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108.US.30 | 1. On the merits of the motion there is no essential difference between this case and the case of the St. Louis, Iron 3lountain and Southern R. R. Co. v. The Southern IExpress Company, just decided. Reference to the master to take and state an account between the parties as to the compensation during the litigation and up to its final termination relates to matters of administration not involving the merits. 2. A certificate that the transcript is a "' true, full and perfect copy from the record of all the proceedings in the suit" is sufficient to give jurisdiction. 3. If the certificate is not correct, the remedy is by certiorari. 4. Where on the face of the decree it appears that a case was disposed of on demurrer to the bill, the evidence on Me is not necessary for the hearing of the bill. 5. When a record has not been printed, and parties do not agree as to its contents, certiorari may be granted, reserving all questions till return. | This motion to dismiss is made because, as is alleged, (1) the decree appealed from is not a final decree; and (2) the transcript is not properly certified. 1. As to the decree. The case is in some particulars different from that of the St. Louis, I. M. & S. Ry. Co. v. Southern Express Co., just decided, but in our opinion the differences do not materially affect the present question.* Ante, 6. The decree in this case, as in that, requires the railway company to carry for the express company, and fixes the rate of compensation, 'until the further order or decree of this [circuit] court.' In this case, the reference to the master 'to take and state an account between the parties as to the compensation that should be and has been paid during the litigation, and up to the final termination thereof,' was entered before or at the time of the decree from which the appeal was taken. Still, in this, as in that, the reference is in respect to matters affecting the administration of the cause, and does not involve the merits. The reservation of power to change the rates operates only on the future, and was evidently intended for the purpose of enabling the court to act in case a change should be required. As the decree stands, the express company can require the railway company to carry at the rate which has been fixed. 2. As to the certificate. The clerk certifies the transcript sent up to be 'a true, full, and perfect copy from the record of all the proceedings in the suit.' Certainly this is sufficient for all the purposes of jurisdiction. If, in point of fact, the certificate is not true, the remedy is by certiorari to supply deficiencies, and not by motion to dismiss. To meet this view of the case the appellee suggests diminution, and asks for a certiorari to bring up 'the evidence taken before * * * William H. Rossington, as examiner, * * * remaining on file in the office of the clerk, constituting the exhibits, depositions, and proofs used on the argument of the cause in the * * * circuit court.' Upon the face of the decree it appears that the case was disposed of on demurrer to the bill. If that be the truth, the evidence on file is not necessary for the hearing of the appeal, but as the record, which is here, has not been printed in full, and the parties do not agree in their statements as to what it contains, we will grant the certiorari asked for, reserving all further questions until the return is made. |
109.US.398 | 1. The legislative grant of a privilege to erect, establish and construct gas works, and make and vend gas in a municipality for a term of years, does not exempt the grantees from the imposition of a license tax for the use of the privilege conferred. 2. In order to,e stablish a legislative contract to exempt from taxation, the stat. ute must be explicit and unmistakable, and without doubtful words. 3. The Constitution of the United States does not profess in all cases to protect against unjust or oppressive taxation. | This is a writ of error to the supreme court of Tennessee. The question presented is whether the statute of the state under which the defendant assessed a license tax of $250 against plaintiff in error is void, because it violates the contract found in the charter of the company. This charter was enacted November 20, 1851, and, after giving the name of the new corporation and the names of the corporators, it refers for the rights, privileges, powers, and restrictions of the company to the second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, and twelfth sections of an act incorporating the Nashville Gas-light Company, passed November 21, 1849, and declares that those sections, not inconsistent with the first section of this act, shall shall apply to the Memphis Gas-light Company as fully and completely as though the same were fully set forth and incorporated. For any contract of exemption from taxation we must therefore look to the provisions of those sections in the charter of the Nashville Company. These sections contain the usual powers necessary for the successful conduct of the business of the company, its organization, its shares of stock, mode of payment, laying pipes in the street, and the like, and after a careful examination of them we are unable to see anything whatever which expresses a contract for any limitation of the power of the legislature to tax the company or its property. Such was the opinion of the supreme court of Tennessee, delivered on rendering the judgment to which this writ of error is taken. And though this court is bound for itself to inquire in every such case as this whether there existed a contract which might be be impaired, on which subject the court has very recently, at the present term, collated the authorities in the case of Louisville & N. R. Co. v. Palmes, ante, 193, we are unable to discover any reason for dissenting from the opinion of the supreme court of Tennessee on that point. The section of the charter on which plaintiff's counsel mainly rely as showing a contract is the fifth section, which reads as follows: 'Sec. 5. The said company shall have the privilege of erecting, establishing, and constructing gas-works, and manufacturing and vending gas in the city of Nashville, by means of public works, for a term of fifty years from and after the date of this act. A reasonable price per thousand feet for gas shall be charged in the case of private individuals, to be regulated by the prices in other south-western cities; and for public lights, such sum as may be agreed upon by the company and the public authorities of Nashville: provided, said company shall never charge more than one cent for every cubic foot of gas used, as may be indicated by the gas-meter, or computed by the ordinary rules in such cases; nor shall they ever charge the corporation of the city of Nashville more per cubic foot than they shall be getting at the same time from the majority of the inhabitants of the city using such gas.' The argument of counsel is that if no express contract against taxation can be found here it must be implied, because to permit the state to tax this company by a license tax for the privilege granted by its charter is to destroy that privilege. But the answer is that the company took their charter subject to the same right of taxation in the state that applies to all other privileges and to all other property. If they wished or intended to have an exemption of any kind from taxation, or felt that it was necessary to the profitable working of their business, they should have required a provision to that effect in their charter. The constitution of the United States does not profess in all cases to protect property from unjust or oppressive taxation by the states. That is left to the state constitutions and state laws. In the case of the Erie R. Co. v. Pennsylvania, 21 Wall. 492, it was said: 'This court has in the most emphatic terms and on every occasion declared that the language in which the surrender (of the right of taxation) is made must be clear and unmistakable. The covenant or enactment must distinctly express that there shall be no other or further taxation. A state cannot strip herself of this most essential power by doubtful words. It cannot by ambiguous language be deprived of this highest attribute of sovereignty. The principle has been distinctly laid down in each of the cases referred to. It has never been departed from.' See, also, Providence Bank v. Billings, 4 Pet. 514; Herrick v. Randolph, 13 Vt. 531; North Missouri R. Co. v. Maguire, 20 Wall. 40; Delaware R. R. Tax, 18 Wall. 206. There is in this case no language which attempts to exempt plaintiff from taxation, nor is there even the most remote implication of such exemption. The judgment of the supreme court of Tennessee is affirmed. |
108.US.282 | 1. Ottawa v. Cary, ante, 110, reaffirmed. 2. Unless power has been given by the legislature to a municipal corporation to grant pecuniary aid to railroad corporations, bonds issued for that purpose, and bearing evidence of the purpose on their face, are void, even in the hands of bonafide holders. 8. Corporate ratification, without authority from the legislature, cannot make a municipal bond valid, which was void when issued for want of legislative power to make it. | This was a suit brought to recover the amount of certain coupons cut from bonds issued by the city of Shreveport, Louisiana, which appear on their face to have been issued 'in aid of the Texas and Pacific Railroad Company.' In point of fact, the bonds were used to buy lands to be donated to the railroad company as a site for depots and machine-shops. We have had occasion at this term, in the case of City of Ottawa v. Carey, ante, 361, to repeat and apply a rule which has always been recognized and adhered to in this court, to the effect that, unless power has been given by the legislature to a municipal corporation to grant pecuniary aid to railroad corporations, all bonds of the municipality, issued for such a purpose, and bearing evidence of that fact on their face, are void even in the hands of bona fide holders, and this whether the people voted the aid or not. Every purchaser of such a bond is chargeable in law with notice of the want of power in the municipal authorities to bind the body politic in that way. This principle is elementary. In the present case it is not pretended that any such power was expressly granted to the city of Shreveport, and we find no provision of the charter from which anything of the kind can be implied. The authority to purchase and hold property of all kinds relates only to such property as is needed for municipal purposes. It is a matter of no importance that the city employed agents to sell the bonds, or that its law officer gave an opinion in favor of their validity, or that they have been recognized in official statements as binding obligations, or that taxes have been levied to pay either principal or interest. Corporate ratification, without authority from the legislature, cannot make a municipal bond valid which was void when issued for want of legislative power to make it. These bonds carried on their face full notice to every purchaser that they were issued for a purpose not authorized by law; that is to say, to aid a railroad corporation. This whole subject was so fully considered in City of Ottawa v. Carey, supra, that we deem it unnecessary to discuss the subject further now. In Edey v. Shreveport, 26 La. Ann. 636, which is relied upon as establishing the power of the city to issue the bonds, the question was whether the vendor of the land, which had been only partly paid for out of the proceeds of the bonds, could enforce his mortgage and vendor's privilege on the land to recover the balance of purchase money due him, and it was decided that he could. This is no more than was in effect held by this court at the present term in City of Parkersburg v. Brown, 1 SUP. CT. REP. 442. All that was said by the supreme court of Louisiana must be construed in connection with the question then up for decision. There is not a word about the validity of the outstanding bonds, nor of the right of the holders to recover upon them in a suit against the city. The whole effect of the decision is that the city could not keep the land as against the vendor without paying for it. That the court would have held the bonds void, if it had been called on to decide that question, is shown beyond all doubt in the case of Wilson v. Shreveport, 29 La. Ann. 673, where the power to issue bonds, apparently of a much less objectionable character, was expressly denied. The judgment is affirmed. |
109.US.117 | The first claim of letters-patent No. 147,848, granted February 10th, 1874, to the Double-Pointed Tack Company, as assignee of Purches Miles, the inventor, for an "improvement in bail-ears," namely, "1. The Compound staple-fastening d, for bails, made with the diagonally cut penetrating points 2 and 3, loop 4, and body 5, said diagonally cut points being positioned as set forth, so as to bend upwardly in driving into the wood, as set forth," does not, in view of what existed before in the art, set forth any patentable invention. It was commonly known that the effect of a diagonal cut on a penetrating point was to force the point, in being driven, in a direction away from the cut. Double-pointed staples, with a diagonal cut on each point, but the diagonal cut on one point on the upper and outer side, and on the other point on the lower and outer side, as the staple was driven, were old, the effect in driving being to bring the points together ; and there was nothing more than mechanical skill in putting the diagonal cuts on the same side of each leg, so as to incline both points, in driving, in the same direction. The second claim of the patent, namely: "2. The convex metallic washer e, in combination with the compound ball-fastening staple d, having upwardly penetrating points 2, 3, and loop 4, as and for the purposes specified," does not set forth a patentable combination, but only an aggregation of parts. Neither the staple nor the washer affects or modifies the action of the other. | The gist of the invention set forth in the descriptive part of the specification, so far as the first claim is concerned, is to cut the two penetrating ends of the wire diagonally, and in such a way that, while the staple is being driven, the cut faces will both of them be on the lower side, and the two penetrating ends will both of them incline upwardly. It is shown to have been commonly known that the effect of a bevel or a diagonal cut on a penetrating point was to force the point, in being driven, in a direction away from the bevel or cut. Double-pointed staples, with a diagonal cut on each point, but the diagonal cut on one point on the upper and outer side, and on the other point on the lower and outer side, as the staple was driven, were old. They were used to secure wire screens as guards for windows. The effect in driving them was to bring the two points together, by throwing them towards each other, through their movements in opposite directions. The mechanical action embodied was the forcing each point, in being driven, in a direction away from its bevel or cut. The result was that the legs of the staple were bent and came together, and were thus clinched in the driving, and it was more difficult to pull out the staple than if the legs had gone in without bending. In view of this state of the art, there was no patentable invention, and nothing more than mechanical skill, in putting the diagonal cuts or bevels on the same side of each leg of the staple, so as to give both points, in driving, an inclination in the same direction, that direction being one away from both bevels, and in using the device to fasten a bail. This was the view taken by the circuit court. There is no suggestion in the specification or claims as to any invention or novelty in the form of the loop, or of the body, or in the relative lengths of the two penetrating points, or as to the angles formed by such points with the loop, or the body, before driving. The so cutting the penetrating ends that they will both of them incline upwardly, in driving, is the only feature of invention set forth, and to this the patent must be limited, so far as the first claim is concerned. The second claim is for the washer in combination with the staple of the first claim. This is not a patentable combination. There is only an aggregation of parts when the staple is used with the washer. The use of the washer is stated in the specification to be to keep the eye at the end of the bail from contact with the wood or the paint thereon. The upper point or leg of the staple goes through the eye and through the center of the washer; but the presence of the washer does not modify or affect the action of the staple, nor does the staple modify or affect the action of the washer. The washer keeps the eye of the bail from rubbing the wood of the pail. It would have the same effect if it were fastened in some other way than by having the leg of the staple pass through it, and the staple would in such case have the same operation which it now has. The decree of the circuit court is affirmed. |
108.US.130 | .Hyde v. Ruble, 104 U. S. 407, that "a suit cannot be removed from a State court to the circuit court unless either all the parties on one side of the controversy are citizens of different States from those on the other side, or there is in such suit a separable controversy wholly between some of the parties, who are citizens of different States which can be fully determined as between them" adhered to. | The petition for removal was filed before answer, and we must look, therefore, to the bill alone to determine what the controversy is. From this it appears that Henry M. Loud claims that the defendants Wasey, Henry M. Loud, and Whiting hold certain real and personal property in trust to secure a debt owing by him and the defendant Gay to the defendant Winchester; and, after the debt is paid, for the use and benefit of himself and Gay. He asks for an accounting by the trustees, the removal of Wasey and Whiting, and the appointment of others in their places; and, after the debt is paid, a conveyance of what remains of the trust property in accordance with the terms of the trust. The case presents but a single controversy, although it involves the determination of several questions. It may be that Winchester is the principal defendant in interest, but full and complete relief cannot be afforded in respect to the single cause of action, to-wit, the trust, without the presence of all the parties to the suit. According to the averments in the bill, all the defendants except Henry M. Loud deny the existence of the trust, and, if that should be established, all the defendants are directly interested in the relief that is asked. The case falls clearly within the rule stated in Hyde v. Ruble, 104 U. S. 407. The order remanding the suit is affirmed. |
