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Jackson v. Jackson

APPEAL from the Supreme Court of the District of Columbia.

This is a case of divorce. The parties were married on the 25th of November, 1856, in the District of Columbia, where they then and ever since have resided. Each prayed for a dissolution of the marriage contract for the alleged misconduct of the other. The appellee, in his cross-bill, set up that the appellant held in her individual name the title to certain real estate in said District which had been acquired and paid for since their marriage with his money and earnings, and prayed that she be decreed to convey the same to him.

The appellant's answer to the cross-bill alleged that the land had been purchased with money received from her father's estate, and from the proceeds of her own industry and savings.

The cause being set down for hearing, the court found, as a matter of fact, that the appellee was guilty of cruel treatment, as charged in the appellant's bill; that the cause of divorce in the cross-bill mentioned was not made out; and that the property was in part acquired and paid for with money belonging to the appellant at the time of her marriage, and for the rest with moneys earned by the joint efforts of said parties.

The court thereupon decreed that the married relations between the parties be dissolved; that the title to the property be held by the appellee in trust for both parties; and that, from the date of the decree, the appellant should hold, as of her own absolute right, a specifically described portion thereof, and convey in fee-simple the remainder to the appellee.

From so much of the decree as relates to the property the plaintiff below appealed to the General Term of said Supreme Court. The decree being affirmed, an appeal was taken to this court.

There is no conflict in the proofs as to the purchase of the real estate by the appellant with the money which she possessed at the time of her marriage. The rent of the house which was then standing on the property, and her earnings, were used in the erection of the additional buildings; but the evidence adduced by the appellee tended to show that a part of his earnings was applied to the same purpose.

The appellant took the deed in her own name, paid taxes on the property, caused it to be insured, and managed and controlled it as her own separate estate, with the full knowledge and consent of the appellee.

The common law as to the rights of a married woman to real or personal property belonging to her at the time of her marriage, or thereafter acquired, prevailed in said District until April 20, 1869, when an act was passed to regulate such rights. 16 Stat. 45.

The ninth section of the 'Act to authorize divorces in the District of Columbia, and for other purposes,' approved June 19, 1860 (12 Stat. 59), provides 'that, in all cases where a divorce is granted, the court allowing the same shall have power, if it see fit, to award alimony to the wife, and to retain her right of dower, and to award to the wife such property, or the value thereof, as she had when she was married, or such part, or the value thereof, as the court may deem reasonable, having a regard to the circumstances of the husband at the time of the divorce.'

The above provisions, except in so far as they relate to alimony and the right of dower, appear not to have been reenacted in the Revised Statutes.

The case was argued by Mr. A. G. Riddle for the appellant, and by Mr. William A. Meloy and Mr. Francis Miller for the appellee.

MR. JUSTICE FIELD delivered the opinion of the court.

title: Jackson v. Jackson


text: Talk:Jackson v. Jackson

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title: Talk:Jackson v. Jackson


text:
Jackson v. Jackson/Opinion of the Court

The land in controversy in this case was purchased by the wife with money which she had previous to her marriage, given to her by her father. The buildings erected thereon were constructed partly with such money, and partly with her subsequent earnings. The deed of the land was taken in her name; the contract for the houses was made by her alone with the builder; the policy of insurance upon the buildings was executed to her; and she paid the taxes upon the property. It is true, that at the date of the marriage, and when the land was purchased and the improvements were made, the common law governed in the District of Columbia as to the rights of married women to the personal property possessed by them previous to their marriage, and not secured by a settlement or contract to their separate use, and as to their subsequent earnings. By that law, the money which the wife then possessed and her subsequent earnings belonged exclusively to her husband. They vested as absolutely in him as though the money had been originally his, and the earnings were the proceeds of his own labor and industry. This harsh rule of the common law was founded upon the idea, that, as the husband was bound by the marriage to support the wife and the rest of the family, he was entitled to whatever she possessed, or subsequently acquired, which was available for that purpose,-a rule which would have had some good ground for its existence, had it only applied when the money or earnings of the wife were necessary for that purpose. But, becoming absolutely the property of the husband, they were subject to his disposal without regard to the necessities of the family, and might be taken from them at the suit of his creditors. They partook of the condition, and were subject to the fate, of his separate property.

But though the money which the wife in the present case had at her marriage, and her subsequent earnings, must be regarded as the property of the husband, it was competent and lawful for him to allow her to invest them for her own use, so as to be beyond his reach and control. Being at the time free from debt, he could have taken whatever money she had, whether given to her or earned by her own labor, and purchased with it the land in controversy, and received the deed in her name. The imvestment would then have been an advancement for her benefit,-a voluntary settlement upon her; and the subsequent application of her earnings to the construction of improvements would have equally been a legal disposition of them. The improvement of property settled upon the wife is not forbidden to the husband, if not made with a fraudulent intent; and the moneys used for that purpose do not interfere with any rights of existing creditors.

The law on the subject of post-nuptial settlements of this character is well settled, and will be found stated in numerous adjudications of the American courts. Picquet v. Swan, 4 Mas. 444; Haskell v. Bakewell, 10 B. Mon. 206. The doctrine of resulting trusts, arising where a conveyance is taken in the name of one person and the consideration is advanced by another, has no application to investments of this kind. Such trusts are raised by the law from the presumed intention of the parties, and the natural equity that he who furnishes the means for the acquisition of property should enjoy its benefits. But no presumption that a personal benefit was intended to the party advancing the funds for a purchase in the name of another can arise where an obligation exists on his part, legal or moral, to provide for the grantee, as in the case of a husband for his wife, or a father for his child. The circumstance that the grantee stands in one of these relations to the party is of itself sufficient evidence to rebut the presumption of a resulting trust, and to create a contrary presumption of an advancement for the grantee's benefit. Murless v. Franklin, 1 Swans. 17; Grey v. Grey, 2 id. 597; Finch v. Finch, 15 Ves. 50; Guthrie v. Gardner, 19 Wend. 414; Perry on Trusts, sects. 143, 144.

The case of Sexton v. Wheaton, 8 Wheat. 229, which arose in the District of Columbia, is a determination of this court upon the points here presented. There the husband had purchased a house and lot within the District, and taken the conveyance in the name of his wife, and afterwards improvements were made upon the property. Subsequent creditors, having obtained judgment against him, filed a bill to subject the property to its payment, contending that the conveyance to the wife was fraudulent and void as to them, and praying, that, if the conveyance was sustained, the wife might be compelled to account for the value of the improvements. But the court held, Mr. Chief Justice Marshall delivering its opinion, that, the husband at the time being free from debt, the conveyance to the wife was to be deemed a voluntary settlement upon her, which, not being made with any fraudulent intent, was operative and binding against subsequent creditors; and that the improvements upon the property stood upon the same footing as the conveyance itself, they being made before the debts were contracted. The Chief Justice observed that it would seem to be a consequence of that absolute power which a man possesses over his own property, that he might make any disposition of it which did not interfere with the existing rights of others; that such disposition, if it were fair and real, would be valid; and that the limitations upon this power were those only which were prescribed by law. The Chief Justice then proceeded to show that the law only limited this power when its exercise impaired the rights of existing creditors; and that a voluntary settlement by a husband in favor of his wife could not be impeached by subsequent creditors, unless it was made to defraud them.

The present case is one much stronger than the case cited; for here there are no creditors complaining. It differs from the one cited in this, that the investment was made directly by the wife, instead of being made through the husband; but we do not perceive in this fact any valid objection to the legality of the transaction. There can be no doubt that she acted with his approval. Fifteen years of acquiescence in her holding the land in her name, and in making improvements thereon with her earnings, ought to be deemed satisfactory evidence of his original authorization of the investments. The amount paid for the land was only $300 (less than one-sixth of the sum received from her father), and the whole cost of the improvements for the fifteen years was only about $2,000; and it does not appear that any third parties have been in any respect prejudiced by the investments, or have ever questioned their validity.

The divorce decreed was not of itself a sufficient reason for restoring to the husband any rights to the property thus settled upon the wife. That was granted for cruel treatment; and, whatever may be the power of the court over the property of parties upon the dissolution of the marriage relation, there was no call for its exercise in a case like the present.

The decree of the Supreme Court of the District, so far as it awards any portion of the property in controversy to the husband, and directs a conveyance by the wife to him, must be reversed; and it is so ordered.

title: Jackson v. Jackson/Opinion of the Court


text: Talk:Jackson v. Jackson/Opinion of the Court


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Baltimore and Potomac Railroad Company v. Trustees of Sixth Presbyterian Church

ERROR to the Supreme Court of the District of Columbia.

