text:
Cochran v. Schell (107 U.S. 617)/Opinion of the Court

This is a suit commenced in 1863, by the members of the firm of S.C.ochran & Co., against the collector of the port of New York. As tried in the circuit court it involved the recovery back of duties paid on cotton laces and cotton insertings imported from abroad in 1857, 1858, 1859, 1860, and 1861, and of fees paid at the custom-house. The laces and insertings were composed wholly of cotton, and were 'either bleached or dyed.' The collector charged a duty on them of 24 per cent. ad valorem, the importers claiming that the proper duty was 19 per cent. ad valorem. At the trial the court instructed the jury that the duty was correctly assessed and that the plaintiffs could not recover.

The question as to the fees involved four items. On the presentation of an invoice and an entry, the collector, before he would receive them as collector, impressed on each invoice, for the convenience and security of himself and the government, a stamp or certificate, certifying in the name of a deputy collector that the invoice was presented 'on entry' on such a day. On each entry, one of the plaintiffs' firm was required to make and subscribe before the collector or his deputy the owner's or consignee's oath. For each of such stamps the collector exacted 20 cents, and for each of such oaths 20 cents. He also exacted a fee of 20 cents for each permit to land the merchandise embraced in each entry on which the duties had been paid or secured, such permit being signed by the collector and the naval officer. Said three fees of 20 cents were paid with the duties, and otherwise no permit for the landing and delivery of the goods could be obtained. The permit to land covered all the goods embraced in the entry, but at least one package of each invoice, and one package in every ten packages of each invoice, were, by order of the collector, designated on each invoice, and each entry, and also on the permit, to be sent, and were sent, to the public store for examination and appraisement; and, after they had been examined and appraised and reported on, an order was required by the plaintiffs' firm, signed by the collector alone, to the storekeeper, to deliver such examined packages to the plaintiffs' firm. For every such order, without which the examined packages could not be obtained, the collector exacted a fee of 20 cents. At the trial, the plaintiffs conceded that the fee for the permit was legal. The court directed a verdict for the plaintiffs for the amounts exacted for the other three fees, with interest, being $1,734.80, and, after a judgment for the plaintiffs therefor, with costs, the plaintiffs sued out a writ of error based on their failure to recover the alleged excess of duty exacted on the laces and insertings, and the defendant sued out a writ of error based on the recovery for the three alleged illegal fees.

By Schedule D of the act of July 30, 1846, (9 St. at Large, 46,) a duty of 25 per cent. ad valorem was imposed on 'cotton laces, cotton insertings, cotton trimming laces, cotton laces and braids,' and 'manufactures composed wholly of cotton, not otherwise provided for.'

By section 1 of the act of March 3, 1857, (11 St. at Large, 192,) it was enacted that after July 1, 1857, ad valorem duties should be imposed in lieu of those then imposed on imported goods, as follows: 'Upon the articles enumerated in Schedules A and B' of the tariff act of 1846, a duty of 30 per cent., 'and upon those enumerated in Schedule, C, D, E, F, G, and H of said act,' the duties of 24, 19, 15, 12, 8, and 4 per cent., respectively, 'with such exceptions as are hereinafter made.' The schedules above mentioned respectively imposed duties of 100, 40, 30, 25, 20, 15, 10, and 5 per cent.

Thus far cotton laces and cotton insertings, being in Schedule D of the act of 1846 at 25 per cent., were reduced by the act of 1857, with the other articles in schedule D, to 19 per cent. But section 2 of the act of 1857 provided 'that all manufactures composed wholly of cotton, which are bleached, printed, painted, or died, and delaines, shall be transferred to Schedule C.' Under this provision it would seem very plain that the goods in the present case were subject to a duty of 24 per cent., and not of 19 per cent. If section 1 of the act of 1857 had merely reduced from 25 per cent. to 19 per cent. the duty on the articles specially mentioned in Schedule D of the act of 1846, without exception, the duty on the goods in question would have been reduced to 19 per cent. But the enactment was distinct that there should be excepted out of the reduction 'all manufactures composed wholly of cotton, which are bleached, printed, painted, or dyed, and delaines,' and that they should go into Schedule C, the 24 per cent. schedule.

The contention for the plaintiff is that, as cotton laces and cotton insertings were made dutiable by those names in the act of 1846, they are not to be affected by the subsequent general provision as to manufactures composed wholly of cotton.

Schedule C of the act of 1846 imposed a duty of 30 per cent. on 'cotton cords, gimps, and galloons,' and on 'manufactures of cotton, * *  * if embroidered or tamboured in the loom, or otherwise, by machinery, or with the needle, or other process.' Schedule E imposed a duty of 20 per cent. on 'caps, gloves, leggins, mits, socks, stockings, wove shirts, and drawers, made on frames, composed wholly of cotton, worn by men, women, and children,' and on 'velvet, in the piece, composed wholly of cotton.' These provisions, and the one in Schedule D as to cotton laces, etc., relate to goods made of cotton entirely. Those goods are all of them goods to which, as 'manufactures composed wholly of cotton,' section 2 of the act of 1857 applies, transferring them, when bleached, printed, painted, or dyed, to the 24 per cent. schedule, Schedule C. The duty on them had been 30, 25, and 20 per cent. respectively. But for such transfer the new duty on those in Schedules D and E would have been 19 and 15. A new uniform rate of 24 was imposed, and while the 30 was reduced by 6 per cent., the 25 was reduced by only 1, and the 20 was increased by 4. This indicates an intention, in the act of 1857, to impose, in general, on manufactures composed wholly of cotton, when bleached, printed, painted, or dyed, a relatively higher duty as compared with other articles named in the act of 1846.

The expression 'manufactures composed wholly of cotton' is not found in the act of 1846. It is in that act qualified by the words 'not otherwise provided for.' In the act of 1857 the expression is 'all manufactures composed wholly of cotton, which are bleached,' etc. If the words 'manufactures composed wholly of cotton,' unqualified, and the words 'cotton laces,' and 'cotton insertings,' had all of them been found in the act of 1846, as the general expression would not have embraced the specific terms in that act, for dutiable purposes, though including them in general language, it would be reasonable to say that the general expression in a later act would not include the specific terms, for dutiable purposes. But the fact that the general expression, as used in Schedule D of the act of 1846, is qualified by the words 'not otherwise provided for,' shows that there were manufactures composed wholly of cotton otherwise provided for; that is, in other items in that act. Thus, besides the embroidered and tamboured manufactures of cotton provided for in Schedule C of that act, there are cords, gimps, galloons, laces, insertings, trimming laces, laces and braids, each with the word 'cotton' prefixed, indicating manufactures composed wholly of cotton, and there are also the articles composed wholly of cotton named in Schedule E. The material 'cotton' is the thing of special mark, as the sole material in the manufacture. In this view it cannot properly be said that these manufactured articles, manufactures of cotton composed wholly of cotton, designated in the act of 1846 always by the epithet 'cotton' applied to them, are not embraced, for dutiable purposes, in the terms 'all manufactures composed wholly of cotton,' in section 2 of the act of 1857.

The designations qualified by the word 'cotton,' in the act of 1846, are designations of articles by special description, as contradistinguished from designations by a commercial name or a name of trade. They are designations of quality and material. The articles referred to, named in Schedules C, D, and E of the act of 1846, are all of them manufactures wholly of cotton; but under that act they were not all subject to the same duty, and so that act designates them substantially as manufactures wholly of cotton which are gimps at 30 per cent., manufactures wholly of cotton which are laces or insertings at 25 per cent., manufactures wholly of cotton which are stockings, made on frames and worn by human beings, at 20 per cent., and so on. But for the exceptions provided for by section 1 of the act of 1857 the duties on those articles, if bleached, printed, painted, or dyed, would have been reduced to 24, 19, and 15 per cent., respectively, but section 2 of that act says, in substance, that manufactures wholly of cotton which are gimps, or laces, or insertings, or stockings, and so on, shall, all of them, be subject to 24 per cent. duty. This was the view applied by Mr. Justice NELSON, in Reimer v. Schell, 4 Blatchf. C. C. 328, in 1859, to colored cotton hosiery, under the provisions in question, and we think it a sound one. It was the view adopted by the circuit court in this case. There is no question of commercial designation. Hence, the cases cited and relied on by the importers are not cases in their favor.