109.US.194 | A defendant, against whom a judgment has been rendered on default by a circuit court of the United States in an action at law, cannot maintain a bill in equity to avoid it, upon the ground that the plaintiff at law falsely and fraudulently alleged that the parties were citizens of different States, without showing that the false allegation was unknown to him before the judgment. Upon a negotiable promissory note, made by an agent in his own name, and not disclosing on its face the name of the principal, no action lies against the principal. In an action at law, the declaration alleged that the plaintiff sold land to a third person, who gave his notes for the purchase money, secured by mortgage of the land ;.t hat afterward the defendant, in a suit by him against that person, claimed the ownership of the land, and alleged that the other person, acting merely as his agent, illegally made the purchase in his own name, and that he was liable and ready to pay for the land ; I' he was thereupon adjudged to be the owner of the land, and took possession thereof ; and that by reason of the premises the defendant was liable to the plaintiff in the full amount of the notes: Held, that the declaration showed no cause of action, even under art. 1890 of the Civil Code, and art. 85 of the Code of Practice of Louisiana. A judgment, rendered on default, upon a declaration setting forth no cause of action, may be reversed on writ of error, and the case remanded with directions that judgment be arrested. | United States for the District of Louisiana.] v. [Appeal from the Circuit Court of the United November 12, 1883. These two cases have been argued together. Eliza A. Quitman, the defendant in error and appellee, having died since the judgment below, William S. Lovell, her executor, has appeared in her stead. In the action at law, she filed a petition against George D. Cragin, in the circuit court of the United States for the district of Louisiana, alleging that she was a citizen of New York and he was a citizen of Louisiana; that on the thirty-first of January, 1878, she sold a plantation to Orlando P. Fisk for the price of $22,500, of which the sum of $4,500 was paid in cash, and for the rest of which nine notes of Fisk were given for $2,000 each, payable in successive years, and secured by a mortgage of the estate; that Cragin had paid the first three of the notes, and the petitioner, by foreclosure and sale of the estate under the mortgage, had obtained the sum of $10,447.05, to be credited on the remaining notes under date of May 1, 1874; and further alleging as follows: 'Now your petitioner represents that George D. Cragin is and was the real owner of said property, and liable to your petitioner, for the following reasons, viz.: 'That subsequently to the said purchase of property by said Fisk, by a certain proceeding filed in this honorable court, the said Cragin did claim the entire ownership of the said property, and did claim that the purchase made in the name of the said Fisk was illegally entered in his own name by said Fisk, who was acting merely as the agent of said Cragin, and that the amount of the purchase price of said property paid in cash, as well as the first and second notes aforesaid, were made by said Fisk with the money of said Cragin, and that he, said Cragin, was liable for and ready to pay for said property; that thereafter, in due course of law, and after proper proceedings, the said Cragin was adjudged by this honorable court, by final decree, to be the owner of said property, and the matters and things in said petition contained were found to be true and correct. 'That pending said proceedings the said George D. Cragin was and in said case appointed the receiver of the said plantation, so sole by your petitioner as aforesaid, and that, acting as such receiver, and subsequently as such owner of said plantation, he did remove therefrom all the movable property thereon, and which existed thereon at the date of the sale by your petitioner to said Fisk, of a value exceeding $1,000, and did lay waste and dilapidate the said property, to benefit his adjoining plantation, and to the detriment of your petitioner's rights. 'Petitioner further avers, that by reason of the causes aforesaid the said George D. Cragin is liable and indebted unto your petitioner in the full amount of said notes, less the credit due as aforesaid, for which amicable demand has been made without avail.' The record shows that Cragin was served with process in Louisiana, and, not appearing, was defaulted, and judgment was rendered for the plaintiff in the sum claimed, (which was shown by computation and agreement of counsel to be $6,888.40,) and the defendant sued out a writ of error, which is the first of the cases before us. The other case is an appeal from a decree of the same court, dismissing upon demurrer a bill in equity, filed by Quitman against Cragin to annul and avoid the judgment aforesaid and to restrain the issue of execution thereon. The bill set forth the proceedings in the suit at law; and its only other material allegations were, that the circuit court had no jurisdiction of that suit, because both parties were citizens of New York; and that Quitman, knowing that fact, falsely and fraudulently alleged Cragin to be a citizen of Louisiana, and illegally and unjustly obtained judgment by default against him. Mr. J. D. Rouse and Mr. William Grant, for Cragin. [Argument of Counsel from pages 196-197 intentionally omitted] Mr. Joseph P. Hornor, and Mr. W. S. Benedict for Lovell. [Argument of Counsel from page 197 intentionally omitted] It is quite clear that the bill in equity was rightly dismissed, because it contains no allegation that Cragin did not know, before the judgment against him in the suit at law, that the plaintiff in that suit alleged that he was a citizen of Louisiana. If he did then know it, he should have appeared and pleaded in abatement; and equity will not relieve him from the consequence of his own negligence. Jones v. League, 18 How. 76; Crim v. Handley, 94 U. S. 652. The decree in the suit in equity must therefore be affirmed. But it is equally clear that the judgment at law is erroneous. The petition shows no privity between the plaintiff and Cragin. It alleges no promise or contract by Gragin to or with the plaintiff. The mere description of the notes, received by the plaintiff, as 'notes of Fisk,' does not show that they were not negotiable instruments, but on the contrary, in the connection in which it is used, and applied to notes given for the purchase money of land, and secured by mortgage thereof, designates (as was assumed by both counsel at the argument) negotiable promissory notes, bearing no name but that of Fisk as maker; and on such notes no action will lie against any other person. Nash v. Towne, 5 Wall. 589, 703; Williams v. Robbins, 16 Gray, 77; In re Adansonia Fibre Co. L. R. 9 Ch. 635; Daniels v. Burnham, 2 La. 243, 245. The case does not come within the decisions in Mechanics' Bank of Alexandria v. Bank of Columbia, 5 Wheat. 326, and in Metcalf v. Williams, 104 U. S. 93, in each of which the name of the principal appeared upon the face of the note. If the action is treated, not as an action upon the notes themselves, but as an action to recover the amount of the notes, by reason of a subsequent agreement of Cragin to pay them, the plaintiff fares no better. The only allegations touching the relation of Cragin to these notes are that, in a suit by him against Fisk, he alleged that Fisk, in purchasing the land, acted merely as his agent, and that he owned the land, and was liable and ready to pay for it; and that he was thereupon adjudged to be the owner of the land and took possession thereof. If this amounted to a promise to any one, it was not a promise to the plaintiff, nor even a promise to Fisk to pay to the plaintiff the amount of the notes, but it was, at the utmost, a promise to Fisk to pay that amount to him, or to indemnify him in case he should have to pay it. It is therefore not within the provisions of the Louisiana Codes, cited in argument;1 and the defendant is liable to an action at law by Fisk only, and not by the plaintiff. Nat. Bank v. Grand Lodge, 98 U. S. 123; Exchange Bank v. Rice, 107 Mass. 37; McCauley v. Hagan, 6 Rob. (La.) 359. The final allegation, that by reason of the causes aforesaid the defendant is indebted and liable to the plaintiff, is a mere conclusion of law, which is not admitted by demurrer or default. Hollis v. Richardson, 13 Gray, 392. The judgment having been rendered on default, upon a declaration setting forth no cause of action, may be reversed on writ of error. McAllister v. Kuhn, 96 U. S. 87; Hollis v. Richardson, above cited; Louisiana State Bank v. Senecal, 9 La. 225. This court, on reversing a judgment of the circuit court, may order such judgment for either party as the justice of the case may require. Rev. St. § 701; Ins. Cos. v. Boykin, 12 Wall. 433. In the case at bar, the order, following the precedent of Slacum, v. Pomery, 6 Cranch, 221, will be that the judgment below be reversed, and the case remanded with directions that judgment be arrested. Ordered accordingly. |
107.US.365 | 1. The fourth section of the act of the legislature of Illinois passed in 1819, touching a ferry across the Mississippi River from a place in Illinois to the city of St. Louis, Missouri, declares: "That the ferry established shall be subject to the same taxes as are now, or hereafter may be, imposed on other ferries within this State, and under the same regulations and forfeitures." Held, that the section provides for equality of taxation; that is to say, that the property of the ferry company shall be valued and taxed by the same rule as other like property, and be subject to the same exactions and forfeitures, but the company is not exempted from any license tax on its ferry-boats which the State or a municipal corporation thereunto authorized might impose. 2. The power to license is a police power, although it may also be exercised for the purpose of raising revenue. 3. A State has the power to impose a license fee, either directly or through one of its municipal corporations, upon the ferry-keepers living in the State, for boats which they own and use in conveying from a landing in the State passengers and goods across a navigable river to a landing in another State. 4. The levying of a tax upon such boats, although they are enrolled and licensed under the laws of the United States, or the exaction of a license fee by is not a regulation of commerce within the meaning of the Constitution of the United States, nor is such tax or fee a duty of tonnage if it be not graduated by the tonnage of the boats or by the number of times they cross the river or land within the limits of the State. | The first contention of the plaintiff in error is that the fourth section of the act of 1819, which declared that the Wiggins ferry should be subject to the same taxes as were then or might thereafter be imposed on other ferries within the state, and under the same regulations and forfeitures, and the charter of the Wiggins Ferry Company, which authorized said company to use and enjoy the ferry franchise granted to Samuel Wiggins, and to use and enjoy all the rights, privileges, and emoluments recited in the preamble of the act as having been granted to Wiggins, and his heirs and assigns, constituted a contract between the ferry company and the state, by which the power to tax the ferry company was limited to the imposition of the same taxes as were then or might thereafter be imposed on other ferries within the state; and that the charter of the city of East St. Louis, which authorized the city to regulate, tax, and license ferry-boats, and the ordinance of the city imposing a license tax on the ferry-boats of the company, impaired the obligation of the contract, and was therefore unconstitutional and void. We are of opinion that the charter of the company cannot be so construed as to exempt it from any taxation which the state might itself see fit to impose, or authorize to be imposed, by the city of East St. Louis. It is a rule of interpretation that every grant from the sovereign authority is, in case of ambiguity, to be construed strictly against the grantee and in favor of the government. Charles River Bridge v. Warren Bridge, 11 Pet. 420; Mills v. St. Clair Co. 8 How. 569; Attorney General v. Boston, 123 Mass. 460. This rule has been frequently applied by this court in cases where exemption from taxation was set up by corporations under the provisions of their charters. In Phila. & Wil. R. Co. v. Maryland, 10 How. 376, it was declared that 'the taxing power of a state is never presumed to be relinquished unless the intention to relinquish is declared in clear and unambiguous terms;' and in Jefferson Branch v. Skelly, 1 Black, 436, it was said that 'the language of this court has always been cautious and affirmative of the right of the state to impose taxes, unless it has been relinquished by unmistakable words, clearly indicating the intention of the state to do so.' So in Railroad Co. v. Commissioners, 103 U. S. 1, the chief justice, speaking for the court, declared: 'Grants of immunity from taxation are never to be presumed. On the contrary, all presumptions are the other way, and unless an exemption is clearly established all property must bear its just share of the burdens of taxation. These principles are elementary and should never be lost sight of in cases of this kind.' To the same effect see Railroad Co. v. Gaines, 97 U. S. 708. So in Bank v. Tennessee, 104 U. S. 493, this court declared, speaking by Mr. Justice FIELD: 'That statutes imposing restrictions upon the taxing power of a state, except so far as they tend to secure uniformity and equality of assessment, are to be strictly construed is a familiar rule. Against the power nothing is to be taken by inference or presumption. When a doubt arises as to the existence of the restriction it is to be decided in favor of the state.' If any serious doubt could arise concerning the interpretation of section 4 of the act of 1819, which the plaintiff in error contends was incorporated as a provision of its charter, the authorities cited would settle that doubt in favor of the right of the city of East St. Louis to impose the license tax complained of. But we are of opinion that the meaning of the section is not doubtful. The ferry of Wiggins had only one of its landings in the state of Illinois; the other was in the state of Missouri. The evident purpose of the section was to prevent the ferry, by reason of that circumstance, from escaping the same burdens of taxation as were imposed on ferries entirely within the state, and not to limit the taxing power of the legislature. It declares that the ferry of Wiggins shall be subject to the same taxes which were then or might thereafter be imposed on other ferries within the state, and under the same regulations and forfeitures, but it does not intimate that the state shall not impose on it such other taxes within its constitutional power as to it may seem fit. The most favorable construction for the plaintiff in error that could be placed upon its charter is that it provided for equality of taxation; that is to say, that the property of the ferry company should be valued and taxed by the same rule as other like property, and that the same exactions and forfeitures only as were imposed on like property, similarly situated, should be imposed on it. It certainly cannot be contended that its ferry on one of the great arteries of commerce, crossing the Mississippi river, and having each of its landings in a city, should only pay the same identical taxes and license fees as a country ferry over an inconsiderable stream. All that could be reasonably claimed under its charter is that it should be subjected to no higher state and municipal taxation and no greater license fees than other like property similarly situated. Giving the charter this construction, the plaintiff in error has no ground for complaint. It is not shown that the state and county taxation bears unequally on the ferry company. The ordinance of the city of East St. Louis makes no discrimination in favor of any other ferry similarly situated which it is authorized to regulate, tax, and license. The same license fee is exacted of all keepers of ferries within the corporate limits as are imposed upon the plaintiff in error. But the contention of the plaintiff in error seems to be that, under the terms of its charter, it is exempted from the imposition by the city of East St. Louis of any license fee whatever. So far from this being the fact, the charter, by the proviso to section 1, expressly reserved the power of any existing municipal corporation, or any that might be thereafter created within the limits of the ferry company's lands, to exercise all such powers of police as might be properly conferred on a city corporation. The power to license is a police power, although it may also be exercised for the purposes of raising revenue. We cannot say, as a matter of law, that when a municipal corporation is authorized 'to regulate, tax, and license ferry-boats,' the imposition of a license fee of $100 per boat is not within the power to regulate and license, and is consequently not within the police power. It follows, therefore, that the ordinance of the city of East St. Louis and the charter of the city, by which the ordinance is authorized, do not impair the obligation of any contract between the ferry company and the state. The next question presented by the assignments of error relates to the power of the state to impose a license fee either directly or through one of its municipal corporations upon the keepers of ferries living in the state, for boats owned by them and used in ferrying passengers and goods from a landing in the state, across a navigable river, to a landing in another state. It is insisted by the plaintiff in error that such an exaction is forbidden by the constitution of the United States, (1) because it is a regulation of commerce between the states and therefore, within the exclusive power of congress; and (2) because it is a duty of tonnage, which the state are forbidden by the constitution to lay without the consent of congress. In our opinion neither of these contentions is well founded. The levying of a tax upon vessels or other water-craft, or the exaction of a license fee by the state within which the property subject to the exaction has its situs, is not a regulation of commerce within the meaning of the constitution of the United States. Gibbons v. Odgen, 9 Wheat. 