility, upon three grounds: 1. Because it was signed only by the chairman of the county commissioners. 2. Because it was made due and payable thirty years and twenty-seven days after date. 3. Because the interest coupons attached provide for the payment of interest semi-annually instead of annually. But the court overruled the objections, and the bond with the coupon attached was admitted, subject to the objections of the defendants. Coupons of a similar character, to the number of one hundred and ninety-four in all, were also introduced in evidence by the plaintiff, subject to the same objections.

Exceptions were duly taken by the defendants to the rulings of the court in admitting the bond and coupons, and the plaintiff rested his case in the opening. Evidence was then introduced by the defendants, consisting, in the first place, of the deposition of the plaintiff and a certified copy of the record of a suit previously instituted in the County Court to cancel the bonds issued by the county and to restrain the First National Bank from transferring the same to the railway company.

They also introduced a copy of the proposition submitted to the qualified voters of the county to subscribe for the capital stock of the railway company, in payment for which the bonds in question were executed and delivered, to which reference has already been made; but it also provides, that, before any county bonds should be issued and delivered, the railway company shall execute to the county a good and sufficient bond that the company will complete the railway as therein represented and proposed.

Before the bonds were issued and delivered by the county the railway company did execute a bond to the county in the sum of $200,000, conditioned that the company should fully complete and stock the railway, and put the same in running order, as required in the recorded conditions of the subscription.

Both parties agree that bonds to the amount of $100,000, and no more, were issued by the county and delivered to the company; but the defendants insist that the authorities of the county were induced to issue and deliver the same by the misrepresentation and fraud of the railway company.

Two suggestions in that regard are exhibited in the answer and in the assignment of errors: 1. That the railway company, when they applied for the bonds, concealed from the authorities of the county the fact that the company had been reincorporated with an amended charter. 2. That the company, when they applied for the bonds, falsely and fraudulently represented that the sureties were good for the amount of the bond, and the defendants introduced evidence tending to show that the sureties were insolvent.

They also gave evidence tending to show that the charter of the company was amended, and the nature and extent of the amendment made, before the company applied for the bonds, and that they gave no notice to the authorities of the county of the meeting of the directors of the company when those amendments were adopted.

Three other defences set up in the answer should be briefly noticed: 1. That the bonds were illegal, because issued for a longer time than thirty years. 2. That they were illegal, because the interest is payable semi-annually instead of annually, as stipulated in the proposition submitted to the qualified voters. 3. That the plaintiff is not a bona fide holder of the bonds, because he did not pay value for the same before they became due, without knowledge of the facts set up in these defences: all of which is expressly denied by the plaintiff in his reply to the answer.

Instructions were given by the court to the jury in substance and effect as follows: 1. That the plaintiff, when he introduced the coupons in evidence, made out a prima facie case. 2. That there is no evidence to go to the jury to show that the First National Bank had notice, at or prior to the purchase of the bonds, of the fraudulent character of the representations made by the railway company which induced the authorities of the county to accept the bond given by the company to complete the railway, as stipulated in the proposition submitted to the qualified voters of the county. 3. That if the bank gave value for the bonds and purchased them before due, without notice of the fraud set up and relied on by the county in respect to the bond given in evidence, and sold the bonds in suit to the plaintiff, he is entitled to recover on the bonds, though he had notice when he obtained them that the county claimed they were fraudulent, and that a suit was pending contesting their validity, the record of which had been introduced in evidence. 4. That the amendment of the charter of the railway company is no defence, if the bonds in suit were purchased by the bank before due and for value.

Seasonable exceptions were taken by the defendants to the several instructions given to the jury and to the rulings of the court in admitting and excluding evidence in opposition to the objections made by the defendants, and they sued out a writ of error, and removed the cause into this court.

Provided the bond was properly admitted in evidence, it is too plain for argument that the first instruction is entirely correct, and the better opinion is, that the exception to it was only taken to exclude the conclusion that the objections previously made to the admissibility of the bond were not waived.

I. All of the bonds recite on their face that the county has caused the same 'to be signed in their behalf by the chairman of the board of county commissioners, attested by the county clerk, and the seal of said county affixed.' They bear date the 3d of September, 1872, but they were not issued and delivered until the 4th of November following. Instruments of the kind must be tested in that regard by the law of the jurisdiction where they are executed; and by the law of the State in force at that time it is provided that 'such bonds, if issued by a county, shall be signed by the chairman of the board of county commissioners, and be attested by the county clerk,' which is all that need be said in response to the first objection. Laws Kansas 1872, sect. 2, p. 111; Thayer v. Montgomery County, 3 Dillon, 389; Marcy v. Oswego, 92 U.S. 637.

Enough has already been remarked to show that the second objection to the admissibility of the bond is without merit, as there is no excess in time beyond thirty years if the computation be made as it should be, from the time the bonds were actually executed, issued, and delivered. Laws Kansas 1872, sect. 2, p. 111.

Where a municipal corporation has power to borrow money, they may make the principal and interest payable when they please, which is a sufficient answer to the third objection. Meyer v. Muscatine, 1 Wall. 391.

Viewed in the light of these suggestions, it is clear that the bond was properly admitted in evidence, and that the exception to the first instruction given to the jury must be overruled.

II. Matters of fact are involved in the exception to the second instruction. Judges are no longer required to submit a case to the jury merely because some evidence has been introduced by the party having the burden of proof, unless the evidence be of such a character that it would warrant the jury to proceed in finding a verdict in favor of the party introducing such evidence. Ryder v. Wombwell, Law Rep. 4 Exch. 39.

Decided cases may be found where it is held that, if there is a scintilla of evidence in support of a case, the judge is bound to leave it to the jury: but the modern decisions have established a more reasonable rule; to wit, that, before the evidence is left to the jury, there is or may be in every case a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the burden of proof is imposed. Law Rep. 2 Priv. Council Apps. 335; Improvement Co. v. Munson, 14 Wall. 448; Pleasants v. Fant, 22 id. 120; Parks v. Ross, 11 How. 373; Merchants' Bank v. State Bank, 10 Wall. 637; Hickman v. Jones, 9 id. 201.

Apply that rule to the question before the court, and it is clear that the ruling of the Circuit Court was correct, as there is no evidence reported in the transcript which would have warranted the jury in finding the issue for the defendants. Jewell v. Parr, 13 C. B. 916; Toomey v. Railway, 3 C. B. N. S. 150; Wheelton v. Hardisty, 8 El. & Bl. 276; Schuchardt v. Allen, 1 Wall. 369; Grand Chute v. Winegar, 15 id. 369.