Homer v. The Collector, 1 Wall. 486, in 1863, was a case in which Mr. Justice NELSON delivered the opinion of this court. It was a case under these same statutes. Almonds were dutiable, by that name, at 40 per cent. in Schedule B of the act of 1846. Under the act of 1857 the duty on the articles in said Schedule B was reduced to and fixed at 30 per cent., and the collector exacted that duty on almonds. It was contended that as, by section 2 of the latter act, 'fruits, green, ripe, or dried,' were transferred to Schedule G, and so made subject to only 8 per cent. duty, almonds were so transferred, as being 'fruits, green, ripe, or dried.' An attempt was made, at the trial, to show that at the time the act of 1857 was passed, almonds were fruit, green, ripe, or dried, according to the commercial understanding of those terms in the markets of this country, and questions were certified to this court, on a division of opinion in the circuit court, as to the proper duty on almonds, and as to the admissibility of such evidence. It was contended, for the importer, that the term 'dried fruits,' in popular meaning, included almonds. The government claimed that the term 'almonds' was a specific name, and, therefore, commercial nomenclature had no application. This court held that inquiry as to whether, in a commercial sense, almonds were dried fruit, had nothing to do with the question, as a duty had been imposed on almonds, eo nomine, almost immemorially; and that, as almonds were charged specifically with a duty of 40 per cent. in the act of 1846, and were not named as almonds in the changes in the act of 1857, and full effect could be given to the term 'fruit, dried,' without including almonds in it, it followed that almonds were dutiable at 30 per cent. There is nothing in this decision that overrules that in Reimer v. Schell, or that aids the importers in the present case. The act of 1846, in substance, mentions manufactures wholly of cotton which are laces or insertings, bleached or dyed, and section 2 of the act of 1857 mentions them in naming manufactures composed wholly of cotton, bleached or dyed.

Nor does the case of Reiche v. Smythe, 13 Wall. 162, as to birds, apply. That case was decided on the ground that the word 'animals,' in the act of 1861, did not include 'birds,' and so could not include them in the act of 1866.

There is nothing in Smythe v. Fiske, 23 Wall. 374, or in Arthur v. Morrison, 96 U.S. 108, which applies to this case.

The case of Movius v. Arthur, 95 U.S. 144, was decided on the same view as that of Homer v. The Collector. 'Patent leather' had been dutiable by that name in the acts of 1861 and 1862. The act of 1872 imposed a less duty on 'skins dressed and finished, of all kinds.' This court held that patent leather continued subject to the former duty, on the view that, although patent leather was a finished skin, something was done to it after it could be called a finished skin to make patent leather of it, and that it could not have been intended to include patent leather in the general designation of 'finished skins.'

In Arthur v. Lahey, 96 U.S. 112, the subject of duty was laces, manufactures of silk, on which a duty of 60 per cent. was exacted, under the act of 1864, as 'silk laces.' It was contended that they were dutiable at 30 per cent. as 'thread laces,' under the act of 1861, as amended by the act of 1862. The question being submitted to the jury whether they were commercially known as 'thread laces,' although made of silk, it was found that they were, and the plaintiffs had a verdict. This court held that the question was one of commercial designation, and that the prior specific designation of 'thread laces' must prevail over the words 'silk laces,' it appearing that there were thread laces of cotton and thread laces of silk, and articles commercially known as silk laces, the designation of 'thread lace' depending on the mode of manufacture. The principle of that case and of kindred cases, such as Arthur v. Rheims, 96 U.S. 143, is that the specific designation of an article by a commercial name will prevail over a general term in a later act, and has no application to the present case, which is not, as to cotton laces and cotton insertings, one of designation by a commercial name.

The bill of exceptions in the present case states that previously to about 1879 there was no cotton laces printed or dyed, and that from 1850 to 1861 there were many goods composed wholly of cotton, and bleached, printed, painted, colored, or dyed, such as calicoes, (prints,) lawns, handkerchiefs, velvets, and velveteens, and cotton piece goods generally. If, when section 2 of the act of 1857 was enacted, the words 'printed' and 'painted' were not applicable to laces, it does not follow that the provision is to be limited to such cotton articles as were then printed or painted as well as bleached or dyed. It includes any article which, as then known, satisfied any one of the conditions. We see no warrant for the view that the act of 1857 applies only to piece goods.

It results from these views that the goods in question were subject to the duty imposed.

As to the three disputed fees, we are of opinion that they were none of them allowed by the law in force. Section 2 of the act of March 2, 1799, (1 St. at Large, 706.)

The stamp or certificate on the invoice was one for the convenience and security of the collector and the government, and was not an 'official certificate,' in the sense of the statute. It was not an official document required by the merchant, nor was it given to him. It was a memorandum between officers in the custom-house, as a part of their system of checks and authentications.

The fee for the oath to the entry, as a fee for its administration, was not named in the statute. As a fee for the jurat to the oath, although the oath was required by the statute, and its form was prescribed, and it was to be taken before the collector, the jurat was not an official document required by the merchant or given to him.

The bill of exceptions states that the order to the storekeeper to deliver examined packages was an order required by the plaintiffs' firm from the collector. But we do not think it was an official certificate, or an official document required by the merchant, in the sense of the statute. The permit to land the goods having been issued and paid for, and the duties paid or secured, it was the duty of the officers of the customs to deliver the goods, when examined. The order to the storekeeper was a memorandum between officers. It was 'required' by the merchant, in one sense, because without it, according to the course of business, the storekeeper would not deliver the examined packages, but it was not an official document passing from the custom-house to the merchant.

The judgment of the circuit court is affirmed.


text: Talk:Cochran v. Schell (107 U.S. 617)/Opinion of the Court

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


text:
Cochran v. Schell (107 U.S. 625)

''Geo. Bliss'', for motion.

S. F. Phillips, in opposition.

BLATCHFORD, J.

title: Cochran v. Schell (107 U.S. 625)


text: Talk:Cochran v. Schell (107 U.S. 625)

title: Talk:Cochran v. Schell (107 U.S. 625)


text:
Cochran v. Schell (107 U.S. 625)/Opinion of the Court

These writs of error were brought to review a judgment rendered by the circuit court of the United States for the southern district of New York, October 14, 1882, nunc pro tunc as of October 7, 1882, in favor of Thomas Cochran and William Barbour, surviving partners of S.C.ochran & Co., against Augustus Schell, late collector of customs, for the sum of $1,892.83, composed of $1,734.80 damages and $158.03 costs. The damages were for excessive fees exacted at the custom-house on entries, and the writ of error brought by Schell was brought to review the judgment in respect to the recovery for such fees. The writ of error brought by S.C.ochran & Co. was based on their failure to recover in the suit for duties paid under protest. The writs of error were heard together at this term, and the judgment was affirmed; the recovery for the fees and the failure to recover for the duties being both of them sustained. The judgment of this court, as set forth in the mandate, was rendered March 19, and covered both writs of error, and directed that the judgment of the circuit court be affirmed, 'with interest until paid, at the same rate per annum that similar judgments bear in the courts of the state of New York.' The mandate was sent to the court below on the fourth of April, and now the solicitor general, representing the United States, moves, on behalf of Schell, to correct the judgment and the mandate by striking out the direction as to interest, so that the judgment rendered October 14, 1882, shall not carry interest up to the time a new judgment is rendered by the court below on the mandate.

This application appears to be based on the construction given to a decision made by the circuit court for the southern district of New York, in January, 1882, in White v. Arthur, 10 Fed. Rep. 80. That was a suit against a collector of customs to recover duties paid, in which the circuit court rendered a judgment for the plaintiffs, March 1, 1881, for $2,295.90, and where at the trial of the action the court had made a certificate of probable cause, under section 989 of the Revised Statutes. The judgment being presented for payment out of the treasury, under that section, the amount of the face of it was paid, without any interest on it after its rendition. The court being applied to by the attorney for the United States to direct satisfaction of the judgment to be entered of record, it was held that the government was not liable for any interest on the amount of the judgment after its entry. This decision was founded on a consideration of the statutory provisions on the subject of the payment out of the treasury of the amount of a judgment recovered against a collector of customs or other officer of the revenue, for money paid to him and by him paid into the treasury in the performance of his official duty, where a certificate of probable cause is granted. The result reached was that, under the language of the appropriation bills of 1878, 1879, 1880, and 1881,-Act June 14, 1878, § 3, (20 St. at Large, 128;) Act March 3, 1879, § 1, (Id. 414;) Act June 16, 1880, § 1, (21 St. at Large, 242;) Act March 3, 1881, § 1, (Id. 418,)-interest accruing after the entry of such a judgment, on its amount, or on the money so paid to the officer, is not to be paid by the government; and that, under section 989, the officer is not personally liable for such interest.

This court has never made any decision on the points thus ruled on in White v. Arthur. The case of Erskine v. Van Arsdale, 15 Wall. 75, was a suit to recover back an internal-revenue tax illegally exacted. The court below had instructed THE JURY THAT THEY MIGHT, IN THEIR VERDICT, ADD INTEREST TO THE Tax paid. this court held that instruction to be correct, but the only decision was that interest might be added from the time of the illegal exaction to the verdict. Nothing was decided as to interest on the judgment when the government should come to pay it. The interest included in the verdict is put in before there is any certificate of probable cause, and, if there is no such certificate, the government assumes no part of the liability of the defendant.

In U.S. v. Sherman, 98 U.S. 565, all that was decided was that there must be a certificate of probable cause, under section 989, before the liability of the government to pay a judgment against a revenue officer can attach, and that, where a certificate of probable cause is made after the judgment is rendered, there is no liability of the government for the interest which accrues on the judgment before the making of the certificate. In that case the government had voluntarily paid the interest which accrued after the making of the certificate.

