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Agawam Company v. Jordan/Opinion of the Court

Patentees acquire, by virtue of their letters patent, if properly granted and in due form, the full and exclusive right and liberty of making, using, and vending to others to be used, their respective inventions for the term of years allowed by law at the time when the letters patent were issued. Such exclusive right and liberty may be held and enjoyed by the patentee throughout the entire term for which it is granted; or he may assign the letters patent, by an instrument in writing, either as to the whole interest or any undivided part thereof; or he may grant and convey to another the exclusive right under the patent to make and use, and grant to others to make and use, the thing patented, within and throughout any specified district.

Damages may be recovered by an action on the case for any infringement of that exclusive right and liberty; or the party aggrieved may, in any case, at his election, bring his suit in equity and pray for an injunction to prevent the violation of the same; but, the express provision is, that all such actions, suits, and controversies shall be originally cognizable, as well in equity as at law, by the Circuit Courts of the United States, or any District Court having the powers and jurisdiction of a Circuit Court.

Jurisdiction of such cases is exclusive in the Circuit Courts, subject to writ of error and appeal to this court, as provided by law; but the requirement is, that the suit must be brought in the name of the person or persons interested, whether patentees, assignees, or as grantees, as aforesaid, of the exclusive right within a specified locality.

Present suit was in equity, and was founded on certain reissued letters patent granted to the complainant on the twenty-eighth of June, 1864, as the assignee, by certain mesne assignments, of John Goulding, who was the original patentee, and who, as alleged, was the original and first inventor of the improvement. Original patent was granted December 15th, 1826, for the term of fourteen years, and was, as alleged, for a new and useful improvement in the was, as alleged, for a new and useful improvement in the mode of manufacturing wool and other fibrous materials; but the claims of the specification were defective, and it was surrendered on that account, and reissued July 29th, 1836, for the residue of the original term.

Representations of the complainant were, that the original patentee, without any neglect or fault on his part, failed to obtain by the use and sale of the invention a reasonable remuneration for his time, ingenuity, and expenses employed and incurred in perfecting the invention, and introducing the same into use within the time for which the patent was originally issued, and that he failed also, by accident and mistake, to obtain an extension of the patent before the expiration of the original term.

Power of the commissioner to renew and extend the patent having expired, the allegation was that the original patentee applied to Congress, and that Congress, on the thirtieth of May, 1862, passed an act for his relief. Pursuant to that authority, the bill of complaint alleged that the commissioner, thereafter, on the thirtieth of August, in the same year, renewed and extended the patent, in due form of law, for the further term of seven years from and after that date, subject to the provisions contained in the act conferring the authority.

Derivation of the title of the complainant is fully set forth in the bill of complaint, but it is unnecessary to reproduce it, as it is not the subject of controversy in this case. Possessed of a full title to the invention by assignments, the complainant, as such assignee, surrendered the letters patent, and the commissioner, on the twenty-eighth of June, 1864, reissued to him the original patent, as extended under the act of Congress, for the residue of the extended term.

Founded upon those letters patent, the bill of complaint alleged that the assignor of the complainant was the original and first inventor of the improvement therein described, and the charge is that the corporation respondents, having full knowledge of the premises, and in violation of the complainant's exclusive rights and privileges, so acquired and secured, have, since the date of the reissued letters patent, and without his license or consent, made, used, and sold, and continue to make, use, and sell, in large numbers, cards, jacks, and machinery, embracing and containing mechanism substantially the same in principle, construction, and mode of operation as the improvement so acquired and owned by the complainant.

Prayer of the bill of complaint was for an account, and for an injunction, and for such other and further relief as the nature and circumstances of the case shall require.

Respondents appeared and filed an answer, and proofs were taken by both parties, and they were heard in the Circuit Court upon bill, answer, replication, and proofs, and a final decree upon the merits was rendered for the complainant, and thereupon the respondents appealed to this court.

Numerous defences were set up in the answer, but none of them will be much considered except such as are now urged upon the consideration of the court.

The grounds of defence specially enumerated in the brief of the appellants, and urged in argument, are as follows:

1. That the combinations set forth in the several claims of the patent were first invented by the Edward Winslow, and that neither of them was original with the assignor of the complainant.

2. That the invention, at the time the application for the original patent was made, had been on sale and in public use, with the consent and allowance of the application, for more than two years, and that he had abandoned the same to the public.

3. That the reissued letters patent described in the bill of complaint are void, because they do not contain the limitations and conditions expressed in the extended patent, and were not issued in conformity with the act of Congress passed for the relief of the original patentee.

4. That the respondents' machinery, having been in use before and at the time the patent in this case was granted, is within the saving clause of the proviso in the said act of Congress.

I. Exception might well be taken to the first proposition upon the ground that it is a departure from the special defence set up in the answer, unless it can be admitted as included in the more general allegation, denying that the assignor of the complainant was the original and first inventor of the improvement described in the patent.

Persons, sued as infringers, may plead the general issue in suits at law, and may prove, as a defence to the charge, if they have given the plaintiff thirty days' notice of that defence before the trial, that the patentee was not the original and first inventor of the thing patented; but the same section which authorizes such a defence provides that whenever the defendant relies in his defence on the fact of a previous invention, knowledge, or use of the thing patented, 'he shall state in his notice of special matter the names and places of residence of those whom he intends to prove to have possessed a prior knowledge of the thing, and where the same had been used.

Evidence to prove such a defence, in a suit at law, is not admissible without an antecedent compliance with those conditions, and the settled practice in equity is to require the respondent, as a condition precedent to such a defence, to give the complainant substantially the same information in his answer. Unless the practice were so, the complainant would often be surprised, as the rule of law is that the letters patent afford a prima facie presumption that the patentee is the original and first inventor of what is therein described as his improvement, and if the respondent should not be required to give notice in the answer that proofs would be offered to overcome that presumption and establish the opposite conclusion, very great injustice might be done, as the complainant might rely upon that presumption and fail to take any countervailing proofs.

Better opinion is, that the defence embraced in the first proposition of the respondents, is not admissible under that allegation in the answer which denies that the assignor of the complainant was the original and first inventor of the improvement. Such a defence, if recognized at all in this case, must be admitted under that part of the answer which was evidently framed for that special purpose.

Substance and effect of those allegations are, that the respondents deny that the original patentee ever bestowed any ingenuity upon the improvements, and they allege that the same were invented and applied by one Edward Winslow, that the patentee first derived knowledge of the invention from that individual, and that the original patentee fraudulently and surreptitiously obtained the patent for that which he well knew was the invention of his informant.

No exception was taken to the answer in the court below, and in that state of the case the allegations of the answer, that the invention was made by a third person and not by the assignor of the complainant, may be regarded as a good defence, but it is quite clear that the charge that the original patentee in this case fraudulently and surreptitiously obtained the patent for that which he well knew was invented by another, unaccompanied by the further allegation that the alleged first inventor was at the time using reasonable diligence in adapting and perfecting the invention, is not sufficient to defeat the patent, and constitutes no defence to the charge of infringement.

Viewed in any light the proposition amounts to the charge that the invention was made by the person therein mentioned, and not by the assignor of the complainant, and the burden to prove it is on the respondents, not only because they make the charge, but because the presumption arising from the letters patent is the other way.

Application for a patent is required to be made to the commissioner appointed under authority of law, and inasmuch as that officer is empowered to decide upon the merits of the application, his decision in granting the patent is presumed to be correct.

