1 Collector as their superior, can, if at all, only |422; U. S. v. Kirkpatrick, 22 U. S. 9 Wheat. be held responsible for bad faith in the exer- 720, 735 [6:199,203]; Gibbons v. U. S. 75 U. S. cise of the discretion thus devolved upon them 8 Wall. 269 [19:453]; Whiteside v. U. S. 93 U. by the regulation established by the Secretary, S. 247, 257 [23:882,885]; Hart v. U. S. 95 U. under the law." S. 316, 318 [24:479,480]; Moffat v U. S. 112 U. S. 24, 31 [28:623,625]; Schmalz v. U. S. 4 Ct. Cl. 142. The court charged the jury that if one of the subordinate officers of the customs, in the course of the performance of his duty, did an absolute wrong to the plaintiff, such as to take her trunk from her and keep it from her when she wanted it and was by law entitled to it, the defendant would be liable. The defend ant excepted to this charge. The court gave further instructions, which bore upon the matters set forth in the defendant's requests to charge, but which, in the view we take of the case, it is not important to notice. The bill of exceptions states that the court did not comply with the defendant's requests to charge further than as appears by the charge as stated, and that the defendant excepted to the refusal to charge as to each request separately, so far as the court did refuse. The jury found a verdict for the plaintiff for $459. The court ordered that a certificate of probable cause be entered, and on the verdict, with costs added, a judgment was entered for the plaintiff for $502.96, to review which the defendant has brought a writ of error. We are of opinion that there was error in the charge of the court, and that the defendant was not liable for the wrong, if any, committed by his subordinates, on the facts of this case. There is nothing in the evidence to connect the defendant personally with any such wrong. No evidence was given that the officers in question were not competent, or were not properly selected for their respective positions. The subordinate who was guilty of the wrong, if any, would undoubtedly be liable personally for the tort, but to permit a recovery against the Collector, on the facts of this case, would be to establish a principle which would paralyze the public service. Competent persons could not be found to fill positions of the kind, if they knew they would be held liable for all the torts and wrongs committed by a large body of subordinates, in the discharge of duties which it would be utterly impossible for the superior officer to discharge in person. The head of a department, or other superior functionary, is not in a different position. A public officer or agent is not responsible for the misfeasances or positive wrongs, or for the nonfeasances, or negligences, or omissions of duty, of the subagents or servants or other persons properly employed by or under him, in the discharge of his official duties. Story, Ag. $319. In Keenan v. Southworth, 110 Mass. 474, it was held that a postmaster was not liable for the loss of a letter, occasioned by the negligence or wrongful conduct of his clerk. The court said: "The law is well settled, in England and America, that the postmaster-general, the deputy postmasters, and their assistants and clerks, appointed and sworn as required by law, are public officers, each of whom is responsible for his own negligence only, and not for that of any of the others, although selected by him and subject to his orders." The court cited, to sustain this view, Lane v. Cotton, 1 Ld. Raym. 646; S. C. 12 Mod. 472; Whitfield v. Le Despencer, Cowp. 754; Dunlop v. Monroe, 11 U. S. 7 Cranch, 242 [3:329]; Schroyer v. Lynch, 8 Watts, 453; Bishop v. Williamson, 11 Me. 495; Hutchins v. Brackett, 22 N. H. 252. To the same purport are Bailey v. Mayor of N. Y. 3 Hill, 531; Conwell v. Voorhees, 13 Ohio, 523, 543; Story, Bail. SS 462, 463; 1 Bell Com. 5th ed. 468; 2 Kent Com. 4th ed. 610, 611. The very question here involved came before the Circuit Court of the United States for the Southern District of New York, in the case of Brissac v. Lawrence, 2 Blatchf. 