It is provided by section 1010 of the Revised Statutes that 'where, upon a writ of error, judgment is affirmed in the supreme court, or a circuit court, the court shall adjudge to the respondent in error just damages for his delay.' Rule 23 of this court provides that where a judgment is affirmed on a writ of error, 'the interest shall be calculated and levied from the date of the judgment below, until the same is paid, at the same rate that similar judgments bear interest in the courts of the states where such judgment is rendered.' This statute and rule, and the practice under them, followed in the mandate in the present case, of allowing interest on the affirmance of a judgment where a collector is plaintiff in error, were urged by the counsel for the defendant in White v. Arthur, as showing that in that case interest on the judgment should be paid; but the court held that such practice could not affect the question there raised, because the allowance of such interest belonged solely to the putting the judgment in shape, as one in a private suit.

The interest allowed in the present case, in the judgment of this court, was allowed under rule 23, which, in its provisions as to interest, is in harmony with section 966 of the Revised Statutes, originally enacted August 23, 1872,c. 118, § 8, (5 St. at Large, 518.) Such interest, for the time a writ of error is pending, is really damages for delay. When the mandate of this court goes to the court below, it is necessary that that court, with a view to execution, should enter a further judgment in accordance with the mandate, covering the direction of this court as to interest and as to costs in this court on the writ of error. A writ of error in a case of this kind, being brought by a direction of a department of the government, operates as a supersedeas, under sections 1000 and 1001 of the Revised Statutes, without out any bond to answer in damages being given. The plaintiff in the judgment being stayed as to execution while the case is in this court, and there being a new judgment rendered by this court in the suit, 'the final judgment' referred to in section 989 is the judgment as it stands after its affirmance by this court, and after the court below has rendered such judgment as the mandate of this court requires. Therefore, the interest allowed in this case is interest before final judgment, and is of the same character as the interest allowed before judgment in a suit against a collector where there is no writ of error. In both cases, when there is a final judgment, the principle applies, declared by this court in Erskine v. Van Arsdale, ubi supra, that it is to be presumed the government is always ready and willing to pay its ordinary debts. But where there is a judgment and a certificate of probable cause, and thus a case for payment out of the treasury under section 989, and then, by direction of the government, a writ of error is taken which operates as a stay, interest on the judgment during the stay ought to be allowed, and the statutes not only do not forbid such allowance but permit it. The expression 'interest and costs in judgment cases,' in the appropriation bills before referred to, clearly includes the interest in the present case, it being interest before final judgment.

The application is denied.


text: Talk:Cochran v. Schell (107 U.S. 625)/Opinion of the Court


text:
Schell v. Dodge

''Sol. Gen. Phillips'', for plaintiffs in error.

John E. Parsons and ''Geo. Bliss'', for defendants in error.

BLATCHFORD, J.

title: Schell v. Dodge


text: Talk:Schell v. Dodge

title: Talk:Schell v. Dodge


text:
Schell v. Dodge/Opinion of the Court

These are all suits in each of which a judgment was rendered against a late collector of customs for the recovery of money paid as duties. There has been a certificate of probable cause in each. Writs of error to this court were brought by direction of the government in each case. When the cases were reached in order on the docket of this court at October term, 1881, the solicitor general, on the part of the government, moved that the writs of error be dismissed, as presenting no question which he desired to argue. This was done. There was no affirmance of the judgments below, and the judgments and mandates of this court contained no direction as to interest on the judgments below during the time the writs of error were pending. Those judgments were rendered in 1878, and suspended by the writs of error for over three years. In the Dodge case the mandate was issued, but has never been presented to the court below. In the other cases, the mandates were issued and presented to the court below, and orders for judgment were entered thereon. Counsel for the defendants in error in the Dodge case were present in this court when that case was so dismissed, but in the other cases no counsel for the defendants in error was present, and the motions to dismiss were made without their knowledge, and the mandates were not issued till after the close of the term.

The defendants in error now apply to this court to correct the judgments and mandates in these cases so as to award to them interest as such or as damages for delay. There is no doubt that, if the defendants in error in these cases had in season asked for judgments of affirmance, their applications would have been granted, and interest would have been allowed, in accordance with the decision just announced in Cochran v. Schell, ante, 827. But the difficulty now is that we have no power to vary the judgments or the mandates after the close of the term, no especial right to do so in these cases having been reserved. It has always been held by this court that it has no power, after the term has passed, and a cause has been dismissed or otherwise finally disposed of here, to alter its judgment in such a particular as that now asked for, the change of a dismissal of a writ of error, with its legal consequences, to an affirmance of the judgment below, with its legal consequences, and not an error of mere form, or a clerical error, or a misprision of the clerk, or the like. Jackson v. Ashton, 10 Pet. 480; Bank U.S. v. Moss, 6 How. 31, 38.

The applications are denied.

title: Schell v. Dodge/Opinion of the Court


text: Talk:Schell v. Dodge/Opinion of the Court


text:
Hill v. Harding (107 U.S. 631)

George W. Brandt, for plaintiff in error.

Adolph Moses, for defendant in error.

GRAY, J.

title: Hill v. Harding (107 U.S. 631)


text: Talk:Hill v. Harding (107 U.S. 631)

title: Talk:Hill v. Harding (107 U.S. 631)


text:
Hill v. Harding (107 U.S. 631)/Opinion of the Court

The material facts, as appearing by the record of this case in the supreme court of Illinois, are as follows:

On the sixteenth of March, 1877, the original plaintiffs, in     accordance with the statutes of Illinois, and upon the      affidavit of one of them that the defendant was indebted to      them in the sum of $8,264 for services as attorneys at law,      and that he was a resident of Illinois, and was about      fraudulently to conceal, assign, or otherwise dispose of his      property or effects so as to hinder or delay his creditors,      sued out from the circuit court of Cook county a writ of      attachment against him, upon which his real estate was      attached. On the twenty-eighth of March, 1877, in accordance     with those statutes, he dissolved the attachment by giving      bond with sureties to pay to the plaintiffs, within 90 days      after judgment, the amount of any judgment which might be      rendered against him on a final trial in the suit. On the     twelfth of April, 1878, a verdict was returned for the      plaintiffs in the sum of $3,500, and the defendant moved the      court to set it aside and grant a new trial. On the seventh     of May, 1878, hefiled in the cause a duly-attested copy of an order, dated      the first of May, 1878, adjudging him a bankrupt under the      bankrupt act of the United States.

On the eleventh of May, 1878, before judgment on the verdict,     the defendant suggested the adjudication in bankruptcy (which      was admitted) and applied to the state court, under section      5106 of the Revised Statutes, for a stay of proceedings to      await the determination of the court in bankruptcy upon the      question of his discharge. On the as well as the motion for a     new trial, as well as the motion for a new trial, and      rendered judgment against him on the verdict, and afterwards      allowed a bill of exceptions which stated the facts above      recited. That judgment was affirmed by the appellate court     for the first district of Illinois on the nineteenth of      November, 1878, and by the supreme court of Illinois on the      eighteenth of November, 1879. The opinion of the supreme     court is reported in 93 Ill. 77. On the sixth of January,     1880, the defendant sued out this writ of error.

At October term, 1880, of this court, the defendants in error     moved to dismiss the writ of error, because at the time it      was sued out the plaintiff in error had been discharged from      the obligation of the debt to them; and the assignee in      bankruptcy moved to substitute his name for that of the      bankrupt as plaintiff in error. By the papers submitted with     these motions, it appeared that the assignment in bankruptcy      was made on the seventeenth of June, 1878, and a certificate      of discharge granted to the bankrupt on the fifteenth of      September, 1879. The court overruled both motions, but     granted leave to the assignee to be heard by counsel at the      argument on the merits, as to all matters affecting the      estate of the bankrupt.

The record clearly shows that a privilege under section 5106 of the Revised Statutes was claimed by the original defendant, and was denied by the highest court of the state. There can therefore be no doubt of the authority of this court to revise the judgment.

'No creditor whose debt is provable shall be allowed to     prosecute to final judgment any suit at law or in equity      therefor against the bankrupt, until the question of the      debtor's discharge shall have been determined; and any such suit or proceedings shall, upon the      application of the bankrupt, be stayed to await the      determination of the court in bankruptcy on the question of      the discharge; provided there is no unreasonable delay on the      part of the bankrupt in endeavoring to obtain his discharge;      and provided also that, if the amount due the creditor is in      dispute, the suit, by leave of the court in bankruptcy, may      proceed to judgment for the purpose of ascertaining the      amount due, which amount may be proved in bankruptcy, but      execution shall be stayed.'