Before proceeding to inquire whether or not that defence is sustained by the proofs, it becomes necessary to examine specifications and claims of the patent, and to ascertain, by a comparison of the mechanism therein described, with the antecedent state of the art, the true nature, character, and extent of the improvement.

Sets of carding machines, for the production of yarn from wool, were well known, and in use before the invention of the original patentee. They usually consisted, besides the spinning-jenny, of three carding machines, called the first and second breaker, and the finisher, but they could not be used to much practical advantage, in connection with the jenny, without a separate machine, called the billy, for splicing the rolls. Two jennies were often used, instead of one, in that combination, and in some instances, two double carding machines were preferred, instead of three single machines.

Like the still older carding machine, the breaker had what was called a feed-table, and the wool, previously prepared by other means, was placed on that table, and was, by that means, fed to the carding mechanism, and having passed through the carding apparatus to the delivery-end of the machine, was stripped from the device called a doffer, and fell to the floor. The device for stripping the filament from the doffer was a comb, which constituted a part of the machine. Second breaker was similar in construction to the first, and the process of feeding and carding was the same, but the filament from the first breaker constituted the material to be used in the second, instead of using wool prepared by hand, or from the picker, and the filament when carded and stipped from the doffer, was wound round a drum. The method of feeding the material into the carding apparatus of the finisher was also the same, but it was provided with an additional apparatus, at the delivery-end of the machine, called the roller and shell, which formed the material into short rolls. Those rolls were about the length of the card surface of the doffer. They were taken to the billy, and were there spliced by hand, on the apron of that machine, and, as the apron moved forward, they were fed to the spindles, and converted into roving, suitable to be spun into yarn.

Goulding aimed to dispense with the billy altogether, and sought to accomplish, with four machines, what had previously required the use of five; and the evidence shows, beyond controversy, that his invention enabled manufacturers to produce yarn from wool, at much less cost, of better quality, and in greater quantity, than was produced by the old process. His purpose, also, was to dispense with short rolls, and to introduce the long or endless roll in its place. Years were spent by him in experiments to accomplish these purposes, but the result was that he was successful. He dispensed altogether with the billy, and, by a new combination of old devices, he obtained the endless roll, and so perfected his machinery that he could use it successfully, from the moment the roving left the delivery-end of the first breaker, till it was converted into yarn, fit to be manufactured into cloth.

Attempt will not be made to describe the various plans which he formed, nor the experiments which he tried, as it would extend the opinion to an unreasonable length. Under his method, as described, the wool, as it comes from the picker, is placed on the table of the first breaker, and is fed to the carding apparatus as before, but the sheet of carded material, when stripped from the doffer, is taken away on one side of the delivery-end of the machine, by means of two rollers, through a turning-tube, or pipe, to which a slow rotary movement is given by a band passing from a drum, actuated by the machine, and operating upon a pulley affixed to the tube. Description is also given of the means by which the roving or sliver is condensed and wound round the bobbin, and also of the means by which it is retained in the proper position, and made to partake of the rotary movement communicated to the drum. Particular description is also given of the means by which the roving may be evenly wound upon the bobbins, either by carrying it and the drum backward and forward, or by passing it between guides, affixed to a bar, to which a similar movement is communicated.

Next step is, that the bobbins, with the roving thereon, twenty in number at least, are placed in a frame or creel, in order that the roving may be fed to the second carding machine, and guided into it, between certain dividing pins, but it is taken away at the delivery-end, in a single roving, and by the same means as from the first machine.

Principal object in passing the material through the second breaker is, that it may be more completely mixed, so that every part of the roving will be of the same fineness. Third operation is, that the bobbins of roving, as delivered and wound in the second breaker, but each roving is now to similar to that before described, but each roving is now to be kept separate, and certain blocks are provided for that purpose, made broader in front than behind, so that each roving shall preserve its proper situation, without mingling with those adjacent to it, during the operation of carding, and also that it may finally reach its proper place upon the delivering cards.

The feeding of the material into the carding apparatus of the finisher is accomplished in the same way as before described, but the mechanism for carding, and for delivering the roving, is more complex, and widely different. Two delivering cylinders are constructed, placed one above the other, surrounded with wire card, in strips, with uncovered spaces of equal width, and so arranged that the uncovered spaces on one cylinder shall correspond with the strips of wire card on the other, for carding the separate rovings as they are fed into the carding apparatus. Different mechanism is also provided for removing the carded material from the delivering cylinders, which is accomplished by the rotary action of the tubes upon such material, by which the several filaments, as they are delivered, are formed into a loose continuous roving, which is guided between certain pins, and passed through certain rollers, in order to give the roving a sufficient coherence before it is would on to the bobbins, to be used in the jenny.

Means for slightly twisting the roving as it leaves the finisher are also described, and the directions are that the guides of the finisher must have a lateral motion backward and forward, so that each roving may be regularly laid side by side, within its own proper limits, and the devices to accomplish that function are fully described. Modifications were also made by the inventor in the devices of the carding apparatus of the finisher, and also in the apparatus for delivering the roving in the third operation, and for winding it on to the bobbins preparatory to their transfer to the jenny where the roving is spun into yarn. Those modifications of old machinery are minutely described in the specification, and it is obvious that they are of great value in accomplishing the final result, and that they constitute some of the main features of the invention.

Changes were also made in some of the devices of the jenny, and also in their arrangement and mode of operation as compared with prior machines, and those alterations also are so clearly described as to constitute a full compliance with the sixth section of the patent act. Substitutes are suggested for many of the described devices, but it is not practicable to enter into those details. Separate parts of the machinery, as used in the several combinations, are not claimed by the patentee. Omitting redundant words the claims of the reissued patent are to the effect following:

First. I claim in combination the following sets of apparatus making up a machine, namely: 1. A bobbin-stand or creel. 2. Bobbins on which roving may be wound. 3. Guides or pins. 4. A carding machine. 5. Condensing and drawing-off apparatus. 6. Winding apparatus, whereby rovings may be fed to a carding machine, carded, condensed, drawn off and wound again in a condensed state, substantially in the manner herein set forth.

Second. I claim the feed rollers of a carding machine, in combination with bobbins and proper stands therefor, and guides or pins whereby slivers or rovings may be fed to be carded by mechanism substantially such as herein described.

Third. I claim a delivering cylinder of a carding machine in combination with apparatus for drawing off, condensing, or twisting and minding carded filaments, by apparatus substantially sucy as herein described.

Lastly. I claim a mule or spinning-frame, provided with spindles mounted on a carriage, and with jaws or their equivalents for retaining roving in combination with bobbins, whose axes are parallel, or nearly so, with the line of spindles, and rest upon drums revolving to unwind the bobbins substantially as herein set forth.

Careful attention to the description of the invention and the claims of the patent, will enable the parties interested to comprehend the exact nature of the issue involved in the first defence presented by the respondents. Purport of that defence is, that the invention was made by Edward Winslow, and not by the assignor of the complainant. The settled rule of law is, that whoever first perfects a machine is entitled to the patent, and is the real inventor, although others may have previously had the idea and made some experiments towards putting it in practice. He is the inventor and is entitled to the patent who first brought the machine to perfection and made it capable of useful operation.

No one is entitled to a patent for that which he did not invent unless he can show a legal title to the same from the inventor or by operation of law; but where a person has discovered an improved principle in a machine, manufacture, or composition of matter, and employs other persons to assist him in carrying out that principle, and they, in the course of experiments arising from that employment, make valuable discoveries ancillary to the plan and preconceived design of the employer, such suggested improvements are in general to be regarded as the property of the party who discovered the original improved principle, and may be embodied in his patent as a part of his invention.