The facts are stated in the opinion of the court.

Mr. Daniel Clarke and Mr. Wayne MacVeagh for the plaintiff in error.

The court declined hearing Mr. James A. Garfield and Mr. R. D. Mussey for the defendant in error.

Mr. JUSTICE CLIFFORD delivered the opinion of the court.


text: Talk:Baltimore and Potomac Railroad Company v. Trustees of Sixth Presbyterian Church


text:
Baltimore and Potomac Railroad Company v. Trustees of Sixth Presbyterian Church/Opinion of the Court

Compensation was claimed in this case by the Trustees of the Sixth Presbyterian Church of this District for injuries occasioned to their real property by the railroad company; and they made application to a justice of the peace in and for the District, representing that the railroad company 'have laid their tracks and are now running their trains along Sixth Street and in front of the property of said church, and have built and now occupy and use a depot building upon said Sixth Street and in the near vicinity of said church, to the great damage of the same.'

Pursuant to that application the magistrate to whom it was addressed issued a warrant to the marshal of the District, commanding him to summon a jury of twenty citizens of the District, possessing the qualifications therein described, to meet at said church building on the day therein named, to proceed to value, in accordance with law, the damages which the said church organization has sustained in consequence of the things done as aforesaid by said company.

Two objections to the warrant were filed with the marshal by the railroad company: (1.) That the warrant requires the jury to value damages for cause which are not authorized by law. (2.) That the form of the oath administered to the jury is not correct.

Enough appears to show that the objections did not prevail, and that the inquisition was taken; the jurors being first sworn by the marshal that they would truly and impartially assess the damages, if any, the applicants may sustain by the laying of the track along Sixth Street by the railroad company; and that the jury assessed the damages sustained by the applicants, by reason of the railroad company laying their track along Sixth Street, at the sum of eleven thousand five hundred dollars. Due return of the proceedings was made by the marshal, in which it also appears that both parties met at the time and place appointed, and that the marshal duly certified the warrant and inquisition to the Supreme Court of the District, as required by law.

Two days later, the railroad company moved the court to quash the warrant and set aside the inquisition for the reason following: (1.) Because the warrant required the marshal to summon a jury to assess damages not authorized by law. (2.) Because the warrant required the marshal to summon a jury to assess damages for the running of the company's trains along Sixth Street and in front of the property of the church, and for having built and now occupying and using a depot building in the near vicinity of the church. (3.) Because the return of the marshal shows that he did not administer to the jurors the oath required by law. (4.) Because the marshal permitted evidence to go to the jury to show that the property had been damaged by the use and occupation of the track by the railroad company, and by the smoke and noise arising from such occupation. (5.) Because the jury, in assessing the damages, did not confine their inquiries to the question of appreciation and depreciation of the value of the property by reason of the laying of the track along Sixth Street.

Pending that motion, the plaintiffs suggested to the court that the law required that the inquisition should be confirmed at the session of the court held next after the same was filed, and moved the court that the cause be placed upon the calendar, and stand for hearing; and the court granted the motion, and placed the case on the trial-calendar. Four days afterwards, the plaintiffs moved the court to confirm the award of the jury; and on the same day the defendants moved the court to strike the cause from the calendar for the want of jurisdiction to try the same, except on appeal.

Affidavits of thier counsel were offered by the defendants to prove that the plaintiffs were permitted to give evidence to the inquisition against the objections of the company, that the church was greatly annoyed and injured by the location of the engine depot, in consequence of the smoke arising from the engines being wafted by the wind into the church building, and also from the noise of the engines and the passing trains and the ringing of the engine-bells. Two jurors also gave affidavits, which were also offered in evidence, to show, that, in arriving at the conclusion, they took into consideration all the surrounding circumstances, such as the passing of trains in front of the church, the danger in passing to and from the church, the expense of removing to another location, and the smoke and noise arising from the passing engines.

Seasonable objection was made by the plaintiffs to the admissibility of those affidavits; but the court overruled the objections, and the affidavits were introduced, and allowed to be read.

Hearing was had on the motion of the plaintiffs and on the motions of the defendants to strike the case from the calendar, and to set the inquisition aside. Both motions of the defendants were overruled; and the court, finding no error in the record, confirmed the inquisition and finding of the jury, and gave judgment in favor of the plaintiffs for the amount awarded. Neither party tendered any bill of exceptions; but the defendants sued out a writ of error, and removed the cause into this court.

Neither depositions nor affidavits, though appearing in the transcript of a common-law court of errors, can ever be regarded as a part of the record, unless the same are embodied in an agreed statement of facts, or are made so by a demurrer to the evidence, or are exhibited in a bill of exceptions. Matters of parol evidence in such a case can never be made a part of the record so as to become re-examinable in a court of errors, unless it be in one of four ways: (1.) By an agreed statement of facts. (2.) By a bill of exceptions. (3.) By a special verdict. (4.) By a demurrer to the evidence; which latter mode is seldom or never adopted in modern practice.

Exceptions may be taken by the opposite party to the introduction of depositions or affidavits; and the party introducing such evidence in a subordinate court may insist that the court shall give due effect to the evidence, and, in case of refusal to comply with such a request, may except to the ruling of the court, if it be one prejudicial to his rights. Where neither party excepts to the ruling of the court, either in respect to its admissibility or legal effect, the fact that such a deposition or affidavit is exhibited in the transcript is not of the slightest importance in the Appellate Court, as nothing of the kind can ever constitute the proper foundation for an assignment of error. Suydam v. Williamson, 20 How. 433.

Errors apparent in the record, it is true, are open to revision, whether the error be made to appear by bill of exceptions, or in any other legal manner. Slacum v. Pomery, 6 Cr. 221; Bennet v. Butterworth, 11 How. 669; Garland v. Davis, 4 id. 131.

When a party is dissatisfied with the decision of his cause in an inferior court, and intends to seek a revision of the law applied to the case in a superior jurisdiction, he must take care to raise the question of law to be revised, and put the facts on the record for the information of the appellate tribunal; and, if he omits to do so in any of the methods known in the practice of courts of errors, he must be content to abide the consequences of his own neglect.

Evidence, whether written or oral, and whether given to the court or the jury, does not become a part of the record unless made so by some regular proceeding at the time of the trial, and before the rendition of the judgment. Whatever the error may be, and in whatever stage of the cause it may have occurred, it must appear in the record, else it cannot be revised in a court of error exercising jurisdiction according to the course of the common law.

Viewed in the light of these suggestions, it is clear that it will not be necessary to give a separate examination to all the alleged errors of the court below in confirming the inquisition, and in rendering judgment for the plaintiffs. Sufficient has already been remarked to show that the affidavits constituting the whole basis of the theory of fact involved in the errors assigned, affecting the merits of the controversy, are no part of the record; and consequently the errors assigned are utterly destitute of any legal foundation.

Attempt is made to overcome that difficulty by the suggestion that the writ of error is addressed to the judgment, and that the office of the writ of error is to remove the judgment of the subordinate court into this court for re-examination, which is undoubtedly correct; but it is equally true, that, if the transcript does not show that any error exists in the record, the judgment must in all cases be affirmed, except where it appears that there has been a mis-trial. Minor v. Tillotson, 1 How. 287; Taylor v. Morton, 2 Black, 484; Barnes v. Williams, 11 Wheat. 415; Carrington v. Pratt, 18 How. 63.

Inquisitions like the present one bear a strong analogy in many respects to the report or award of referees appointed under a rule of court, to whom is referred a pending action. Referees in such cases make their report to the court; and in such a case the report, unlike an award at common law, must be confirmed before the prevailing party is entitled to the benefit of the finding of the referees. When the report is filed in court, the losing party may file objections in writing to the confirmation of the report, and may introduce evidence in support of the objections; and it is well-settled law, that the ruling of the court in overruling such objections is the proper subject of a bill of exceptions. Railroad v. Myers, 18 How. 250.

Doubts were expressed at one time whether a bill of exceptions could be claimed in such case; but the decision referred to removed every doubt upon the subject. Strothers v. Hutchinson, 4 Bing. N. C. 83; Ford v. Potts, 1 Halst. 388; Nesbitt v. Dallam, 7 Gill & J. 507; Tomson v. Moore, 9 Port. 137.