The terms of this enactment are as broad and as peremptory as possible. 'No creditor whose debt is provable shall be allowed to prosecute to final judgment' any suit thereon against the bankrupt; and such suit 'shall, upon the application of the bankrupt, be stayed.' This provision, like all laws of the United States made in pursuance of the constitution, binds the courts of each state as well as those of the nation. Upon the application of the bankrupt to the court, state or national, in which the suit is pending, it is the duty of that court to say the proceedings 'to await the determination of the court in bankruptcy on the question of the discharge,' unless there is unreasonable delay on the part of the bankrupt in endeavoring to obtain his discharge, or unless, the amount of the debt being in dispute, the United States court sitting in bankruptcy gives leave to proceed to judgment for the purpose of ascertaining that amount. If neither the bankrupt nor his assignee in bankruptcy applies for a stay of proceedings, the court may of course proceed to judgment. Doe v. Childress, 21 Wall. 642; Eyser v. Gaff, 91 U.S. 521; Norton v. Switzer, 93 U.S. 355.

The stay does not operate as a bar to the action, but only as a suspension of proceedings until the question of the bankrupt's discharge shall have been determined in the United States court sitting in bankruptcy. After the determination of that question in that court, the court in which the suit is pending may proceed to such judgment as the circumstances of the case may require. If the discharge is refused, the plaintiff, upon establishing his claim, may obtain a general judgment. If the discharge is granted, the court in which the suit is pending may then determine whether the plaintiff is entitled to a special judgment for the purpose of enforcing an attachment made more than four months before the commencement of the proceedings in bankruptcy, or for the purpose of charging sureties upon a bond given to dissolve such an attachment. But, so long as the question of the discharge in bankruptcy is undetermined, the suit cannot, against the objection of the bankrupt or his assignee in bankruptcy, proceed for any purpose, except in one of two events an unreasonable delay of the bankrupt in endeavoring to obtain his discharge, or an order of the court in bankruptcy granting leave to proceed for the single purpose of ascertaining the amount due.

The result required by the very words of the statute is confirmed by a consideration of the reasons upon which it rests. Its purpose is not merely to protect the bankrupt, in case he obtains a certificate of discharge, from having the original cause of action against him merged in a judgment, the right of action upon which might not be barred by the discharge; but to prevent him, so long as the question of his discharge is undetermined, from being harassed by suit upon any debt provable in bankruptcy, whether it would or would not be barred by a certificate of discharge, and whether the attachment or other security obtained in the suit would or would not be affected by the proceedings in bankruptcy; and also to afford to the assignee in bankruptcy, to whom all the property of the bankrupt has passed, opportunity to assume the defense of the suit, and contest the existence and amount of the plaintiff's claim, and the validity of his attachment.

This view, which is supported alike by the words and by the reason of the statute, is in accordance with the preponderance of the decisions in the highest courts of the several states, and in the district courts of the United States, as shown by the cases cited in the argument.

The plaintiffs' debt being provable in bankruptcy, no unreasonable delay on the part of the bankrupt in endeavoring to obtain his discharge being shown, and the court in bankruptcy having granted no leave to proceed to judgment for the purpose of ascertaining the amount due, the decision of the state court, denying the application, made by the bankrupt before judgment, for a stay of proceedings to await the determination of the question of his discharge, and rendering a general judgment against him, was erroneous, and he had the right to sue out and prosecute a writ of error to reverse it. The assignee in bankruptcy has also been permitted to be heard in support of the writ of error, because of his authority and duty to defend the estate of the bankrupt against claims and attachments which he believes to be invalid.

The result is that the judgment of the supreme court of Illinois must be reversed, and the case remanded to that court for further proceedings in conformity with this opinion.

The judgment of the state court being reversed for the reason that it denied the stay of proceedings to which the original defendant was entitled under the provisions of the bankrupt act until the question of his discharge in bankruptcy should have been determined, there is no occasion to consider the question, (which may perhaps depend upon the statutes, or the practice of the state,) whether it will be within the authority of the court in which the suit is pending, now that the defendant has obtained his discharge in bankruptcy, to render a special judgment in favor of the plaintiffs for the purpose of charging the sureties on the bond given to dissolve the attachment; or any other question which may hereafter arise upon the production by the defendant of his certificate of discharge, or upon the suggestion of the assignee in bankruptcy. Judgment reversed.


text: Talk:Hill v. Harding (107 U.S. 631)/Opinion of the Court


text:
Page:A Thousand-Mile Walk To The Gulf.djvu/22

Rh Indiana, and Illinois. On these expeditions he had disciplined himself to endure hardship, for his notebooks disclose the fact that he often went hungry and slept in the woods, or on the open prairies, with no cover except the clothes he wore. “Oftentimes” he writes in some unpublished biographical notes, “I had to sleep out without blankets, and also without supper or breakfast. But usually I had no great difficulty in finding a loaf of bread in the widely scattered clearings of the farmers. With one of these big backwoods loaves I was able to wander many a long, wild mile, free as the winds in the glorious forests and bogs, gathering plants and feeding on God’s abounding, inexhaustible spiritual beauty bread. Only once in my long Canada wanderings was the deep peace of the wilderness savagely broken. It happened in the maple woods about midnight, when I was cold and my fire was low. I was awakened by the awfully dismal howling of the wolves, and got up in haste to replenish the fire.”


text:
Duff v. Sterling Pump Company

L. L. Bond, for appellants.

No counsel for appellees.

BLATCHFORD, J.

title: Duff v. Sterling Pump Company


text: Talk:Duff v. Sterling Pump Company

title: Talk:Duff v. Sterling Pump Company


text:
Duff v. Sterling Pump Company/Opinion of the Court

This is a suit in equity brought for the alleged infringement of reissued letters patent No. 6,673, granted to Mrs. P. Duff, E. A. Kitzmiller, and R. P. Duff, October 5, 1875, for an 'improvement in wash-boards,' on the surrender of the original letters patent No. 111,585, granted to Westly Tood, as inventor, February 7, 1871. The specification of the reissue says:

'The nature of my invention consists in the construction of a     sheet-metal wash-board with a rubbing face longitudinally and      transversely corrugated or ribbed, whereby such rubbing      surface shall be made up of a series of projections, bounded      by a series of horizontal, vertical, and angularly-shaped      grooves. The rubbing face somewhat resembles the face of a     rasp or file in general appearance, though the projections      are less sharp and angular.'

'In the accompanying drawing A represents the the frame of     the wash-board, and is of ordinary construction. The rubbing     surface is formed of sheet-zine or other suitable      sheet-metal, corrugated or provided with a series of raised      portions, B, alternating, along the line of the corrugation      or rib which forms them, with depressions or unraised      portions, a, the corrugations and depressions extending in      either direction across the sheet, so that a series of      horizontal and vertical and also angularly-shaped grooves are      formed between the projections. Each projection, B,     represents four inclined surfaces, sloping from the apex of      the projection into the grooves which surround and bound it. The grooves between the corrugations are also broken or     interrupted at intervals by small projections or raised      portions, C, each of which presents two lateral surfaces. In     a wash-board thus longitudinally and transversely ribbed or      corrugated, the inequalities of the rubbing surfaces are such      that the desired effect is more readily and effectively      attained, whereby the labor of washing is greatly diminished,      and is accomplished with ease and facility, and with less      than the usual wear on the clothes.'

There are three claims in the patent, as follows:

'(1) A sheet-metal wash-board having a series of raised     projections, B, each bounded by longitudinal and transverse      grooves or depressions, substantially as set forth. (2) In a     sheet-metal wash-board the projections, B, each bounded by      grooves or depressions, in combination with raised      projections, C, in the bottoms of the interlying grooves,      substantially as set forth. (3) As a new article of     manufacture, a sheet-metal wash-board, having a rubbing face      both longitudinally and transversely ribbed or corrugated,      substantially as set forth.'

The wash-board of the defendant is made in accordance with the description contained in letters patent No. 171,568, granted December 28, 1875, to Aaron J. Hull. That description shows a sheet-metal wash-board provided with diamond-shaped projections, each bounded by diagonal grooves or depressions. The metal-plate is described as being crimped to form oblong diamond-shaped projections, having the largest diameter running transversely across the board, each projection being bounded by a diagonal groove or depression, the upper corner of each diamond, where the grooves cross each other, being raised higher than any other part of the same, and the corresponding lower corner being the lowest part of the diamond. The claim of the patent is this:

'A wash-board of sheet-metal, formed with a series of raised     diamond-shaped projections, B, and a series of narrow      diagonal grooves, b, between the projections, which cross      each other, substantially as set forth.'

The case was heard on pleadings and proofs in the circuit court. That court entered a decree declaring that the equities were with the defendant and dismissing the bill.

It is entirely clear that the specification of the Todd patent decribes the grooves in the metal as being horizontal and vertical, and gives no other meaning to the words 'transverse' and 'longitudinal.' It describes the transverse and longitudinal corrugating or ribbing as producing projections which are bounded by horizontal and vertical grooves. From the evidence, Todd took the old zinc wash-board corrugated into horizontal grooves, and corrugated or ribbed it again, by vertical grooves crossing the horizontal grooves at right angles. Nothing is said in the specification as to the method of producing the corrugating or ribbing, nor does the patent claim any process or machinery.