Suggestions from another, made during the progress of such experiments, in order that they may be sufficient to defeat a patent subsequently issued, must have embraced the plan of the improvement, and must have furnished such information to the person to whom the communication was made that it would have enabled an ordinary mechanic, without the exercise of any ingenuity and special skill on his part, to construct and put the improvement in successful operation.

Persons employed, as much as employers, are entitled to their own independent inventions, but where the employer has conceived the plan of an invention and is engaged in experiments to perfect it, no suggestions from an employee, not amounting to a new method or arrangement, which, in itself is a complete invention, is sufficient to deprive the employer of the exclusive property in the perfected improvement. But where the suggestions go to make up a complete and perfect machine, embracing the substance of all that is embodied in the patent subsequently issued to the party to whom the suggestions were made, the partent is invalid, because the real invention or discovery belonged to another.

Guided by thest well-established principles, the first inquiry is, what was actually done by the person who, as alleged by the respondents, was the real inventor of what is described in the reissued letters patent? They do not pretend that he invented or even suggested the entire invention, nor all of the several elements embraced in any one of the separate combinations, as expressed in the claims of the patent; and if they did, it could not for a moment be sustained, as it finds no support whatever in the evidence. None of the devices described in the specifications are new, but the claims of the patent are for the several combinations of the described elements arranged in the manner set forth, and for the purpose of working out the described results.

Regarded in that light, it is clear that the concession that the person named did not invent nor suggest the entire invention, nor any one of the separate combinations, is equivalent to an abandonment of the proposition under consideration, as it is clear to a demonstration that nothing short of that averment can be a valid defence. Respondents do not allege in the answer that the person named was a joint inventor with the original patentee, but the allegation is that he made the invention, and they deny that the assignor of the complainant ever bestowed any ingenuity upon what is described in the letters patent as his improvement. Such a defence cannot be successful unless it is proved, as common justice would forbid that any partial aid rendered under such circumstances, during the progress of experiments in perfecting the improvement, should enable the person rendering the aid to appropriate to himself the entire result of the ingenuity and toil of the originator, or put it in the power of any subsequent infringer to defeat the patent under the plea that the invention was made by the assistant and not by the originator of the plan.

The evidence shows that the original patentee was born in 1793, and that he commenced working on machinery in his youth, while he was with his father, and that, as early as the year 1812, he went into the employment of certain machinists, residing at Worcester, Massachusetts, who were engaged in constructing machinery for the manufacture of wool and cotton. While in their employment, he began experiments in woollen machinery. Those experiments were directed to the object of improving the billy, for the purpose of drawing out the carriage more accurately, and thereby making better work. Several years were spent in that business, but, in 1820, he went to Halifax, in that State, and, while there, he made numerous experiments to get rid of the billy entirely, and to dispense with short rolls, and substitute long rolls in their place. He remained there three years, and, during that time, he was constantly engaged in experiments to accomplish those objects. In the spring of 1823 he moved to Dedham, in the same State, and there hired a mill, and engaged in the manufacture of broadcloth, and also carried on the machine business, and the witness also states that he then prosecuted his experiments on a large scale.

Cans were used as a receptacle for the rovings, delivered from the doffers, before the drawing-off and winding apparatus, described in the patent, was invented. Rovings, before that invention, were spun from cans, instead of being wound upon, and spun from, spools or bobbins. Considerable importance is attached to the new method, as it was largely by that means that the use of the endless roving was made practical, and that the difficulty produced by the kinking of the roving, incident to the use of the cans, was overcome.

Theory of the respondents is, that the new method of accomplishing that function was invented by Edward Winslow, but their witness, John D. Cooper, only testifies that he made or suggested the spool and drum, which are not the only elements of that apparatus. Unaccompanied by the traverser, they would, perhaps, be better than the cans, but it is clear that the apparatus would be incomplete without that device, as it is by that means that the bobbins are evenly wound with the roving.

Testimony of that witness is, that he first suggested to Winslow that the roving must be would on a spool, else they never could make good yarn, and he proceeds to state that they procured some pasteboard, and that Winslow made a pattern for a spool and drum from that material. Explanations, in detail, are given by the witness, of the several steps taken by them in accomplishing the change in the apparatus, and the witness states that the original patentee never saw the spool and drum until he came into the mill and saw those devices in the machine. Argument for the respondents is, that the spool and drum were invented by that party while he was in the employment of the original patentee, but the complainant denies the theory of fact involved in the proposition, and insists that the statement of the witness are untrue, and that he is not entitled to credit. Further statement of the witness is, that the improvement, as soon as it was perfected, was applied to all the carding and spinning machines in the mill, and that the mills, so adjusted as to embrace that improvement, were put in successful operation during the summer and autumn of that year.

Two answers are made by the complainant to the defence founded on that testimony, both of which are sustained by the court. 1. Suppose the testimony of the witness to be all true, the complainant contends that it is not sufficiently comprehensive to support the allegations of the answer, nor even to support the proposition presented in the brief of the respondents. Taken in the strongest view for the respondents, the testimony merely shows that Winslow, or the witness Cooper, or both together, after the originator of the plan had nearly completed his great and valuable improvement, and while he was still prosecuting his experiments with the utmost diligence, suggested the spool and drum as substitutes for the cans, and that Winslow actually made those devices, and, with the aid of witness, put them into one of the machines as an experiment. When their employer first examined the arrangement, rude as it was, he expressed great satisfaction with it, but upon seeing it tried he pronounced it of no value. Neither of those opinions, however, turned out to be quite correct, as, upon further trial, when better adjusted, and by adding the traverser, so that the contrivance would wind the roving evenly on the spool, it proved to be a useful auxiliary part of the invention.

Valuable though it was and is, as aiding in the accomplishment of the desired result, it is nevertheless a great error to regard it as the invention described in the subsequent patent, or as such a material part of the same that it confers any right upon the party who made the suggestion to claim to be the inventor, or a joint inventor, of the improvement, or to suppose that the proof of what was done by that party can constitute any defence, as against the owner of the patent, to the charge of infringement.

Second answer to the defence founded on that testimony is, that the testimony is unreliable, because the witness is not entitled to credit. Hundreds of pages of the transcript are filled with proof, introduced either to assail or support the credit of that witness; but the court is of the opinion that it is not necessary to enter into those details, as the decision must be in favor of the appellee, even if every word stated by that witness is taken to be true. Entirely satisfied with our conclusion upon the merits, we are the less inclined to enter into those details, as a full analysis of the proofs within reasonable limits would be impracticable; but it is proper to say that the proofs have been carefully examined, and it is the opinion of the court that the letters patent in this case cannot be held to be invalid upon such testimony.

II. Second defence, as stated in argument, is, that the invention, at the time the application for the original patent was made, had been on sale and in public use, with the consent and allowance of the applicant, for more than two years, and that the applicant abandoned the same to the public. Abandonment, as set up in the concluding paragraph of the proposition, is a distinct defence from that set up in the preceding part of the same proposition, and must be separately considered.

Sale and public use, for more than two years prior to the application for the patent, are not alleged in the answer. What the respondents do allege is, that the invention, at the time the application for a patent was filed, and for a long time before, had been on sale and in public use, which, without more, is not a good defence against the charge of infringement. On the contrary, the correct rule is that no patent shall be held to be invalid on account of such sale and public use, except on proof that the invention was on sale and in public use more than two years before the application therefor was filed in the Patent Office.