1: The Passenger Cases, 7 How. 283; Morgan v. Parham, 16 Wall. 471. In Gibbons v. Ogden it was settled that the clause of the constitution conferring on congress the power to tax, and the clause regulating and restraining taxation, are separate and distinct from the clause granting the power to congress to regulate commerce. In all of the cases just cited the right of a state to tax a ship owned by one of her citizens and having its situs within the state, although used in foreign commerce or in commerce between the states, was distinctly recognized. Thus, in The Passenger Cases, it was said by Mr. Justice McLEAN: 'A state cannot regulate foreign commerce, but it may do many things which more or less affect it. It may tax a ship or other vessel used in commerce the same as other property owned by its citizens. A state may tax the stages in which the mail is transported, but this does not regulate the conveyance of the mail any more than taxing a ship regulates commerce; and yet, in both instances, the tax on the property in some degree affects its use.' In the case of Transp. Co. v. Wheeling, 99 U. S. 273, this court sustained a tax levied by the city of Wheeling upon steam-boats used in navigating the Ohio river between that city and Parkersburgh, and the intermediate places on both sides of the river in the states of West Virginia and Ohio, the company whose property the boats were having its principal office in Wheeling. The exaction of a license fee is an ordinary exercise of the police power by municipal corporations. When, therefore, a state expressly grants to an incorporated city, as in this case, the power 'to license, tax, and regulate ferries,' the latter may impose a license tax on the keepers of ferries, although their boats ply between landings lying in two different states, and the act by which this exaction is authorized will not be held to be a regulation of commerce. And in the case of Fanning v. Gregoire, 16 How. 534, it was declared by this court, speaking of the charter of Fanning to ferry across the Mississippi river at Dubuque, that the exercise of commercial power by congress did not interfere with the police power of the states in granting ferry licenses. In the case of Conway v. Taylor's Ex'rs, 1 Black, 603, Mr. Justice SWAYNE, speaking for the court, in reference to a ferry established across the Ohio river, between the states of Ohio and Kentucky, declared that the power to establish and regulate ferries did not belong to congress under the power to regulate commerce, but belonged to the states, and lay within the scope of that immense mass of undelegated powers reserved by the constitution to the states. The authorities cited settle beyond controversy that the ordinance of the city of East St. Louis, imposing upon the keepers of ferries within its limits, and the act of the legislature by which such ordinance was authorized, do not invade the exclusive power of congress to regulate commerce conferred on it by the constitution. It is next insisted by plaintiff in error that the license fee exacted by the ordinance of the city of East St. Louis is a tonnage tax, which the states are forbidden to lay without the consent of congress. This contention has no ground to rest on. In the first place, the license fee is levied, not on the ferry-boat, but on the ferry-keeper. The first section of the ordinance declares that no person shall carry on any trade, business, calling, or profession thereinafter mentioned without having first obtained a license therefor, and the ordinance, after having enumerated many other trades and callings, and fixed the license fee for carrying them on, declares, in section 10, that keepers of ferries shall pay $100 license fee for each boat plying between the city and the opposite bank of the river. The power of the state of Illinois to authorize any city within her limits to impose a license tax on trades or callings generally, especially those which are quasi public, cannot be disputed. Draymen may be compelled to pay a license tax on every dray owned by them, hackmen on every hack, tavern-keepers on their taverns in proportion to the number of the rooms which they keep for the accommodation of guests. We do not think that the constitution of the United States, by the section which prohibits a state from laying a duty of tonnage, protects the keeper of a ferry from a similar tax upon the boats which he employs. Whether a license fee is exacted under the power to regulate or the power to tax is a matter of indifference if the power to do either exists. The license fee exacted is, in effect, laid upon the business of keeping a ferry, for it is not laid upon all boats owned by the ferry-keeper, but only on those plying between the two banks of the river, and is graduated by the number of boats used by him. The exaction of this license fee is identical in kind with the imposition upon a proprietor of hacks and express wagons of a specified sum for every vehicle owned by him and used in carrying passengers or baggage and merchandise from East St. Louis to the city of St. Louis, by way of the bridge connecting those cities. In the second place, the amount of the license fee is not graduated by the tonnage of the ferry-boats. It is the same whether the boats are of large or small carrying capacity. This, although not a conclusive circumstance, (Steam-ship Co. v. Port Wardens, 6 Wall. 34,) is one of the tests applied to determine whether a tax is a tax on tonnage or not, (The State Tonnage Tax Cases, 12 Wall. 212; Peete v. Morgan, 19 Wall. 581; Cannon v. New Orleans, 20 Wall. 577.) If the same license fee had been exacted of the keeper of a ferry across a navigable stream entirely within the state of Illinois,—Chicago river, for instance,—it would scarcely be contended that it fell within the constitutional prohibition. The fact that in this case the ferry crosses a river which divides two states cannot change the nature of the exaction. As we have already said, the burden imposed by the ordinance is not measured by the tonnage of the ferry-boats; it is not measured by the number of times they cross the Mississippi river or land at the city of East St. Louis. We are of opinion, therefore, that it is not a duty of tonnage, nor is it in its essence a contribution claimed for the privilege of using a navigable river of the United States, or of arriving or departing from one of its ports, and is therefore not prohibited by the constitution of the United States. Counsel for plaintiff in error contend that if the power of the city of East St. Louis to exact a license fee of $100 from every ferry-boat is conceded, the city could double or treble the fee at will. It is sufficient to say, in reply to this, that it does not follow from the fact that a power is liable to abuse, that it does not exist. If the power is abused, the remedy is with the legislature. Lastly, it is contended by the plaintiff in error that the fact that the boats of the ferry company have been enrolled, inspected, and licensed under the laws of the United States, is a protection against the exaction of any license fee by the state or by its authority. In the case of Gibbons v. Ogden, ubi supra, it was said by the court that inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a state, and those which respect turnpike roads, ferries, etc., are parts of the immense mass of legislation which embraces everything within the territory of a state not surrendered to the general government. In the subsequent case of Conway v. Taylor, ubi supra, this court, relying as authority on the declaration just cited, held that the fact that Conway had caused his ferry-boat to be enrolled and licensed, under the laws of the United States, at the custom-house in Cincinnati, to carry on the coasting trade, did not authorize him to carry on the business of a ferry between Cincinnati and Newport, Kentucky, in disregard of the rights of Taylor, who had an exclusive license from the authorities of the state of Kentucky to ferry from the Kentucky to the Ohio side of the river. The power of congress to require vessels to be enrolled and licensed is derived from the provision of the constitution which authorizes it 'to regulate commerce with foreign nations and among the several states.' We have already seen that this court, in Fanning v. Gregoire, ubi supra, has held that this right of congress 'does not interfere with the police powers of a state in granting ferry licenses.' These authorities show that the enrollment and licensing of a vessel under the laws of the United States does not of itself exclude the right of a state to exact a license from her own citizens on account of their ownership and use of such property having its situs within the state. Counsel have argued other assignments, based on the construction given by the supreme court of Illinois to the constitution and laws of the state. As, in our opinion, all the federal questions presented by the record were rightly decided by that court, it is not our province to consider these assignments. Murdock v. City of Memphis, 20 Wall. 590. We find no error in the record. The judgment of the supreme court of Illinois must, therefore, be affirmed. |
109.US.381 | 1. A railway company, in consideration of the undertakings of S. in a written agreement, agreed therein to send all live stock coming over its road to East St. Louis, to the stock yard of S. at that place, except such as should be specially ordered otherwise by shippers or owners, and to pay him therefor an agreed rate for loading and an agreed rate for unloading: Held, that this agreement applied to all live stock shipped in the ordinary course of the company's business over its road, the direction of which was not otherwise specially ordered by shippers, and which it was possible for the company to have loaded at the stock yard of S. ; and, that on a breach on the part of the company being proved, without fault on the part of S., he could recover from the company damages in consequence of stock being sent by the company to another stock yard at that terminus. 2. The action of the court below in denying a motion for a new trial is not subject to review. | This action was brought by Struble, the defendant in error, to recover damages for an alleged breach of a written contract entered into between him and the Terre Haute & Indianapolis Railroad Company. A verdict and judgment were rendered in favor of plaintiff for the sum of $10,440. The defendant moved for a new trial and in arrest of judgment and both motions having been denied, the case has been brought here for review. By the contract in question, Struble obligated himself to build and keep in good order, on his leased grounds in East St. Louis, Illinois, all necessary stock-yards and feeding-pens suitable for the reception, feeding, handling, loading, and unloading of live-stock whic might be shipped or transported over the Terre Haute & Indianapolis Railroad to and from East St. Louis; to receive and unload all live-stock over that road; to collect all freight and charges on same and pay over to the company or its authorized agents all moneys so collected; to order from the proper agent of the company all cars necessary for the transportation of live-stock from East St. Louis; to load in a proper manner all live-stock for transportation from that place by that company; to bed such cars at a cost to shippers of not more than one dollar per car, to be collected by him from shippers; and to attend to all other necessary matters pertaining to the safe and prompt loading of all such live-stock for transportation over that road. The company, in consideration of the performance by Struble of the stipulations of the contract, agreed to build all necessary loading schutes for the use of the company connected with said yards; to send all live-stock coming to East St. Louis over its road to Struble's yards, except such as may be specially ordered otherwise by shippers or owners; to pay him 50 cents per load for all stock received by him over the road and unloaded in his yards, and two dollars for each and every car of live-stock loaded by him to be transported by the company from East St. Louis; and to give him the loading of all live-stock which may be transported over its road from that city. Struble's yards were completed and opened for business in December, 1870. From that date until some time in October, 1873, all live-stock coming to East St. Louis over defendant's line was unloaded at those yards, and live-stock shipped over that road from that city was loaded by Struble. Early, however, in the fall of 1873 the National Stock-yards were completed and opened for business. They were just outside of the corporate limits of East St. Louis, and near defendant's road. The plaintiff claimed that up to October, 1873, he performed all the conditions of the contract, and was ready, willing, and able to comply with it in all respects until it should, by its own terms, be terminated, but that he was prevented by defendant after that date from fully executing it. All this the defendant denied. The record contains numerous assignments of error, but we shall notice only such as are relied on in argument. They seem to embrace every essential question in the case. 1. It is claimed that the court below erred in admitting evidence offered by the plaintiff. The specification under this head refers to evidence as to the number of cars loaded with live-stock and taken by the defendant from the National Stock-yards between August 1, 1874, and April 1, 1880. The contention of plaintiff was that, within the meaning of the contract, he was entitled to load those cars, and recover therefor from the defendant the price fixed in the contract for such services; this upon the alleged ground that that stock had not been specially ordered by shippers or owners to the National Stock-yards, and could have been directed by the defendant to Struble's yards had it made any or proper effort to do so. In this view the evidence objected to was competent, as furnishing a basis to estimate the damages which plaintiff sustained by reason of the breach of the contract, if such breach was established by the evidence. 2. The court, among other things, said to the jury that in determining the quantity of stock that would probably have been shipped from the plaintiff's yards, they should include only such as the jury believed would have been possible for the defendant to direct to those yards. In the same connection the court said: 'The jury, in considering the meaning of the words 'all live-stock which may be transported over the said railroad from East St. Louis,' found in the last clause of the contract sued on, must determine from all the evidence before them what stock is included. The words evidently apply to such stock as in the ordinary course of the defendant's business should be shipped from that point over their line of railroad. It applies to all such stock whether loaded at plaintiff's yards or some other yards used for loading stock so shipped. As already suggested, it should be applied only to stock which it was possible for defendant to have loaded by plaintiff. It does not apply to stock, the owner or shipper of which directed the loading to be done by some person other than the plaintiff, and over the loading of which defendant had no control.' We are of opinion that there was no error in these instructions. The contract contemplated, upon the part of Struble, all the preparations necessary in and about his yards to meet the necessities of the company's business in the transportation of live-stock; and upon the part of the company that it would do all it could, in the absence of special orders from shippers, to bring live-stock to plaintiff's yards to be by him loaded in cars for transportation over defendant's road. Such was, in substance, the direction given to the jury. The court could not, under any reasonable interpretation of the contract, have said less than it did. 3. It is assigned for error that the court overruled defendant's motion for a new trial. A large part of the printed argument on behalf of defendant is devoted to a discussion of the grounds assigned in support of the motion for a new trial. But the action of the court below in refusing a new trial is not subject to review here. This has long been settled by the decisions of this court. Railroad Co. v. Fraloff, 100 U. S. 24; Wabash Ry. Co. v. McDaniels. 107 U. S. 456; [S. C. 2 SUP. CT. REP. 932.] The judgment must be affirmed. It is so ordered. |
106.US.679 | 1. When a party offers in evidence an instrument concerning real estate which has been acknowledged or proved so as to be admitted to record, and read in evidence, the burden of proof is on the party denying its execution. The fact that a person whose name is signed as a subscribing witness is alive and is not called to testify, leaves a strong inference that its execution cannot be disproved. 2 A woman married a man by whom she became the mother of two children. She subsequently discovered that lie had a wife living from whom he had not been divorced. He then made to her an assignment of a mortgage. Held, that the assignment was a meritorious act and not impeachable for immorality of consideration. 3. The difference between a judgment and writ of partition at common law, and a partition by decree in chancery as it affects the title, is, that the former operates by way of delivery of possession and estoppel, while in the latter the transfer of title can be effected only by the execution of conveyances between the parties, which may be decreed by the court and compelled by attachment. 4. Some of the States confer upon their Chancery Courts authority to make such a conveyance by a master commissioner, or they provide that the decree itself shall operate as such conveyance and vest the title in the parties to whom the premises have been severally allotted; but where, in a suit in equity for partition, no such authority or provision exists, the proceeding, while it may be effectual as a division and an allotment of the property, does not pass the title thereto. 5. Where a decree erroneously declared the nature of the estate of each cotenant, and three days thereafter deeds inter partes were made which do not follow the decree, and where, twelve years afterwards, a bill in chancery was brought to perfect the partition by compelling conveyances in accordance with tme decree, the court may inquire into the equities of the parties arising out of the surrounding circumstances, and refuse to order conveyances in accord with the title as found by the former decree, when it would be inequitable to make such order. 6. If such former decree was made by consent of the party against whom the error was committed, and who received no valuable consideration, and if no one is interested but volunteers, or those who purchased with full notice of the facts, no order for conveyances will be made, but the parties will be left to rely for their title on those which were interchangeably made to each other in accordance with the respective allotments. 7. No person can be an innocent purchaser for value under the first decree who was attorney for the plaintiff, and who purchased from him while the suit to enforce it was pending. Northern District of Illinois. The case is stated in the opinion of the court. | This is an appeal from a decree of the circuit court for the northern district of Illinois. The issues raised by the pleadings are so well stated in the opinion of the district judge, sitting in the circuit court on rendering the decree, that we cannot do better than to state them in his language: 'By the original bill the complainant Elizabeth Flaglor charged that she was the sole surviving child of Charles D. Flaglor, deceased; that one Augustus Garrett died in the city of Chicago some time in the year 1848, seized of lot 25, in block 9, in the Fort Dearborn addition to Chicago, together with a large amount of other real estate, leaving Eliza Garrett his widow, and no children nor descendants of a child or children, and leaving a will, which was duly probated in Cook county, whereof said widow, Eliza Garrett, James Crow, and Thomas G. Crow were duly appointed executors, in which will said Garrett duly disposed of and devised his estate, and among other devisees in said will was the said Charles D. Flaglor; that in the year 1851 a bill for partition was filed in the circuit court of Cook county by said Eliza Garrett, James Crow, and Thomas G. Crow against Letitia Flaglor, Frederick T. Flaglor, and Charles D. Flaglor, and Lucy Louisa Flaglor and Elizabeth Flaglor, children of said Charles D., all of whom, it was alleged, were interested in said will; that upon the answers of the defendants to said bill, proofs taken, and the report of commissions, a decree was entered that partition be made of the real estate of which said Augustus Garrett died seized, among the persons to whom the same was devised by said will, and said lot 25, in block 9, was allotted and set apart to said Letitia Flaglor during her life, remainder over to said Charles D. Flaglor for his life, remainder in fee to his children him surviving, and on failure of children him surviving the fee to* said James Crow and Thomas G. Crow; that the parties entered into possession of the several parcels of real estate as set apart to them, and executed and delivered to each other interchangeably deeds of conveyance, so as to invest each of the parties to said bill with the title in severalty to the portions of said estate so set apart and allotted to them, and also a certain written contract in regard to the interests of the children of said Charles D. in the property set off to said Letitia and Charles D. 