In the Galusha and Safford patent of December, 1857, there is shown a wash-board formed of corrugated sheet-metal. The specification states that the corrugations are formed of a series of elevations and depressions, the elevations and depressions being in parallel rows, and in alternate positions with respect to each other; that the corrugations are oblong, their ends and sides inclined, and their edges somewhat rounded; that each elevation forms a figure approximating to a semi-cylinder pointed at each end, the ends of the elevations in one row overlapping the ends of those in the adjoining rows; that thus channels are formed for the escape of water downward; and that the form of the corrugations stiffens the board, as compared with the old form of parallel flutes extending entirely across the plate.

In the Crihfield patent of October, 1870, there is shown a zinc wash-board, composed of a series of irregularly-placed, diamond-shaped raised pieces, arranged in rows crosswise of the board from top to bottom, each alternate row being composed of more elevations than the adjacent row, the elevations in one row being opposite the spaces between the elevations in the two adjacent rows, and a series of oblique channels being thus formed up and down the board from either side. The specification states that the boards can be stamped out by dye plates.

Nothing is shown is evidence to defeat the novelty of the claims of the Todd reissue, but, in view of the structures shown in the patents of Galusha and Safford and of Crihfield, the claims of the Todd reissue must be so limited as not to extend to a structure such as is described in the Hull patent. We do not perceive that in the wash-boards made by the defendant there is any substantial departure from the description in the Hull patent.

The case is one where, in view of the state of the art, the invention must be restricted to the form shown and described by the patentee. In the field of wash-boards, made of sheet-metal, with the surface broken into protuberances formed of the body of the metal, so as to make a rasping surface and to strengthen the metal by its form and to provide channels for the water to run off, Todd was not a pioneer. He merely devised a new form to accomplish these results. ''Ry. Co. v. Sayles'', 97 U.S. 554. The defendant adopts another form. Under such circumstances the Todd patent cannot be extended so as to embrace the defendant's form. The latter is not a mere colorable departure from the form of Todd, but is a substantial departure. These views are in accordance with those heretofore announced by this court in Merrill v. Yeomans, 94 U.S. 568; Keystone Bridge Co. v. Phoenix Iron Co. 95 U.S. 274; and Burns v. Meyer, 100 U.S. 671.

The decree of the circuit court is affirmed.


text: Talk:Duff v. Sterling Pump Company/Opinion of the Court


text:
Gage v. Herring

''Geo. Harding and John R. Bennett'', for appellants.

B. F. Thurston and E. S. Jenney, for appellees.

GRAY, J.

title: Gage v. Herring


text: Talk:Gage v. Herring

title: Talk:Gage v. Herring


text:
Gage v. Herring/Opinion of the Court

This is a bill in equity for the infringement of letters patent for an improvement in means for cooling and drying meal, reissued to John Denchfield and duly assigned to the plaintiffs. The original letters patent to Denchfield were dated April 20, 1858. The reissued letters patent were dated January 16, 1872, and extended for a period of seven years from April 20, 1872. The circuit court held that the first claim of the reissued patent was valid and had been infringed, and entered a decree for the plaintiffs. See 14 Blatchf. C. C. 293. The defendants appealed to this court. The original patent begins by stating that Denchfield has invented 'a new and improved arrangement of means for cooling and drying meal during its passage from the grinding stones to the bolts.' The reissued patent omits, in this connection, the words 'during its passage from the grinding stones to the bolts.' But both the original and the reissue, after referring to the same accompanying drawings, proceed as follows, the words in brackets being inserted in the reissue only:

'This invention consists in the peculiar arrangement of a     suction-fan, [conveyor or] conveyors, and elevators, as      hereinafter described, whereby the meal, during its passage      from the grinding stones to the bolts, is thoroughly dried      and cooled within a limited space, the whole forming a simple      and economical device.'

Then follows a description which is the same in the original patent and in the reissue, and is in substance as follows:

The millstones, A, and curbs, are arranged in the ordinary     way on the bed, B. Spouts, C, carry the meal from the stones      down into a chest, D, which is placed horizontally on the      flooring of the mill. This chest is equal in length to the     bed, so that all the spouts of the several stones may      communicate with it; and it is divided horizontally      lengthwise by a zigzag partition having openings in it. Within and at the bottom of this chest is placed a     longitudinal shaft, F, having a spiral flanch on it. With one     end of this shaft an elevator, F', communicates, which      discharges its contents at e. A fan, G, is placed in a      suitable box, H. This box communicates with a spout, I, the      lower end of which communicates with the chest, D, and the      upper end with one end of a chest, J, in the uppermost part      of the mill. Within that chest a series of vertical     partitions, i, is so placed as to form a winding passage from      its communication with the spout, I, to an opening at the      opposite end of the chest. That chest also contains a     longitudinal shaft, K, having a spiral flanch on it. Both     shafts, F, K, are rotated by any proper means.

The rest of the specification, and the claim, both in the original patent and in the reissue, differing only by inserting in the reissue the parts printed below in brackets, are as follows:

'The operation is as follows: The meal passes from the     stones, A, down the spouts, C, and into the lower part of the      chest, D, and is conveyed by the spirally-flanched shaft, F,      into the elevators, F', the shaft, F, which is a conveyor,      moving the meal in the direction indicated by the arrows, 3. The meal is carried up by the elevators and discharged at e     directly into the bolts or into troughs, and may be conveyed      by hopper-boys or any suitable conveying device into the      bolts. While the meal is thus passed through the stones, A,     spouts, C, and the chest, D, a suction blast is produced by      the fan, G; said blast absorbing the moisture or vapor which      the meal contains, and which is heated or warmed by the      friction of the stones, A. The meal, therefore, is dried and      cooled, and, in consequence of the time consumed during its      passage through the spouts, C, and chest, D, will be      perfectly acted upon by the blast, so that all free moisture      will be absorbed. A portion of the finer and lighter     particles of flour will follow the blast, and will be ejected      up through the spout, I, and through the serpentine or      winding passage formed by the parts, i, and will settle in      the outer end of the chest, J, and be conveyed by the      conveyor or flanched shaft, K, to a spout, j, through which      it falls into the elevators, F', and unites with the meal      which is received by the elevators direct from the chest, D.      [This compound arrangement for operating on the meal while      passing through the chest, D, and on the escaped flour in the      chest, J, returning the latter to the elevators, while it is      extremely well adapted for large flouring mills running at      high speeds and with a strong suction blast, may not be      either necessary or even practicable in all cases. When the     grinding friction evolves only a moderate degree of heat, the      chest, J, and its apparatus may be dispensed with, for, the      blast being moderated to correspond, so small a quantity of      the fine flour will be drawn through the spout, I, that such      flour may be ejected on the mill floor, and be disposed of in      any convenient way so as to enter the bolts.]

'I do not claim forcing a current of air between a pair  of millstones, while the same is in operation, for the   purpose of keeping the stones in a cool state, and   preventing the heating of the grain; for such means,   although not very efficient, have been previously used. But I am not aware that parts arranged as herein shown,  so as to allow the meal to be subjected to the blast   during its entire or nearly entire passage from the   stones to the bolts, and insure the perfect drying and   cooling of the meal, have been previously used.

'I claim, therefore, as new, and desire to secure by letters     patent—

'[1. The arrangement and combination of the suction fan, G,     and spout, I, with the meal chest, D, receiving the meal from      the grinding stones, and provided with a conveyor shaft, F,      and elevator, F', substantially as and for the purpose set      forth.]

'[2.] The arrangement and combination of the chest[s], D, J,     shafts, F, K, elevators, F', fan, G, and spout, I,      substantially as and for the purpose herein shown and      described.'

No new device was invented by Denchfield, but his improvement consisted in a new combination of old means and devices. That combination, as described in the specification of his original patent, includes seven elements, namely:

(1) The meal chest, D, at the bottom of the mill, into which     the meal falls through the spouts, C, from the millstones;      (2) the conveying shaft, F, which takes the meal from this      chest into the elevator, F'; (3) the elevator, F', which      carries up the meal and discharges it into the bolts or      hopper-boys; (4) the fan, G, creating a suction blast, which      cools and dries the meal during its passage through the      millstones, the spouts, C, and the chest, D; (5) the spout,      I, communicating with the fan, and through which the meal      dust, following the blast of air, is thrown upwards into the      chest, J, at the top of the mill; (6) the chest, J, in which      the meal dust settles; (7) the conveying shaft, K, by which      the meal dust is carried from this chest into the elevator.

The only devices, indeed, which take part in cooling and drying the meal are the meal chest at the bottom of the mill with the rotating shaft in it, the spout by which that chest communicates with the fan, and the fan itself. The other chest or dust room at the top of the mill collects and saves the lighter part of the meal thrown upwards by the fan. The rotating shafts in each chest convey all the meal, after it has been cooled, dried, and collected, to the elevator, and the elevator takes it to the bolts. But the fan, with its communicating spout and meal chest, the dust room, the two conveyors, and the elevator, tend to one result, the cooling and drying of the meal, without waste or loss, 'on its passage from the grinding stones to the bolts;' 'the whole,' as stated at the beginning of the specification, 'forming a simple and economical device;' and the single claim in the original patent is for the arrangement and combination of the seven elements, designating them all with equal distinctness by appropriate letters.