III. Due exception was a also taken to the third instruction, which presents a question of commercial law. Standard authorities show that, where a negotiable instrument is originally infected with fraud, invalidity, or illegality, the rule is, that the title of the original holder being destroyed, the title of every subsequent holder which reposes on that foundation and no other falls with it. Byles on Bills, p. 118.

Where the theory that the plaintiff paid value for the instrument depends solely upon the prima facie presumption arising from the possession of the instrument, the defendant may, if the pleadings admit of such a defence, prove that the instrument originated in illegality or fraud; and the rule is, if he establishes such a defence, that a presumption arises that the subsequent holder gave no value for it, and it is also true that such a presumption will support a plea that the holder is a holder without consideration, unless the presumption is rebutted by proof that the plaintiff paid value for the instrument, in which event the plaintiff is still entitled to recover. Fitch v. Jones, 5 El. & Bl. 238; Smith v. Bracne, 16 Q. B. 244; Hall v. Featherstone, 3 H. & N. 287; 2 Pars. on Bills and Notes, 438.

But the rule is different when the question is whether the indorsee and holder had notice of the prior equities between the antecedent parties to the instrument. Holders of such instruments, under such circumstances, are not obliged to show that they paid value for the instrument until the other party has clearly proved that the consideration was illegal, or that it was fraudulent in its inception, or that it has been lost or stolen before it came to the possession of the holder. Wheeler v. Guild, 20 Pick. 551; Collins v. Martin, 1 Bos. & Pul. 648; Miller v. Race, 1 Burr. 452; Peacock v. Rhodes, 2 Doug. 632.

Possession, even without explanation, is prima facie evidence that the holder is the proper owner or lawful possessor of the instrument; and the settled rule is, that nothing short of fraud not even gross negligence-is sufficient to overcome the presumption and invalidate the title of the holder, as inferred from his actual custody of the instrument. Goodman v. Harvey, 4 A. & E. 780; Goodman v. Simonds, 20 How. 367; Uther v. Rich, 10 A. & E. 784; Arbouin v. Anderson, 1 A. & % e. n. s./ 498.

None of these propositions can be controverted; and it follows that where the first indorsee purchases the instrument before due and pays value, without notice of any prior equities, the second indorsee holding under the first takes a good title, even though he had notice of such prior equities, if he purchased the instrument in the regular course of business before it became due, for the reason that he took a new and independent title under another indorser. Bailey v. Bidwell, 13 M. & W. 15.

Notice of such prior equities cannot affect the title of the second holder, if he acquired title from a prior holder who had no such knowledge. Byles on Bills (5th Am. ed.), 118; Story on Notes, sect. 196; Story on Bills, sect. 220.

Suffice it to say, without pursuing the inquiry, the court is unhesitatingly of the opinion that the exception to the third instruction must also be overruled.

IV. Proof was offered by the defendants to show that the charter of the railway company was amended subsequent to the subscription to the stock, so as to include branches four hundred and fifty miles in length, in addition to the original line, without the knowledge or consent of the county commissioners or of the directors of the railway company resident in the county: but the plaintiff objected to the evidence, and it was excluded by the court; to which ruling the defendants then and there excepted, which presents the same question as that which arises from the exception taken to the fourth instruction given to the jury, as follows: that the amendment of the charter is no defence to the action if the bonds were purchased by the bank before due and for value.

Counties, if duly organized under the law of the State, are certainly vested with the power to subscribe for stock in a railway company, and to issue the bonds of the county to pay for such subscription. Suppose that is so, still it is insisted by the defendants that the bonds delivered to the railway company in this case impose no pecuniary obligation upon the county, in consequence of the defects and irregularities in the proceedings of the municipal authorities, and the frauds and misrepresentations of the officers and agents of the railway company.

In conducting the defence at the trial, the defendant proceeded upon the ground that the plaintiff had knowledge of the supposed defects, irregularities, frauds, and misrepresentations; but the finding of the jury under the instructions of the court negatives every such imputation, and shows that the plaintiff is a bona fide holder of the instruments, having purchased the same in the usual course of business before due and for value. That such is the legal effect of the verdict cannot be doubted; and it appears by the recital of the bonds that they were issued in payment for two thousand shares of the capital stock of the railway company subscribed by the county, in pursuance of an order of the county commissioners, made and entered in their minutes.

Bonds of the kind executed by a municipal corporation to aid in the construction of a railroad, if issued in pursuance of a power conferred by the legislature, are valid commercial instruments, and, if purchased for value in the usual course of business before they are due, give the holder a good title, free of prior equities between antecedent parties, to the same extent as in case of bills of exchange and promissory notes. Such a power is frequently conferred to be exercised in a special manner, or subject to certain regulations, conditions, or qualifications; but if it appears that the bonds issued show by their recitals that the power was exercised in the manner required by the legislature, and that the bonds were issued in conformity to the prescribed regulations and pursuant to the required conditions and qualifications, proof that any or all of the recitals are incorrect will not constitute a defence to the corporation in a suit on the bonds or coupons, if it appears that it was the sole province of the municipal officers who executed the bonds to decide whether or not there had been an antecedent compliance with the regulations, conditions, or qualifications which it is alleged were not fulfilled. St. Joseph Township v. Rogers, 16 Wall. 659; Town of Coloma v. Eaves, 92 U.S. 484.

Other cases, too numerous for citation, have been decided by this court to the same effect, but suffice it to say that we are all of the opinion that there is no error in the record.

Judgment affirmed.


text: Talk:Commissioners of Marion County v. Clark/Opinion of the Court


text:
Fuller v. Yentzer (94 U.S. 288)

APPEAL from the Circuit Court of the United States for the Northern District of Illinois.

Mr. E. B. Barnum and Mr. E. N. Dickerson for the appellants.

Mr. Walter B. Scates, contra.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

title: Fuller v. Yentzer (94 U.S. 288)


text: Talk:Fuller v. Yentzer (94 U.S. 288)

title: Talk:Fuller v. Yentzer (94 U.S. 288)


text:
Fuller v. Yentzer (94 U.S. 288)/Opinion of the Court

Patents for a machine will not be sustained if the claim is for a result, the established rule being that the invention, if any, within the meaning of the Patent Act, consists in the means or apparatus by which the result is obtained, and not merely in the mode of operation, independent of the mechanical devices employed; nor will a patent be held valid for a principle or for an idea, or any other mere abstraction. Burr v. Duryee, 1 Wall. 513.

Where the claim immediately follows the description of the invention, it may be construed in connection with the explanations given in the description; and, if the claim contains words referring back to the specification, it cannot properly be construed in any other way. Seymour v. Osborne, 11 id. 516.