Evidence in support of the objections to the award was received in that case; and the judge overruled the objections, and embodied the testimony and his ruling in a bill of exceptions, reserving his opinion as to the regularity of the proceeding, and whether the judgment could be revised. Pursuant to the arrangement, the losing party in the court below sued out a writ of error; and this court sustained the writ of error, and decided that the equity of the statute allowing a bill of exceptions in courts of common law of original jurisdiction embraces all such judgments or opinions of the court that arise in the course of a cause which are the subjects of revision by an appellate court, and which do not otherwise appear on the record. 18 id. 251; Canal Co. v. Archer, 9 G. & J. 481; Walker v. Railroad, 3 Cush. 8.

Doubtless other modes may be devised of accomplishing a revision of the legal questions in a case like the present; but the court does not find it necessary to pursue the inquiry, as all the court intends to decide is, that the affidavits in the transcript are not a part of the record, and that in such a case an assignment of errors, such as the one exhibited in this case, so far as the same depends upon the affidavits, presents no question for re-examination by this court.

Three other questions of a formal character must receive a brief consideration. They arise from certain preliminary objections made by the defendants, as follows: (1.) That the warrant directed the marshal to summon a jury to assess damages not authorized by law. (2.) Because the marshal did not administer to the jury the oath required by law. (3.) They also denied the jurisdiction of the court below, because the case was not removed into that court by appeal from the special term.

By the warrant, it appears that the applicants represented to the magistrate that the railroad company had laid their tracks and are now running their trains along Sixth Street and in front of the property of the applicants, and have built and now occupy and use a depot building on said street in the near vicinity of the church; and the command to the marshal is, that he should summon a jury of the number and described qualifications 'to proceed to value, in accordance with law, the damages which the said church organization has sustained in consequence of the things done by said company as aforesaid.'

Properly construed, it is by no means certain that the warrant professes to confer any greater power than that conferred by the statute; as the express direction of the warrant is, that the jury shall proceed to value the damages in accordance with law; which phrase may well be regarded as a limitation upon the phrase, 'in consequence of the things done by said company.' Suppose, however, the terms of the warrant are more comprehensive than the words of the statute: still the court is of the opinion that it furnishes no sufficient cause to reverse the judgment, for the reason that the transcript furnishes no legal evidence that the excess of power conferred, if any, was ever exercised by the jury to the prejudice of the rights of the defendants. Nothing appears in the transcript upon the subject, except what is contained in the affidavits; and it has already been determined that the affidavits are not properly to be regarded as a part of the record. Pomeroy v. Bank, 1 Wall. 600; Young v. Martin, 8 id. 356; Coddington v. Richardson, 10 id. 518.

Enough appears in the record to show that the jurors were duly sworn that they would truly and impartially assess the damages sustained by the applicants by the laying of the railroad-tracks, taking into consideration the appreciation and depreciation of the property belonging to the church. Seasonable objection was made to the form of the oath; but the objecting party did not point out in what respect it was erroneous to their prejudice, nor have they done so in the assignment of errors; which is all that need be said upon the subject.

Argument is hardly necessary to show that the third objection is without merit, as the course pursued is fully justified by the act of Congress. 12 Stat. 763.

Parties aggrieved by any order, judgment, or decree made or pronounced at a special term, may, if the same involve the merits of the action or proceeding, appeal therefrom to the general term; but the same section provides that the justice holding the special term may, in his discretion, order any motion or suit to be heard in the first instance at a general term. Unquestioned power being shown to warrant the proceeding, the action of the court must be presumed to be correct until the contrary is shown by evidence embodied in the record. Thompson v. Riggs, 5 Wall. 676.

Judgment affirmed.

MR. JUSTICE BRADLEY did not sit on the argument of this cause, and took no part in the decision.


text: Talk:Baltimore and Potomac Railroad Company v. Trustees of Sixth Presbyterian Church/Opinion of the Court


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Beauregard v. Case

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

Case, as receiver of the First National Bank of New Orleans, brought an action against Beauregard, May, and Graham, to recover the sum of $237,008.39, alleging that said defendants were commercial partners engaged in carrying on the New Orleans and Carrolton Railroad; and that the partnership account, which was kept in said bank in the name of Beauregard as lessee, was largely overdrawn, and the money applied to the use of the partnership; that May, while acting as president of said bank, and to make a nominal settlement, executed a promissory note, in the name of Beauregard, as lessee, payable to the bank on demand, for $40,000; and that said May also drew a bill of exchange on A. C. Graham in New York, in favor of the bank, for $125,000, and caused it, as well as the note, to be placed to the credit of said lessee. The petition also avers that the note was not paid, and that the bill of exchange was not stamped, and never forwarded for presentation, acceptance, or collection; that both of said credits were false, fraudulent, and fictitious; and that May acted with fraudulent intent, well knowing that the note had not been discounted by the bank, and that the bill would not be paid; and further averring, that, as the money thus obtained was used for the benefit of the partnership, the partners are liable therefor in solido.

Graham was not served with process, and did not appear.

Defendants severed in their answer. May filed a general denial of the matters in the petition stated, and also averred that he was a discharged bankrupt.

Beauregard, in his answer, denied the existence of a partnership and his liability on account thereof, alleging that he was merely a salaried officer; that, under stipulations of agreement, May and Graham were exclusively responsible for the enterprise; and that the indebtedness to the bank was contracted upon that responsibility, said bank being aware of the state of facts. Beauregard denied the authority of May to execute the note for $40,000 in his name.

In a supplemental answer, he averred that on the 13th of May, 1867, the bank was indebted to May in the sum of $315,779.10; and that if there was any indebtedness by him (Beauregard), as claimed by the plaintiff, it was extinguished by the bank's indebtedness to May.

There was read in evidence an act passed before a notary public, bearing date April 12, 1866, between said Beauregard and the New Orleans and Carrolton Railroad Company, by which the latter leased its track and appurtenances to Beauregard for the term of twenty-five years from the sixteenth day of that month. It contains sundry stipulations on the part of said Beauregard. The concluding part recites,--

'And thereupon personally came and appeared Thomas P. May and Augustus C. Graham, who, having taken cognizance of this act, declared they do hereby bind themselves and their heirs, in solido, with the present lessee, to the said New Orleans and Carrolton Railroad Company, their successors and assigns, as well for the true and faithful compliance on the part of said Beauregard with all the clauses, conditions, and stipulations herein contained, as for the true and punctual payment of the whole rents therein specified.'

Said act was signed by the proper officer of said company, and by Beauregard, May, and Graham; and also a further agreement, bearing date the eighteenth day of said month, between Beauregard, May, and Graham, as follows:--

'ARTICLE 1. Gustave Toutant Beauregard shall obtain in his name, but for the joint account of the appearers, the lease of the New Orleans and Carrolton Railroad: he shall take charge, conduct, manage, and direct the undertaking, at a salary of five thousand dollars per annum, payable monthly at the rate of four hundred and sixteen dollars sixty-six cents and two-thirds per month, promising and binding himself to do his best endeavors to the utmost of his skill and ability for their mutual advantage; and also he shall have the right to select and appoint his assistants, with proper salaries.

'ART. 2. The said Thomas P. May and Augustus C. Graham shall furnish the amount of money necessary to carry out the enterprise, which amount shall not exceed one hundred and fifty thousand dollars for each of them, making an aggregate amount of three hundred thousand dollars. The said T. P. May and A. C. Graham shall be reimbursed, in capital and interest, at the rate of eight per cent per annum from the annual net profit of the enterprise.

'ART. 3. After the payment of said capital and interest as aforesaid, the annual net profits, gains, and increase as shall arise shall be equally divided between the said appearers, share and share alike; and also all losses as shall happen by bad debts or otherwise shall be paid and borne equally between them.

'ART. 4. The said T. P. May and A. C. Graham promise and bind themselves to pay the above sum of one hundred and fifty thousand dollars, each of them in manner following: to wit, twenty thousand dollars (each of them) immediately after the signing of the lease by the New Orleans and Carrolton Railroad Company; then twenty thousand dollars (each of them) per month during the next four succeeding months; then ten thousand dollars per month (should they be required by the lessee G. T. Beauregard) until final payment of the said sum of one hundred and fifty thousand dollars by each of them.

'ART. 5. There shall be kept just and true books of accounts, wherein shall be entered as well all the money received and expended in and about the said enterprise, as also all commodities and merchandises bought by reason and on account of the present copartnership between the appearers, and all other matters and things in any wise belonging or appertaining thereto, so that either of them may at any time have free access thereto.

'ART 6. On the first of each month, a statement of amounts received and expended during the preceding month shall be furnished to the said Thomas P. May and A. C. Graham by said G. T. Beauregard, who will make his deposits in the First National Bank in this city.

ART. 7. This copartnership shall continue from the date of the lease by the said New Orleans and Carrolton Railroad Company to the said G. T. Beauregard, for and during and to the full end and term of twenty-five years next ensuing.