'The bill then alleged the death of said Letitia and Charles D. Flaglor, and that complainant Elizabeth was the sole surviving child of said Charles D., and entitled as such to an estate in fee to the lands so set off and allotted by said decree to said Letitia and Charles D., and prayed that said James and Thomas G. Crow, as surviving executors of the will of said Garrett, be required to execute proper deeds of conveyance of the fee to said lot 25 to said complainant Elizabeth, and that said Jessell and the other tenants in possession account for and pay over to complainant the rents, issues, and profits of said lot by them received after the death of said Charles. 'The bill also charged that said Charles D. Flaglor, on or about the nineteenth day of August, 1857, made and executed to Frederick T. Flaglor, his father, a certain mortgage deed of said lot 25, to secure the payment of the sum of $20,000, on the first day of November, 1867, together with interest thereon at the rate of 6 per cent. per annum, payable annually, and that said defendant Catharine Reid was the holder of said mortgage. 'Soon after filing the original bill, the said Elizabeth Flaglor, complainant, died, leaving a will, whereby she devised all her estate to her mother, Lucy C. Flaglor, and by order of court said Lucy C., who has since intermarried with one Gay, was made complainant, and the suit has since proceeded in her name. James and Thomas G. Crow were served with process, but made no defense. Jessell appeared and answered. Catharine Reid, being a non-resident, was brought into court by publication, under the statute of Illinois, and such steps were taken that the case on the original bill was brought to hearing before the superior court of Cook county, at the August term, 1872, and a decree made directing said James and Thomas G. Crow, as executors, to convey to complainant the title in them, as surviving executors and trustees of Augustus Garrett, and that Jessell, who was a tenant of the premises under an unexpired lease from said Charles D. Flaglor, surrender possession to complainant, and that the defendant Catharine Reid release the said mortgage made by said Charles D. to Frederick T. Flaglor, and that said mortgage be held void as against the estate of said complainant in said premises. In October, 1873, said Catharine Reid, by the name of Catharine Parpart, (she having intermarried with Lewis Parpart,) appeared in said cause, and on her motion said decree was opened, and she was let in to defend in said cause, whereupon she filed her answer. 'And afterwards, on the first day of February, 1875, she filed her cross-bill, alleging that said Charles D. Flaglor made and delivered said mortgage in fee to his father, Frederick T. Flaglor, and that said Frederick T., on the first day of August, 1863, duly assigned said mortgage and the indebtedness thereby secured to her, the said Catharine, and that the same was then held and owned by her, and that the whole of the principal sum of $20,000, together with interest from the second day of June, 1862, remained unpaid. To this cross-bill Arthur W. Windett, the Connecticut Mutual Life Insurance Company, and others were made defendants, and a foreclosure of said mortgage was prayed. To this cross bill answers were filed by Mr. Windett and the Connecticut Mutual Life Insurance Company, alleging, in substance, that, by the will of Augustus Garrett, said Charles D. Flaglor was only devised a life estate after the death of his mother, Letitia Flaglor, in the lands devised to him by said will, and that it was agreed between said Eliza Garrett, widow, and James Crow, Thomas G. Crow, and said Letitia Flaglor, Frederick T. Flaglor, her husband, and said Charles D., that a partition should be made among them of the property devised by said will, and that by such partition only a remainder for life, after the death of said Letitia, should be vested in said Charles D., and that on his death the fee of the property so allotted to said Letitia and Charles should go to the children of said Charles D.; that, in pursuance of said agreement, the bill for partition was filed in the Cook county circuit court, and that said Charles by his answer appeared and consented to a decree, and that the decree in said partition cause was made in pursuance of such consent, and that said Charles was bound thereby and precluded from asserting or claiming any other than a life estate in said lands, and that said Frederick T. Flaglor and said Catharine Reid were bound by such decree; that said mortgage was given by said Charles to said Frederick without consideration; and that said Catharine was not a bona fide assignee for good or valuable consideration, and that said mortgage only conveyed the life estate of said Charles D. in the mortgaged premises. 'Before the answer of the insurance company was filed, the cause was, on petition of said company, removed to this court, and on the fifth of November, 1877, the said Catharine, by leave of this court, filed her amended cross-bill, alleging that all the title and interest of Mr. Windett and the insurance company and the other defendants were acquired after and were subject and subordinate to the said mortgage held by her; and further alleged that said Charles was, by the will of said Garrett, given an estate in fee after the death of his mother, Letitia; that no agreement was ever made by Charles to accept an estate for life, and that the fee should go to his children; that said Charles never consented to said decree in said partition case awarding him only a life estate in the property set off to him; that the deeds made interchangeably between the devisees of Garrett and the contract between said parties made at the same time, were not made in pursuance of or for the purpose of satisfying said decree; that said Charles had never ratified said decree nor accepted a life estate in lieu of a fee in the lands set off to him, and that said decree was fraudulent and void as against said Charles. 'The answers of Mr. Windett and the insurance company to the amended cross-bill denied all frauds or mistake in the decree in the partition suit, and insisted that Charles and the cross-complainant were bound thereby, and also insisted that said decree was in accordance with and in furtherance of the interest of the will of said Garrett, so far as it related to the estate of said Charles in the lands allotted to him.' After a full hearing on these issues upon the pleadings, documents, and other testimony, the circuit court rendered a decree in favor of Catharine Parpart. By this decree the validity of the mortgage set out in the cross-bill and its assignment to her were established, and a decree rendered in her favor for the amount of the bond, with interest, declaring it to be a lien on the property in controversy paramount to that of all other parties to the litigation, and that unless it was paid the property would be sold for the purpose of raising the money to satisfy the mortgage debt. From this decree Arthur W. Windett, Lucy Flaglor Gay, and the Connecticut Mutual Life Insurance Company took an appeal, which brings it before us for review. The case, as it presents itself to us, concerns the interest of no other parties but these, and is limited to the proceeding growing out of the cross-bill. Two questions are raised by these issues, namely, the validity of the mortgage made by Charles D. Flaglor to Frederick T. Flaglor, his father, and of the assignment of that mortgage to Mrs. Parpart, then Catharine Reid; and, if this be decided in her favor, the further question whether, at the time that Charles Flaglor made the mortgage, he held a fee-simple to the property mortgaged or only a life estate. As the least difficult of these questions, and the one which in the natural order of discussion should be first disposed of, we will consider the validity of the mortgage and its assignment. There is but little question raised that as between Charles D. Flaglor, mortgagor, and his father, Frederick Flaglor, the transaction was an unexceptionable one. At that time, whether the estate was a feesimple or a life estate, certain transactions took place between them by which Charles became indebted to his father in the sum of $20,000. This sum the father seemed disposed to permit to remain in the hands of his son on the security of a mortgage on this property. He accordingly, in the year 1857, took from charles his bond for that sum, payable 10 years after date, with annual interest at the rate of 6 per cent., secured by this mortgage. The interest was promptly paid, notwithstanding the death of Charles in 1858, up to the death of his father in 1865. There is no reason, therefore, to doubt the validity of the mortgage as between these two. As regards the assignment of the bond and mortgage by Frederick Flaglor to the present appellee, it is assailed on several grounds, which resolve themselves into a denial of the execution of the assignment and the immorality of the consideration on which it was made. The assignment itself is on a separate piece of paper from the mortgage and the bond, and the signature is made by the cross-mark of Flaglor instead of being in his own handwriting. As Flaglor was a man of some education, and it is shown that about that time he was in the habit of writing letters and signing his own name to them, that circumstance is deemed suspicious. The relations at that time existing between him and Catharine Reid, which will be hereafter considered, are supposed to increase the force of these suspicions; also the fact that the bond and mortgage were permitted to remain in his possession. In answer to this, it is to be considered that Flaglor was a very old man, easily shaken by illness, and it was probably during some such attack, when he might not have been able to write, that he determined to do the act of justice which dictated this assignment. Original specimens of his signature, written within a short time of this transaction and produced to this court, show a shaky and difficult handwriting, and lead to the conclusion that if he was ill it would be extremely natural to have somebody write his name, which he authenticated by making a cross under It. Its execution is attested as sealed and delivered in his presence by W. G. McDonald as a witness, and the original paper produced before us shows that the name of Flaglor is in the same handwriting as that in the body of the instrument, which is apparently that of the witness. There is another consideration, however, of very great weight in favor of the validity of the assignment. Its execution was proved shortly after the date it bears, before a justice of the peace, in accordance with the laws of the state of New York, where Flaglor then resided, and the certificate of this fact, with that of the clerk of the proper court, were such that by the laws of Illinois it was admitted to record in the county of Cook of that state, and is by that law prima facie evidence of its execution by Flaglor. When this assignment and certificate were produced in evidence the onus of proving that it was not the act and deed of Flaglor devolved on the appellants. The witness W. J. McDonald was living at the time that the deposition of the appellee was taken in New York to prove the execution of the paper. McDonald was competent to prove what was done in regard to the execution of the assignment, and the fact that the appellants, with a knowledge of the case made by the certificate of acknowledgment and the positive testimony of Catharine Reid, did not call the man whose name was affixed to the paper as a witness to its execution, leaves but little doubt that it could not be thus successfully impeached. Reverting to the question of the consideration moving Flaglor to make this assignment, the facts seem to be that Catharine Reid had been for several years a domestic in the family of Frederick Flaglor while he was married to and living with a second wife, and she left his service while Frederick and his wife were yet living together at Newburg, in the state of New York. Not long after this Flaglor separated from his wife and went to live in St. Johns, New Brunswick. After being there some time he wrote to Catharine Reid that he was not in good health and needed somebody to take care of him, and requesting her to come and do so. With this request she complied, and, according to her testimony, after she got there he informed her that he had a divorce from his wife and requested her to marry him. The certificate of the clergyman of St. Johns, with both her signature and his to the fact, leave no doubt that they were married in that place on the twenty-third day of January, 1862. The fruits of this marriage were two children, both girls. They returned to Newburg a year or so after this, and there she ascertained that Flaglor had not been divorced from his wife, and of course understood at once that her children were illegitimate, and that their father was liable to a prosecution for bigamy. Flaglor, at that time, as we have said, was a very old man, and it does not appear that he and this family of his had any other means of support than the interest accruing on this mortgage. Notwithstanding the assault made upon Catharine Reid in reference to her chastity, and the probability of illicit intercourse with Flaglor previous to this marriage, and the fact much relied on that she had an undue influence over him at the time the assignment was made, we cannot doubt that in executing and delivering to her that assignment he did a meritorious act, honorable and just, as the only atonement he could make for the deception he had practiced upon her, and as placing in her hands the means of supporting the children of whom he was the father. It was not the case of a contract for future illicit intercourse of the class which the authorities hold to be against public policy, but an appropriate means of providing for the support of a woman whom he had married while he had a wife living, and of the children resulting from that marriage. We are satisfied from these considerations that the mortgage in question was a valid instrument in the hands of the appellee, Catharine Parpart, and a lien upon such interest in the property which it conveyed as Charles D. Flaglor had at the time he made it. As we have already said, the question on this branch of the subject is whether Charles D. Flaglor, at the time he made the mortgage, owned a fee-simple in the property conveyed by it or a life estate. Such interest as he had came to him primarily by the will of Augustus Garrett. The first six sections of this will mention the beneficiaries of his bounty as regards the income of his estate until the death of his wife Eliza, Mary Banks, and Letitia Flaglor, and throws very little light upon the question we are considering. The seventh section, which provides for the final disposition of his property after their decease, contains the language to be construed. It reads as follows: 'Upon the death of my wife Eliza and of Mary Banks and Letitia Flaglor, I direct that the whold of my estate shall then be equally divided between Charles D. Flaglor, son of said Letitia, if he or his legitimate children survive said Letitia, (in case he be dead, his legitimate children shall take as their father would if alive,) and the said James Crow, and the said Thomas G. Crow, each taking one-third of the whole. But if Charles D. Flaglor be at that time dead, leaving no legitimate children, the whole of my said estate shall be divided between the said James Crow and Thomas G. Crow. In all cases the heirs and devisees of the said James Crow and the said Thomas G. Crow, respectively, shall succeed to the right and portion which their ancestor and decedent would have received had he been alive, and in all cases the heirs and devisees of the said James and Thomas, respectively, and the children (legitimate) of said Charles D. Flaglor, shall only succeed to and take the share or portion of income and of estate in general which their ancestor or decedent would have had, taking per stirpes and not per capita.' The precise question here raised has been repeatedly before the courts of Illinois, as has the whold subject of Charles Flaglor's interest under this will, and we think it may be affirmed that, by several well-considered opinions of the supreme court of that state, a construction has been established which gives to Charles Flaglor, on the death of his mother, Letitia, a fee-simple estate under that will. Indeed, we do not understand counsel here to seriously controvert that such is a true construction of that instrument, and as this accords with our own, we adopt it without further discussion. On the death of Mr. Garrett his will was admitted to probate on the twenty-eighth day of February, 1849, and his widow, Eliza Garrett, having renounced the benefits of its provisions, asserted her rights to dower, whereby she became entitled to one-half of the estate. In 1851, long before her death or that of any of these devisees, the parties interested determined to have a partition by a proceeding in chancery in the superior court of Cook county. In that proceeding the property which is now in controversy was allotted to the share which went to Letitia Flaglor during her life, and after her death to Charles D. Flaglor. Under the construction of the will which we have just adopted, Charles D. Flaglor was, at the time of making the mortgage to his father, the owner of the estate in fee of the property conveyed by it, and there could be no doubt that the mortgage constituted a lien paramount to everything else in the way of a claim or title to the property. The appellants here upon the decree of partition to which we have alluded, and on certain deeds and agreements alleged to have been made by Charles D. Flaglor in connection therewith, as establishing and limiting his interest in this property to a life estate, with remainder in fee to his children on his death, and whether this contention be well founded or not, presents the main controversy in the case. That decree of partition, dividing the estate into three parts, does unquestionably declare 'that the real estate by said commissioners set off and allotted to Letitia Flaglor, Charles D. Flaglor, and his children, if he die leaving any child or children, be and the same is hereby set off and allotted, and the income thereof, to the said Letitia Flaglor during her life, and the said Charles Flaglor, if he survive said Letitia, during his life, and the child or children of said Charles D., if he die leaving any child or children, in fee.' Then first thing which suggests itself as proper to be considered in the solution of this question is to ascertain what was the law of the state of