Improvements in mechanism for marking cloth in a sewingmachine, it is alleged in the bill of complaint, were invented and patented by the complainant, and he charges that the respondents have infringed the exclusive privilege secured to him by the letters-patent, and he prays that they may be decreed to account for the gains and profits which they have made by the infringement, and for an injunction. Process was served; and the respondents appeared and filed an answer, setting up several defences, two of which it will be important to examine in disposing of the case: 1. That the complainants are not the original and first inventors of the patented improvement. 2. That the respondents have never infringed the complainants' patent, as alleged in the bill of complaint.

Before describing the nature of his invention, the patentee refers to figure 1 of the drawings, as showing the main features of the patented improvement when arranged in a sewing-machine for the purpose of accomplishing the results described in the specification, and he proceeds to state that the invention consists in a vibrating marking instrument which moves in unison with the needle of the sewing-machine, so as to crease the cloth at given distances from the needle, the marking instrument not pressing on the cloth except while the needle is in the cloth, which prevents the cloth from being obstructed in the movement by the feed, and allows the marking to be made at any distance from the sewing without wrinkling the even surface of the cloth.

By the use of a point vibrating in unison with the needle, and acting on the upper surface of the cloth in connection with a notch or an elastic surface or pad below the cloth, a crease will be made whose ridge is below the cloth; and by the use of one, two, or more of these up or down markers, or one up and one down marker, the crease or ridge can be made exactly at the required distance from the line of sewing, and either upward or downward, according to the way in which the cloth is to be folded for the subsequent operations.

Where more than one line of sewing is required, the crease or creases for the next fold are made in the same way; and the patentee states that the device is especially useful in all kinds of tucking, and in plaiting shirt-bosoms and other similar work, and he represents that, by the use of a vibrating pencil or chalk, a line of marks may be made by which a second line of stitching may be guided, which will become useful in quilting, or in performing any straight, curved, or parallel lines of stitching. Superadded to that, he also represents that if the marking-points are at right angles to the feed, from the needle, the marking will be at a given distance from the sewing and parallel thereto, regardless of the curved or zigzag form in which the sewing is performed.

Sufficient appears in the preceding description of the invention and of the principal devices of which it is composed, including the arrangement of the same and their mode of operation, to render it unnecessary to reproduce the minute references in the specifications to the representations exhibited in the different figures of the drawings.

Throughout the description it is apparent that the patented apparatus is to be attached to an organized sewing-machine; and the patentee states that the manner of effecting the attachment must be varied as circumstances may require, in view of the structure of the particular sewing-machine and the kind of work to be performed, and he adds that the vibrating motion may be given to the marker by the needle-bar or any other suitable device. Gauges, it seems, are employed for spacing off the width of the folds, tucks, or plaits; but the patentee states that he does not claim those devices, though he is of the opinion that the devices which he employs work better than any he has before known.

1. What he claims is the forming one, two, or more creases in cloth by means of markers on opposite sides of the cloth, one of which is connected with the bed of the machine, and the other operates simultaneously with the vibrations of the needle in a sewing-machine, whereby the crease or creases are formed in the cloth itself, parallel to the line of sewing, in such a manner that the cloth is ready for doubling over at the creases for the next line of sewing.

2. He also claims marking a line on the surface of cloth or other material sewed in a sewing-machine, by means of a pencil or similar article pressed upon the surface of the cloth at the time the needle perforates the same, and is raised therefrom when the feed takes place, so as to produce a series of marks parallel to and simultaneous with the line of sewing.

Concede that a result is not patentable, which is clearly shown to be true by the preceding remarks, and two things follow as a necessary consequence: 1. That the invention described in the first claim is merely the described apparatus for forming one, two, or more creases in cloth by means of markers on opposite sides of the cloth, for the purpose and in the manner and by the means therein described, it being clearly understood that the patentee does not claim the described means of attaching the patented apparatus to a sewing-machine. 2. That the invention described in the second claim is merely the described apparatus for marking a line on the surface of cloth or other material sewed on a sewing-machine, by means of a pencil or similar article pressed upon the surface of the cloth at the time the needle perforates the same, for the purpose and in the manner and the means described, excluding the means by which the patented apparatus is attached to a sewing-machine.

Special reference is made to the principal features of a sewing-machine; but inasmuch as the apparatus may be attached to any such machine, it is not deemed necessary to enter into those details, especially as the patentee states to the effect that the sewing is to be performed by the needle of the machine to which the apparatus is attached, in connection with a shuttle, looper, or other similar device.

Particular mention is made of the operative devices of the patented apparatus for marking lines parallel to the line of sewing and for forming the creases in the cloth, as shown in the drawings. Briefly stated, those devices are as follows: 1. An arm extending from the needle-arm or bar, and vibrating with the same. 2. A pencil, chalk, or point adjusted on the arm of the apparatus so that in its vibrations the point shall press upon the cloth and make a mark thereon for the second line of stitches at the required distance from the line of sewing and parallel to the same. 3. Both the specification and the drawings also show a bar which, as the patentee states, may be attached to the presser-foot, so as to be raised up with it, or that it may be sustained in any other convenient manner. 4. Adjustable marking-arms are also shown, which extend from the bar of the apparatus, and which are provided, one with a marking-point, and the other with a marking-notch. Arms formed as springs are also provided, so that the marking-point and the marking-notch are raised from the cloth, except when acted on by the arm of the apparatus. Springs are also used in connection with the adjustable marking-arms, so as to yield in case of inequality in the thickness of cloth and not to interfere with the full stroke of the needle-bar.

Enough appears to show that the apparatus is attached to the bed of a sewing-machine, to which a plate is screwed which carries another adjustable marking-point, formed somewhat similar to the marking-point previously described, and the device or its equivalent employed to regulate the distance of the second line from the one being sewed.

Two marking-points are particularly described; and the representation is that they are both made thin, round, blunt, and chisel-formed, so as not to injure or catch on the cloth, and that the one shown in the third figure of the drawings may be fitted to slide in a groove to render the same adjustable at the desired distance from the needle, or that several such points may be formed or attached permanently at short distances apart.

Speaking of the device to regulate the distance for the second line of sewing, the patentee states that it may be adjustable, and that it will form a crease for the marking-point, and that it may be set in a small metal holder, or it may be constructed of sufficient length to comprise the whole distance to which the marking-point may be adjusted.

Three marking-points and the notch are mentioned in the specification; and the statement is that the one first mentioned and the device employed to regulate the distance for the second line produce a downward crease, and that the notch and the other marking-point shown in the third figure of the drawings produce an upward crease when the cloth is exposed to the action of these parts by passing between the same.