121, in June, 1850. The defendant was the Collector of the Port of New York. Imported goods belonging to the plaintiff had been deposited in a custom house warehouse, and were either lost or mislaid there, or were delivered to some person not entitled to them. At the trial it was sought to show carelessness on the part of the defendant, as the head of the custom house department, in the manner in which the books of the This principle is well established by author- warehouse were kept, and also that the bookity. It is not affected by the fact that a stat-keeper was a person of intemperate habits and utory action is given to an importer, to recover unfit for the situation. On the other hand, it back, in certain cases, an excess of duties paid was proved that the books were kept in conunder protest; nor by the fact that a superior formity with the mode usually adopted at the officer may be held liable for unlawful fees ex-time for keeping books of that kind; that the acted by his subordinate, where lawful fees are prescribed by statute, and where such fees are given by law to the superior, or for the act of a deputy performed in the ordinary line of his official duty as prescribed by law. The government itself is not responsible for the misfeasances, or wrongs, or negligences, or omissions of duty of the subordinate officers or agents employed in the public service; for it does not undertake to guarantee to any person the fidelity of any of the officers or agents whom it employs; since that would involve it, in all its operations, in endless embarrassments, and difficulties, and losses, which would be subversive of the public interests. Story, Ag. § 319; Seymour v. Van Slyck, 8 Wend. 403, intemperate book-keeper had been discharged; and that, during a period of nineteen months, out of two hundred thousand packages of goods which had been received at the warehouse in question, only two packages had been lost. Mr. Justice Nelson, in charging the jury, submitted to them the question whether the col lector had been guilty of personal negligence in respect to the goods. In the course of the charge, the court said: "The collector is not personally responsible for the negligence of his subordinates in the custom house department, and, therefore, he is not responsible for the negligence of persons employed in the warehouse department. *** In order to charge the defendant with the loss, it is necessary that 1887. BARNARD V. DISTRICT OF COLUMBIA. HENDY V. IRON WORKS. 409-411; 370–376 *** In Mr. Justice Field delivered the opinion of the court: Ryan, since deceased, entered into a contract On the 23d day of July, 1872, Robert H. with the Board of Public Works of the District the plaintiffs should satisfy you, by affirmative | Robert A. Howard, Asst. Atty-Gen., for and reasonable testimony, that the collector appellee was personally guilty of negligence in the discharge of his duty, either by misdeed or by omission. ***This is a suit against the collector, who did not have charge of the goods; and, in order to render him liable, you must find him to have been guilty of personal of Columbia to do certain work for the imneglect, misfeasance, or wrong. view of the fact that the Collector of New provement of New Jersey Avenue in the City York has charge of all the business from which of Washington, from B Street south to the two thirds of the entire revenue of the United Potomac River. The different kinds of work States is collected, and has thousands of sub-required were stated, and the prices for each ordinates, and upon the evidence that only one specified, among which were "grading 30 cents package out of every one hundred thousand per cubic yard," and "excavations and refilling, which passed through the hands of those sub-40 cents per cubic yard, to be measured in exordinates has been lost, it is strange that this case has been so urgently pressed, with the idea that upon any principle of equity, much less of law, there could be any liability on the part of the collector." The jury found a verdict for the defendant. See, also, U. S. V. Brodhead, 3 Law Rep. 95; Whart. Ag. 550. The judgment of the Circuit Court is reversed, and the case is remanded to that court with a direction to grant a new trial. cavating only." It is conceded that Ryan performed the work pursuant to the contract, and has been paid the amount agreed upon. The present claim is for extra work on the avenue "in grading or excavating stone or rock," for the contract. The board had entered in its which it is contended there is no provision in journal before the contract was made the following: "Chief Engineer was notified that the following price was established for rock excavation, viz.: in ditches for sewers, etc., $1.50 per cubic yard; cutting down streets and the like, $1.00 per cubic yard. Auditor and contract JOB