Illinois on the subject of partition at the date of that decree. Looking at the statutes of the state as we find them in the Revision of 1880, with reference to the sources from which this Revision is taken, we find that they made provision distinctly for two modes of effecting a partition, one of which, as declared by the statutes of 1845, was by a bill in chancery as heretofore, and the other by petition to the circuit court of the proper county. Very little is said on the subject of partition in chancery, as the provisions of the statutes are more specifically directed to the forms of proceeding by petition in the proper court. The proceeding in the case which we are now to consider declares itself on its face to be a proceeding in chancery, and the supreme court of the state, in the case of Wadhams v. Gay, 73 Ill. 415, in reference to this very decree, declares it to be so. We take it for granted that the statute of Illinois, in making this provision and in leaving the parties to proceed by bill in chancery, intended thereby to give to a proceeding in such case the same force and effect which a petition in chancery had in the high court of chancery of England, and that the proceeding should in the main conform to the chancery practice as thus established. As we understand that system, it did not deal with or decide questions of controverted title. Its purpose was to make division among the parties before the court of real estate in which those parties had interests or estates that were not in controversy as among themselves. It was another principle of the chancery jurisdiction in partition that a decree itself did not transfer or convey title even after the allotment of the respective shares of each of the parties to the proceeding, but the legal title remained as it was before. In this respect a decree in chancery was unlike the writ of partition at the common law, which in such cases operated on the title only by way of estoppel. In the chancery proceeding, however, this difficulty was remedied by a decree that the parties should make the necessary conveyance to each other, which, if they refused, they could be compelled to do by attachment, imprisonment, and other powers of the court over them in person. In many of the states of the Union, where the equity powers of the courts have been aided by statutes to get rid of the difficulty of compelling parties in person to execute conveyances, the court has been authorized to appoint a commissioner, who should execute the conveyances in the names of the parties. In other cases the statute has declared that such a decree itself shall operate as a conveyance of the title. At the time that the decree was rendered in the superior court of Cook county, which we are considering, we are not aware that any statute existed which gave such effect to the decree of the chancery court in partition. We find by the Revised Statutes to which we have alluded, section 29, on partition, that in the year 1861, 10 years after this decree was passed, it was enacted that in suits for the partition of real estate, whether by bill in chancery or by petition, the court may investigate the question of conflicting or controverted titles, and remove clouds on the title of any of the premises sought to be partitioned, and invest titles by their decrees in the parties to whom the premises are allotted, without the forms of conveyance of 'infants, unknown heirs, and other parties to the suit.' Other powers are also conferred on the courts in such cases. In the case of Whaley v. Dawson, 2 Schoales & L. 366, Load REDESDALE says: 'Partition at law and in equity are different things. The first operates by a judgment of a court of law, and delivering up possession in pursuance of it, which concludes all the parties to it. Partition in equity proceeds upon conveyances to be executed by the parties, and if the parties be not competent to execute the conveyances, the partition cannot be effectually had.' AND IN HIS WORK ON PLEADINGS IN CHANCERY, hE gives this clear Statement of The nature of the equity jurisdiction in partition: 'In the case of the partition of an estate, if the titles of the parties are in any degree complicated, the difficulties which have occurred in proceeding at the common law have lead to applications to courts of equity for partition, which are effected by first ascertaining the right of the several persons interested, and then issuing a commission to make the partition required, and upon the return of the commission and confirmation of that return by the court, the partition is finally completed by mutual conveyances of the allotment made to the several parties. But if the infancy of any of the parties, or other circumstances, prevent such mutual conveyances, the decree can only extend to make partition, give possession, and order enjoyment accordingly, until effectual conveyances can be made. If the defect arise from infancy, the infant must have a day to show cause against the decree after attaining 21; and if no cause be shown, or if the cause shown should not be allowed, the decree may then be extended to compel mutual conveyances. If a contingent remainder, not capable of being barred or destroyed, should have been limited to a person not in being, the conveyance must be delayed until such person shall come into being, or until the contingency shall be determined, in either of which cases a supplemental bill will be necessary to carry the decree into execution.' Mitford, Pl. (Jeremy's Ed.) 120. See Atty. Gen. v. Hamilton, 1 Madd. 214; Cartwright v. Pultney, 2 Atkyns, 380; Story, Eq. Jur. §§ 652, 653. Mr. Adams, in his admirable condensation of the equity jurisdiction, says: 'The confirmation [of the commissioner's report] does not, like the judgment on a writ of partition, operate on the actual ownership of the land, so as to divest the parties of their individual shares, and rein vest them with corresponding estates in their respective allotments, but it requires to be perfected by conveyances; and the next step, therefore, after confirmation of the return is a decree that the plaintiffs and defendants do respectively convey to each other their respective shares, and deliver up the deeds relating thereto, and that in the mean time the allotted portions shall respectively be held in severalty.' Adams, Eq. 231. This is precisely what was done in this case, except that no day in court was given to the infant children of Charles D. Flaglor, nor any decree for conveyances by them or by the other parties to the suit. That decree, therefore, did no more than to make a division and allotment of the land, and had no effect upon the actual ownership or upon the title of the parties, and did not even contain an order for possession in severalty. We must, therefore, look to the conveyances, which were made three days after this decree was entered, for any limitation of Charles D. Flaglor's interest to an estate for life in the share alloted to him and his mother, if any such there be. In reply to this view of the effect of the decree it is said that it was a consent decree, and must be held binding on Charles Flaglor by reason of that consent. It is certainly true that on the face of the proceeding, as evidenced by the bill of Eliza Garrett and the two Crows, and the answer of Charles and Letitia Flaglor, the partition was one previously agreed on by all these parties, and the bill itself gives a schedule of the different parcels of the property to be allotted by the decree to each of the three interests concerned in it. The bill also sets forth very explicitly the interest of Charles D. Flaglor as being a life estate, with remainder in fee to his children, two of whom were then alive. To this bill an answer on behalf of Frederick T. Flaglor, Letitia Flaglor, and Charles D. Flaglor was filed by their solicitors, Arnold and Ley. It might admit of some question whether this answer was intended to admit that the estate of Charles D. Flaglor was merely a life estate; but as the supreme court of Illinois, in the case of Flagler v. Crow, 40 Ill. 414, has decided that it showed consent, we assume it to be so. Waiving at present the question, on which there is much conflicting testimony, whether Charles D. Flaglor authorized these attorneys to assent for him to that construction of his interest in the property, we remark that the decree itself was incomplete and did not purport to transfer the title between parties, nor did it order or direct that such conveyance should be made in accordance with its provisions. This decree, however, was entered of record on May 26, 1851, and deeds were made inter partes on May 29th. These deeds do not refer to the decree in any manner, nor do the deeds of the other parties to Letitia and Charles Flaglor profess to describe their interests in the property, and the deed as found in the record from the Crows is to Charles Flaglor alone, and none of the deeds mention the children of Charles Flaglor. The agreement of the same date was executed by all the parties to the partition, except the children of Charles D. Flaglor, and seems to have two purposes, explanatory of the deeds of conveyance made at the same time. The first of these purposes was to declare the proportion of the debts of the estate of Augustus Garrett which should be charged upon the interest of each of the parties, and the second to make some explanation of the relations to the estate of Charles D. Flaglor and his children. The purpose of the provision on this latter subject was to have Letitia and Charles D. Flaglor and Frederick 'to save and keep harmless the shares and portions of the estate allotted to Eliza Garrett, James Crow, and Thomas G. Crow from all claim or claims which any child or children of Charles D. Flaglor may have or become entitled to under the said will or decree of any court now made or hereafter to be made.' There is also a previous reference in said instrument to the interests of the children and descendants of Charles D. Flaglor which, under said will, such children or descendants may have or at any time be entitled to. This court agrees with counsel for appellee that there is nothing in these deeds or this contemporary agreement by which Charles Flaglor agrees or binds himself or consents that his interest in the property is a life estate. The deeds of conveyance are absolutely silent on the subject and do not mention the children at all, but convey the estate to Letitia and Charles Flaglor. The explanatory agreement was evidently intended to refer this question to the true construction of the will, mentioning the rights of the children to be such as they may have under that will, and guarantying Eliza Garrett and the Crows against the effect of such construction of it as would make his interest a life estate, with remainder to his children. Assuming, then, that these conveyances inter partes were made as a part of the partition proceedings, they fail to carry into effect that part of them which declares as between Charles D. Flaglor and his children that his estate was an estate for life. It was undoubtedly in this view of the subject that, after the death of Charles Flaglor and his mother, the advisers of Elizabeth Flaglor, the only surviving child of Charles, caused the commencement of the suit in chancery, in her name, of which the present cross-bill has become a part. This bill of Elizabeth, upon its face, recites the proceedings in the original partition suit, and the contemporary conveyances and agreement, and the death of Letitia and Charles Flaglor and one child of Charles Flaglor, and considering the imperfection and insufficiency of all these proceedings to vest in the complainant, the surviving child of Charles Flaglor, the title to the real estate allotted to him and his mother in the decree, it demands of all the other parties to make such conveyance as will perfect her title, and it prays for an account of rents and profits from those who have had the property in possession. To this bill Catharine Reid, now Catharine Parpart, was made a defendant under allegations setting out the mortgage on which the present decree was rendered, and alleging it to be a cloud on the title of complainant Elizabeth, and praying that it be held to be no lien on the property. Much of the argument of counsel in this case and the testimony on which the case was heard in the court below has relation, on both sides, to the question whether Charles D. Flaglor authorized his attorneys to give the consent to limitation of his estate which is found in his answer to the original partition suit. It is not to be denied that the testimony on this subject is conflicting, as were also his declarations and actions about the time of the rendition of that decree. We do not deem it material to the case before us to decide this question, because, as neither the decree itself, nor the deeds made three days after, nor the article of agreement assented to by the parties at the same time, made any actual transfer of title different from that which resulted from the will of Augustus Garrett, and as the very purpose of Elizabeth Flaglor's suit is to effect that which was not done by that decree, the only effect which the consent of Charles Flaglor to it could have, if he ever consented, would be to have estopped him, or some one claiming under him, from contesting the force of the decree. In this view of the subject it is important to recur to what took place very soon after this decree was rendered. As soon as Charles Flaglor became aware of the construction which was put upon the decree as regards his estate in the property, he filed his bill of review, on the sixteenth day of April, 1853, in the proper court, to set aside and correct it, so far as it concerned that matter. To this bill his mother and father and two children were made defendants. A decree was rendered on the eleventh day of May, 1854, in which the former decree in that respect was reversed, and the one-sixth allotted to the Flaglors was declared to be vested in Letitia Flaglor, for and during the term of her natural life, with remainder in fee to Charles if he survived said Letitia. This decree remained in full force until after the death of both Letitia Flaglor and Charles Flaglor, when, in April, 1866, a writ of error was sued out from the supreme court of Illinois in the name of Elizabeth Flaglor, by James Link, her next friend, on which the decree on the bill of review was reversed, on the sole ground that the original decree of partition was by consent, and that such consent cured all errors. It will be observed that the decree on the bill of review remained in force for over 12 years; that during two years of that time Charles Flaglor had come into the seizin of the fee-simple estate, which both that decree and the will declared to be in him; and that it was during this period that the mortgage was made by him on which the decree we are now considering is founded. Very shortly after this reversal in the supreme court, the original bill in the present case was filed by Elizabeth Flaglor, which was prosecuted in her name until August, 1867, when she died, leaving a will by which she devised all her property to her mother, Lucy C. Flaglor, now Lucy Flaglor Gay, one of the present appellants. Early in 1872 the suit was revived in the name of Lucy Flaglor, and by amended bills in her name and by the cross-bill of Catharine Parpart, formerly Catharine Reid, the issues in regard to the controversy now before us were finally raised. No person now interested in this controversy obtained any interest whatever in this property by any purchase or by any transaction by which they parted with money or other valuable consideration until the purchase by Arthur W. Windett from Lucy Flaglor after her bill of revivor had been filed, and no one else but him and the Connecticut Mutual Life Insurance Company, another one of the appellants, have ever parted with anything of value on the faith of any of the transactions previously recited, except it be Frederick T. Flaglor, who loaned his son Charles the money on the mortgage now in question. It is impossible to see how the doctrine of the estoppel can operate in favor of any of these appellants. Such interest as Elizabeth Flaglor and Lucy Flaglor, her mother, had or acquired, was by inheritance or devise. Neither of them ever paid a dollar or parted with anything of value or did anything to their detriment by reason of any act or deed of Charles D. Flaglor, nor by reason of the original decree of partition and the deeds made under it. The one was his child, and took under his rights; the other was his wife and the mother of his child, and took under his will. Windett is, therefore, the first person who can pretend to have parted with any consideration for the title which he asserts to this property, and the insurance company holds under him. But both these parties became purchasers and acquired their interest during the pendency of this suit, and were bound to know that they purchased subject to its result. The existence of the mortgage which they now contest was recited in the original bill by Elizabeth Flaglor, and in the bills of revivor and supplemental bills filed by Lucy Flaglor, and Catharine Parpart was a party to all those bills, and her right to a paramount lien was referred to and she was made a party in regard to it in them all. It is urged in favor of the appellants that a decree pro confesso, by a default on the publication of notice, was made against Catharine Parpart, declaring her claim invalid, and that very soon after this and before that default was set aside, Windett received his deed from Lucy Flaglor. It is strenuously urged that this fact confers upon him the character of an innocent purchaser for value, and removes him from the category of a purchaser pendente lite. But this argument is not sound. The decree pro confesso, taken without any actual service on Parpart, could, within a period fixed by the laws of Illinois, be set aside upon her appearance and motion to that effect, and it was so done in this instance, and she was permitted to come in and file her answer and cross-bill. Mr. Windett was bound to know, when he purchased, the inconclusive character of the decree pro confesso on which he now relies, and that it was not in his power and that of Lucy Flaglor to defeat the right which the law gave to the absent defendant, and render it of no avail by this transfer of title. In addition to this it is impossible, in any light, to regard Mr. Windett as an innocent purchaser, since he was the attorney and counsellor in that suit of Elizabeth Flaglor during her life-time, and of Lucy Flaglor afterwards, and so remains to the present hour. It a also in evidence that he was well aware of the existence of the mortgage and its possession by Catharine, and at one time had promised it should be paid, and at another time had entered into negotiations for its purchase, all of which was prior to the date of the deed from Lucy Flaglor, under which he now asserts title. The Connecticut Mutual Life Insurance Company also acquired its interest pendente lite. That interest arises under a mortgage given by Windett to secure the loan of money, and it appears by the record that in addition to this mortgage they took other security, in consequence of the uncertain condition of the title. They have also the security of Mr. Windett's personal obligation. The only party in the litigation before us who has any just claim to the protection of an innocent purchaser without