'ART. 8. In case any of the said copartners shall happen to decease before the expiration of the said term of twenty-five years, the present copartnership shall continue between the surviving copartners and the heirs or assigns of the deceased, under the same charges, clauses, and conditions as above set forth.

'And the said parties hereby bind themselves, their heirs, ececutors, and administrators, for the performance of all and every of the above agreements.'

There was evidence conducing to prove the matters stated in the petition and in the supplemental answer; there being to May's credit on the books of said bank, May 13, 1867, the sum of $317,779.10, for which sum he on that day gave a check to the United States in payment of a debt due them.

Beauregard requested the court to charge the jury,--

'If the jury shall find from the evidence that Thomas P. May is individually indebted to the First National Bank of New Orleans in the sum claimed in plaintiff's petition for moneys obtained by him from the bank upon his sole credit and responsibility or by overdraft upon said bank, paid without the knowledge of the board of directors, and solely through the orders and control of said May as president or leading director of said bank; that said debt had matured at the date of plaintiff's appointment as receiver, and when, as preliminary thereto, the bank was taken in charge by the agent of the Comptroller of the Currency; and that said May then owed no other debts to said bank; and that at said dates the said bank was indebted to said May in the sum of $315,779 for a balance of his general deposit account, which has never been paid; then the jury are instructed that the debt sued for in this case was compensated and extinguished by the said indebtedness of the said bank: which charge the court refused to give, but gave it with the addition, provided that said May was the sole debtor of the bank; to which refusal of the court to charge as requested, and to the charge as given, Beauregard excepted.'

Beauregard further requested the court to charge the jury,--

'If the jury shall find from the evidence, that, under the contract between T. P. May, A. C. Graham, and G. T. Beauregard, said May and Graham were to furnish, at their own exclusive charge and responsibility, and as their equivalent for their interest in the profits of the road, the means to carry on the same under said lease; that, after said means so furnished were repaid to them from the earnings of said road, the profits of the road were to be divided between them and said Beauregard, until which said Beauregard was to be paid a salary from the earnings of said road for his services in managing the same; and if the jury find, that, in accordance with said contract, May did furnish for said road the amount claimed in this suit which he obtained from the First National Bank, which debt thus created has never been paid, and that the earnings of the road were never sufficient to pay the same, or any part thereof; then the jury are instructed that G. T. Beauregard is not liable to plaintiff therefor, although the same was expended for the road, unless the jury find that he bound himself for the same, either expressly or by fair implication arising from dealings by him with the bank. But the court refused to charge as requested, but gave the charge with this addition, provided the bank had notice of the terms of said contract between said May, Graham, and Beauregard; to which refusal of the court to charge as requested, and to the charge as given, Beauregard excepted.'The jury found a verdict against Beauregard and May, each for one-third of the whole amount claimed; and the court rendered judgment accordingly.

Beauregard sued out a writ of error; but May refused to join therein.

Mr. James M. Carlisle and Mr. John D. McPherson for the plaintiff in error.

Mr. P. Phillips and Mr. Charles Case for the defendant in error.

MR. JUSTICE FIELD delivered the opinion of the court.

title: Beauregard v. Case


text: Talk:Beauregard v. Case

title: Talk:Beauregard v. Case


text:
Beauregard v. Case/Opinion of the Court

This was an action brought by the plaintiff, as receiver of the First National Bank of New Orleans, against the defendants, Beauregard, May, and Graham, to recover a sum exceeding two hundred and thirty-seven thousand dollars, alleged to have been overdrawn from the bank on their account. Three questions are presented by the record for our determination: First, whether the agreement entered into by the defendants on the 18th of April, 1866, created a copartnership between them in operating the New Orleans and Carrolton Railroad, by which the defendant Beauregard became liable with them for the partnership debts before their advances were reimbursed; second, whether if a copartnership were thus created, and the defendant Beauregard became from its commencement jointly liable with the other defendants, the indebtedness of the copartnership to the bank was compensated and extinguished by the indebtedness at the time of the bank to the defendant May; and, third, whether the verdict was defective in that it found against each defendant served only his proportional third of the whole partnership debt, instead of finding against these defendants the whole amount of the indebtedness.

The agreement of April 18, 1866, provided, on the one hand, that Beauregard should obtain in his own name, but for the joint account of the defendants, a lease of the railroad, and take charge of and control and manage it at a designated monthly salary, for their mutual benefit; and, on the other hand, that May and Graham should furnish the money necessary, not exceeding for each the sum of one hundred and fifty thousand dollars, to carry out the enterprise, to be reimbursed with interest out of its annual net profits; and then declared that after the payment of the capital thus invested, and interest, the annual net profits, gains, and increase should be equally divided between the parties, share and share alike; and that all losses, from bad debts or otherwise, should be equally borne between them. It designated in terms the contract as one of partnership, and declared that it should continue from the date of the lease of the railroad for the period of twenty-five years.

There was in this agreement all the essential conditions for the creation of a partnership, -provisions for a union of services and money, and a division of profits and losses. The postponement of a division of profits between the three partners until the capital advanced by two of them should be refunded, with interest, did not alter the character of the agreement as one of partnership, nor the liability of all the partners to third persons for debts contracted in the prosecution of its business. It was sufficient to create the partnership relation that profits to be ultimately divided between the parties were contemplated from their joint enterprise (Civil Code of 1870, art. 2811); and the agreement in fixing the commencement of the partnership determined the date of their joint liability.

The partnership belonged to that class of partnerships which is designated in the law of Louisiana as ordinary partnerships, as distinguished from those which are commercial. The latter are such as are formed for the purchase and sale of personal property as principals, or as factors or brokers, or for the carriage of personal property for hire in ships or other vessels. Ordinary partnerships embrace all other kinds, and they differ essentially from the former in the powers and liabilities of the several partners. That which is material in the present case is, that, in ordinary partnerships, each partner is only bound individually for his share of the partnership debts; but to that extent a debt contracted by one partner, even without authority from the others, binds them if it be proved that the partnership was benefited by the transaction. Civil Code of 1870, arts. 2872, 2894. In the present case, there was evidence tending to show that the moneys overdrawn by Beauregard were applied to the purposes of the copartnership. The instruction presented by his counsel assumed that they were thus used; and, if such were the case, there can be no doubt of his liability for the same jointly with his partners, unless by the terms of the contract with them they were to furnish the moneys used on their separate responsibility, and the bank had notice of the contract at the time. The addition placed by the court to the instruction was, therefore, a just and proper qualification.

The indebtedness of the partnership to the bank was in no respect affected by the attempted credit of the note of Beauregard, signed by May, for $40,000, and the draft of May on Graham for $125,000. These instruments were mere devices of May to show on the books of the bank a reduction of the large amount which was overdrawn on the partnership account. They had at no time any existence as instruments of value entitled to credit at the bank. The draft was never transmitted to New York, where Graham resided, and was never presented to him. The instruments never having been paid, the indebtedness of the partnership to the bank remained as it existed previously.

That indebtedness was not compensated and extinguished by operation of law by the indebtedness at the time of the bank to May, if such existed. Personal debts are only set off to each other, or compensated the one by the other, by oreration of law, when they are of the same personal character. A partnership debt is not thus offset or compensated by a demand of one individual member against the creditor. There is no mutuality in such cases between the parties.

It is true, as already stated, that the members of an ordinary partnership, by the law of Louisiana, are only liable to their common creditor for their proportional part of the indebtedness of the partnership; and, in a suit by the creditor against the firm, a partner having an individual demand against the creditor may, by way of defence, or by exception, as it is termed in the practice of the State, offset or oppose the compensation of his demand to that of the creditor. But this is a very different thing from one partner attempting to offset or oppose the compensation of the personal demand of his associate to the claim of their common creditor. For this position we can find no authority in the code of Louisiana or the decisions of its courts. In the present case, for example, the defendant May might have set up against the claim of the plaintiff his personal demand against the bank, had he not previously disposed of that demand to the United States; but the defendant Beauregard could not set up that demand of May's in compensation of the bank's claim against him for his share of the partnership indebtedness, any more than he could set up a similar demand of a stranger.