In order to give motion to these markers, the bar or arm of the apparatus strikes on the spring part of the adjustable marking-arms, which extend from the bar attached to the presser-foot, pressing the surfaces together, and cramping or creasing the cloth.

For tucking, the markers should extend on the other side of the needle-arm, and for that purpose the bar attached to the presser-foot of the sewing-machine may be fitted in any convenient manner; but where a holder or arm to the presser-foot is used in the manner shown, the hole into which the bar sets may pass through the same and be provided with a clamping-screw, so that the bar attached to the presser-foot can be inserted from the other side, and in that case the plate also should stand on the other side of the needle, a second slot being provided for the purpose. Change to the other side must also be made in the arm of the apparatus, extending from the needle-arm of the sewing-machine to the marking-point first described and the device to regulate the distance for the second line of stitching.

Corresponding variations must be made in the manner of attaching the apparatus to the sewing-machine, and the patentee states that the vibrating motion may be given to the markers by the needle-bar, or by any other suitable device.

Proofs were taken, the parties heard, and the Circuit Court entered a decree dismissing the bill of complaint, and the complainants appealed to this court.

Want of novelty in the supposed invention, and the denial of infringement by the respondents, constitute the two defences set up in the answer; but the evidence to overcome the prima facie presumption that the patentee is the original and first inventor being insufficient for the purpose, the first defence must be overruled. Cammeyer v. Newton, supra, p. 225.

Grant that, and it follows that the decision in the case before the court must depend upon the question of infringement. Without more, the remarks already made are sufficient to show that the patented improvement is a combination of old elements constituting an apparatus for effecting the results described in the specification.

Intentional infringement is alleged by the complainants, and the burden is upon them to prove the allegation, as the charge imputes a wrongful act to the respondents.

Where the invention is embodied in a machine, the question of infringment is best determined by a comparison of the machine or apparatus constructed or used by the respondent with the mechanism described in the specification of complainant's patent. Comparison of the kind has been carefully made by the court in the case under consideration, aided by the expert evidence exhibited in the record; and the court is of the opinion that the invention of the complainant, when the patent is properly construed, is not embodied in the apparatus constructed, sold, or used by the respondents, as charged in the bill of complaint.

Two distinct devices are shown in the complainants' patent which operate upon the cloth when being sewed in a sewing-machine, so as by the one to leave a mark, and by the other to make a crease in the cloth to indicate where it should be folded for the future operation. Briefly described, one of the devices consists of a pencil arranged as before explained, and the other consists of the notch and the point fitting into it, called the markers, and placed on opposite sides of the cloth, and which are operated by the needle-arm, and so arranged in their connections as to vibrate in unison with the needle to press the cloth in the notch while the needle is in the cloth, thereby forming a crease in the same parallel to the line of sewing, for the purpose of indicating the place for the next fold.

Creases of the kind are made by the point and notch, but the pencil is employed to make a mark on the cloth when the cloth is moved under it, as a guide for folding the cloth, as before sufficiently explained. No such device as the pencil or its equivalent is found in the respondents' apparatus, nor any thing which will perform the same function, or which has or can be made to have the same mode of operation. Nothing of the kind is exhibited in their apparatus, nor is any thing of the kind described in the patent under which they profess to work, nor are there any means or mechanism exhibited or described whereby such a device can be employed in the apparatus or be made to operate to mark the cloth in any manner so that the same could be evenly folded.

In the complainants' apparatus the pencil is fastened to a bar which projects out from the needle-arm in nearly a horizontal direction, entirely unlike any thing shown in the respondents' apparatus. Projecting outward from the presser-foot, and fastened to it, is a substantial frame-piece, called a bridge by one of the witnesses, which supports a bar running paralled with the bed of the machine and nearly parallel with the needle-arm, which supports one or more spring-arms, the same being provided with two slides or markers,-one being a point operating in an elastic bed fastened to the plate of the marker, and the other being a point or sharp device fastened to the bed-plate and operating on an elastic bed attached to one of the described spring-arms. Attached to the needle-bar is the arm which supports the pencil, and in the downward movement of the bar it comes in contack with the spring-arms and causes the described points to mark the cloth.

Viewed in the light of these suggestions, it is clear that the distinct features of the invention consist in the elevated bar projecting out of the frame attached to the presser-foot, the described spring-arm, the bar projecting out from the needlearm with the described points, and the bed-plate on which they strike.

Turn from that to the patent of the respondents, or to the apparatus which they make, use, and sell, and it appears beyond all doubt that the apparatus of the respondents is substantially different in many respects from the patented improvement of the complainants. There is no framework in the respondents' apparatus, projecting out from the presser-foot, nor any horizontal bar projecting out from the framework, nor are there any spring-arms attached to any horizontal bar, nor is there any horizontal bar projecting out from the needle-arm to operate any such spring-arms as those described in the complainants' specification.

Instead of that there is, in the apparatus of the respondents, a pivoted double-spring blade operating on both sides of an upwardly projecting point. Effective means for operating that blade are also shown, and it appears that they consist in a spring-arm attached to the bed-plate of the marker which extends over the double blade, and that a vertical slot is made in the spring-arm through which the needle passes, and allows the lower end of the needle-arm to force the spring down on to the double blade while the cloth passes under the blade and over the sharp point, by which the elasticity of that portion of the cloth is lessened so that it will readily bend to form a tuck at the marked place.

Other differences are also apparent; as, for example, the spring-arm in the apparatus of the respondents is not attached to the double blade or marker, nor is the double blade attached to any horizontal bar projecting out from the presser-foot, as in the apparatus of the complainants.

Without more, the differences suggested are sufficient to warrant the conclusion that the construction and mode of operation employed by the respondents is substantially different from the means and mode of operation described in the specification of the complainants' patent.

Expert witnesses testify that the bar projecting out from the frame attached to the presser-foot, the spring marker-arm, and the bed-plate are all necessary in the apparatus of the complainants to perform the function described in the specification, and the court, without hesitation, concurs in that conclusion; and the witnesses also state that if any one of those devices be omitted the apparatus will be wholly inoperative, except that perhaps one marker instead of two might answer the purpose to some extent, as set forth in the specification.

Beyond doubt, all those devices must co-operate to effect the described result; and it is equally clear that neither those devices nor any of them can be substituted by any device in the respondents' patent or apparatus without reconstruction and invention, nor would any thing short of invention enable the constructor to successfully use the devices shown in either apparatus in the other, so as to render the apparatus operative to effect the result described in the complainants' patent. None of the elements of the patented apparatus are new, and it follows that the patent consists in the described apparatus or in the combination of the old elements of which the apparatus is composed.