Evidence to show that the invention of the original patentee, as finally perfected, was on sale and in public use more than two years before he applied for a patent is entirely wanting, and if such evidence was offered, it could not be admitted under the pleadings, as no such defence is set up in the answer.

Undoubtedly an inventor may abandon his invention, and surrender or dedicate it to the public; but mere forbearance to apply for a patent during the progress of experiments, and until the party has perfected his invention and tested its value by actual practice, affords no just grounds for any such presumption.

Application for a patent in this case was probably filed in the Patent Office before the middle of November, 1826, and the proofs are full and satisfactory to the court that the inventor, up to that time, was constantly engaged in perfecting his improvements, and in making the necessary preparations to apply for a patent.

III. Third defence is, that the reissued letters patent are void, because they were not issued in conformity with the act of Congress relating to that subject. Omission of the original patentee seasonably to apply for an extension of his patent was occasioned through erroneous information given to him by the commissioner, and not from any negligence or fault of his own. Acting upon information from that source, the inventor did not file his application until it was too late to give the notices as required by law, and the time for presenting such an application having expired, the commissioner had no power to grant his request. Deprived of any legal remedy under the general laws for the protection of inventors, he applied to Congress, and on the thirtieth of May, 1862, Congress passed an act for his relief.

By the terms of that act he was authorized to apply to the commissioner for a renewal and extension of the letters patent, previously granted to him for the term of seven years from the time of such renewal and extension, and the commissioner was empowered to grant such renewal and extension, or to withhold the same under the then existing laws, in the same manner as if the application therefor had been seasonably made. Annexed to the body of the act is a proviso, that such renewal and extension shall not have the effect or be construed to restrain persons using the invention, at the time of such renewal and extension, from continuing the use of the same, nor to subject them to any claim or damage for having used such machinery.

Objection now taken is, that the said proviso in the act of Congress is not recited in the reissued letters patent; but the objection is entirely without merit, as it appears in the record that the certificate of renewal and extension, as granted by the commissioner, was made subject in express terms to the proviso contained in that act.

Doubts are entertained whether even that was absolutely necessary; but it is clear that there is nothing in the proviso to warrant the conclusion that the form of the extended patent might not be the same as that in general use, and it is not even suggested that the form of the extended or reissued patent was in any respect different from the corre sponding established forms of the Patent Office.

IV. Fourth defence is, that the respondent's machinery was in use before the patent in this case was granted; but it is not alleged that their machinery was in use before the extended patent was issued, and, therefore, the allegation affords no defence to the charge of infringement.

Other defences are mentioned in the brief of the respon dents; but none of them were urged in argument, and they must be considered as abandoned.

V. Infringement is an affirmative allegation made by the complainant, and the burden of proving it is upon him, unless it is admitted in the answer. Specific inquiries were made of the respondents in this case, and they did not satisfactorily answer those interrogatories. Evasive answers, under such circumstances, if not positively equivalent to admissions, afford strong presumptive evidence against the respondents. Apart from that, however, the answer of the respondents is unsatisfactory in other respects. They do not in terms deny that they have used, and are using, the invention as alleged; but what they do deny is, that they use any machinery in violation and infringement of any rights of the complainant, or that they are using, or have made, used, or sold any machinery not protected by the proviso contained in the act of Congress passed for the relief of the original patentee.

Clear implication from the answer is, that they had made machinery such as that described in the letters patent, and if so, then they are clearly liable as infringers, as they were not incorporated at the date of the extended patent. Machines made since the patent was extended are not protected by that proviso, as is plan from its language; but the complainant cannot recover damages for any infringement antecedent to the date of the reissued patent, as the extended patent was surrendered.

Proofs of the complainant to show infringement consist in a comparison of the machines made by the respondents with the mechanism described in the patent, and in the testimony of scientific experts, and they are so entirely satisfactory, that it is not deemed necessary to pursue the investigation.

DECREE AFFIRMED.


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 146 Dessalines decided then to assume a vigorous offensive against Port-au-Prince, at which place the French authorities were at odds; to which was added the further disadvantage of the starving condition of the inhabitants owing to the great scarcity of food. The Commander-in-Chief made his last preparations at Petite Rivière, and started forth on September 15 with Generals Pétion and Gabart as principal lieutenants. After successfully engaging in a series of skirmishes, Dessalines took possession of La Croix-des-Bouquets; and on the 23d of September he established his headquarters at Turgeau, at the very entrance of Port-au-Prince, which was being besieged by Pétion on one side and by Gabart on the other. Cangé was investing the fort of Bizoton, which the French garrison was compelled to evacuate on the 2d of October. The artillery, under Pétion's command, then commenced the bombardment of the city. The French General Lavalette was soon at the end of his resources and obliged to capitulate. On the 5th of October he sent one of his aides-de-camp to Dessalines's headquarters, where an agreement was speedily arrived at. According to the convention the French soldiers were allowed to leave the island; hence, on the 8th of October, 1803, they were embarked on the French men-of-war at that time in the harbor. On the following day Dessalines made his triumphal entrance into Port-au-Prince.

In the North the French had in their power only Cap-Français and Môle St. Nicolas; and but Cayes alone in the South. And this last-named town was almost lost to them. Closely surrounded by Geffrard and blockaded by the English, the town was incapable of great resistance. Therefore, General Brunet, who was in command, signed the capitulation with the English, and on the 17th of October, 1803, Geffrard took possession of Cayes. In the South, as in the West, there was no longer any vestige of the French domination.

In order to become the sole master of Saint-Domingue it now remained but for Dessalines to storm Cap-Français, in which place Rochambeau had established quite

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text: Talk:Agawam Company v. Jordan/Opinion of the Court


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Morgan v. Town Clerk

By the law, as settled in Wisconsin, a provision in a statute under which a town issued its bonds to a railroad, that a tax requisite to pay the interest on these bonds should be levied by the supervisors of the town, is not exclusive of a right in the town clerk to levy the tax under a general statute making it his duty to lay a tax to pay all debts of the town; a mandamus having issued under the first act, but after efforts to make it productive, having produced nothing.

ERROR to the Circuit Court for Wisconsin.

In 1853, the legislature of Wisconsin authorized the town of Beloit to issue its coupon bonds for the benefit of a certain railroad. The town did issue them accordingly; and a number of them, with coupons unpaid, having got in the hands of the Morgan, he brought suit and obtained judgment against the town.

The statute which authorized the town to issue the bonds thus enacted:'The board of supervisors of the town of Beloit, whenever the same shall become necessary, shall annually levy a tax upon the taxable property of said town, sufficient to pay the interest upon such bonds.'

The legislature of the same State in 1858 enacted thus:

'No execution shall issue on any judgment against a town, but the same shall be collected in the manner hereinafter provided.

'Whenever an exemplified copy of any final judgment, rendered by any court of this State, against any town in this State, together with an affidavit, &c., shall be filed in the office of the town clerk of the town against which such judgment may have been rendered, it shall be the duty of the town clerk to proceed to assess the amount thereof, with interest from the date of such judgment to the time when the warrant for the collection thereof will expire, upon the taxable property of said town; and the same proceedings shall be had thereon, and the same shall be collected and returned in the same manner as other town taxes, and shall be paid to the party entitled thereto.'