The instruction presented by his counsel assumed that the defendant May might have been individually indebted for the whole of the amount of the moneys obtained from the bank for the joint enterprise, and saked, in that event, that the jury be charged that the debt in suit was compensated and extinguished by the indebtedness of the bank to him. At the time this instruction was presented, the contract of partnership was before the court, with evidence tending to show that the moneys obtained had been expended for the joint enterprise. It thus appeared that there was or might be a joint liability of the partners to the bank, whatever the extent of their individual liability for the same indebtedness. The qualification placed by the court to the instruction was, therefore, a proper limitation upon the doctrine of compensation applicable to the case. If there was any liability on the part of May for the indebtedness of the firm, except as partner, it was a liability as surety; and there could be no compensation, by operation of law, between the demand of the bank against him as surety and the indebtedness of the bank to him personally.

The verdict and judgment do, it is true, vary from the prayer of the petition. That seeks a judgment against all the defendants in solido for the whole amount of the partnership debt. It is based upon the hypothesis that the defendants were commercial partners, and were thus jointly and severally liable for the whole amount of the partnership debts. But the facts alleged by the pleadings and disclosed by the proofs showing that the partnership between the defendants was not a commercial one within the law of Louisiana, but one there designated as an ordinary partnership, no verdict would have been legal that found any greater sum against each of the partners served than his proportional share of the indebtedness. Code of 1870, art. 2086. There was in this no such departure from the issues made as to vitiate the verdict and judgment thereon. The reported decisions of the Supreme Court of Louisiana show numerous instances where similar verdicts upon like petitions have been sustained.

Judgment affirmed.

title: Beauregard v. Case/Opinion of the Court


text: Talk:Beauregard v. Case/Opinion of the Court


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Atherton v. Fowler (91 U.S. 143)

MOTION to dismiss a writ of error to the Supreme Court of the State of California.

This is an action of replevin, brought in the District Court for the Fourth Judicial District of the State of California, to recover certain hay cut from lands in Solano County, to which the plaintiffs claimed title in consequence of rights alleged to have been acquired under an act of Congress entitled 'An act to grant the right of pre-emption to certain purchasers on the 'Soscol Ranch,' in the State of California,' approved March 3, 1863. 12 Stat. 808. The plaintiff having died pendente lite, his executors were substituted in his stead. The defendants denied the plaintiff's title, and averred that they, in good faith and under color of title, held the land adversely to his pretended claim. The jury found a verdict in favor of the defendants for the value of the hay in controversy, with interest thereon. Judgment was for the defendants for $13,896.43. The plaintiffs appealed to the Supreme Court of the State, which adjudged 'that the judgment be reversed, and the cause remanded, with directions to the court below to proceed to try the cause anew, unless, within twenty days after the filing of the remittitur in the court below, the defendants shall file with the clerk of that court a written consent that the judgment be modified by striking out the damages therein awarded, and inserting, in lieu thereof, the sum of $8,989; and, upon such consent being filed, it is ordered that the judgment be modified accordingly, and also that it be made payable in due course of administration.' The written consent of the defendants having been filed in the District Court, the judgment of that court was modified as ordered by the Supreme Court.

On the fourteenth day of July, 1875, the plaintiffs sued out this writ of error, directed to the Supreme Court of California. The writ bears test on the day of its issue, but contains no return day.

Mr. M. A. Wheaton for the defendants in error, in support of the motion to dismiss.

The State court having decided the case upon principles of law as recognized and administered in California, and without reference to the construction or effect of any provision in the Constitution or any act of Congress, no jurisdiction exists in this court to review that decision, even though, in some other aspect of the case, a Federal question might possibly have been applicable, but upon which the State court did not pass. Insurance Co. v. The Treasurer, 11 Wall. 209; Klinger v. Missouri, 13 id. 263; West Tennessee Bank v. Citizens' Bank, id. 432; Caperton v. Bowyer, 14 id. 216; Commercial Bank v. Rochester, 15 id. 639; Marquez v. Bloom, 16 id. 351; Crowell v. Randall, 10 Pet. 397; Farney v. Towle, 1 Black, 351; Boggs v. Mining Co., 3 Wall. 304; Maxwell v. Newbold, 18 How. 516; Hoyt v. Sheldon, 1 Black, 522.

A judgment of the highest court of a State reversing that of an inferior court, and awarding a venire de nove, is not a final judgment in the sense in which that term is used in the statute authorizing a review thereof by this court. Tracy v. Holcombe, 24 How. 426; Miners' Bank v. United States, 5 id. 214; Brown v. Union Bank, 4 id. 465; Weston v. Charlestown, 2 Pet. 449; Winn v. Jackson, 12 Wheat. 135; Houston v. Morse, 3 id. 434.

A judgment remanding a case to a lower court for further proceedings in accordance with the opinion is not such a final judgment. Pepper v. Dunlap, 5 How. 52; Moore v. Robbins, 18 Wall. 588; St. Clair v. Livingston, id. 628; Parcels v. Johnson, 20 id. 654.

If there has been any final judgment in this case, it must have been rendered by the District Court; to which, therefore, the writ of error should have issued. Gelston v. Hoyt, 3 Wheat. 304; Webster v. Reid, 11 How. 457; Miller v. Joseph, 17 Wall. 655; McGuire v. The Commonwealth, 3 id. 386.

Under the Judiciary Act of 1792, a writ made returnable on any other day then the first day of the next ensuing term was held void. Conklin's Treatise, p. 635; Insurance Co. v. Mordecai, 21 How. 200; Porter v. Foley, id. 393; Agricultural Co. v. Pierce County, 6 Wall. 246; Rules of S.C.., No. 8, Subdivision 5.

It was held, prior to the act of June 1, 1872, that this court had no power to amend the writ in this respect. Vide cases cited above. Hodge v. Williams, 22 How. 88; City of Washington v. Denison, 6 Wall. 496; Hampton v. Rouse, 15 id. 684.

The date of test of the writ is not a day of a term of this court. No application to amend being made, it is ground for dismissal. Conklin's Treatise, p. 634; 2 Abbott's U.S. Practice, p. 251.

Mr. Montgomery Blair, contra.

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

title: Atherton v. Fowler (91 U.S. 143)


text: Talk:Atherton v. Fowler (91 U.S. 143)

title: Talk:Atherton v. Fowler (91 U.S. 143)


text:
Atherton v. Fowler (91 U.S. 143)/Opinion of the Court

The plaintiffs in error claimed title to the hay in controversy in this case in consequence of alleged rights acquired under the act of Congress, passed March 3, 1863, entitled 'An act to grant the right of pre-emption to certain purchasers on the 'Soscol Ranch,' in the State of California.' 12 Stat. 808. The decision of the State court was against their title. This presents a question within the jurisdiction of this court.

The judgment of the Supreme Court is the final judgment in the suit, within the meaning of the act of Congress. Rev. Stat. 709. It reversed and modified the judgment below, and did not permit further proceedings is the inferior court, if the defendants consented to the modification directed as to the amount of damages. This consent has been given, as the record shows; and the judgment of the court below is the judgment which the Supreme Court directed that court to enter and carry into execution. The litigation was ended by the decision of the Supreme Court. No discretion was left in the court below if the required consent was given.

The writ of error was properly directed to the Supreme Court of the State. We can only re-examine the 'final judgment or decree in any suit in the highest court of a State in which a decision in the suit could be had.' Rev. Stat. sect. 709. For the purposes of such a re-examination, we require the record upon which the judgment or decree was given, and we send out our writ of error to bring it here. That writ is to operate on the court having the record, and not upon the parties. Cohens v. Virginia, 6 Wheat. 410. The citation goes to the parties, and brings them before us. The writ of error, therefore, is properly 'directed to the court which holds the proceedings as part of its own records, and exercises judicial power over them.' Hunt v. Palas, 4 How. 590. If the highest court of the State retains the record, the writ should go there, as that court can best certify to us the proceedings upon which it has acted and given judgment. As it is the judgment of the highest court that we are to re-examine, we should, if we can, deal directly with that court, and through it, if necessary, upon the inferior tribunals. It is, perhaps, safe to say that a writ will never be dismissed for want of jurisdiction, because it is directed to the highest court in which a decision was and could be had. We may not be able in all cases to reach the record by such a writ, and may be compelled to send out another to a different court before our object can be accomplished; but that is no ground for dismissal. We have the right to send there to see if we can obtain what we want.