Valid letters-patent undoubtedly may be granted for an invention which consists entirely in a new combination of old elements or ingredients, provided it appears that the new combination of the ingredients produces a new and useful result; but the rule is equally well settled that the invention in such a case consists merely in the new combination, and that a suit for infringement cannot be maintained against a party who constructs or uses a substantially different combination, even though it includes the exact same elements or ingredients, if the combination is in fact new and useful, and substantially different from the one which preceded it. Gill v. Wells, 22 Wall. 14.

Such an invention, if it produces a new and useful result, is the proper subject of a patent, and such a patent is valid and operative; but the right of the patentee under it differs in one respect from those of a patentee for an invention which consists of an entire machine, or of a new and useful device, as the rights of a patentee for a mere combination of old ingredients are not infringed, unless it appears that the alleged infringer made, used, or sold the entire combination. Gould v. Rees, 15 Wall. 194; Prouty v. Ruggles, 15 Pet. 341; Vance v. Campbell, 1 Black, 428.

Beyond doubt, that rule is correct; but the mere substitution of another old ingredient for one of the ingredients of a patented invention is not a good defence for an infringer, if the substitute performs the same function as the ingredient for which it was substituted, and was well known at the date of the patent as a proper substitute for the omitted ingredient; but the rule is otherwise if the ingredient substituted was a new one, or performed a substantially different function, or was not known at the date of the patent in question as a proper substitute for the one omitted, as in that event the defendant does not infringe. Roberts v. Harnden, 2 Cliff. 504.

Substantial differences between the apparatus of the respondents and the patented improvement of the complainants other than those referred to may also be pointed out, which of themselves are quite sufficient to show that the charge of infringement is not established.

By the patent of the respondents it appears that their apparatus contains an additional device, consisting of a slide-guide, the function of which appears to be to regulate the width of the tuck, the scales being marked on the bed-plate to be used as a guide for that purpose. Plainly no such device is shown in the apparatus of the complainants. Instead of that, they adjust the spring-arms which are on the bar projecting out from the framework or bridge attached to the presser-foot.

When the slide-guide in the respondents' apparatus is moved, the needle-arm still continues to strike the spring-lever or spring-arm on the same place; but when the spring-arms in the complainants' apparatus are moved on the bar projecting out from the frame attached to the presser-foot of the sewing-machine, the bar projecting out from the needle-arm necessarily strikes the spring-arm at another point on the bar, showing that the two devices operate on distinct principles, as they are controlled and regulated by different mechanical means.

Wide differences also exist in the operation of the markingpoints, when one apparatus is compared with the other. Suitable means for adjusting the marking-point are shown in the complainants' patent, but the marking-point in the respondents' apparatus is stationary. In the complainants' apparatus it is adjustable in a slot made in the bed-plate, so that it may be moved longitudinally to correspond with the notches or bearings in the end of the spring-arms when the latter are adjusted, it appearing that one marking-point in that apparatus projects up from the bed-plate, and that the other marking-point extends down from one of the spring-arms; that the point in the bed-plate operates in a bearing or notch in one of the spring-arms, and that the other spring-arm has a point operating in a bed in the slot made in the bed-plate, which shows that either spring-arm, with its respective marker, may perform the same functions substantially as the other spring-arm.

From these remarks, it follows that the point or bar for marking, in the complainants' apparatus, must necessarily be adjusted in the bed-plate to a distance corresponding to the movement of the spring-arms. Unlike that, the marking-point in the respondents' apparatus is stationary, and in that particular is entirely different, as all must admit who have given the matter any examination whatever.

Besides, there is in the patented apparatus a curved or movable plate attached to a horizontal arm or frame-piece fastened to the presser-foot, the function of which plate is the holding of the cloth smooth on the bed-plate as it passes through the apparatus. One end of the movable plate is elevated above the bed of the machine, while the other end is curved, and brought nearly or quite to the bed-plate of the marker, and operates independently of the other mechanism. Compare those means for holding the cloth with the means employed in the apparatus of the respondents, and the difference is at once seen to be material and obvious; as, for example, the bar which holds the cloth to the bed-plate in the latter apparatus is attached to one end of the bed-plate, and extends lengthwise of it, and is rigidly fastened to the marking-blade, forming a different combination from that exhibited in the other apparatus, inasmuch as the bar which holds the cloth to the bed-plate is made to bear harder thereon when the spring-arm is brought down on the blade than when the needle-arm is ascending. Detach the bar from the bed-plate in the respondents' apparatus and no marking can be done, but the marker will continue to perform its function in the complainants' apparatus, even though the smooth plate were detached from the device fastened to the presser-foot.

Differences of equal importance might be continued at much greater length, but the court is of opinion that those already pointed out are amply sufficient to show that the decision of the Circuit Court dismissing the bill of complaint is correct, and there is no error in the record.

Decree affirmed.

MR. CHIEF JUSTICE WAITE, MR. JUSTICE MILLER, MR. JUSTICE STRONG, and MR. JUSTICE BRADLEY dissented.


text: Talk:Fuller v. Yentzer (94 U.S. 288)/Opinion of the Court


text:
Fuller v. Yentzer (94 U.S. 299)

APPEALS from the Circuit Court of the United States for the Northern District of Illinois.

Mr. E. B. Barnum and Mr. E. N. Dickerson for the appellants.

Mr. Walter B. Scates, contra.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

title: Fuller v. Yentzer (94 U.S. 299)


text: Talk:Fuller v. Yentzer (94 U.S. 299)

title: Talk:Fuller v. Yentzer (94 U.S. 299)


text:
Fuller v. Yentzer (94 U.S. 299)/Opinion of the Court

Modifications or alterations in an invention consisting in a combination of old ingredients, which merely substitutes another old ingredient for one of the ingredients in the patented combination, is an infringement of the patent, if the substitute performs the same function and was well known at the date of the patent as a proper substitute for the one omitted from the patented invention; but the rule is otherwise if the ingredient substituted is a new one, or performs a substantially different function, or was not known at the date of the patent as a proper substitute for the one omitted from the patented combination.

Both of these suits were instituted by Henry W. Fuller, who became, by certain mesne conveyances, the owner of the invention by assignment in due form. Since then, Isaac W. Barnum, having become the owner of the patent, was, on motion of the respondents, made a party complainant in each of the two suits.