Morgan having obtained, under the act of 1853, a mandamus, attachment, &c., against different boards of supervisors, which, however, from their resignations, vacation of office, &c., produced no fruit, he applied to the court below, having first filed the required exemplification, affidavit, &c., for a mandamus of the town clerk, under the last quoted act, to compel him to levy a tax. The court below refused to grant the mandamus asked for, on the ground, as was said, that the act of 1853 provided a special remedy exclusive of the general one of the act of 1858. Whether it did so or not, was now the question on appeal.

Mr. Carpeter, for the plaintiff in error, contended that he had exhausted his remedy under the act of 1853; and that he might seek relief under both acts until he obtained one satisfaction.

Messrs. Palmer and Ryan, contra:

This is not a case of alternative remedies, of which the relator has an election. He can have but one payment, levied by one tax, once assessed. And if it be the duty of the supervisors to levy the tax, it cannot be the duty of the clerk. The special act providing for the special tax, to pay these special liabilities, to be levied by the supervisors, takes this judgment out of the general act, providing for the assessment of a tax by the clerk, to pay other judgments against towns. The relator should have applied in the court below for mandamus against the supervisors, and not against the clerk.

Mr. Justice SWAYNE delivered the opinion of the court.

title: Morgan v. Town Clerk


text: Talk:Morgan v. Town Clerk

title: Talk:Morgan v. Town Clerk


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1911 Encyclopædia Britannica/Scheler, Jean Auguste Ulric

SCHELER, JEAN AUGUSTE ULRIC (1819-1890), Belgian philologist, was born at Ebnat, Switzerland, in 1819. His father, a German, was chaplain to King Leopold I. of Belgium, and Jean Scheler, after studying at Bonn and Munich, became King's librarian and professor at the Brussels Free University. His investigations in Romance philology earned him a wide reputation. He died at Ixelles, Belgium, in 1890.


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Morgan v. Town Clerk/Opinion of the Court

On the 9th of January, 1861, the plaintiff in error recovered a judgment against the defendant in error for $1540 damages, and for costs. The cause of action was overdue interest coupons attached to bonds issued by the town of Beloit in payment of its subscription to the stock of the Racine, Janesville, and Mississippi Railroad Company, pursuant to chapter 12 of the local and private laws of Wisconsin, passed in 1853. The plaintiff in error instituted the proceedings in the court below to obtain a writ of mandamus, directed to the town clerk of the defendant, commanding him to assess the amount necessary to pay the judgment and interest, upon the taxable property of the town, and to place the assessment upon the next assessment and tax roll for collection. A statute of Wisconsin forbids the issuing of an execution against a town, and expressly prescribes this mode of procedure.

Ample authority to issue the writ is given by the statute. The proceedings on the part of the plaintiff in error are in all things in strict conformity to its requirements. The power of the Circuit Court to issue writs of mandamus to State officers in proper cases is no longer an open question in this court; and it has been repeatedly held to be an appropriate remedy in the class of cases, to which the one lying at the foundation of this proceeding belongs. We learn from the record that the court below denied the writ upon the ground that the statute under which the bonds were issued, provided that the requisite tax should be levied by the supervisors of the town, and that this remedy was exclusive of all others. There are several obvious answers to this view of the subject. We deem it sufficient to advert to one of them. In the case of Bushnell v. Gates, this precise question, arising under the same circumstances, came before the Supreme Court of Wisconsin. It was held that the objection was untenable, that the statute authorizing the writ to go against the town clerk applied to the case, and that it was conclusive. If there could otherwise have been any doubt upon the question, this determination by the highest court of the State giving a construction to the statute under consideration, is unanswerable. We need not further consider the subject.

The judgment below is REVERSED. A mandate will be sent to the Circuit Court, directing that an order be entered in the case

IN CONFORMITY WITH THIS OPINION.


text: Talk:Morgan v. Town Clerk/Opinion of the Court


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Morgan v. Beloit City and Town

APPEAL from the Circuit Court for Wisconsin.

In 1853, the legislature of Wisconsin authorized the town of Beloit to subscribe to the stock of a railroad company, and to pay therefor in bonds of the town. The town subscribed and issued its bonds, a portion of which came to the hands of one Morgan, a bon a fide purchaser.

In 1856, the legislature created the city of Beloit, this city being carved out of a portion of the territory which had constituted the town of Beloit. The charter of the new city thus provided:

'All principal and interest upon all bonds which have heretofore been issued by the town of Beloit,. . . shall be paid when the same or any portion thereof shall fall due, by the city and town of Beloit, in the ''same proportions as if said town and city were not dissolved. And in case either town or city shall pay more than their just and equal portion of the same at any time, the other party shall be liable therefor''.'

This provision was re-enacted in 1857.

After the date of this act, and between it and 1867 inclusive the interest on the bonds being unpaid for every year after 1854 Morgan brought several suits, in the Circuit Court for Wisconsin, against 'the town of Beloit,' for the interest due for the years respectively, and on the 25th of September, 1867, got judgment against the town for it. The judgments being unpaid, he now filed a bill in the court below against the town and city of Beloit. The bill set forth facts above stated, alleged that the 'amount of said judgments ought to be paid by said defendants in the proportions respectively as provided in the said acts;' that the taxable property of the city exceeded that of the town; and that though the city 'ought to pay the proportion provided in the acts,' yet that the complainant was remediless at law. It then showed, by tabular exhibit, the amount of the interest due on the bonds held by him, in each year respectively, from 1855 to 1867; then by like exhibit the proportion in value, which, taking the rates of assessment made in each year as a basis, the taxable property of what was now the town bore to what was now the city, in every year, from 1855 to 1867; then showed, by similar exhibit, that, taking these relative exhibits, the town would be liable on the coupons for each respective year for so much and the city for so much, the balance, namely; the whole making, with interest from the date of the judgments obtained (which the bill alleged 'ought to be paid by the said town and city respectively'), the sum of $60,443, as against the city, and $17,986, as against the town.

After alleging that 'the city and town ought respectively to pay interest' on the respective total amounts, from the day when the judgments were obtained till the actual payment of them, and 'ought each to pay one-half the costs recovered in the judgments,' the bill concluded thus:

'To the end, therefore, that the said defendants may, if they can, show why your orator should not have the relief hereby prayed, and may upon oath, & c. .. . and that your orator may have such other and further relief as the nature of his case may require, and as shall be agreeable to equity and good conscience.'

Prayer for subpoena, &c.

The defendants (town and city) demurred, and the bill was dismissed. Appeal accordingly.

Mr. Carpenter, for the appellant:

The complainant was clearly entitled to some remedy against the city for its proportion of the debt, and the question is, what was the appropriate remedy?

On bonds given by the town, a joint action at law could not be maintained against the town and city. To an action at law against the city alone, the plea of non est factum would be true in fact and fatal in law. If any action at law could be maintained against the city, it would be debt founded on the statute. But there would be the difficulty of settling, as between the city and the town, the proportion which each ought to pay, in an action where the town was not a party. This consideration alone gives a court of equity jurisdiction. If the town were compelled to pay the whole debt, it would be entitled, by the express provisions of the statute, to an action against the city for its proportion. Circuity of actions-that which courts desire to prevent-is therefore avoided by maintaining a suit in equity against both. A court of equity is the only tribunal that can render complete justice between all the parties.

title: Morgan v. Beloit City and Town


text: Talk:Morgan v. Beloit City and Town

title: Talk:Morgan v. Beloit City and Town


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Morgan v. Beloit City and Town/Opinion of the Court

The bill is without any prayer for special relief. What, indeed, is its object? Is it for a declaratory decree of the proportions in which the judgments should be paid by the city and town, leaving the plaintiff to his mandamus to enforce a tax accordingly? Or is it for a decree awarding execution against the defendants? No one can tell. The omission to make the proper prayer is fatal. Even under the dangerous and inconvenient rule, held in a few cases, that a prayer for general relief is sufficient, and that the special relief may be prayed for at the bar, on hearing, the bill must indicate by its frame the special relief sought, which this bill does not. But this court has wisely abrogated that rule, and by its twenty-first rule in equity, provides that 'the prayer of the bill shall ask the special relief to which the plaintiff supposes himself entitled, and also shall contain a prayer for general relief.'