But, in some of the States,-as, for instance, New York and Massachusetts,-the practice is for the highest court, after its judgment has been pronounced, to send the record and the judgment to the inferior court, where they thereafter remain. If in such a case out writ should be sent to the highest court, that court might with truth return that it had no record of its proceedings, and, therefore, could not comply with our demand. Upon the receipt of such a return, we should be compelled to send another writ to the court having the record in its possession. It has been so expressly decided in Gelston v. Hoyt, 3 Wheat. 246, and McGuire v. Commonwealth, 3 Wall. 382. So, too, if we are in any way judicially informed, that, under the laws and practice of a State, the highest court is not the custodian of its own records, we may send to the highest court, and seek through its instrumentality to obtain the record we require from the inferior court having it in keeping, or we may call directly upon the inferior court itself. But if the highest court is the legal custodian of its own records, and actually retains them, we can only send there. This, we think, has always been the rule of practice, notwithstanding Mr. Justice Story, in delivering the opinion of the court in Gelston v. Hoyt, said that the writ might be 'directed to either court in which the record and judgment on which it is to act may be found.' 3 Wheat. 304. This was in a case where the judgment had been rendered in the Court of Appeals of New York, but, after its rendition, the record with the judgment had been sent down to the inferior court, there to be preserved in accordance with the law and uniform practice in that State. Strictly speaking, the record cannot be found in two courts at the same time. The original record may be in one and a copy in another, or one court may have the record and another the means of making one precisely the same in all respects; but the record proper can only be in one place at the same time.

In Webster v. Reid, 11 How. 457, the general language of Mr. Justice Story in Gelston v. Hoyt was somewhat limited; for, in stating the ruling of the court in that case, Mr. Justice McLean gives it as follows: 'The writ of error may be directed to any court in which the record and judgment on which it is to act may be found; and, if the record has been remitted by the highest court to another court in the State, it may be brought by writ of error from that court.' To the same effect is McGuire v. Commonwealth, 3 Wall. 386. That was a case from Massachusetts. The suit was pending in the Superior Court of that State; and after verdict, but before judgment, certain exceptions were sent up to the Supreme Judicial Court for lits opinion. That court subsequently sent down its rescript overruling the exceptions; and thereupon final judgment was entered in the Superior Court upon the verdict. This was according to the law and practice in Massachusetts, and the effect was to leave the entire record in the inferior court. Upon this state of facts, this court held that the judgment in that case was the judgment of the Superior Court, and that that court was the highest court in which the decision of the suit could be had, and, therefore, the only court to which the writ could go. But it was also held, that if the Supreme Judicial Court had rendered the final judgment, and had sent the judgment to the Superior Court, and with the judgment had sent the record, the direction of the writ to the Superior Court would have been proper. Green v. Van Buskirk, 3 Wall. 450, was also a New York case, and is to be considered in the light of the peculiar practice in that State. The record had been sent from the Court of Appeals to the Supreme Court.

The rule may, therefore, be stated to be, that if the highest court has, after judgment, sent its record and judgment in accordance with the law of the State to an inferior court for safe keeping, and no longer has them in its own possession, we may send our writ either to the highest court or to the inferior court. If the highest court can and will, in obedience to the requirement of the writ, procure a return of the record and judgment from the inferior court, and send them to us, no writ need go to the inferior court; but, if it fails to do this, we may ourselves send direct to the court having the record in its custody and under its control. So, too, if we know that the record is in the possession of the inferior court, and not in the highest court, we may send there without first calling upon the highest court; but if the law requires the highest court to retain its own records, and they are not in practice sent down to the inferior court, our writ can only go to the highest court. That court, being the only custodian of its own records, is alone authorized to certify them to us.

In this case, out writ went to the Supreme Court; and, in obedience to its command, that court has sent us its record. There is now no need of a further writ, even if the practice in California permitted the transmission of records from the Supreme Court to the inferior courts. But such, as we understand is not the practice. The Supreme Court is there the sole custodian of its own records. Cases go there upon a transcript of the proceedings in the court below. This transcript is retained in the Supreme Court, and is the foundation of the proceedings there. The transcript is without doubt a copy of the proceedings in the court below; but that does not make the record below the record above. The court above acts only upon the transcript, and from that its record is made.

The writ of error may be amended under the authority of sect. 1005 of the Rev. Stat. by inserting the proper return day. It is no objection to the writ that it bears test on the day of its issue. Rev. Stat. sect. 912.

The motion to dismiss is denied.


text: Talk:Atherton v. Fowler (91 U.S. 143)/Opinion of the Court


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Roemer v. Simon (91 U.S. 149)

APPEAL from the Circuit Court of the United States for the District of New Jersey.

On motion. The bill filed in this case was for an alleged infringement of letters-patent, No. 56,801, granted to the appellant, bearing date July 31, 1866, for improvements in travellingbags, and prayed for an account and an injunction.

Upon a final hearing, a decree was rendered at the March Term of said Circuit Court, 1874, dismissing the bill.

Mr. Thomas Marshall presented the petition and affidavit of the appellant, stating in substance that new and material evidence, previously unknown to him, had been discovered since the appeal herein. The affidavits of sundry persons, setting forth as well the nature of the evidence as the matters thereby established, were attached to the petition. He thereupon moved that leave be granted the appellant to give to the appellees the requisite notice of a further motion for a rule requiring them to show cause why this court should not remit the record to the court below for a rehearing of the cause.

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

title: Roemer v. Simon (91 U.S. 149)


text: Talk:Roemer v. Simon (91 U.S. 149)

title: Talk:Roemer v. Simon (91 U.S. 149)


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Roemer v. Simon (91 U.S. 149)/Opinion of the Court

It is clear, that, after an appeal in equity to this court, we cannot, upon motion, set aside a decree of the court below, and grant a rehearing. We can only affirm, reverse, or modify the decree appealed from, and that upon the hearing of the cause. No new evidence can be received here. Rev. Stat. sect. 698. The court below cannot grant a rehearing after the term at which the final decree was rendered. Equity Rule, 88. It would be useless to remand this cause, therefore, as the term at which the decree was rendered has passed. If the term still continued, the proper practice would be to make application to the court below for a rehearing, and have that court send to us a request for a return of the record, in order that it might proceed further with the cause. Should such a request be made, we might, in a proper case and under proper restrictions, make the necessary order; but we cannot make such an order on the application of the parties. The court below alone can make the request of us. The application of the parties must be addressed to that court, and not to us.

Motion denied.


text: Talk:Roemer v. Simon (91 U.S. 149)/Opinion of the Court


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Roberts v. Ryer

APPEAL from the Circuit Court of the United States for the Southern District of New York.

The bill in this case was filed by the assignee of D. W. C. Sanford, alleging an infringement of a patent to Sanford for an improvement in refrigerators.

The principal defence relied upon was the prior invention of Lyman. The Circuit Court sustained this defence, and dismissed the bill. From this decree the complainant appealed.

Mr. Thomas A. Jenckes and Mr. George F. Seymour for the appellant.

Mr. F. H. Betts for the appellee.

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

title: Roberts v. Ryer


text: Talk:Roberts v. Ryer

title: Talk:Roberts v. Ryer


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Roberts v. Ryer/Opinion of the Court

In order that we may proceed intelligently in our inquiries as to the validity of the patent presented for our consideration in this case, it is important to ascertain at the outset what it is that has been patented.

Looking to the original patent, issued Nov. 13, 1855, we find the invention is there described as consisting 'of an improvement in refrigerators, whereby the whole of the contained air is kept in continual rotation, purification, desiccation, and refrigeration, and with economy of ice;' and that the inventor claimed and obtained a patent for 'the arrangement set forth for causing the perpetual rotation of the whole of the air contained within the refrigerating apartments, said arrangement consisting, when the refrigerator is closed, of an endless passage or chamber, the walls, shelves, and ice receptacle of which are so placed and constructed that the air is compelled to circulate through the entire apartment or apartments, and from which the water of the melting ice is discharged immediately from the refrigerator, instead of flowing between its walls.' Mention is nowhere made in the specifications attached to this patent of any advantage which the descending current of air has over the ascending. The whole apparent object of the inventor was to produce a circulation of the confined air without the introduction of external air. The drawings exhibit shelves perforated so as to permit the passage of the air in its downward and upward progress; but the shelves seem only to be alluded to in the specifications, for the purpose of indicating the necessity of their perforation, or of some equivalent arrangement, so as to allow the free transit of the air. They appear as part of the refrigerator to be improved, and are in no respect necessary for the accomplishment of the object the inventor had in view. Being in the refrigerator, they are perforated, or otherwise so arranged as to permit the circulation which the inventor is attempting by his device to create. But for this, they would prevent, or at least interfere with, the accomplishment of his object. The shelves themselves form no part of his improvement; but their perforation or its equivalent, when they are used, does.