BARNARD, Admr. of ROBERT H. clerk notified;" and Ryan contended that he RYAN, Deceased, Appt., V. DISTRICT OF COLUMBIA. (See S. C. Reporter's ed. 409-411.) was therefore entitled for all rock excavations to one dollar a yard instead of the price specified in the contract for grading and excavating, the difference being $4,060. To this contention there are two answers. Compensation for extra work—written contract. In the first place, the "grading" and "excava1. Where, in a contract to do certain work in im- tion" specified in the contract are not limited to proving a street in Washington, the prices for pav-work done in sand or gravel or earth free from ing and excavation were fixed at so much a yard, the contractor is not authorized to charge for extra work for stone or rock found in the excavation, the contract not being limited to work done in earth free from stone or rock. 2. All contracts of this character are required by law to be in writing; and the law forbids the allowance of any extra compensation for work done under a contract. 3. The board of public works could not, by a mere entry in its journal, make a new contract or alter one previously made. [No. 272.] Argued May 2, 1888. Decided May 14, 1888. APPEAL from a judgment of the Court of stone or rock. It might reasonably be expected that more or less stone or rock would be found in the progress of the work, and the price was evidently fixed upon its supposed average char acter. In the second place, the Act of Congress of February 21, 1871, "to provide a government for the District of Columbia," in force at the time, required that all contracts by the board sbould be in writing, be signed by the parties making the same, and a copy thereof filed in the office of the secretary of the District; and part of the contract with the claimant, nor Judgment affirmed. JOSHUA HENDY, Appt., V. WORKS ET AL. Lamborn v. Dickinson County, 97 U. S. 185 (24:928); Meech v. Buffalo, 29 N. Y. 198, 212, 213; Elliott v. Swartwout, 35 U. S. 10 Pet. 153, GOLDEN STATE AND MINERS' IRON 154 (9: 379); Mutual Life Ins. Co. v. Wager, 27 Barb. 354; 2 Greenl. Ev. § 123; Dill. Mun. Corp. 477; 4 Wait, Act. & Def. 483, 487; Boston & S. Glass Co. v. Boston, 4 Met. 181, 188; Mays v. Cincinnati, 1 Ohio St. 268; Awalt v. Eutaw Building Asso. 34 Md. 435. Messrs. A. H. Garland, Atty-Gen., and (See S. C. Reporter's ed. 370–376.) Letters patent, infringement of-defense-com bination-claim. In a suit for the infringement of letters patent No. 140, 250, granted to James D. Cusenbary and James A. Mars, for an improvement in ore stamp | June 24, 1873, to James D. Cusenbary and feeders,-Held: James A. Mars, for an "improvement in ore stamp feeders." The specification, claims, and drawings of the patent are as follows: (a) Merely putting rollers under an article, so as to make it movable, when, without the rollers, it would not be movable, does not involve the inventive faculty and is not patentable. (b) This defense is one which can be availed of without setting it up in an answer. (c) There is no patentable combination between the rollers which make the timbers movable and the feeding cylinder I, mounted upon the timbers. that class of ore feeders for quartz mills in Our invention relates to improvements in which a pawl and ratchet are employed to operate the feeder automatically by the drop of the stamp. Our improvements consist, first, The union of parts is merely an aggregation. (d) The feeding cylinder I, having been de-in mounting a feed cylinder upon a movable scribed in the specification as having chambers or frame or truck, so that it can be readily shifted depressions, the claim cannot be construed to cover from place to place when it is desired to repair a cylinder with a smooth surface, not formed into chambers. the mill; and, lastly, of an improved arrange[No. 278.] ment for operating the pawl rod by the drop Submitted May 3, 1888. Decided May 14, 1888. of the stamp without the use of springs. In APPEAL from a decree of the Circuit Court of the United States for the District of California, dismissing a suit for the infringe ment of letters patent. Affirmed. Reported below in 8 Sawy. 468. The facts are fully stated in the opinion. Messrs. J. H. Miller and J. P. horne, for appellant: The term 66 useful," when applied to inventions, means the opposite of hurtful, injurious, or frivolous. The degree of utility is immaterial. Lowell v. Lewis, 1 Mason, 186; Hoffheins v. Brandt, 3 Fish. Pat. Cas. 218; Cox v. Griggs, 1 Biss. 362; Tilghman v. Werk, 1 Bond, 511; Westlake v. Cartter, 6 Fish. Pat. Cas. 519; Many v. Jagger. 