Sufficient appears to show that Israel M. Rose was the supposed inventor of the improvement; that the original patent was granted to James Wilcox, assignee of the inventor; that the first-named complainant, having subsequently become the owner of the patent, surrendered the same; and that the reissued patent, bearing date Dec. 1, 1868, on which the present suits are founded, was granted to the rightful owner of the invention at the date of the reissued patent.

Remarks respecting the title of the complainants are unnecessary, as it is not questioned by the respondents, nor is it necessary to enter into any comparison of the reissued patent with the original, as the means for such comparison are not exhibited in the record.

Briefly stated, the allegation is that the patented invention consists of a new and useful improvement in mechanism for marking cloth in a sewing-machine, or for a new method of marking a crease in cloth by what is known as the pinching process, and for other improvements in the mechanism of a tuck-creaser, independent of the creasing devices, and that the respondents, since the first day of May, 1872, ha e infringed the same, as more fully set forth in the bill of complaint.

Process was served; and the respondents appeared and filed an answer, setting up the following defences, which it is important to notice: 1. That the supposed improvement was not patentable, because it had been in public use more than two years before the inventor applied for a patent. 2. That it was not patentable, because it was well known and had been in common use long before the alleged invention. 3. They deny the charge of infringement, and justify all their acts under a patent granted to Enoch S. Yentzer, dated May 28, 1872, for an improvement in tuck-markers for sewing-machines.

Proofs were taken, the parties heard, and the Circuit Court entered a decree in each case, dismissing the bill of complaint. Immediate appeal was taken by the complainants in each case to this court, and the questions here are the same as those considered and decided in the Circuit Court.

Previous to that invention the statement of the inventor is that fabrics were marked or creased by a protuberance or point and a notch or indentation caused to impinge upon opposite sides of the fabric, and the patentee states that that mode of marking or creasing the fabric is open to the objection that fine goods will sometimes be cut by the marking operation, while in heavy or flimsy goods the crease is often insufficiently defined.

Instead of the point and notch, the present invention forms marks, ridges, or creases in the fabric by a succession of nips or pinches of the same while it has motion imparted to it, in line with the crease. Motion is usually given to the fabric by the feed-mechanism of a sewing-machine, in which it is intended it shall be used as an attachment; but the motion may be imparted to the fabric in any other manner.

Objections, it is said, exist to other modes of forming creases for the described purpose, and that the process of nipping or pinching is designed to obviate those objections to other tuck-markers, and to produce a more efficient instrument. Devices called jaws are provided for the purpose, which are caused to descend while open, with more or less force or pressure, on the fabric, and then in being closed are capable of seizing a portion of the fabric and compressing the same tightly, the fabric at the same time being properly supported against the descending force of the jaws, and which operation, being repeated while the fabric is moved along, produces the required ridge or crease, in the line of which the fabric will naturally fold, to facilitate the forming of the tuck for future operations.

Said invention also comprises certain details of construction, arrangement, and combination to adapt tuck-markers for use in connection with sewing-machines, forming a tuck-creasing mechanism having an upper and under part adjustable as to its relation with the needle of a sewing-machine, and to be operated by the sewing-machine. Reference is made to the drawings for the different views of the apparatus when properly arranged in a sewing-machine in operation, to effect the described result. Detailed description is also given of the various elements or ingredients of the apparatus and of their mode of operation.

Mention is first made of the base-plate, which has an upright standard firmly secured thereto, so as to form a permanent part of the apparatus. To the upper end of the standard a lever is jointed which carries a spring-branch, buckled at its lower end with the blade that forms one of the jaws for seizing and crimping the fabric. Freedom of motion to and from the fabric is insured by the lever, jointed as before explained, the suggestion being that the stiffness of the leather prevents any lateral motion of the creasing device; and the statement is that the lever is also designed to receive the force of the arm or other moving part of the sewing-machine, and that it transmits the motion directly to the jaws through the spring-branch, which is carried by the lever jointed to the upper end of the standard.

Besides the base-plate there is a plate called the bed-plate, with a small upright projection, to which is permanently fixed a spring-blade having its front end bent downward, and which forms a mate to the jaw already described. These jaws are hinged together, as shown in the drawings, their lower ends being sharp or serrated, in order more readily to seize the fabric.

Effectual means are provided to cause the marking device to react after each creasing action, and follow the upward motion of the needle-arm, in order to give room for the free insertion and removal of the work; and this spring-branch shown in the drawings is made to hold the outer jaw away from the inner one when in the normal position there exhibited.

Creases are to be made in the fabric, and the design is that the creasing action shall take place as nearly as possible in front of the needle, and in line with the arm of the sewing-machine; and, to secure that, an extension-plate is provided extending out laterally from the base-plate in line with the movement of the feeding device, which supports the material under the jaws, and receives their impinging action in the operation of making the crease. By that arrangement the creasing devices are brought across the presser-foot in the proper location with respect to the needle for performing the creasing operation.

Upper and under devices are employed, on opposite sides of the cloth, to effect the patented result, and a particular description is given of the means and mode of operation of the same, by which the jaws seize the fabric, and double up and compress the same so as to produce the described creases by the apparatus when attached to a sewing-machine. When properly attached, the several parts of the apparatus are so arranged that the lever is immediately under the arm of the sewing-machine, and the arm, when the machine is operated, will strike the lever and actuate the creaser or tucker.

Tucking may also be done by the apparatus when attached to a sewing-machine; but, in order to accomplish that, a fold must first be made, by hand, in the fabric, the gauge being fastened by a set-screw to make the seam the proper distance from the edge of the required tuck. Fit means are also shown in the drawings for adjusting the apparatus in such relation to the needle that the distance from the needle to the jaws will be at least double the distance between the needle and the gauge.

Suffice it to say that one movement or alteration of either part will adjust the whole tucker with respect to the needle, as the upper part is permanently connected with the under part, and when adjusted as required the fabric is placed in the machine with the folded edge against the gauge, and the machine being started, the lever carries down the spring-branch and with it the jaws to the surface of the fabric, which operate as before explained. On the upward motion of the arm the jaws rise and open by the elasticity of the springs, the fabric being advanced by the feeding mechanism of the sewing-machine. Movements of the kind are continued and the pinching process repeated until the cloth is fed through the machine, causing a well-defined ridge to be formed in the fabric by the creaser at the same time that a seam is sewed in the folded part of the same, forming a tuck.