The reissue was granted more than 13 years and 8 months after the date of the original patent, and less than four months before that patent would have expired, and contains two claims, the second of which is a repetition of the claim in the original patent.

The first claim in the reissue is for a combination of the 'fan, G, and spout, I, with the meal chest, D, receiving the meal from the grinding stones, and provided with a conveyor shaft, F, and elevator, F';' and omits all mention of the dust room, J, and its conveyor shaft, K. This claim, then, is for a combination of five of the seven elements of the combination for which the patent was originally granted. The effect is to enlarge the claim; for, while the original claim was only for these five elements in combination with the other two elements, and would not have been infringed by the use of a combination of the five without the other two, the new claim convers a combination of the five elements, whether used with or without the two others. Prouty v. Ruggles, 16 Pet. 336; Vance v. Campbell, 1 Black, 427; Gould v. Rees, 15 Wall. 187.

The statute in force at the time of the issue of the original patent authorized a surrender and reissue whenever any patent was 'inoperative or invalid by reason of a defective or insufficient description or specification, or by reason of the patentee claiming in his specification as his own invention more than he had a right to claim as new.' The statute in force at the time of the reissue made no change in this, except by striking out the words 'description or.' St. July 4, 1836, c. 357, § 13; Rev. St. § 4916.

The plaintiffs do not contend that in the original specification the patentee claimed as his own invention more than he had a right to claim as new; or that there is any defect or insufficiency in any part of the description or specification, other than the final claim. The descriptive part is, word for word, the same in the original and in the reissue. It is argued that the claim in the original patent was too much restricted by including in the combination elements which were no part of the real invention, and that this mistake might properly be corrected in the reissue. But there being no error in the descriptive part of the specification, any mistake in the claim, which is the more important part, and upon which other inventors and the public have the right to rely, as defining the limits of the invention patented, would be apparent on the face of the patent and could not escape the notice of any person reading it with the least care and attention.

It is plausibly suggested that 'the claim could be made perfect in form, and consistent with the description of all that portion of the apparatus which relates to the invention, by simply striking out the letter of designation for the upper chest, J, and the letter of designation for the conveyor shaft of that chest, K.' But that the inventor did not and does not intend so to amend his claim is conclusively shown by his having repeated the same claim, including these very letters of designation, in the second claim of the reissued patent. His attempt is, while he retains and asserts the original claim in all particulars, to add to it another claim which he did not make, or suggest the possibility of, in the original patent, nor until that patent was about to expire.

To uphold such a claim, made so late, would be to disregard the principles governing reissued patents, stated upon great consideration by this court at the last term in the case of Miller v. Brass Co. 104 U.S. 350, and since affirmed in many other cases. James v. Campbell, 104 U.S. 356; Heald v. Rice, Id. 737; Mathews v. Machine Co. 105 U.S. 54; Bantz v. Frantz, Id. 160; Johnson v. Railroad Co. Id. 539; Moffitt v. Rogers, 106 U.S. 423; [S.C.. 1 SUP. CT. REP. 70.]

The invalidity of the new claim in the reissue does not, indeed, impair the validity of the original claim which is repeated and separately stated in the reissued patent. Under the provisions of the patent act, whenever through inadvertence, accident, or mistake, and without any willful default or intent to defraud or mislead the public, a patentee in his specification has claimed more than that of which he was the original and first inventor or discoverer, his patent is valid for all that part which is truly and justly his own, provided the same is a material and substantial part of the thing patented, and definitely distinguishable from the parts claimed without right; and the patentee, upon seasonably recording in the patent-office a disclaimer in writing of the parts which he did not invent, or to which he has no valid claim, may maintain a suit upon that part which he is entitled to hold, although in a suit brought before the disclaimer he cannot recover costs. Rev. St. §§ 4917, 4922; O'Reilly v. Morse, 15 How. 62, 120, 121; Vance v. Campbell, above cited. A reissued patent is within the letter and the spirit of these provisions.

The decree of the circuit court proceeds upon the ground that the first or new claim of the reissue has been infringed; but the plaintiffs' bill is not so restricted, and alleges generally that the defendants have infringed the reissued patent. If the defendants have infringed the second or old claim, the plaintiffs, upon filing a disclaimer of the new one, are entitled to a decree, without costs, for the infringement of the old and valid claim. Considering that the question of the validity of the new claim in the reissue is a question of law upon the face of the patent, and that its validity has been sanctioned by the commissioner of patents in granting the reissue, and upheld by the circuit court, there has been no unreasonable delay in entering a disclaimer; for the plaintiffs were not bound to disclaim until after a judgment of this court upon the question. O$hReilly v. Morse, above cited; Seymour v. McCormick, 19 How. 96.

The question then remains to be considered whether the evidence before us shows an infringement by the defendants of the entire combination.

It is proved, and not denied, that the apparatus in the defendants' mill is substantially like that described in the plaintiffs' patent, so far as regards the first meal chest, the fan, and the spout connecting with the fan, and also so far as regards the elevator, and the conveying shaft from the first meal chest to the elevator; in short, so far as regards the cooling and drying apparatus proper, and the devices for collecting and conveying the greater part of the meal, after being cooled and dried, to the bolts.

The defendants are also proved to have a dust room, by which the light meal dust thrown upwards by the fan through the spout is collected and saved. This part of their apparatus is not, indeed, in form exactly like that of the plaintiffs. The plaintiffs' patent, with the accompanying drawings, describes a single dust room with vertical partitions attached alternately to the floor and to the ceiling, and extending part way of the height, against which partitions the meal dust, as it passes in a serpentine course over one partition and under the next, strikes, and falls to the floor; with an opening at the further end of the room to carry off the air after the meal dust has been deposited. The defendants' dust room consists of two or three successive chambers, communicating by spouts or conductors, against the walls or ceilings of which chambers the meal dust, as it is carried along by the current of air, strikes, and to the floors of which it falls; with a ventilator at the top of the uppermost chamber, through which the current of air passes out, after depositing the meal dust. The defendants' dust room of several chambers, with a ventilator at the top of the uppermost one, performs the same function in substantially the same way, and produces substantially the same result, as the plaintiffs' dust room with the partitions across it. In short, the defendants' dust room, or contrivance for collecting and saving the light meal dust thrown upwards by the fan, is a substantial equivalent for that of the plaintiffs. The defendants have, therefore, infringed this part also of the plaintiffs' combination. Gold v. Rees, above cited; Ives v. Hamilton, 92 U.S. 426; Machine Co. v. Murphy, 97 U.S. 120.

The remaining part of the plaintiffs' combination is the conveyor shaft in the dust room, by which the fine meal dust, after it has been collected and saved in that room, is transferred to the elevator and reunited with the rest of the meal. This conveyor performs, indeed, a subordinate function, analogous to that which the other conveying shaft and the elevator perform in regard to the principal part of the meal. But the patentee, in his specification and in his only valid claim, has made each of the conveyors, as well as the elevator, a material part of the combination invented and patented by him. He describes the conveyor shaft in the dust room with the same particularity as the other parts of his combination, and he claims it with equal distinctness.

As was said by Mr. Justice BRADLEY, in Water-meter Co. v. Desper, 101 U.S. 332, 337, 'the courts of this county cannot always indulge the same latitude which is exercised by English judges in determining what parts of a machine are or are not material. Our law requires the patentee to specify particularly what he claims to be new, and if he claims a combination of certain elements or parts, we cannot declare that any one of these elements is immaterial. The patentee makes them all material by the restricted form of his claim. We can only decide whether any part omitted by an alleged infringer is supplied by some other device or instrumentality which is its equivalent.'

The defendants' mill contains no conveyor shaft in the dust room, and no mechanism which performs the same function of removing the meal there collected. So far as the evidence shows, the meal deposited upon the floor of that room remains there until it is shoveled or swept up by manual labor. Its removal by such means affords no equivalent, in the sense of the patent law, for the automatic action described in the plaintiffs' patent. Eames v. Godfrcy, 1 Wall. 78; Murray v. Clayton, L. R. 10 Ch. 675, note; Clark v. Adie, Id. 667, 675, 676; and 2 App. Cas. 315.