In the reissued patent, the invention is described precisely the same as in the old; and then the following is added: 'It is well known that mould will not generate in a current of air; and it is known, that, when once formed, it propagates itself, and spreads with rapidity: therefore, if any one part of the refrigerator be out of the direct course of the circulation, the air will stagnate there, and will develop mould, which will contaminate the whole apartment. The apartment D may vary in width, and it may be. . . so narrow as to serve merely as a passage for the ascending current of air, the greatest benefit being always derived from the downward current in apartment C.' This last paragraph certainly has much the appearance of an expansion of the original invention.

The claim, however, as made in the reissue, is materially changed from that in the old. It is capable of division into three parts, and may be stated as follows:--

1. The employment of an open-bottom ice-box, or its equivalent, in combination with a dividing partition, open above and below, so placed that by means of self-operating internal circulation the whole of the contained air shall be kept in motion, and caused to revolve around that partition in currents, moving downward only on one side of this partition, and upward only on the other side, when the same is combined with a chamber for the refrigeration of food, &c., placed directly under the ice-box.

2. Placing shelves or fixtures for holding articles to be refrigerated, or the articles themselves, in the descending current, directly under an open-bottom ice-box, in combination with a dividing partition open above and below.

3. The construction of the open-bottom ice-box in combination with the shelves or fixtures in such manner that the air may pass freely down through the same, and fall directly from the ice upon the articles to be refrigerated, while at the same time the drip of the water is prevented.

The patent is, therefore, for a combination of three elements; to wit: 1. An open-bottom ice-box, or its equivalent, so constructed that the air may pass freely down through it, while, at the same time, the drip of the water from the melting ice is prevented by collecting the water, and taking it in an escape-pipe outside of the refrigerator; 2. A dividing partition, open above and below, separating the refrigerator into two apartments; and, 3. A chamber directly under the open-bottom ice-box, in which articles to be refrigerated may be placed in such manner as to receive the descending current of air from the ice-box directly upon them.

There is no doubt of the utility of this combination. If the patentee was its original and first inventor, the device was patentable to him.

It will be observed that no particular form of the opening in the bottom of the ice-box is essential. In fact, an equivalent may be used. It is so expressly stated. Any device which will allow of the passage of the cooled air out from among the ice, or cooling surfaces, into the chamber below, will come within the specifications. Hence the bottom may be in the form of a grate, or it may be constructed of bars running only longitudinally, or it may have one or many open spaces of any form. In this respect, all is left to the judgment of the builder. He may adopt any arrangement which he considers the best suited to the accomplishment of the object to be attained; which is the cooling of the air by the ice, and its discharge into the chamber below. Neither is there any special requirement as to the manner in which the water from the melted ice is to be collected and conducted outside the refrigerator. It is said in the specifications, that the bottom of the ice-box was made funnel-shaped; but this was so that the water might be conducted to the central discharge, and from thence fall into the escape-pipe. This particular shape, however, is not made an essential ingredient. Any device that will collect the water in the discharge-pipe and prevent the drip will meet. this requirement of the invention. So, too, of the escape-pipe: it may be of any desirable form. As little space as possible should be occupied, so that it may not obstruct the downward passage of the air; but even this is left as a matter of judgment alone.

Neither is any particular form of partition made essential. It need not even be vertical. All that is required is, that it shall be open at the top and bottom, and divide the refrigerator into two apartments. There are no specifications as to the size of the openings or their form, or as to the comparative size of form of the two apartments. It is said that the apartment for the ascending current may be so narrow, that it will serve only as a passage for the air; but there is nothing to prevent that for the descending current being narrow also, if the purposes of the refrigerator are such as to make that desirable. As the greatest benefit is generally to be derived from the use of the descending current, it is probable that this chamber will ordinarily be made as large as is consistent with a steady and continuous flow of the air; but, if a rapid descent is considered essential for any of the purposes of refrigeration, there is nothing to prevent a suitable contrivance for that purpose. If that can be accomplished by a larger chamber above leading into a smaller one below, for the purpose of concentrating the cold-air current as it descends, a proper structure may be employed. If, in any place, the air descending from the ice-box can strike directly upon the articles to be refrigerated, the structure will be within the limits of the patent. It may be desirable to preserve the temperature at a lower degree until it strikes the article than it would be if permitted to remain in a chamber extending the whole size of the ice-box to the bottom of the refrigerator. In such case, a proper contrivance for that purpose may be employed. Shelves or other fixtures for holding the articles to be refrigerated are not necessary, as the articles themselves may be placed in the descending current without the aid of any fixtures. But, if they were, their particular form is not specified. A nail driven into the wall of the chamber would be a fixture within the meaning of this call of the specifications. All the specifications do require is, that, if shelves or fixtures are used, they shall be so constructed or placed as the interfere as little as possible with the free passage of the air.

Such being the patent, we now proceed to consider the defence; which is, that the invention patented had been anticipated by Asel S. Lyman and others. Sanford, the patentee, does not carry his inventon back of the summer of 1855, when, it perhaps sufficiently appears, his application was filed.

On the 21st September, 1854, Lyman filed his application for a patent for 'a new and improved mode of cooling, drying, and disinfecting air for ventilators and refrigerators.' His improvement in refrigerators consisted 'in so arranging them, that, as fast as the air became warm and moist and impure by contact with the meat, it is drawn off and passed through the material, where it is cooled, dried, and disinfected, and them returned to use again in the refrigerator, collecting moisture and impurities, which it deposits in the receptacle intended for that purpose; thus keeping up a full circulation, and thoroughly ventilating the refrigerator with dry, pure, cold air.'

His device consisted of a receptacle for ice, with a grate for its bottom, on which the ice rested. This receptacle was placed in the upper part of the refrigerator, and on one side. Below it was a cold-air chamber, into which the air flowed from the ice through the grate. The water from the melting ice was collected in this chamber, and conducted by a pipe to the outside of the refrigerator. From the cold-air chamber was a conduit leading downwards, but which did not extend to the bottom of the refrigerator. At the top of the ice receptacle, and on its side, was an opening into the refrigerator. The operation Lyman described to be as follows:--

'The receptacle being filled with fragments of ice, the air among this ice will be cooled, and, becoming more dense, will settle down through the grate into the cold-air chamber; thence down the conduit; and, so long as the air in the ice is colder and heavier than that in the refrigerator, it will continue to fall down the conduit, mingling with the lower strata, and forcing the upper strata or warmest air through the opening into the ice receptacle. When the air comes in contact with the cold surfaces of the ice, its eapacity for moisture is lessened, and the moisture is deposited on the ice. By this arrangement of the ice receptacle in the upper part of the refrigerator, with an opening for receiving air in its upper part, and a grate in the lower part on which the ice rests, a cold-air chamber below the grate and a descending conduit from this cold-air chamber, or with an arrangement of parts substantially the same, so that the air shall be caused to circulate rapidly from bottom to top in the refrigerating chamber, and from top to bottom in the separate combinations as described, the air is not only cooled, but it is, by being frequently passed through the interstices of the ice, thoroughly dried, and it is washed as by a hail-storm; a decided improvement in its smell is effected; and the apparatus becomes not only cooling and drying, but, to some extent, a disinfecting apparatus.'

He then claimed as his invention 'the combination of the reservoir of cooling, drying, and disinfecting material with the descending tube or conduit, so that the cold and condensed air in this conduit shall, on account of its increased weight, cause the warmer air to pass more rapidly through the material, where it is cooled, dried, and disinfected, and in its turn fall down the conduit, being by its sides kept separate from the other air until it mingles with the lower strata, substantially as described for the purposes aforesaid.'

There was, therefore, in this invention of Lyman, the open-bottom ice-box, and the partition open above and below, dividing the refrigerator into two apartments, in one of which the air passed downward only, and in the other upward only. This constituted all there was of the 'endless passage or chamber' in the original Sanford patent, 'so constructed that the air is compelled to circulate through the entire apartment or apartments.' True, the partition was not vertical; and the apartments need not be of equal or of any particular proportionate size. Neither was this necessary, as has been seen in the Sanford patent. Each, however, called for the circulation of air, and each obtained it substantially by the same device. They each passed the air cooled in the ice-box through convenient openings downwards in one apartment, and upwards through the other. In each device the cooled air passed through the opening in the bottom of the partition, and the warmed air through that in the top. All this was done in both cases for the purpose of cooling, desiccating, and purifying the confined air, and to prepare it for the purposes of refrigeration. There was, therefore, one common object to be accomplished by both the inventors; and they each devised substantially the same plan for that purpose.

Undoubtedly Lyman expected to use the ascending air principally for the purposes of refrigeration, and he therefore supposed the greatest benefit would be derived from that current; but there was nothing in his specifications to prevent the use of the descending air, or from so constructing his refrigerator as to make that available. If it should be thought advisable to extend the size of the chamber for the descending air, there was nothing to prevent it. It would still operate as a conduit in which the cold air would fall down and be kept separate by the sides from the other air until it mingled with the lower strata.