Eight claims are appended to the specification, and the charge is that the respondents have infringed the first, second, fifth, sixth, and eighth, five in all, substantially as follows: 1. The mechanism as described for forming a ridge or ridges on fabrics to be afterwards folded in the line of such ridge. 2. The method of nipping or pinching the fabric to form ridges or creases thereon by means of jaws opened and closed at intervals to seize and pinch the fabric when at rest, and then release it as the same is moved along intermittently by a suitable feeding mechanisum. 3. The combination of the creasing device or devices of a tuck-marker with a jointed lever, for the purposes set forth. 4. A tuck-creasing mechanism, such § described, having its upper and lower parts connected, and together adjustable, as to its relations with the needle of a sewing-machine, and operated by the sewing-machine, as set forth. 5. The combination with a tuck-marker having upper and under parts connected, and together adjustable as specified, of the lever and spring, for the purposes set forth.

Argument to show that a result is not patentable is not necessary, as that proposition is decided in the opinion in the preceding case, as well as in many other cases to which reference might be made. Apply that rule to the several claims of the patent in this case, which it is alleged the respondents have infringed, and it is clear that they are all for the apparatus, or certain portions of the apparatus, described in the specification of the patent set forth in the bill of complaint.

Whether tested by the descriptive portion of the specification or by the specific claims appended to the same, it is clear that the invention consists of a described apparatus intended to be attached to a sewing-machine for the purpose of making a mark, ridge, or crease in cloth by a succession of 'nips or pinches thereof' while it has motion imparted to it by the feeding device of the sewing-machine, as already sufficiently explained, the work of sewing being performed during the same operation of the feeding device.

Detailed description is given of the elements of the apparatus, from which it plainly appears that the invention does not include any described means of attaching the apparatus to the sewing-machine. Particular means of the kind are neither described nor claimed, nor are they shown in the drawings in a way to justify the conclusion that the means of attaching the apparatus to the motive power are any part of the invention. Instead of that, the patentee states that motion may be imparted to the apparatus in any convenient manner; nor is there any thing in any one of the eight claims of the reissued patent which would afford any support to a different theory.

Fuller's patent for his own invention preceded that of Rose by several years; but it is evident from a comparison of the two that they are substantially different in many respects, so that the latter may be considered as valid to the same extent that it would have been if the first invention had never been made.

Improvements in an apparatus of the kind may be valid if new, and if they accomplish a new and useful result, even though all the elements of the same are old, provided the combination or arrangement of the elements is new and of such a character that it involved invention to construct the combination or arrangement. When a subsequent apparatus is substantially the same as one which precedes it, the former is not the proper subject of a patent; but if it be substantially different in construction and mode of operation, then it is as much the proper subject of a patent as if nothing of the kind had ever before been invented.

Tested by these rules, it is clear that the Rose patent is not superseded by the Fuller patent, which preceded it in point of time.

Two of the defences set up by the respondents, to wit, the first and second, must also be overruled, for the reason that they are not sustained by the proofs exhibited in the record.

They also deny infringement, and the decision in the case must turn upon that issue. Infringement is charged by the complainants, and the burden of proof is upon them to sustain the charge. Beyond doubt, it is established in these cases that all the elements or ingredients of the patented apparatus are old, and that the invention consists in the combination or arrangement of the several devices of which the apparatus is composed.

Differences exist in the answers filed in the two cases; but the respondents in both aver and allege that all the tuck-markers or creasers constructed, used, or sold by them were constructed under the patents to Enoch S. Yentzer, and in conformity therewith, and that they have in no respect infringed o violated the rights of the complainants. Coming to that proposition, it is plain that it involves two questions: 1. Whether the respondents have constructed, used, or sold apparatuses not constructed in conformity with the patent under which they seek to justify all their acts. 2. Whether the apparatuses which they have constructed, used, or sold infringe the patent described in the bill of complaint.

Some difficulty attends the solution of the first question, because all the evidence applicable to the three cases was taken together, to save expense. It consists of depositions, admissions, documents, models, and other exhibits; but, in view of the whole, the court is of the opinion that the apparatuses constructed and sold by the respondents were constructed in conformity with the patents under which they profess to act.

Support to that view is also derived from the opinion of the circuit judge exhibited in the record, in which he admits that the complainants would be entitled to a decree if their construction of the Rose patent was correct. Damages are claimed in that case for an alleged infringement of the sixth claim of the patent, which is for tuck-creasing mechanism such as described, having its upper and lower parts connected, and together adjustable as to its relation with the needle of a sewing-machine, and operated by the sewing-machine, as set forth.

Nothing can be plainer than the proposition that the claim there made is for the previously described apparatus, when arranged in a sewing-machine, as the motive power for operating the patented apparatus. Judging from the opinion of the circuit judge, it would seem that the complainants did not claim that the respondents had constructed improvements not within their patent, but that they, the complainants, could claim under their patent every form of mechanism by which a creaser is attached or adjusted to a sewing-machine, by which unity of adjustment is accomplished, which is plainly an erroneous construction of their patent.

Viewed in the light of all the proofs, the court is of the opinion that the apparatuses constructed and sold by the respondents were constructed in conformity to the patents under which they justify in their answer.

Five of the claims of the patent, to wit, the first, second, fifth, sixth, and eighth, are involved in the charge of infringement in the third suit, which is the second suit under consideration in this case. Enough has already been remarked to show what the opinion of the court is in respect to the construction of the patent, and that the decision of the case depends upon the question of infringement. What has already been remarked is sufficient to explain the views of the court as to the nature and character of the apparatus of the complainants, and its mode of operation, and it will be sufficient to refer to the opinion just delivered for a full exposition of the views of the court as to the nature, character, and mode of operation of the patent under which the respondents justify in their answer. Better means of comparison and decision need not be required than is found in the respective specifications of these patents. Careful comparison of the two instruments has been accordingly made, and the court is unhesitatingly of the opinion that the charge of infringement is not proved, and that there is no error in the record.

Decrees affirmed.

MR. CHIEF JUSTICE WAITE, MR. JUSTICE MILLER, MR. JUSTICE STRONG, and MR. JUSTICE BRADLEY, dissented.


text: Talk:Fuller v. Yentzer (94 U.S. 299)/Opinion of the Court


text:
Mackall v. Chesapeake and Ohio Canal Company

ERROR to the Supreme Court of the District of Columbia.

This was an action of ejectment for a part of Square No. 3, in the city of Washington. The Chesapeake and Ohio Canal Company, plaintiff below, proved a complete paper title to the land, and a continuous occupation of it for thirty years prior to 1867. The defendant entered that year.

Proof was made of an act of the legislature of Virginia, approved Jan. 27, 1824, entitled 'An Act i corporating the Chesapeake and Ohio Canal Company,' the ninth section of which provides, 'That for and in consideration of the expenses, the said stockholders will be at. . . the said canal and all other works aforesaid, &c., shall be vested, &c., and be for ever exempt from the payment of any tax, imposition, or assessment whatsoever;' and also of an act of Congress approved March 3, 1825 (4 Stat. 101).