On merits, the case is not good. Though equity is liberal in the adaptation of her remedies, she does not give a remedy to every party merely because he is in difficulty, nor unless his difficulty be covered by some specific ground of equitable jurisdiction. Here there is an adequate legal remedy by mandamus. It may be a troublesome remedy. But he has it. And equity will not devise a new ground of jurisdiction because a speculator in town bonds is unlucky in his legal remedies.

Reply: The prayer is, in effect, a prayer for both special and general relief. But if it were for general relief alone, that would be sufficient, upon the facts stated in the bill.

Mr. Justice SWAYNE delivered the opinion of the court.

The bill of the appellant presents the following case: In the year 1853, the legislature of Wisconsin, by an act duly passed, authorized the town of Beloit to subscribe for $100,000 of the stock of a railroad company authorized to construct a railroad from the city of Racine to the village of Beloit, and to make payment in its bonds to be issued for that purpose. The bonds were accordingly issued. A portion of them came into the hands of the appellant, and he recovered upon them the several judgments at law described in the bill. These judgments are all in full force and unsatisfied. By an act of the legislature, passed in 1856, the city of Beloit was created. It embraces a part of the territory which before constituted the town of Beloit. This act provides:

'That all principal and interest upon all bonds which have heretofore been issued by the town of Beloit for railroad stock or other purposes, shall be paid, when the same or any portion thereof shall fall due, by the city and town of Beloit, in the same proportions as if the said city and town were not dissolved.'

This provision was re-enacted in 1857.

It is averred that the city and town ought respectively to pay the proportions set forth-of the judgments-with interest from their several dates. The prayer is for general relief. The appellee demurred. The court sustained the demurrer, and dismissed the bill. This appeal was thereupon taken.

The two corporations are as separate and distinct as if the territories they embrace, respectively, had never been united. It is obvious that, without a legislative provision to that effect, the city would not be answerable at law for the debts of the town, incurred before the former was created. Whether, but for the statute, the city there would have been chargeable in equity, it is not necessary to consider. The statute is conclusive as to a liability, to be enforced in some form of procedure. The only question before us is, whether there is a remedy in equity. It may be, as suggested by the counsel for the appellant, that an action would lie upon the statute. It is also possible that a proper case for a writ of mandamus might be made. But these inquiries are only material as bearing upon the question whether there is an adequate remedy at law. If so, a suit in equity cannot be maintained. To have this effect, the remedy at law 'must be as plain, adequate, and complete,' and 'as practical and efficient to the ends of justice, and to its prompt administration, as the remedy in equity.' When the remedy at law is of this character, the party seeking redress must pursue it. In such cases the adverse party has a constitutional right to a trial by jury. The objection is regarded as jurisdictional, and may be enforced by the court su a sponte, though not raised by the pleadings, nor suggested by counsel. The provision upon the subject in the sixteenth section of the Judiciary Act of 1789, was only declaratory of the pre-existing rule.

In the case before us the adjustment of the amount to be paid by the city, will depend upon accounts and computations founded upon the proper assessment rolls. In order to bind the town, it is necessary that it should be made a party. This cannot be done in proceedings at law. If the town should be compelled to pay the entire amount, the right is given by the statute to recover back the proportion for which the city is liable. This would involve circuity of litigation. The remedy at law is, therefore, neither plain nor adequate.

The question, whether a bill in equity will lie, is disembarrassed of this objection.

The authority to tax for the payment of municipal liabilities, in cases like this, is in the nature of a trust. The jurisdiction on a court of equity to interfere in all cases involving such an ingredient, is too clear to require any citation of authorities. It rests upon an elementary principle of equity jurisprudence.

'The power is reserved to a court of equity to act upon a principle often above-mentioned, namely, that whenever there is a right it ought to be made effectual.' Where there is a right which the common law, from any imperfection, cannot enforce, it is the province and duty of a court of equity to supply the defect and furnish the remedy.

The decree is REVERSED. A mandate will be sent to the Circuit Court directing that the demurrer be overruled, and the cause proceeded in according to the principles of equity and the rules of equity practice.


text: Talk:Morgan v. Beloit City and Town/Opinion of the Court


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Beloit v. Morgan

APPEAL from the Circuit Court for Wisconsin.

The legislature of Wisconsin, by act of 1853, authorized the supervisors of the town of Beloit to subscribe to the capital stock of a certain railroad company, and to pay for the same in the bonds of the town, payable at the expiration of a term named, and with a rate of interest specified.

The supervisors, professing to execute the authority so conferred, did subscribe to the stock of a certain railroad company and issued bonds; of many of which one Morgan became the holder, bon a fide.

Whether the bonds were issued pursuant to the authority which the statute gave to the supervisors, soon became a matter of controversy between the holders of them and the authorities of Beloit. These last asserted that they were not so issued, but were made without any legal authority; were in violation of the act of the legislature, and constituted a corrupt and usurious contract. They would accordingly pay nothing on the bonds.

In this state of things the legislature of Wisconsin, in 1856, created the city of Beloit; carving it out of territory which constituted the former town of Beloit. The charter of the new city provided thus:

'All principal and interest upon all bonds which have heretofore been issued by the town of Beloit for railroad stock or other purposes, when the same or any portion thereof shall fall due, SHALL be paid by the city and town of Beloit in the same proportions as if said town and city were not dissolved.'

This provision was re-enacted in 1857, in an act amending the charter of the city.

With this act in force, Morgan brought suit at law for the interest of some of his bonds, against the town of Beloit, and on the 9th of January, 1861, obtained judgment against it.

He now also brought other suits against the town, on other of the bonds, not the same specific instruments, of course, as those on which he had obtained judgment, but part of the same issue, and a suit on which involved the same questions as did the suit on those on which he had already recovered.

Thereupon the town of Beloit filed a bill, the bill below, in the Circuit Court for Wisconsin, to enjoin the proceedings at law, and to compel a surrender of the bonds. The answer set up,

1. By way of estoppel, the judgment of 9th January, 1861, on certain of the bonds, as conclusive of the validity of the whole issue, and

2. The act of 1856 and its re-enactment of 1857, and alleged that it was the intention of the legislature to provide by those acts that the bonds in question should be paid; and that they were a legislative ratification of the bonds, with effect to cure any irregularity or want of authority.

The court below dismissed the bill. Appeal accordingly.

Messrs. Palmer and Ryan, for the appellant; Mr. Carpenter, contra.

Mr. Justice SWAYNE delivered the opinion of the court.

title: Beloit v. Morgan


text: Talk:Beloit v. Morgan

title: Talk:Beloit v. Morgan


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Beloit v. Morgan/Opinion of the Court

The bonds and coupons to which this litigation relates were issued under the same statute of Wisconsin, and for the same purpose, as those involved in the preceding case, just decided. The object of the bill is to enjoin the appellee from proceeding in the suits at law which he has instituted upon a part of the securities in his hands; and to have those and all others belonging to him, delivered up and cancelled. The court below heard and dismissed the case. It is brought here by this appeal for re-examination.