notice is the appellee, Catharine Parpart. The mortgage which she now holds was given to Frederick Flaglor by his son Charles, for which the father gave full value at the time when Charles stood seized of the estate in fee-simple to the property in controversy, according to every source of information open to any one upon inquiry. Under the will of Augustus Garrett the title of Charles was clear; under the conveyances made between parties subsequent to the decree of partition and the contemporary agreement, it was clear. The decree itself, the only thing which cast any shadow upon that title, had, upon bill of review, been set aside in that respect, and the title of Charles declared to be an estate in fee, and the remainder of the decree stood affirmed as a division of the property. Under these circumstances the right of Frederick Flaglor to feel secure in taking the mortgage on the property which he did from his son Charles, in the faith that he was secured by a good title, is much stronger than that of Mr. Windett and the insurance company, purchasing during the existence of the litigation which pointed out clearly the defect in their title. Without deciding whether Charles Flaglor ever gave his consent to the original decree, we remark, in the first place, as we have said before, that that decree did not propriae vigore transfer title from or to any one. In that suit, as between Charles D. Flaglor and his children. there were no adversary proceedings, and such decree as was had being dependent upon consent, did not operate as a judicial decision by the court of the rights of Charles and his children. There was, therefore, neither a judgment of the court nor any valuable consideration passing from the children to Charles to bind him to such consent, beyond that of an ordinary, gratuitous promise, which may be retracted before it is performed. The deeds and the agreement made three days after the decree show that if at any time Charles Flaglor had given his temporary consent to the decree, he had determined so far to retract as to keep the matter in his own power, and the bill of review and the decree which he obtained upon that review, and all his subsequent conduct in regard to the property, left no doubt in the mind of any one that he had determined to assert his full right of ownership in fee-simple under the will. It is in the face of all these circumstances that, many years after her father's death and many years after the execution of the mortgage in this suit, proceedings were commenced in the name of Elizabeth Flaglor, then a child, to secure the benefit which her advisers supposed the original decree of partition conferred on her. Under all the circumstances of this case, the diligence with which Charles D. Flaglor repudiated the supposed consent and had it set aside by a regular bill of review, the long period of 12 or 15 years in which the matter was permitted to lie in that condition, the fact that the daughter and her mother are all volunteers, and that Windett is a purchaser with notice of the litigation and taking part in it as an attorney in the case, and the insurance company holding their interest also with full notice of the facts, we think it would be inequitable to make a decree now to do what was left undone in a former decree, and which seems to have been so left by the intention of the parties to it. We cannot better express ourselves than in the following language from the opinion of the court in the case before referred to: 'We do not regard that it militates with the doctrine of the conclusive effect of what is res judicata, that where there is an incomplete decree, and it is ineffective for want of the provision of any means for its execution, and an application is made to a court of equity to supply the imperfection, so as to render the decree effective, then it is admissible to look at the real nature and character of the decree as it may appear in the light of surrounding circumstances, for the purpose of determining whether there is such an equitable ground for action as will move a court of equity to interpose. Equity will penetrate beyond the covering of form and look at the substance of a transaction, and treat it as it really and in essence is, however it may seem. In outward semblance this partition decree is a decision of court upon the relative rights of Charles D. Flaglor and his children, under the will of Garrett. In essential character it is but the judicially recorded supposed agreement of Flaglor. And upon an appeal to equity by original bill to lend its assistance for carrying it into execution, because of an omission in the decree in providing any means of its execution, it would seem reasonable that the same rule of the court's action should obtain as in case of any solemn agreement under seal; and where there are manifest the elements of injustice, mistake, surprise, misapprehension, and want of consideration, to remain passive.' Wadhams v. Gay, 73 Ill. 414. The decree of the circuit court must be affirmed, and it is so ordered. |
108.US.176 | A manufacturer of cigars, in his statement furnished in May, 1878, under § 8387 of the Revised Statutes, according to Form 36, set forth "the room adjoining the store in the rear, on the first floor" of certain premises, as the place where his manufacture was to be carried on. Circular No. 181, issued in March, 1878, by the commissioner of internal revenue, required that a cigar factory should be at least an entire room, "separated by walls and partitions from all other parts of the building," and that the factory designated in Form 36V should not any part of it be used, "even though marked off or separated from the remainder by a railing, counter, bench, screen or curtain, as a store where the .manufacturer can sell his cigars otherwise than in legal boxes, properly branded, labelled, and stamped." This circular went into effect May 1st, 1878. The manufacturer was engaged at the same time and place in doing business as a dealer in tobacco, having paid the special tax as such, and also the special tax as a manufacturer of cigars. He did not comply with the said circular, and had no division between the factory in the rear part of the room and the front part of the room, where he sold articles as a dealer in tobacco, except a wooden counter extending part of the way across the room, and some three feet high. He sold out of a show case in the front part, in quantities less than 25, from stamped boxes, which were duly branded, marked and stamped, cigars which he had made in the rear part, on which cigars the tax had been paid. For doing so, as a violation of § 3400, in removing cigars made by him without the proper stamps denoting the tax thereon, a quantity of cigars, the property of the manufacturer, found in the rear part of the room, in boxes not stamped, were seized as forfeited to the United States, under § 8400 : lTeld, 1. The requirements of the circular were within the power of the commissioner to prescribe, under § 3396 ; 2. The sales at retail were in violation of law; 8. The fc;rfeiture claimed was incurred. The provisions of § 3236, and subdivisions 8 and 10 of § 3244, and §5 3887, 3388, 3390 and 3392, considered and held not to authorize such sales, they constituting, under §§ 3392, 3397 and 3400, removals of cigars from the place where they were manufactured, without the proper stamp denoting the tax thereon, because the sales were sales of cigars by their manufacturer, at retail, at the place of manufacture, not in stamped boxes, the cigars being in his hands as a manufacturer and not as a retail dealer. | This is an information filed by the United States in the district court for the district of Maryland, against a quantity of domestic cigars, to obtain their condemnation as forfeited to the United States. The information alleges, as a cause of forfeiture, that the cigars were found in the possession of two persons by the name of Ludloff, doing business as Ludloff Bros., who had manufactured them, and who had unlawfully removed certain cigars, by them manufactured at their manufactory in the city of Baltimore, without the proper stamps donating the tax thereon, contrary to section 3400 of the Revised Statutes. Ludloff Bros. put in a claim and plea, denying forfeiture, and the issue was tried before a jury, who found a verdict for the United States. Thereupon a judgment of condemnation of the cigars seized was rendered, which was affirmed by the circuit court, and is now brought here for review by a writ of error taken by the claimants. The material facts of the case, as they appear by the bill of exceptions, are these: Prior to the seizure of the cigars, and before May 1, 1878, the claimants carried on the manufacture of cigars in the rear part of a small room on the first floor of the building known as No. 60 West Fayette street, in the city of Baltimore, and at the same time and place were also engaged in doing the business of dealers in tobacco; that is to say, selling imported and domestic cigars, partly manufactured by themselves, and partly purchased from others, and also selling pipes, smoking material, chewing tobaccoo, snuff, etc., they having first paid to the United States the special tax as dealers in tobacco, and also the special tax as manufacturers of cigars. In the course of said business they sold to their customers cigars so manufactured by them in the rear part of said room, in quantities less than 25, but out of stamped boxes, which boxes were duly branded, marked, and stamped, and then deposited in a show-case before said sale was made. No cigars were sold by them upon which the tax had not been paid. On the twenty-first of March, 1870, the commissioner of internal revenue had issued a circular (No. 181) in the following terms: 'The portions of the law regulating the manufacture and sale of cigars, without declaring in specific language that the two kinds of business, to-wit, manufacturing cigars and selling manufactured tobacco and cigars at retail, shall not be carried on in the same place at the same time, impose such restrictions, make such requirements, and declare such forfeitures and penalties, as renders it impracticable for these two kinds of business to be carried on together, as above stated. See sections 3387, 3392, 3397, of the Revised Statutes of the United States; also, Special 85, revised, and Form 36 1/2. Under as lenient a construction of these several sections of the law as their language and the purpose for which they were enacted, to-wit, the protection of the revenue, will admit, it is held that a cigar factory, or the place where cigars can be made for sale, must be at least an entire room, separated by walls and partitions from all other parts of the building, and that the factory or place of manufacture designated and described in form 36 1/2 cannot be used, nor can any portion thereof, even though marked off or separated from the remainder by a railing, counter, bench, screen, or curtain, be used as a store where the manufacturer can sell his cigars otherwise than in legal boxes, properly branded, labeled, and stamped. When a cigar manufacturer has a store in a room adjoining his factory, a door and windows may be allowed between the factory and store; and, if necessary for light or ventilation, the upper portion of the partition between the factory and store may be of glass or wire-cloth. Collectors and all other revenue officers are enjoined to see that these instructions are strictly enforced on and after May 1, 1878.' This order was disregarded by the claimants, because in June, 1878, the said district court had decided that the business of manufacturing and selling cigars at retail, by the same person, at the place of manufacture, as well as selling at said place manufactured tobacco, pipes, and other smoking material, was not prohibited by law. Thereupon, in August, 1878, the cigars in suit were seized as forfeited, and were found, when seized, in boxes not stamped, in the rear part of the room before described. Such rear part had been designated as the factory or place of manufacture where the claimants proposed to carry on their business in manner and form as prescribed by the commissioner of internal revenue, as follows: '(36 1/2.) 'UNITED STATES INTERNAL REVENUE. 'Cigar Manufacturers' Statement. 'To be rendered to the collector or deputy collector in duplicate, without previous demand therefor, by every manufacturer of cigars before commencing or continuing business. Act of July 20, 1868, § 82, as modified by section 1, act of December 24, 1872; section 3387, Rev. St. 'Ludloff Bros., of Baltimore, in the sixth division of the third district of the state of Maryland, at No. 60 West Fayette street, propose to manufacture cigars; and so much of the building or parts of the building, stories, apartments, room or rooms, as hereinafter described, is to be used exclusively and solely for manufacturing cigars, and is to be known as my manufactory, or place where cigars are made, to-wit, in the room adjoining the store in the rear, on the first floor of premises No. 60 West Fayette street. 'There are employed in the premises above described, or I propose to employ, five persons in making cigars; which cigars are manufactured for or to be sold and delivered to _____, residing at No. ___, in the ___, and by occupation a _____. [Signed] 'LUDLOFF BROS. 'I, William Ludloff, do swear that the above is, to the best of my knowledge and belief, a true and correct statement of the place, street, number, and the exact premises where the business of manufacturing cigars is, or is to be, carried on by Ludloff Bros., and all the other matter stated herein is true and correct. [Signed] 'WILLIAM LUDLOFF. 'Sworn before me this twenty-fifth day of May, 1878. [Signed] 'R. G. KING, Deputy Collector. 'NOTE. The blank space in this form after the words 'to wit' is to be filled with a precise and accurate description of the premises. If the manufactory comprises anything less than the entire building, then the description must specify what portion of the building,—whether the first, second, or third story of the same,—and what room or rooms therein. The same premises or room cannot be used for carrying on the business of a cigar manufacturer and a dealer in cigars. In any building, room, or apartment of any building designated in this statement as the manufactory or place of manufacture, no cigars can be sold except such as are there manufactured, and are in original and full packages.' At the time of said seizure, the wire partition having been previously removed by the claimants, there was no division or separation between the said rear part of the room, designated as the factory as aforesaid, and the front part of the room, where the business of selling cigars, etc., was carried on by the claimants, except a wooden counter extending part of the way across the room, and from three to three and half feet high, upon which said wire part of the partition had rested. The court instructed the jury that if at the time of the seizure the cigars were found in possession of the claimants, and they were carrying on the business of manufacturing cigars and selling the same by retail, such retail sales being in quantity less than 25, and not sold in stamped boxes, and that said manufacture and said retail sales were carried on in a room in which there was no separation except a wooden bar about three feet high, extending, partly across the said room, the jury should find for the United States, although they might find that the claimants made cigars only behind said wooden bar and sold at retail out of stamped boxes. The court also instructed the jury that such retail selling, under such circumstances, to persons who took the cigars away, constituted a removal by the claimants of cigars from their manufactory without the proper stamps on the boxes denoting the tax thereon. The court refused to instruct the jury that the business of manufacturing cigars and selling the same in less quantities than by the box, at the place of manufacture, is not prohibited by law, provided the manufacturer has a license as a dealer in tobacco, when he sells products other than his own manufacture. These instructions and refusal were excepted to by the claimants. The substance of the instruction of the court was that if the claimants had sold cigars manufactured by themselves in quantities less than 25, and not in boxes duly stamped, from the show-case in the part of the room in front of the bar, they had incurred the forfeiture in question, although the cigars were made by them in the rear part of the same room behind the bar, and were sold at retail out of stamped boxes. It is to be understood from the bill of exceptions, in connection with the instructions and the verdict, that the claimants, after having had the rear part of the room, namely, the part designated in their 'statement' as their manufactory, separated from the front part or store part of the same room by a wire partition, so as to substantially make two rooms, and to make the factory an entire room and a separate room, in accordance with the instructions of said circular, had, at the time of the sales at retail complained of as a ground of forfeiture, removed the wire partition, so that the factory was not then a separate room in the sense of said circular, but the manufacturing was carried on in the same room in which the show-case was and in which the sales at retail took place. This being so, we are of opinion that the instructions were correct; that the requirements of the circular were within the power of the commissioner to prescribe, and not repugnant to any statutory provisions; that the retail sales in question were in violation of law; and that the forfeiture enforced was incurred. The claimants contend that section 3236 of the Revised Statutes provides that whenever more than one of the pursuits or occupations thereinafter described are carried on in the same place by the same person at the same time, except as thereinafter provided, the tax shall be paid for each according to the rates severally prescribed; that, by subdivision 8 of section 3244, a dealer in tobacco pays a special tax of five dollars, and can sell manufactured tobacco, snuff, and cigars, and by subdivision 10 of the same section, a manufacturer of cigars pays a special tax of $10; that the claimants had paid both of these special taxes; that subdivision 8 of section 3244 provides that no manufacturer of tobacco, snuff, or cigars shall be required to pay a special tax as dealer in manufactured tobacco and cigars for selling his own products at the place of manufacture; that section 3392, forbidding the sale of cigars in any other form than in new boxes containing at least 25 cigars, provides that nothing in that section shall be construed as preventing the sale of cigars at retail by retail dealers who have paid the special tax as such, from boxes packed, stamped, and branded in the manner prescribed by law; and that, under these enactments, no cause of forfeiture existed. But we are of the opinion that there is nothing in these provisions which authorizes a manufacturer of cigars to sell at the place of manufacture, from and out of boxes, cigars there made by him, even though he has paid a special tax as a dealer in tobacco. The provision in section 3236 refers only to pursuits or occupations which can be carried on in the same place by the same person at the same time consistently with other requirements of law on the subject of the special pursuit or