It appeared from the proof that the land in dispute had not been used for canal purposes since the year 1830, but had been leased or rented to various parties. The defendant below thereupon offered to show that it had been regularly listed and entered for taxation, and sold in 1864 for the non-payment of taxes assessed against it; and that he was in possession, claiming under a deed from the authorities of the District pursuant to such sale. The court excluded the evidence.

The jury found a verdict for the plaintiff, and a judgment was rendered thereon. The defendant then sued out this writ, and assigns for error the action of the court below in excluding the evidence offered by him.

Mr. C. Ingle, and Mr. S. Shellabarger, for the plaintiff in error.

Statutes conferring powers upon companies, or exempting property from taxation, are to be construed strictly as in derogation of common right.

The act of Virginia did not enlarge the capacity of the company to take and hold real property beyond what was reasonably necessary for the canal purposes specified. The large tract in controversy was not required for the uses contemplated by the charter, nor was it so applied. When listed for taxation, and for a long time previous, it was held by the company as a source of revenue. It was, therefore, subject to taxation, although there had been no judicial proceedings to enforce the forfeiture of the company's right of exemption from bearing its just proportion of the public burdens. Angell & Ames, sects. 449, 450; Hooker v. Turnpike Company, 12 Wend. (N.Y.) 371.

Mr. Walter S.C.ox, contra.

MR. JUSTICE MILLER delivered the opinion of the court.


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


text:
Mackall v. Chesapeake and Ohio Canal Company/Opinion of the Court

In the action of ejectment which is the foundation of this case the defendant in error was plaintiff, and produced evidence which made an unquestioned prima facie title to the land, with possession for more than thirty years undisturbed, until the tortious entry of defendant in 1867. On this the canal company recovered judgment; and the only error assigned is, that the court refused to receive evidence of a tax title in the defendant. The tax sale on which this title rested took place in the year 1864.

The statute of Virginia under which the canal company was incorporated contained a provision exempting the canal and its works from taxation; and this was adopted, so far as the company had property in the District of Columbia, by the act of Congress of March 3, 1825, 4 Stat. 101, which authorized the construction of the canal in the District.

As there could be no legal taxes on this property, the sale in 1864 was therefore void, and the offer to prove a tax title was properly rejected.

It is argued in opposition to this view that the canal company had, by non-user of that part of the canal which constituted the locus in quo, forfeited its title and its right of exemption from taxation; and testimony was given to prove this non-user.

But we are of opinion that the question of such forfeiture could only be established by a direct proceeding on the part of the public authorities, and a decision to that effect in a proper tribunal, and cannot be made an issue for the first time in the trial of this question of private right between the present parties.

Judgment affirmed.


text: Talk:Mackall v. Chesapeake and Ohio Canal Company/Opinion of the Court


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Township of Burilington v. Beasley

IN error to the Circuit Court of the United States for the District of Kansas.

This was a suit brought in the Circuit Court of the United States for the District of Kansas, by Alfred W. Beasley, against the ownship of Burlington, in the county of Coffey, and State of Kansas, to recover the amount due upon sixty-four coupons, each for the sum of twenty-five dollars, together with interest thereon. Of these coupons, as well as of the bonds to which they had been originally attached, the said Beasley averred himself to have become the true and lawful owner and holder for value before maturity, and also to be such owner at the commencement of his suit.

The bonds to which these coupons had been attached are a part of a series of sixteen bonds, each for the sum of $500, the whole amounting to the sum of $8,000, issued by said township Dec. 3, 1872, to aid one John S. Stow in the construction and completion and to furnish the motive power of a steam custom grist-mill in said township,-the same belonging to the said Stow, and not being situated on a watercourse, or operated by water-power.

A copy of one of said bonds is as follows, to wit:--

'$500.] BOND OF BURLINGTON TOWNSHIP. [No. 1. 'County of Coffey, State of Kansas.

'UNITED STATES OF AMERICA.

'Burlington Township, in the county of Coffey, State of Kansas, promises to pay John S. Stow, or bearer, the sum of $500, on the third day of December, A.D. 1877, and interest thereon at the rate of ten per cent per annum, payable semi-annually, upon presentation of the coupons therefor, hereto annexed: both principal and interest payable at the banking-house of Northrup & Chick, in the city of New York.

'This bond is one of an issue of $8,000, made for the purpose of aiding internal improvements in said township, and in pursuance of an act of the legislature of the State of Kansas, entitled 'An Act to authorize counties, incorporated cities, and municipal townships to issue bonds for the purpose of building bridges, aiding in the construction of railroads, water-power, or other works of internal improvement, and providing for the registration of such bonds, the registration of other bonds, and the repealing of all laws in conflict therewith,' approved March 2, 1872.

'In testimony whereof, the township trustee, clerk, and treasurer have caused this bond to be issued, duly signed, attested, and countersigned, this third day of December, A.D. 1872.

'H. R. FLOOK, Trustee.

'Attest: G. N. McCONNELL, Clerk.

'Countersigned: H. L. JARBOE, Treasurer.'

The following is a copy of one of the coupons sued upon, to wit:--

'$25,00.]

[No. 3.

'The treasurer of Burlington Township, Coffey County, Kansas, will pay to the bearer twenty-five dollars, at the banking-house of Northrup & Chick, in the city of New York, on the third day of June, A.D. 1874, for six months' interest on bond No. 1, issued on the third day of December, A.D. 1872.

'Attest: G. N. McCONNELL, Township Clerk.

H. R. FLOOK, Township Trustee.'The case comes here on a certificate of division upon the following questions:--

'First, Does the second count of the defendant's answer set up a sufficient defence to the action?

'Second, Said bonds having been issued to aid a steam custom grist-mill, not situated on a watercourse, or operated by waterpower, was there any power or authority to issue the same?

'Third, If there was no such power or authority, are the bonds containing the recital therein appearing valid in the hands of a holder thereof for value before maturity, who has no notice of the purpose for which the same were issued, other than as shown by the face of the bonds?'

The plaintiff recovered judgment, and the town now brings the case here by writ of error.

Mr. A. M. F. Randolph, for the plaintiff in error.

Mr. A. L. Williams, contra.

MR. JUSTICE HUNT delivered the opinion of the court.

title: Township of Burilington v. Beasley


text: Talk:Township of Burilington v. Beasley

title: Talk:Township of Burilington v. Beasley