It being, then, certain that Lyman contrived a machine which would produce the desired circulation, and could be used for refrigeration in the ascending current, it remains only to consider, whether, if one desired to make use of the descending current for the same purpose, he could claim such use as a new invention.

It is no new invention to use an old machine for a new purpose. The inventor of a machine is entitled to the benefit of all the uses to which it can be put, no matter whether he had conceived the idea of the use or not.

Lyman had the descending current. True, he concentrated the air as it fell, and sent it downwards through a space smaller than that which would be contained in a chamber extending the full size of the bottom of the ice-box to the bottom of the refrigerator; but he did have a space large enough to expose in it some articles to the effect of that current. If it should be found desirable to utilize that current to a greater extent than was at first contemplated, all that need be done is to enlarge the conduit. If the circulation is kept up, the device will be within the specifications. In fact, the proof is abundant, that in his experiments, while perfecting his invention, Lyman did, in more cases than one, utilize the descending current. With both the inventors, the circulation by means of an ascending and descending current was the principal object to be obtained. One considered the greatest benefit for the purposes of refrigeration was to be derived from the use of the descending current, while the other had his attention directed more particularly to the advantages of the ascending. They each had both, and could utilize both. It is no invention, therefore, to make use of one rather than the other.

Lyman had conceived the idea of his invention as early as Aug. 19, 1852; for he then filed his caveat in the Patent Office. His ideas were, at that time, undoubtedly crude; but it is clear that he kept steadily at his work. He built many refrigerators upon his general plan; and, in some at least, the descending current was made use of. A part had shelves arranged in such a manner as to expose the articles in that current; and in some the articles were placed on the bottom of the refrigerator, immediately under the outlet of the conduit. In some the conduit was large, and in others it was small. The size was made in all cases to depend upon the judgment of the builder, and the purposes to which the machine, when completed, was to be applied.

As has been seen, Lyman, after having, as he thought, perfected his invention, applied for his patent, Sept. 21, 1854. Technical objections were made; and on the 19th April, 1855, he withdrew the application. He, however, still kept up his correspondence with the department, vigorously pushing his claim. On the 28th November, 1855, only thirteen days after the grant of the patent to Sanford, he filed a new application, and, in doing so, distinctly connected it with the first. There certainly is no material difference between the old and the new. On the 25th March, 1856, a patent was in due form issued to him.

Down to this time, it is impossible to discover any material difference between the two patented inventions. Clearly Lyman was the oldest inventor, and his patent was consequently the best, although that of Sanford antedated his. His last application was rejected Dec. 5, because it had been anticipated by Sanford; but afterwards the subject was reconsidered, and a patent issued to him.

After this grant of a patent to Lyman, Sanford surrendered his original patent, and obtained his reissue upon the amended specifications and claim. These have already been stated. All that can possibly be claimed for this amendment is a combination of the use of the descending current with the device for the circulation. There was no change in the machine: it was only put to a new use. If there was any change of construction suggested, it was only to increase its capacity for usefulness. It was 'a mere carrying forward or new or more extended application of the original thought, a change only in form, proportions, or degree, doing substantially the same thing in the same way, by substantially the same means, with better results.' This is not such an invention as will sustain a patent. We so decided no longer ago than the last term, in Smith v. Nichols, 21 Wall. 112. Clearly, we think, therefore, the invention of Sanford was anticipated by Lyman; and his patent is, on that account, void.

We have been cited to the case of Roberts v. Harnden, 2 Cliff. 500, decided by Mr. Justice Clifford, upon the circuit, as an authority against the view we have taken. In that case, the same construction substantially was given to the patent that we give to it here. We place our decision upon the facts shown to us. We think the evidence establishes, beyond all question, that Lyman, and not Sanford, was the original and first inventor of all there is of this improvement. In that case the court said 'that the respondent had not introduced any satisfactory evidence tending to show that the patentee (Sanford) is not the original and first inventor of the improvement.' What was submitted to that court we do not know. The report of the case does not contain the evidence, or any intimation of what it was.

Upon the evidence submitted to us, we think a clear case is made in favor of the defendants, and that the bill was properly dismissed.

The decree of the Circuit Court is affirmed.

NOTE.-In Roberts v. Buck, on appeal from the Circuit Court for the District of Massachusetts, the decree of the Circuit Court was affirmed, for the reasons stated in Roberts v. Ryer, supra; the questions presented in both cases being substantially the same.

title: Roberts v. Ryer/Opinion of the Court


text: Talk:Roberts v. Ryer/Opinion of the Court


text:
Hall v. Lanning

ERROR to the Circuit Court of the United States for the Northern District of Illinois.

This was an action of debt brought on a judgment rendered in New York against the plaintiffs in error. One of them, Lybrand, pleaded separately nul tiel record, and several special pleas questioning the validity of the judgment as against him for want of jurisdiction over his person. On the trial, the plaintiff simply gave in evidence the record of the judgment recovered in New York, which showed that an attorney had appeared and put in an answer for both defendants, who were sued as partners. The answer admitted the partnership, but set up various matters of defence. The cause was referred, and judgment given for the plaintiffs. This was the substance of the New York record. The plaintiffs gave no further evidence.

Lybrand then offered to prove that he never was a resident or citizen of the State of New York; and that he had not been within said State of New York at any time since, nor for a long time before, the commencement of the suit in which the judgement was rendered, upon which the plaintiff in this case brought suit; and that he never had any summons, process, notice, citation, or notice of any kind, either actual or constructive, ever given or served upon him; and that he never authorized any attorney or any other person to appear for him; and that no one ever had any authority to appear for him in said suit in the State of New York, or to enter his appearance therein, nor did he ever authorize any one to employ an attorney to appear for him in the action in which said judgment was entered; and that he never entered his appearance therein in ¢person; and that he knew nothing of the pendency of said suit in the said State of New York until the commencement of the present suit in this court; that he was a partner in business with his co-defendant Hall at the time the transaction occurred upon which the plaintiffs brought suit in New York, though said partnership had been dissolved, and due notice thereof published, some six months prior to the commencement of said suit in New York.

This evidence, being objected to, was overruled by the court, which instructed the jury as follows: 'That the record introduced in evidence by the plaintiffs was conclusive evidence for the plaintiffs to maintain the issues submitted to the jury by the pleadings; and that they should return a verdict for the plaintiffs, and against both defendatns.'

A bill of exceptions was taken to this ruling, and the matter brought here on writ of error.

Mr. Samuel W. Packard for the plaintiffs in error.

The controlling question in this case is, whether the court erred in refusing to allow the introduction of evidence to show that the judgment obtained in New York was void, as to Lybrand, for want of jurisdiction of the person. The general rule of law in that State is, that 'want of jurisdiction may always be interposed against a judgment when sought to be enforced, or when any benefit is claimed from it: the want of jurisdiction, either of the subject-matter or of the person of either party, renders the judgment a mere nullity.' Kerr v. Kerr, 41 N. Y. 275, per James, J.; Shumway v. Stillman, 6 Wend. 447; Borden v. Fitch, 15 Johns. 121; Dobson v. Pearce, 12 N. Y. 164, per Allen, J.; Kinnier v. Kinnier, 45 id. 542, per Church, C. J.

For the purpose of showing that the court did not have jurisdiction, the recitals in the judgment record may be contradicted. Adams v. Saratoga & Vermont R. W. Co., 10 N. Y. (6 Selden) 332, 333, per Gridley, j.,; Harrington v. People, 6 Barb. 607, 610, per Paige, J., and other cases in New York there cited; Latham v. Edgerton, 9 Cow. 228, and cases there cited.

But there is this exception to the general rule above stated in New York. Where an attorney has appeared without authority for a party, he cannot be allowed to dispute the authority of the attorney when the judgment is brought in question, except by a direct proceeding in the court where the judgment remains; and he cannot always do that if the attorney is responsible, as a suit against the attorney is, under some circumstances, held an adequate remedy.

The reasons of the exception are, because the title to real estate depends to a great extent upon the records of the courts; and the injured party has an ample remedy against the attorney, if responsible, or he can apply to the court in which judgment was rendered for relief. Brown v. Nichols, 42 N. Y. 26, per Ingall, J., 32, and per Earle, J., 30; Denton v. Noyes, 6 Johns. 296.

title: Hall v. Lanning


text: Talk:Hall v. Lanning

title: Talk:Hall v. Lanning