The new claim in the reissue being invalid, and the defendants not having infringed the entire combination set forth in the repetition of the old claim, the decree below can neither be upheld upon the new claim, nor modified so as to apply it to the other claim, but must be reversed and the case remanded, with directions to dismiss the bill.

title: Gage v. Herring/Opinion of the Court


text: Talk:Gage v. Herring/Opinion of the Court


text:
Slawson v. Grand Street

This was a suit brought by John B. Slawson, the appellant, to restrain the infringement of two letters patent,-one granted to him as inventor, and the other held and owned by him as assignee of the inventor. The one first mentioned was a reissue, dated January 24, 1871. The invention therein described was an improvement in fare-boxes for receiving the fares of passengers in omnibuses and street cars. The specifications described the ordinary fare-box used in street cars and omnibuses, consisting of two apartments, the one directly above the other. This well-known contrivance, the specification declared, was so arranged that the passenger deposited his fare in an aperture in the top of the upper apartment. It fell upon and was arrested by a movable platform, which constituted at the same time the bottom of the upper apartment and the top of the lower. This platform turned on an axis acted on by a lever. When turned, the fare fell into the lower apartment, which was a receptacle for holding the fares accumulated during the trip. Upon withdrawing the lever, the platform resumed its horizontal position, ready to arrest the next fare deposited. The upper apartment had a glass panel on the side next the driver, so that he could see the fares as they were deposited by the passengers. This contrivance enabled the passenger to pay his own fare, and furnished a place of safe deposit for it, so that it could not be abstracted by the driver. It enabled the driver to scrutinize the fare after it was deposited by the passenger, and see that it was the proper amount and in genuine coin or tickets before it was passed into the general receiving box. The improvement described in the patent consisted in the insertion of a glass panel on that side of the upper apartment of the box next to the inside of the car or omnibus, and opposite to the glass panel next the driver, so that when the fare was temporarily arrested in the upper apartment the passenger could see and examine it before it was passed into the lower or receiving apartment. The specification declared:

'By this means disputes and contentions are prevented as to the sufficiency of the amount deposited to pay the fare, or as to the genuineness of the money or tickets used for that purpose. It also enables the passenger, when he has unintentionally deposited more than the amount of his fare, to call the attention of the driver to that fact, so that he, should the passenger require the difference to be paid back to him, may report the case to the proprietor or his agent on reaching the end of the route, who will then pay the difference to the passenger, who, for this purpose, must ride to the office at the end of the route.'

The claim of the patent was thus stated:

'A fare-box having two compartments, into one of which the fare is first deposited and temporarily arrested, previously to its being deposited in the other, when the former is provided with openings, covered or protected by transparent media or devices, so arranged that the passengers can see through one and the driver or conductor through the other, in the manner substantially as and for the purposes set forth.'

The other patent set up in the bill of complaint was granted to Elijah C. Middleton, assignee of James F. Winchell, and by the former assigned to complainant. It bore date December 12, 1871. It also was for an improvement in fare-boxes. The specification declared as follows:

'This improvement relates to the mode of illuminating the interior of a fare-box in street railway cars or other vehicles, when used during the night, and it consists in the construction of the fare-box with suitable openings and reflectors, arranged and adapted to receive light from the ordinary head-lamp placed above the fare-box, instead of requiring a separate lamp to illuminate it as heretofore.'

The specification then described the improvement substantially thus:

The ordinary fare-box, consisting of two apartments, one above the other, is constructed with an orifice in the top of the upper department, said top forming the floor of the lamp-chamber. The orifice is closed with a sheet of glass, to prevent any access to the fare-box by that way. Immediately above the orifice there is placed in the roof of the lamp-chamber a reflector, in such an oblique position that will cause the light which falls upon it to be thrown through the orifice into the upper apartment of the fare-box, in which the fare is temporarily deposited.

The claim was stated as follows:

'Lighting the interior of a fare-box at night by light obtained from the head-lamp of the car thrown by a reflector, I, through an opening, H, in the head-lamp box, into the chamber for the temporary detention of the fare for inspection, substantially in the manner and for the purpose set forth.'

The answer denied infringement of either of the improvements described in the letters patent, denied that the persons therein named as the first inventors of said improvements were in fact the first inventors thereof, and averred that said improvements had been in public use and on sale in this country for more than two years before the applications for patents therefor were respectively made.

Upon final hearing the circuit court dismissed the bill on the ground that the improvements described in the patents were void because they did not embody invention within the meaning of the patent laws. From this decree the complainant has appealed to this court.

''Geo. Gifford and Livingston Gifford'', for appellant.

Albert G. McDonald and David C. Van Cotte, for appellee.

Woods, J.

title: Slawson v. Grand Street


text: Talk:Slawson v. Grand Street

title: Talk:Slawson v. Grand Street


text:
Slawson v. Grand Street/Opinion of the Court

The appellant insists that the dismissal of a bill because the inventions described in the patents were not patentable, when no such defense was set up in the answer, is of doubtful propriety, and is a practice unfair to the complainants. The practice was sanctioned by this court in the case of Dunbar v. Myers, 94 U.S. 187. In that case the defense set up in the answer was want of utility in the patented invention; that the patentees were not the first inventors, etc. The circuit court rendered a decree for the complainant for a large sum. When the case came to this court the decree was reversed, with directions to the court below to dismiss the bill on the ground, not set up in the answer, that the improvement described in the patent sued on did not embody or require invention and was not patentable, and the patent was therefore void. And in the case of Brown v. Piper, 91 U.S. 44, this court, speaking by Mr. Justice SWAYNE, said: 'We think this patent was void on its face,' (because the improvement described therein was not patentable,) 'and that the court might have stopped short at that instrument, and, without looking beyond it into the answers and testimony, sua sponte, if the objection was not taken by counsel, well have adjudged in favor of defendant.' We think the practice thus sanctioned is not unfair or unjust to complainants in suits brought on letters patent. If letters patent are void because the device or contrivance described therein is not patentable, it is the duty of the court to dismiss the cause on that ground whether the defense be made or not. It would ill become a court of equity to render money decrees in favor of a complainant for the infringement of a patent which the court could see was void on its face for want of invention. Every suitor in a cause founded on letters patent should, therefore, understand that the question whether his invention is patentable or not, is always open to the consideration of the court, whether the point is raised by the answer or not.

We have considered the alleged improvements described in letters patent set out in complainant's bill, and agree with the conclusion reached by the circuit court that neither of them involves invention, and that both the letters patent are, therefore, void. A glance at the specification and claim of the patent granted to the complainant, Slawson, shows that the invention described therein consists simply in the placing, in the ordinary fare-box used on street cars and omnibuses, of a glass panel opposite to the glass panel next the driver, usually inserted in such boxes. The patent does not cover the fare-box; it does not cover the insertion in the side of the fare-box next the driver of a glass panel, nor a combination of these two elements. It consists merely in putting an additional pane of glass in the fare-box opposite the side next the driver, so that the passengers can through it see the interior of the box. Such a contrivance does not embody or require invention. It requires no more invention than the placing of an additional pane of glass in a show-case for the display of goods, or the putting of an additional window in a room opposite one already there. It would occur to any mechanic engaged in constructing fare-boxes that it might be advantageous to insert two glass panes,-one next the driver and the other next the interior of the car. But this would not be invention within the meaning of the patent law. Hotchkiss v. Greenwood, 11 How. 237; Phillips v. Page, 24 How. 167; Dunbar v. Myers, ubi supra. It is not a combination of the fare-box, having one glass panel with an additional glass panel, but is a mere duplication of the glass panel. Doubtless, a fare-box with two glass panels, arranged as described in the patent, is better than a fare-box with only one. But it is not every improvement that embodies a patentable invention. This rule was fairly illustrated in the case of Stimpson v. Woodman, 10 Wall. 177, in which it was held that where a roller, in a particular combination, had been used before without particular designs on it, and a roller, with designs on it, had been used in another combination, it was not a patentable invention to place designs on the roller in the first combination, and that such a change, with the existing knowledge in the art. involved simply mechanical skill, which is not patentable.

In Brown v. Piper, ubi supra, it was said that when the invention was simply the application by the patentees of an old process to a new subject, without any exercise of the inventive faculty, and without the development of any idea which could be deemed new and original in the sense of the patent law, it was not patentable; and it was held that the application of a process for preserving meats and fruit, which had previously been used for preserving other perishable substances, was not patentable.

A case much in point was decided by this court at the present term,-Atlantic Works v. Brady, [ante, 225,]-in which Mr. Justice BRADLEY said: 'The design of the patent laws is to reward those who make some substantial discovery or invention which adds to our knowledge and makes a step in advance in useful arts. It was never their object to grant a monopoly for every trifling device, every shadow of a shade of an idea which would naturally and spontaneously occur to any skilled mechanic or operator in the ordinary progress of manufactures.' And it was held that the placing of a screw for dredging at the stem of a screw-propeller, when the dredging had been previously accomplished by turning the propeller stern foremost and dredging with the propelling screw, was not a patentable invention. These authorities, and others that might be cited, are adverse to the appellant's case, and clearly show that the contrivance covered by the patent issued to him does not embody a patentable invention. The same authorities apply with equal force to the patent for lighting the interior of the fare-box at night by using the head-light of the car for that purpose. The elements of the contrivance, namely, the fare-box, the head-light, and the reflector, are all old. What is covered by the patent is simply the making of an aperture in the top of the fare-box, and turning the rays of the head-lamp through it into the box by means of a reflector. In other words, it is the turning of the rays of light to the spot where they are wanted by means of a reflector, and taking away an obstruction to their passage. The facts of general knowledge of which we take judicial notice (Taylor, Ev. § 4, note 2; Brown v. Piper, ubi supra) teach us that devices similar to this are as old as the use of reflectors. The new application of them does not involve invention. We are of opinion that there was nothing patentable in the contrivance described in the second patent.