occupation. It has no reference to the grant of any authority to carry on two occupations at the same time and place by the same person, but concerns only the obtaining of a tax for each of two occupations when they are lawfully carried on. The provision in section 3244 has no other effect than not to require that a manufacturer of tobacco, snuff, or cigars, who sells his own products at the place of manufacture in such manner as is consistent with other provisions of law as to the manner of the sale of such products, shall pay a special tax as a dealer in manufactured tobacco and cigars. It has relation solely to the exaction of a tax and not to the conferring of authority to sell. The provision cited from section 3392 has no relation to cigars sold as those in the present case were sold, by the manufacturers, at the place of manufacture. The cigars sold were not in their hands as retail dealers, but as manufacturers, because the requirements of law as to the removal of the cigars from the manufactory had not been observed, and the cigars were still in the manufactory. We perceive nothing in sections 3387, 3388, or 3390 which affects the foregoing views. Section 3392 requires that all cigars shall be packed and sold in new boxes containing at least 25. Section 3397 forbids for removal of cigars from any manufactory or place where cigars are made, without being packed in boxes as required, or without the proper stamp thereon denoting the tax. Section 3400 provides that if a manufacturer of cigars removes or sells any cigars without the proper stamps denoting the tax thereon, he shall forfeit to the United States all cigars found in his possession or in his manufactory. Under these provisions the removal of the cigars in this case, from the place where they were manufactured, by selling them at retail, not in stamped boxes, was ground for the forfeiture of the cigars seized. The regulations prescribed by the commissioner by the circular referred to were within his authority, under section 3396, to prescribe such regulations for the inspection of cigars and the collection of the tax thereon as he may deem most effective for the prevention of frauds in the payment of such tax. Thacher's Distilled Spirits, 103 U. S. 679. The proposition asserted in the instruction asked for by the claimants, and which the court refused to give, is understood to be, that, as the claimants sold at their shop, as dealers in tobacco who had paid the special tax, articles not of their own manufacture, in addition to cigars which they made in the same room, the sale of the last-named cigars were not prohibited by law. If this proposition has any other meaning than the propositions before considered, it must be held to be entirely without support in law or in reason. Although the record shows that the claimants were, as dealers in tobacco, engaged at their shop in the business of selling cigars which they purchased, as well as cigars which they made, there is nothing in the case which raises any other questions than those above considered. The judgment of the circuit court is affirmed. |
107.US.64 | By a special act, B. was allowed a pension of fifty dollars per month, which was paid to him until he claimed and received, under a subsequent general act, seventy-two dollars per month. Held, that he is not entitled to take under both acts. | The relator does not claim that there is anything due him under the pension laws prior to June 4, 1872. It appears from the answer of the secretary of the interior, and there is no evidence to the contrary, that since June 4, 1872, the relator has received every cent that is due him under the general pension laws. The special act of March 3, 1879, declared that the pension of $50 thereby granted should be in lieu of the pension the relator was then receiving, and, at least, cut off all claim to arrears of pensions under that act. All, therefore, that is left of his case is his contention that he is entitled not only to the pension of $72 per month allowed him by the general act of June 16, 1880, and which has been paid him, but in addition thereto the pension of $50 per month granted him by name by the special act of March 3, 1879. It appears from the answer of the secretary of the interior that the relator was, under the advice of the department of justice, paid both pensions from March 3, 1879, to June 4, 1882. The complaint of the relator is that the payment of double pensions is not continued, and it is for the purpose of enforcing his right to his special pension of $50, in addition to the general pension of $72, that he asks that the secretary of the interior may be compelled to return the certificate issued to him under the special act. The right of the relator to double pensions, if he ever had such right, has been effectually cut off by section 5 of the act of July 25, 1882, which declares 'that no person who is now receiving or shall hereafter receive a pension under a special act shall be entitled to receive, in addition thereto, a pension under the general law, unless the special act expressly states that the pension granted thereby is in addition to the pension which said person is entitled to receive under the general law.' It was competent for congress to pass this act. No pensioner has a vested legal right to his pension. Pensions are the bounties of the government, which congress has the right to give, withhold, distribute, or recall, at its discretion. Walton v. Cotton, 19 How. 355. Therefore, the contention of the relator, that having received the pension of $72 under the general law, he is also entitled to the pension of $50 granted him by the special act, is without ground to rest on. His pension certificate, issued under the special act, can be of no service to him unless he wishes to relinquish the pension of $72 under the general law, and fall back upon the pension of $50 granted him by the special act. But he expresses no such purpose. His object is to get the certificate in order to draw double pensions, which the law says he shall not have. He voluntarily surrendered his pension under the special act, in order to receive the larger pension to which he became entitled on the passage of the general act of June 16, 1880. As he is not entitled to any pension money upon the certificate under the special act, which he voluntarily surrendered, unless he waives his right to receive the larger pension given him by the general law, which he does not do, a judgment that the certificate be returned to him would be futile. From all that appears by the record the relator has been accorded by the officers of the department of the interior and of the pension bureau all his rights. Up to September 4, 1882, he has been paid all the pension money due him under any act of congress. After that date he is entitled under existing laws to a pension of $72 per month and no more, and this the pension bureau is ready to pay him. The supreme court of the district was, therefore, right in refusing the writ of mandamus, and its judgment must be affirmed. |
109.US.408 | Claim 4 of reissued letters patent No. 1527, granted to John Richards, August 15th, 1863, for a "guide and support for scroll-saws," the original patent, No. 85,890, having been granted to him, May 25th, 1862, for an "improved guide and support for scroll-saws," namely, "4 An anti-friction guide which is adjustable so as to accommodate different thicknesses of sawblades, and to compensate for -wear, in combination with the upper portion of a web saw-blade, substantially as set forth," does not cover an arrangement in which a band-saw is used, passing over wheels, and running constantly in one direction, towards the table on which the stuff lies, and having a tension over the peripheries of the wheels. Claim 1 of said reissue, namely, "5. The combination of the anti-friction sawsupport and guide, or the equivalent thereof, with an adjustable guard, or its equivalent, substantially as and for the purpose set forth," is not infringed by an arrangement in which such a band-saw is used, and the guard does not hold down the stuff against the upward lifting action of the saw, because the saw is constantly passing downward. The claim of letters patent No. 78,880, granted to J. A. Fay & Co., June 16tb, 1868, for an "improvement in guides for band-saws," on the invention of John Lemman, namely, "The combination of the roller b with fixed lateral guides, c c c, one or more, arranged and operated substantially in the manner and for the purposes specified," is for the combination of an antifriction smooth faced wheel to support the back or thin edge of the saw, and to have lateral adjustment, presenting different points to wear, with the fixed guides, and is not infringed by an arrangement in which the wheel has two grooves in it, in one of which the saw runs, and in the other of which it can be made to run by lateral adjustment. Claim I of letters patent No. 120,949, granted to J. A. Fay & Co., November 14th, 1871, for an "improvement in ba:nd-sawing machines," on the invention of William IL Donne and William P. McKee, namely, "1. The frame A, A', A", in combination with the lower arbor-bearing, said frame being construct6d as herein described, with a depression, A", permitting the ready removal of the arbor, as explained," is not infringed by an arrangement in which the depression does not leave exposed a seat which is entirely open upward and the arbor-bearing cannot be removed without detaching the pulley from the arbor. Claim 2, namely, "2. The arrangement of frame A A' A" A"', and of tho horizontally and vertically adjustable arbor-bearing C, D, V, E, E', G, H, A," is not infringed by an arrangement which does not have the frame and depression of claim 1, or the elements D D', or the same or equivalent means of adjusting such arbor-bearing either horizontally or vertically. Claim 8, namely, "3. The arrangement of step or saddle k and its contained box or bearing T L,' covers, as an element of the arrangement, among other things, a spring which carries the weight of the saddle, and gives an elastic tension to the saw, and is not infringed by an arrangement in which there is a rigid saddle and no spring. Claim 4, namely, "4. In combination with the upper arbor, L', the lower arbor-bearing, E,,adjustable both vertically and horizontally, as shown and described and for the purpose set forth," in not infringed by an arrangement which does not infringe claims 2 and 3. | This suit in equity of three several letters patent. The first is reissue No. 1,527, granted to John Richards, August 25, 1863, for a 'guide and support for scroll-saws,' the original patent, No. 35,390, having been patented to him, May 27, 1862, for an 'improved guide and support for scroll-saws.' The specification of the reissue is as follows, including what is inside of brackets and what is outside of brackets, omitting what is in italics: 'To all whom it may concern: Be it known that I, John Richards, of Columbus, in the county of Franklin, and state of Ohio, have invented a new and useful [method of guiding and supporting] combined guide, guard and support for scroll-saws; and I do hereby declare that the following is a full, clear, and exact description of [one practical means of carrying out my invention] the same, reference being had to the accompanying drawings forming part of this specification, in which [Figure] Fig. 1 is a perspective view of a portion of [a] the table and [a] the saw-blade [of a 'scroll saw-mill,' with my invention applied to the same.] and my improved upper combined guide, guard and support. [Figure] Fig. 2, a longitudinal section of the same connected to the suspended stud of the building. [Figure] Fig. 3 is a horizontal section [through the guide and support.] in the line [through the guide and support.] in the line letters of reference [where used] in [different] the several figures indicate corresponding parts. [It has long been a x x, of Fig. 2. [The same] Similar which will work successfully while [different] the several figures indicate corresponding parts. [It has long been a desideratum to obtain a scroll sawmill which will work successfully while the upper end of the saw blade is left free from a sash or upper straining device; and this has never been attained until the development] The nature of my invention [which] under this patent consists [1st, in working the saw at a point above the table in a groove which as steel, polished iron, or glass, or any other known and suitable metal or substance, the upper end of the saw being disconnected from any upper suspender or sash, but supported and guided at its back edges and at its sides or broad faces, and its lower end connected to any mechanical device that will produce the desired motion in saw. It consists second in an adjustable guide and support whereby different thicknesses of scroll or web saw may be used at will. It consists, 3d, in attaching the anti-friction guide and support to an adjustable device which constitutes a guard to hold down the stuff being sawed, and also insures a support of the saw at the point near where the sawing is performed as well as above this point. My principle of operating a scroll or web saw must not be confounded of the saw at the point near where the sawing is performed as well as above this point. My principle of operating a scroll or web saw must not be confounded with the 'muley saw,' as in the 'muley saw' it is common to employ guides attached to the saw, such guides running in or upon bearings independant of the saw-plate, whereas with the web or scroll saw worked according to my discovery, the back of the blade or plate is supported upon a hardened steel or other durable anti-friction surface, and is guided laterally by sim ilar surfaces, so that the saw is supported and guided without any means of tension so that the saw is supported and guided without any means of tension being employed. Furthermore, 'muley' saws are supported at each end by cross-heads and only in the center by lateral guides; and a saw must be employed that is strong enough in its cross-section to stand the work. Now with my plan, I support the saw down saw-mills, and enables me to use small, which is a new thing in this class of saw-mills, and enables me to use small, light saw-blades. Previously to my discovery of running the upper end of the web or scroll saw in frictional contact with an upper guide it was deemed an impracticable thing, and it is now only by practical demonstration and long use that saw-mill men are convinced rapidly wear out the guide. The non-destruction or web saws will not cut through and of time, although the pressure upon of the guide in a short period of time, although the pressure upon it is immense, is due to the fact of the guide being of hardened steel or other smooth, hard material, over which the saw-plate glides with but little frictional wear.] in the guide and back supporting bars or plates in connection with the sliding guard, the same constituting a combined guide, guard and enable others skilled in the art to make upper portions of a scroll-saw blade. To enable others skilled in the art to make and use my invention, I will proceed to describe [one practical means in which I have embodied it with great sucess; but, in doing so, I do not wish to be understood as limiting myself to these mechanical devices in themselves, as the principle may be embodied in various other means and still not depart from the discovery embodied in machinery that I desire to patent.] its construction and operation with reference to the drawings. [Not using] I do not use a sash [or] nor other means of straining the saw S, [I] but fasten the lower end of the [blade] same to the upper end of a stock or slide, S', of [a] the pitman, by a set-screw, S2, or [I upper end of a stock or slide, S', of blade to a device which will properly operate the saw. The] in any other similar manner, and have its top or upper [end of the saw] portion disconnected above the table [T,] T. [I leave entirely disconnected, but in order to stead or guide and support this free end during the saw operation I attach a grooved steel guide to a] The said upper portion of the saw is supported and guided by means of the two parallel bars a a, and the angular plate b. The bars have a lateral adjustment to accommodate saws of different thicknesses, their purpose being to keep the saw in a true vertical line, and to keep it from twisting, while the office of the back plate, b b', is to support the saw against the strain of the stuff on the teeth, when the work is being shoved against it. The guides a a and back plate b b' are all made of hardened steel, to prevent friction and wear. This device a a b b' is fastened to the lower end of the sliding strip or guard piece A, [other device which will answer as a firm support to the guide, and as a guard to keep down the lumber being sawed. The device A is attached to a] which is fitted in a groove of a suspended stud [or timber] B, of the building, [and is better if made adjustable by means of a slot and clamp-bolt, such as designated by the letters e c d; but other known means for adjusting this device a back plate, b, and two side plates shown, is formed of three parts, to-wit, firmly to the former, as shown. The a, a, which latter are bolted or screwed firmly to the former, as shown. The slots s through which the bolts f f pass are large enough to allow the plates a a a slight lateral adjustment whenever it is desired to use a saw with a greater or a guide of hard anti-friction surface, would be attained if a groove was formed or a guide of hard anti-friction surface, would be attained if a groove was formed in a thick steel plate, or other hard substance, except the advantage of accommodating saws of various thicknesses. I believe I am the first to use the grooved anti-friction guide, as well as the first to have the groove variable in width, and therefore I do not confine myself to adjustable guides and supports. The office of the back part of the groove or guide is to support the saw against the strain of the timber on the teeth when the work is being shoved against it, while the office of the lateral portions of the groove or guide is to keep the saw in a true vertical line and prevent it from twisting. The office of the guard A, which extends down nearly to the top of the table, is to hold down or prevent flying up of the 'stuff' or timber being sawed, and and at the same time bring the supporting guide to the saw right down to the place where the sawing is being performed, and thus insure the most perfect operation as well as an effectual supporting and guiding of the saw.] and confined accordingly, as the thickness of stuff being sawed required, by means of a clamping screw-bolt, c, and hand-nut, d. The bolt passes loosely through an oblong slot, e, of the guardstrip, but fastens firmly in the stud B, B, as shown. This guard rests in close contact, or nearly so, with the stuff being sawed, and keeps the same firmly down upon the table, while the device a a and b b' guides and supports the saw, as above stated. It will be seen that screw-bolts, f f, confine the plate b and bars to the strip or guard A, and that the holes or slots through the bars a areelongated so as to allow the guide-bars a a chance to move nearer together or further apart, to admit different thicknesses of saw-blade. It will also be seen that the guides, by being attached to the strip, are adjusted with it up and down, the said up and down adjustment being allowed by