Numerous objections have been made to the validity of the bonds.

The argument on both sides has been learned and elaborate. The view which we have taken of the case will render it necessary to consider but two of the points to which our attention has been called.

I. On the 9th of January, 1861, the appellee recovered a judgment at law against the appellant upon another portion of these securities-though not the same with those in question in this case. The parties were identical, and the title involved was the same. All the objections taken in this case might have been taken in that. The judgment of the court could have been invoked upon each of them, and if it were adverse to the appellant, he might have brought the decision here by a writ of error for review. The court had full jurisdiction over the parties and the subject. Under such circumstances, a judgment is conclusive, not only as to the res of that case, but as to all further litigation between same parties touching the same subject-matter, though the res itself may be different.

An apt illustration of this principle is found in Gardner v. Buckbee. Gardner bought a vessel from Buckbee, and gave two notes for the purchase-money. Buckbee sued him upon one of the notes in the Marine Court. Gardner set up as a defence, fraud in the sale and a want of consideration. A verdict and judgment were rendered in his favor. In a suit upon the other note, in the Common Pleas of the City of New York, the judgment in the Marine Court was held to be an estoppel upon the subject of fraud in the sale. Bouchaud v. Dias, Doty v. Brown, and Babcock v. Camp, are to the same effect and equally cogent. Such has been the rule of the common law from an early period of its history down to the present time. But the principle reaches further. It extends not only to the questions of fact and of law, which were decided in the former suit, but also to the grounds of recovery or defence which might have been, but were not, presented.

In Henderson v. Henderson, the Vice-Chancellor said: 'In trying this question, I believe I state the rule of the court correctly, that where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to bring forward their whole case, and will not, except under special circumstances, permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as a part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted a part of their case. The plea of res judicata applies, except in special cases, not only to the points upon which the court was required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.'

A party can no more split up defences than indivisible demands, and present them by piecemeal in successive suits growing out of the same transaction. The judgment at law established conclusively the original validity of the securities described in the bill, and the liability of the town to pay them. Nothing is disclosed in the case which affects this condition of things.

II. The city of Beloit was chartered by the legislature of Wisconsin in 1856. It embraces a part of the territory which previously belonged to the town of Beloit. In the seventeenth section of the charter it is enacted that 'all principal and interest upon all bonds which have heretofore been issued by the town of Beloit for railroad stock or other purposes, when the same or any portion thereof shall fall due, shall be paid by the city and town of Beloit in the same proportions as if said town and city were not dissolved,' &c.

This provision was re-enacted in 1857 in an act amending the charter of the city. No bonds were issued in payment for railroad stock but those to a part of which this controversy relates. The language used by the legislature is clear and explicit. No gloss can raise a doubt as to its meaning. It distinctly affirms, and the affirmation is repeated, that the bonds shall be paid.

The only point to be considered is the effect of this provision. That is not an open question in this court. Whenever it has been presented, the ruling has been that, in cases of bonds issued by municipal corporations, under a statute upon the subject, ratification by the legislature is in all respects equivalent to original authority, and cures all defects of power, if such defects existed, and all irregularities in its execution. The same principle has been applied in the courts of the States. This court has repeatedly recognized the validity of private and curative statutes, and given them full effect, where the interests of private individuals were alone concerned, and were largely involved and affected. The earlier and more important of these authorities are so well known to the profession and are so often referred to, that it would be waste of time to comment upon them. We hold this objection also fatal to the appellant's case.

Several other important propositions have been discussed by the learned counsel for the appellee. They have not been considered, and we express no opinion in regard to them.

DECREE AFFIRMED.

title: Beloit v. Morgan/Opinion of the Court


text: Talk:Beloit v. Morgan/Opinion of the Court


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Page:Haiti- Her History and Her Detractors.djvu/163

 Rh a reign of terror. The Captain-General did not spare even his own countrymen. The blood of a Frenchman was the last stain upon his hands. "In order to get money," says Gastonnet des Fosses, "he ordered the inhabitants to contribute to a forced loan. Eight European merchants were taxed 30,000 francs each; one of them, Fédon, being unable to pay his share, was arrested and shot by the order of the Captain-General. This was in reality a murder. By his cruelties Rochambeau had incensed the inhabitants so that he could not now rely on their help."

Nevertheless, he was getting ready for an energetic defense. But his plans were frustrated by Dessalines's prompt action. The Commander-in-Chief of the army of the indigenes did not waste time in celebrating his victory. As soon as he was master of Port-au-Prince he began his preparations for the last and decisive struggle. After instructing his generals to centre their troops at Carrefour Limbé, Dessalines left Port-au-Prince on the 21st of October, 1803. When he reached the vicinity of Cap-Français he found himself at the head of an army of 20,000 men, well disciplined and inured to the hardships of war. The plan of attack was cleverly prepared and carried out. The approaches of Cap-Français were defended by forts established at Bréda, Champain, Pierre-Michel, and by Vertières Hill, where a blockhouse sheltered the French infantry.

Dessalines perceived at a glance the mistake made by Rochambeau in neglecting to occupy the important position of Charrier, which he at once instructed Capois to take possession of. This place could not be reached without facing the hostile fire of both the infantry and the artillery. On the morning of November 18 the columns moved forward, seemingly unmindful of the bullets and cannon shots which were mowing down their ranks. Rochambeau in person, surrounded by his guard of honor consisting of artillery and infantry, was in command at Vertières; he was, in consequence, exposed


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The Belfast

ERROR to the Supreme Court of Alabama.

The case was thus: The Constitution ordains that the judicial power of the United States shall extend 'to all cases of admiralty and maritime jurisdiction.' And the ninth section of the Judiciary Act of 1789, provides that the District Courts of the United States

'Shall have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction,. . . saving to suitors in all cases the right of a common law remedy, where the common law is competent to give it.'

In this state of Federal law, fundamental and statutory, the State of Alabama, by enactments, entitled 'PROCEEDINGS IN ADMIRALTY,' provided that there should be a lien on all vessels for work and materials done or furnished, and for all debts contracted by the master, owner or consignee, and for the wages of the officers, crew, &c., in preference to other debts due from the owners thereof. By the terms of the code, the lien is to be asserted by filing a complaint in any county in which the vessel may be found, stating the amount and nature of the claim, and praying a seizure of the vessel. Thereupon the clerk is to issue a writ commanding the sheriff to seize the vessel, her tackle, apparel and furniture. At any time before judgment, the master, owner or other persons may release the vessel by entering into bond in double the amount of the claim, stipulating to pay the amount of the judgment. Any number of persons may unite in the same complaint, and if more than one complaint be filed the court must consolidate them, and render but one judgment against the vessel, which is to be considered several as to each complainant. If a stipulation be entered into, the stipulators are defendants. If none, the court must render a judgment ex parte condemning the boat, tackle, &c., to be sold in satisfaction of the claim; and the affidavit of complainant is made presumptive evidence of the justice of the demand.

Finally, the code provides that, 'unless where otherwise provided in this chapter, the proceedings to enforce the lien shall be the same as in the courts of admiralty of the United States, but either party may have any question of fact decided by a jury, upon an issue made up under direction of the court.'

By the act of 7th October, 1864, 'to amend the admiralty laws of the State,' these provisions are extended to the contract of affreightment.