The result of our views is that the decree of the circuit court was right and must be affirmed.


text: Talk:Slawson v. Grand Street/Opinion of the Court


text:
United States v. Britton

Section 5209 of the Revised Statutes of the United States is as follows:

'Every president, director, cashier, teller, clerk, or agent of any' national banking 'association, who embezzles, abstracts, or willfully misapplies any of the moneys, funds, or credits of the association, or who, without authority from the directors, issues or puts in circulation any of the notes of the association, or who, without such authority, issues or puts forth any certificate of deposit, draws any order or bill of exchange, makes any acceptance, or assings any note, bond, draft, bill of exchange, mortgage, judgment, or decree, or who makes any false entry in any book, report, or statement of the association, with intent, in either case, to injure or defraud the association or any other company, body politic or corporate, or any individual person, or to deceive any officer of the association or any agent appointed to examine the affairs of the association; and every person who, with like intent, aids or abets any officer, clerk, or agent in any violation of this section, shall be deemed guilty of a misdemeanor, and shall be imprisoned not less than five years nor more than ten.'

An indictment based on this section was, on January 20, 1879, found against defendant, James H. Britton, in the district court of the United States for the eastern district of Missouri. It contained 119 counts. The first count charged as follows:

'That James H. Britton, late of said district, on the thirtieth day of June. A. D. 1876, at said district, being then and there president of a certain national banking association then and there known and designated as the 'National Bank of the State of Missouri, in St. Louis,' which said association had been theretofore created and organized under and by virtue of an act of congress entitled 'An act to provide a national currency secured by a pledge of United States bonds, and to provide for the circulation and redemption thereof,' approved June 3, A. D. 1864, and which said association was then and there acting and carrying on a banking business in the city of St. Louis, in said district, under the said act of congress and the acts amendatory thereof, did make in a certain book then and there belonging to and in use by the said association in transacting its said banking business, and then and there designated and known as 'Profit and Loss, No. 6,' a certain entry to the credit of a certain account known as profit and loss, which said entry was then and there in the words and figures following; that is to say:

"Richard L. Dickson:

"182 days' int., 8 per cent., 132,673.49, to July 1, '76, . . . 5,365.88'

-and which said entry, so far as aforesaid made in said book, then and there purported to show, and did, in substance and effect, indicate and declare, that the sum of $5,365.88 was then and there received by said association on account of interest then and there due and payable to said association by one Richard L. Dickson.

'And the jurors aforesaid, on their oaths aforesaid, do further present that the said entry so made as aforesaid was then and there false in this: that the said sum of $5,365.88 was not then and there received by said association on account of interest then and there due and payable to said association from the said Richard L. Dickson, as he, the said James H. Britton, then and there well knew; and that the said entry, so made as aforesaid, was then and there false in this: that the said sum of $5,365.88 was not then and there received by said association upon any account from any source, as he, the said James H. Britton, then and there well knew; and that the said false entry was then and there made as aforesaid with the intent then and there on the part of him, the said James H. Britton, to deceive any agent who might be thereafter appointed by the comptroller of the currency to examine the affairs of said association, contrary to the form of the statute of the United States in such case made and provided, and against their peace and dignity.'

The 34 counts next following, numbered from 2 to 35, inclusive, charged, in the same language, the making of similar false entries in the same book with the same intent.

The thirty-sixth count was in all respects similar to the preceding 35 counts, except that it omitted the averment that the false entry was made with the intent 'to deceive any agent who might be thereafter appointed by the comptroller of the currency to examine the affairs of said association,' and in lieu thereof alleged it to be with intent 'to injure and defraud the said association and certain persons to said jurors unknown.'

The thirty-seventh count charged as follows:

'That the said James H. Britton, late of said district, on the second day of April, in the year of our Lord one thousand eight hundred and seventy-seven, at said district, being then and there president of a certain national banking association then and there known and designated as the 'National Bank of the State of Missouri, in St. Louis,' which said association had been theretofore created and organized under and by virtue of an act of congress entitled 'An act to provide a national currency secured by a pledge of United States bonds, and to provide for the circulation and redemption thereof,' approved June third, in the year of our Lord one thousand eight hundred and sixty-four, and which said association was then and there acting and carrying on a banking business in the city of St. Louis, in said district, under the said act of congress and the acts amendatory thereof, did pay to a certain person, to the jurors aforesaid unknown, a large sum of money, to-wit, twenty-four hundred dollars, out of the moneys and funds then and there belonging to and the property of said association, in the purchase by him, the said James H. Britton, from said unknown person, of a large number, to-wit, forty certain shares of the capital stock of said association, which said shares of stock were then and there represented upon the books of said association to be the property of one Francis Fisher.

'And the jurors aforesaid, on their oaths aforesaid, do further present that the said James H. Britton, presidents as aforesaid, did then and there, by means of the payment aforesaid, in manner and form aforesaid, willfully misapply the said sum of twenty-four hundred dollars of the moneys and funds as aforesaid of said association, with intent then and there, on the part of him, the said James H. Britton, to injure and defraud the said association and certain persons, to the jurors aforesaid unknown, contrary to the form of the statute of the United States in such case made and provided, and against their peace and dignity.'

The next following 19 counts, numbered from 38 to 56, inclusive, are similar to count 37, and need not be set out.

The next succeeding counts, numbered from 57 to 76, inclusive, but excepting the seventy-fourth, are similar to count 37, except that they omit the averment that the misapplication was made with intent 'to injure and defraud the said association and certain persons to the jurors aforesaid unknown.' These counts aver no intent whatever. The seventy-fourth count is similar to the thirty-seventh.

The next 20 counts, numbered from 77 to 96, inclusive, are in all respects similar to count 37, except that they contain the following additional averment, forming the conclusion of the first clause of the account, namely, 'and which said shares of stock, so purchased as aforesaid, were then and there held by him, the said James H. Britton, in trust for the use of said association, and which said shares of stock were not purchased as aforesaid in order to prevent loss upon any debt theretofore contracted with said association in good faith.'

The next 20 counts, numbered from 97 to 116, are all similar to count 96, except that they omit the averment that the misapplication of the funds of the association was with the intent 'to injure and defraud the said association and certain persons to the jurors aforesaid unknown.' These counts charge no intent.

The count numbered 117 was similar to count 36, and count numbered 118 was similar to count 1.

As no division of opinion respecting count numbered 119 is certified, it is unnecessary to notice that count.

The defendant demurred to the indictment. By order of the district court the indictment was, on May 16, 1879, remitted and transferred to the next regular term of the United States circuit court for the eastern district of Missouri, at which term the cause was heard upon the demurrer. Upon such hearing the following questions arose, upon which the judges of the circuit court were divided and opposed in opinion, namely:

(1) Whether it was necessary, in the counts of said indictment charging a fraudulent purchase by the defendant of certain shares of the capital stock of said association, to state for whose use the purchase was made, and whether, where it is charged in the indictment that the purchase of stock was made for the use of the bank, such averment vitiates the indictment.

(2) Whether it was necessary in the said counts to allege that the purchase of stock was not made in order to prevent loss on some previously-contracted debt.

(3) Whether it was necessary in the said counts to set forth the means by which the defendant, as president of said bank, possessed himself of the moneys of the bank, which he employed in purchasing said stock.

(4) Whether it was necessary to charge in the said counts that the defendant, as president of the bank, was in possession of funds of the bank, in addition to charging misapplication of said funds.

(5) Whether the counts of said indictment charging the fraudulent purchase by the defendant, as president of said banking association, of certain shares of stock 'in trust, for the use of said association, and which said shares of stock were not purchased as aforesaid in order to prevent loss upon any debts theretofore contracted with said association in good faith,' alleged with sufficient certainty an offense under said section 5209 of the Revised Statutes of the United States.

(6) Whether count numbered 116 of the said indictment charges with sufficient certainty an offense under said section 5209 of the Revised Statutes of the United States.

(7) Whether it is necessary in an indictment under section 5209 of the Revised Statutes, charging willful misapplication of the funds of a banking association, to allege that such misapplication was with intent to defraud.

(8) Whether the purchase of stock in violation of section 5201 of the Revised Statutes of the United States, if made with intent to defraud, and by one or more of the officers of the bank named in said section 5209 of the Revised Statutes, is a crime punishable under the latter section.

(9) Whether those counts which cover alleged false entries sufficiently state an offense under section 5209.

These questions, together with the pleadings upon which they arose, were, on motion of counsel for the United States, certified by the judges of the circuit court to this court for its opinion thereon.

Asst. Atty. Gen. Maury, for the United States.

''J. B. Henderson, Geo. H. Shields, and Chester H. Krum'', for Britton.

Woods, J.

title: United States v. Britton


text: Talk:United States v. Britton

title: Talk:United States v. Britton