the slot e%2D of the strip; and thus the angular part b' of the plate b aids also in holding down the stuff, it having a vertical kerf, g, cut in it, to admit the saw-blade, and the quide and supporting plates or bars are always in proper position. This [guard by its] arrangement also obviates the [heretofore] necessity of leaving the upper end of the saw-blade above the table unsupported and unguided, as it allows of the work or [timber] stuff being freely turned while the sawing is progressing, a clear open space between the guard and the table being left. [In the drawing I have shown the lower end of the guide forming an angle; this is to give a larger guard surface. This angular portion has a kerf, g, cut in it to admit the saw-plate to the back of the guide. I, however, do not limit myself to this form of guide.] The plate b might be made without the angular part b', but not answer so good good a purpose. I do not claim operating a scroll-saw without straining, nor do I claim the application of lateral guides to saws; neither do I claim an adjustable guard to prevent the stuff rising with the saw.' Reading, in the foregoing, what is outside of brackets, including what is in italic, and omitting what is inside of brackets, gives the text of the original specification. The original patent contained one claim, as follows: 'The guide bars a a, and the back plate b, in connection with the sliding guard-strip A, the same constituting a combined guide, guard and support for the top of a scroll-saw, and operating substantially as herein described.' The reissue contains five claims, '(1) Running the upper portion '(1) Running the upper portion a groove of an anti-friction guide and support, substantially as and for the purpose described. (2) Operating purpose described. (2) Operating practically an unstrained web or scroll saw, by combining with such saw-mills an upper anti-friction guide, which supports the back of the saw-blade, and faces, substantially as set forth. (3) faces, substantially as set forth. (3) The use of anti-friction guides as a substitute for straining devices, in the guide to be raised and lowered to suit the thickness of the stuff, substantially as set forth. (4) An anti-friction guide which is adjustable so as to accommodate different thicknesses of saw-blades, and to compensate for wear, in combination with the upper portion of a web-saw blade, substantially as set forth. (5) The combination of the anti-friction saw support and guide, or the equivalent thereof, with an adjustableguard, or its equivalent, substantially as and for the purpose set forth.' Infringement of only claims 4 and 5 of the reissue is alleged. It is apparent, in reading the specification of the original patent and that of the reissue, that Richards contemplated the use of his improvements only in connection with a saw-blade, the upper end of which was free from any suspender or sash, and the lower end of which was so connected with mechanism as to obtain the desired motion in the saw. Claim 4 of the reissue, claims, as an element in the combination covered by that claim, 'the upper portion of a web-saw blade.' The saw-blade shown in the drawings, and the only saw-blade which can have an upper portion capable of being free or disconnected, in the sense in which those words are used, is a reciprocating saw-blade, actuated from below, and alternately pushed and pulled. The specification of the reissue states that Richards' saw is supported and guided 'without any means of tension being employed.' The defendants use a band-saw, which is an endless saw, passing over wheels, and running constantly in one direction, towards the table on which the stuff lies, and having a tension over the peripheries of the wheels. For this reason, the defendants do not need nor do they have any guard which performs the function of the guard embraced as an element in the combination covered by claim 5 of the reissue, of holding down the stuff against the upward lifting action of the saw, because the saw is constantly passing downward. There is, therefore, no infringement of either claim 4 or claim 5. The second patent sued on is No. 78,880, granted to J. A. Fay & Co., June 16, 1868, for an 'improvement in guides for band-saws,' on the invention of John Lemman. The specification says: 'Figure 1 is a front elevation of one of my improved guides; Figure 2 is a side elevation of the same; Figure 3 is an elevation of the auti-friction roller b, removed from the guide; and Figure 4 is a partial plan, showing the Figure 3 is an elevation of the anti-friction roller b, removed from the guide; and Figure 4 is a partial plan, showing the parts. In operating endless saws, guides. Similar letters of reference in the different figures indicate corresponding high speed at which these saws guides are needed both above and and below the wood. As is well known, the high speed at which these saws are driven, and the small amount of surface presented to the guide from the edge of the saw-plate, cause fixed guides to wear away very fast, even if made of hardened steel or glass, particularly when heavy sawing is done, and the strain of the feed falls on the saw. Rolling guides, while they have partially overcome the difficulty of friction and wear on the back of the saw, cannot be constructed to give a proper lateral support to the saw, as will hereafter be alluded to. The object of the invention here illustrated is to obviate these several difficulties, and give important advantages in operating saws of this kind. Its nature consists in a combination of anti-friction rollers and fixed guides, points to wear; the fixed guides as a lateral support, and so constructed as to accomodate saws of different widths, as hereinafter explained. To enable others skilled in the art to make and use my invention, I will proceed to describe its mode of construction and the manner of operating the same, with the aid of the drawings. a is a frame or support for the guides. It is cored out to receive the wheel b, with room for lateral adjustment. On the top is a cylindrical extension, h, intended to be connected to a bar, on which the whole structure is adjusted up and down, to suit the thickness of the wood being sawed. b is an anti-friction wheel of hardened steel or other suitable material, mounted on an axis, f, as shown in Fig. 3, and by red lines in Fig. 1. This axis has conical bearings formed in the piece g, which allows of compensation for wear, and by loosening the screws § s, the wheel b and bearings g g can be adjusted laterally, so as to bring different points of the periphery of wheel b in contact with the saw. c 1 from turning and in a true line. These guides are so arranged that two or more of them can be used and the others removed or adjusted to receive a narrow saw, as shown in Fig.4. The holes through which the screws d d pass are slotted, as shown by red lines, Fig. 1. E is a section of a band-saw, sufficiently wide to allow of all the plates, c c c, being used. The wheel b is so arranged as to barely pass through the plate m, and come in contact with the saw E. Oil-holes are formed at i i, Fig. 1, communicating with the bearings of axis f, as shown in Fig. 1. The operation will be readily understood. Having thus explained the nature and objects of my invention, I do not claim the use of an anti-friction roller applied to the back of the saw; neither do I claim the fixed lateral guides.' 'The combination of the roller b with fixed lateral guides, c c c, one or more, arranged and operating substantially in the manner and for the purposes This patent stands on very narrow ground. Anti-friction rollers narrow ground. Anti-friction rollers applied to the back of the saw are disclaimed and were old. Fixed lateral guides for he faces of the saw are disclaimed and were old. The text of the specification limits the invention to a combination of an anti-friction wheel to support the back or thin edge of the saw, presenting different points to wear, presenting different points to wear, with fixed guides to support laterally the faces of the saw, the fixed guides being so constructed as to widths. The anti-friction wheel, widths. The anti-friction wheel, by means of its conical bearings, can be advanced nearer, as it wears, to the back edge of the saw; and the wheel and its bearings are capable as to bring different points of the as to bring different points of the periphery of the wheel in contract with the back edge of the saw. to is manifestly that described to is manifestly that described in the Richards patent. The only point of invention dwelt on in the Lemman specification is the which, though it is to be an antifriction which, though it is to be an antifriction made of hardened steel or other suitable material, will still wear material, will still wear away on the surface presented to the edge of the saw; and the lateral adjustment enables different points of the periphery of the wheel to be brought into cintact with the saw, so as to present different points entire width of a periphery of a wheel may be utilized. The defendants have used a wheel which has two grooves in it, in one of which the saw runs and in either of which it can run. The wheel can be adjusted laterally, so as to bring the one or the other of the two grooves into use. But there is no adjustment to bring different points of the periphery of a smooth-faced wheel into use. In view of the state of the art and of the limitations of the specification there has been no infringement. Merely adjusting a wheel laterally, so as to give it different positions at different times, was a thing well known to mechanics; and running the the back edge of a saw in a groove in a roller existed in the prior Closterman device. The third patent sued on is No. 120,949, granted to J. A. Fay & Co., November 14, 1871, for an 'improvement in band-sawing machines,' on the invention of William H. Doane and William P. McKee. Claims 1, 2, 3, and 4 of this patent are alleged to have been infringed, there being seven claims. The specification, so far as it is material to be cited, says: 'The first part of our invention relates to an improved form of supporting frame and of he upper and lower with their inclosed arbors, are made with their inclosed arbors, are made easily accessible and removable for inspection and repair, and relatively adjustable, so as to be brought into exact line, and otherwise so regulated as to insure hereinafter explained. * * * Figure 1 is a perspective view of a machine Figure 1 is a perspective view of a machine embodying our improvements. Figure 2 is a vertical section of the machine Figure 5 is a plan of the lower arbor-bearing. 5 is a plan of the lower arbor-bearing. The frame which supports the operative parts of our machine consists of a single casting of the peculiar form here represented; that is to say, a base, A, the main column or standard A1, (supporting the upper arbor-bearing and saw, guide,) a shorter column or pedestal A%2D, a shorter column or pedestal A*§§, which latter supports and is surmounted by the bench or table B, on which the between the columns A1 and A%2D leaves exposed a seat, which extends leaves exposed a seat, which extends below the center of the lower arbor and is entirely open upward, which seat forms an accessible and convenient place for the attachment, inspection, and regulation, and, when necessary, the ready detachment, of the lower arborbearing, which bearing is constructed as follows: Bolted or otherwise securely pillow-block, C, having vertical flanges c c 1 bolts D D1, which, entering orifices in the box or bearing E E1 of the lower in the box or bearing E E1 of the lower fastening for the said bearing. A set-screw, G, tapped in the bottom of G, tapped in the bottom of the the box E E1, enables its adjustment and retention to horizontality, or such and retention to horizontality, or such desired. Other set-screws, H H1, passing desired. Other set-screws, H H1, passing c c 1, near their rear end, enable the adjustment c c retention of said box to a common vertical plane with the upper arbor. The end of the lower arbor most remote from the pulley I carries the driving-pulley J. It will be seen that, on the loosening of four screws, the entire lower arbor and journal-box may from the machine, without detaching from the machine, without detaching part of the standard A1 is curved part of the standard A1 is curved forward, as represented, and has a slot, a, to hold and guide to vertical path a step or saddle, K, to which is pivoted a the upper arbor-bearing L L1. The saddle K the upper arbor-bearing LL1. The saddle K has a horizontal extension, k, which a nut, t, that rests on a spring or cushion, O, in the bottom of the slot a. The screw M being turned to the right or left elevates or depresses the upper arbor-bearing, and, in so doing, causes the proper tension to be imparted to the saw. Another screw, N, that is tapped in the lug l, bears against the face of the saddle K, and enables the regulation, or angular adjustment, in a vertical plane, of the upper arbor-bearing. The above-described capacity for angular adjustment of the band-pulley arbors in their common plane enables the operator to confine the path of the saw nicely nicely to the middle of the pulley, or to shift it more or less towards the front front or back portions of their peripherise, so as to cause all parts to be equally worn. The spring O, while co-acting with the screw M to preserve the proper tension of the saw, also imparts an elastic and yielding quality to the tension. * * * While preferring the described relative positions of the pivot-screws D D1, and laterally adjusting screws H H1, we do not confine ourselves thereto, as the pivot screws may be situated near the rear and the adjusting screws near the front portion of the box.' '(1) The frame A A1 A%2D, in combination combination with the lower arbor-bearing, said frame being constructed as herein described with a depression, A', permitting the ready removal of he arbor, as as explained. (2) The arrangement of frame A A1 A%2D A", and of the horizontally and vertically adjustable arborbearing C D D1 E E1 G H A. (3) The arrangement of step or saddle K and its contained box or bearing L L1. (4) in combination with the upper arbor L1 the lower arbor-bearing E, adjustable both vertically and horizontally, as shown and descrobed and for the purpose set forth. (5) In combination with the lower arbor, the upper arbor-bearing, adjustable in a vertical plane by means of the screw M, nut T, and spring O, as and for the purpose designated. (6) The combination of the slotted standard A1 a, saddle K k, arborbearing L L1 l, nut T, screws M N, and spring or cushion O, as shown and described, for the purpose set forth.' As to claim 1, it is for a combination of the three-sidded frame A A' A%2D, with the lower arbor-bearing, when the frame is constrcuted with a depression, A'", intervening between the columns A' and A%2D, which leaves exposed a seat which is entirely open upward, so as to give convenient access to the lower arbor-bearing, to attach, inspect, and regulate it, and also detach it, with its journal-box, by lifting the arbor and jornal-box bodily upward without removing the pulley from the arbor. In the defendants' machine the seat is not entirely open upward, and there is a hole hole through the body of the frame to receive the lower arbor-bearing, and the arbor-bearing cannot be removed without detaching the pulley from the arbor. This claims is not infringed. As to claim 2, it is for the arrangement and combination of the three-sided frame A A' A%2D and the depression A'" with the horizontally and vertically adjustable arbor-bearing, consisting of the pillowblock or pedestal C, the two co-axial horizontal bolts, D D', the box or bearing E E*§, the vertical set-screw G which adjusts the box E E*§ to horizontality, the horizontal set-screw H which adjusts the box E E*§ to a common vertical plane with the upper arbor, and the base A which carries the pillow-block or pedestal C. All these features in combination are made necessary in claim 2. It claims a combination of the frame and depression of claim 1 with the special construction of arbor-bearing set forth. The defendants do not have the frame and depression of claim 1, as already shown, and thus to not have that element of the combination covered by claim 2. Moreover, the co-axial bolts D D*§ are a necessary feature of the peculiar arbot-bearing of the patent, and no such bolts are found in the defendants' machine; and, if it has any any means of adjusting the lower arbor-bearing, either horizontally or vertically, in the sense in which such adjustment is described in the patent, it has not the same means or equivalent means to what is found in the patent. As to claim 3, it is for the arrangement of the step or saddle, K, with the upper arbor-bearing, L L*§, contained in it. What is the arrangement of the step or saddle, K, in connection with the arborbearing? The saddle moves through vertical slide-ways and it has pivoted to it a lug, l, which depends rigidly from the arbor-bearing. A screw, N, tapped into the lug, l, bears against the face of the saddle, so as to allow of the adjustment in a vertical plane of the upper arbor-bearing. The saddle has also a horizontal extension, k, which bears on the point of a screw, M, occupying a nut, T, which rests on a spring or cushion, O, in the bottom of the slot. By turning the screw, M, to the right or the left the upper arbor-bearing is elevated or depressed, and thus more or less tension is given to the saw. The spring, O, gives an elastic character to the tension. The effect of the arrangement or combination is to the tension. The effect of the arrangement or combination is to give an elastic vertical adjustment with the lug, l, and the extension, k, is to adjust the arbor-bearing up and sown and sidewise, and at the same time give an elastic tension to the saw. The spring carries the weight of the saddle. There can be no operative arrangement of the saddle with the arbor-bearing which does not include the lug, l, the screw, N, the extension, k, the screw M, the nut T, and the spring O. These are all elements in the arrangement or combination covered by claim 3. The spring is essential in the patent, as a part of claim 2. The defendants have a rigid saddle, and no spring. The fact that the spring is an element in claims 5 and 6 does not prevent its being an element in claim 3. There being no infringements of of claims 2 and 3 there is none of claim 4. The claims of the patents sued on in this case are claims for combinations. In such a claim, if the patentee specifies any element as entering into the combination, either directly by the language of the claim, or by such a reference to the descriptive part of the specification as carries such element into the claim, he makes such element material to the combination, and the court cannot declare it to be immaterial. It is his province to make his own claim and his privliege to restrict it. If it be a claim to a combination, and be restricted to specified elements, all must be regarded as material, leaving open only the question whether an omitted part is supplied by an equivalent device or instrumentality. Water-meter Co. v. Desper, 101 U. S. 332, 337; Gage v. Herring, 107 U. S. 640, 648; [S. C. 2 Sup Cr. Rep. 819.] The circuit court decreed a dismissal of the bill, and, the plaintiff having appealed, the decree is affirmed. |
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