Under this statute, Boone & Co. filed their libel, March 30, 1866, in the City Court of Mobile, claiming $5800 for the loss of certain bales of cotton, shipped to them from Vienna, in the State of Alabama, to Mobile, in the same State, and prayed process in admiralty for the seizure of the steamboat Belfast.

In the same court a libel was also filed by J. & S. Steers, claiming compensation for other bales, shipped by them from Columbus, Mississippi, to Mobile, in Alabama, already mentioned. And a libel by Watson & Co. claiming it for cotton shipped by them, from and to the same points.

All the navigation which was the subject of the case, was upon the Tombigbee River, navigable water of the United States.

Under these several libels, the sheriff, by virtue of writs of seizure, took the steamer into possession, and posted his monitions, and the causes, under the statute, were consolidated and heard together. The answer, applicable to the three cases alike, set forth that the steamer was duly enrolled and licensed, in pursuance of laws of the United States, and that on the 15th January, 1866, she was regularly cleared at Mobile, Alabama, for Columbus, Mississippi, and that on her downward trip the cotton claimed was lost, and therefore, that the City Court had no jurisdiction.

A decree was rendered on 28th July, for the three libellants. Appeal was taken to the Supreme Court of Alabama, where one assignment of errors was: 'That the City Court erred in overruling the protest to the jurisdiction.' The decree of the City Court was, however, affirmed by the Supreme Court; and deciding, as that court thus did, in favor of the validity of a statute of a State drawn in question on the ground of its being repugnant to the laws of the United States, the case was brought here under the twenty-fifth section of the Judiciary Act.

Not much contesting the point that if the court had no jurisdiction in the two cases where the carriage was not wholly within one State no agreement below could authorize what it did about these two (jurisdiction being of course to be conferred by the law alone), the matter of debate was reduced, here, chiefly to the first case, that, namely, of Boone & Co., where the whole carriage was within the State of Alabama, and to the question of constitutional law arising upon it, to wit:

Whether the contract, made as it was, for the transportation of goods from one place to another, both in the same State, and without the goods being carried in transitu, into or through any other State or foreign dominion, was a contract which could be enforced by a proceeding in admiralty in the Federal courts alone?If the State court had no jurisdiction in that case, a fortiori, it could have none in the two others.

Mr. P. Phillips, for the appellant:

It is matter of universal knowledge, that the admiralty jurisdiction of the Federal courts has undergone several changes since the establishment of this government, and we need not discuss at all the familiar cases of The Thomas Jefferson, Waring v. Clarke, The Lexington, The Genesee Chief, and some others of a past day. Whether they be all reconcilable or not, is unimportant now. The only thing important to be inquired into by us now, is the judgment of this court, as settled in its most recent decisions, determining the character and limit of the admiralty jurisdiction. And we have here two leading cases on this point. In The Moses Taylor, the action was on a contract for personal transportation. The court held that this was a maritime contract; that it was not distinguishable from a contract for the transportation of freight, and that the breach of either is the appropriate subject of admiralty jurisdiction.

And, further, that the clause of the Judiciary Act, which saves to suitors a common law remedy, does not save a proceeding in rem, as used in the admiralty courts. Such a proceeding not being a remedy afforded by the common law.

In The Hine v. Trevor, the action wad for a collision occurring on the Mississippi, near St. Louis. The record 'raised distinctly the question how far the jurisdiction in admiralty was exclusive, and to what extent the State courts could exercise a concurrent jurisdiction,' and, owing to the importance of the principles involved, the 'case was held under advisement for some time, in order that every consideration which could influence the result might be deliberately weighed.' The court affirm the judgment given in The Moses Taylor, and reassert the doctrine declared in the case of The Genesee Chief, that the 'principles of admiralty jurisdiction, as conferred on the Federal courts by the Constitution, extend wherever ships float, and navigation successfully aids commerce, whether internal or external.' It further declares that the grant of this power under the act of 1789, is exclusive not only of all other Federal courts, but of all other State courts, and, therefore, State statutes which confer upon State courts a remedy for marine torts and marine contracts, by proceeding strictly in rem, are void.

The provisions of the Alabama code are those of the acts quoted in the above recent cases, and are subject to the same condemnation. Judgment, therefore, must be reversed.

Mr. Carlisle, contra:

1. The case arose in, and concerned alone, the internal commerce of the State of Alabama, and therefore it was one with which the laws of that State only could deal. It lay wholly beyond the region of Federal powers. And it is quite unimportant in what form, or by what system of pleading and evidence, the State might provide a remedy in such a case. The mere form cannot affect the substance. If the power exercised be one belonging to the State, and not to the Federal government, it does not concern the Federal government whether it be exercised in one form or another; or whether the proceeding be called a libel in admiralty, a bill in equity, or an action at common law; whether given by modern statute, or to be found in the Year Books.

2. The particular remedy given by the Alabama statute, and adopted in these cases, is within the saving in the ninth section of the Judiciary Act. What is meant, as well in the act of 1789, as in the Constitution itself, by the 'common law,' has been settled by this court. The language of the seventh amendment is:

'In suits at common law, when the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.'The language of the ninth section, and that just quoted, is obviously used in the same sense. Now in Parsons v. Bedford, the court say:

'By 'common law,' the framers of the amendment meant what the Constitution denominated in the third article 'law;' not merely suits, which the common law recognized among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized, and equitable remedies were administered; or where, as in admiralty, a mixture of public law and of maritime law and equity were often found in the same suit. Probably there were few, if any, States in the Union in which some new legal remedies, differing from the old common law forms, were not in use; but in which, however, the trial by jury intervened, and the general regulations in other respects were according to the course of the common law. Proceedings in cases of partition and foreign and domestic attachment might be cited as examples variously adopted and modified.'

To show that the case at bar is a 'civil cause of admiralty and maritime jurisdiction,' shows nothing to the purpose, if it also appear that there was a common law remedy at the option of the suitors, and that they elected that remedy. They are the very persons who under the statute had the right to do so.

It is not necessary to make a case one at common law, that the suit be begun by the service of process, or by actually bringing into court, in any other way, the party whose rights are to be affected by the proceeding. A defendant may be brought into court as well by seizing his property, and bringing it into court, under circumstances giving him plain and reasonable notice of the cause of its seizure. If the statute makes provision for his personal appearance, and a day is given to him in court, with the right of trial by jury, then it is as much a common law case as if it had begun by a capias ad respondendum, instead of a seizure of his property. And, on the other hand, though the suit be begun by a capias, and proceeded in throughout according to the most exact forms of a common law suit in all things but one, to wit, the trial by jury, if that be denied, it is no true case at common law. It is this distinctive quality alone which the Constitution guarantees and preserves from all innovation. And there is no instance in this court in which, where the subject-matter was the adjudication of purely legal rights, and the right of the trial by jury has been 'preserved,' in which the case has been treated as other than a common law case, whether a concurrent remedy existed, either in admiralty or in equity, or not, and whatever may have been the mere form of the proceedings.

The Hine v. Trevor is no exception to this rule. There, as the report shows, there was, and could be, no jury trial. The Iowa statute, on which that case rested, made no provision to protect the owner of the vessel, and afforded him no opportunity, by his personal appearance, of converting the proceeding into a common law trial by jury. The proceeding was begun, continued, and ended, and could only be so, as a civil law proceeding in rem.

Mr. Justice CLIFFORD delivered the opinion of the court.

title: The Belfast


text: Talk:The Belfast

title: Talk:The Belfast