1 Blatchf. 372; Wilbur v. Beecher, 2 Blatchf. 137; Shaw v. Colwell Lead Co. 11 Fed. Rep. 711; Kneass v. Schuylkill Bank, 4 Wash. 9; Stanley v. Hewitt, 17 Frank Jr. 2d Series, 165; Wintermute v. Redington, 1 Fish. Pat. Cas. 239. The appellees have used the invention and hence they are estopped to deny its utility. Simpson v. Mad River R. R. Co. 6 McLean, 603; Vance v. Campbell, 1 Fish. Pat. Cas. 483; McComb v. Ernest, 1 Woods, 195; Kearney v. Lehigh Valley R. R. Co. 32 Fed. Rep. 320. order to more fully illustrate and explain our invention, reference is had to tot accompany ing drawings, forming a part of this specification, in which Figure 1 is a vertical section; Fig. 2 is a back view; Fig. 3 is a transverse section. A represents the frame of a stamp mill; B is the stamp; C is the stamp stem, Lang-with its tappet D; F is the cam shaft, and G the cam which lifts the stamp, all of which are arranged in the ordinary manner of constructing a stamp battery. H H are the foundation timbers upon which the feeding cylinder is mounted. These timbers are mounted upon rollers, so that the cylinder and frame can be moved about as desired. The cylinder I is made of cast metal, and has its outer surface formed into chambers or depressions, J J, which are separated from each other by longi tudinal partitions, K. The cylinder and its carriage, when in working position, are placed below the hopper L, so that the ore from the hopper will fall into the chambers upon an inclined apron, M, which directs it beneath the stamp. This feeding cylinder, being made of cast metal, will not wear out like the endless belts heretofore used in this class of machines, and, as it turns upon journals, like any common roller or cylinder, it cannot become clogged, as the endless belt is liable to do. To one end of the cylinder or ratchet wheel N is secured, and this ratchet wheel is operated by, a pawl bar, C, to revolve the cylinder. In order to operate the pawl bar from the tappet, a hori zontal shaft, p, has its opposite ends supported in boxes, which are secured to the sides of the upright timbers of the frame, so that the shaft will pass across directly in front of the tappet, transversely to the movement of the stamp stem. A fixed arm, q, extends backwards from the shaft p, so that its extremity will terminate below the tappet, in position to receive a blow from it when the stamp falls. Another fixed arm, r, extends forward from the shaft directly over the ratchet wheel, and to the extremity of this arm the upper end of the pawl bar is attached by means of a trunnion block, t. This bar extends down to the middle of the periphery of the ratchet wheel, and has one or more upward projecting teeth on its lower end, which serve to engage with the teeth of the ratchet when the pawl is lifted by the rock shaft, and thus rotate the feeding cylinder. It will therefore be evident that, at each drop of the stamp, the tappet will strike the arm q and carry it downward, thus giving the shaft p a rocking motion, the weight of the pawl and its arm r serving to rotate the shaft in an opposite direction, thus feeding the Mr. M. A. Wheaton, for appellees: The invention was an abandoned experiment. Whiteley v. Swayne, 74 U. S. 7 Wall. 685 (19:199); Howe v. Underwood, 1 Fish. Pat. Cas. 160; Swift v. Whisen, 3 Fish. Pat. Cas. 360. A patent taken out by two parties, as joint inventors, for an invention which was made solely by one of the parties, is void, and vice versa. Walk. Pat. SS 50, 51; Barrett v. Hall, 1 Mason, 447; S. C. 1 Robb, Pat. Cas. 234, 235; Stearns v. Barrett, 1 Mason, 153; S. C. 1 Robb, Pat. Cas. 115, 116, 117; Slemmer's Appeal, 58 Pa. 155; Ransom v. Mayor of N. Y. 1 Fish. Pat. Cas. 253. The claim does not cover any patentable invention. Pennsylvania R. R. Co. v. Locomotive Engine Safety Truck Co. 110 U. S. 490 (28: 222); Bussey v. Excelsior Mfg. Co. Id. 131 (28: 95). Mr. Justice Blatchford delivered the opinion of the court: This is a suit in equity, brought by Joshua Hendy against the Golden State and Miners' Iron Works, a corporation, and six individual defendants in the Circuit Court of the United States for the District of California, for the infringement of letters patent No. 140,250, granted ore automatically when it is needed. When | arated from each other by longitudinal parthere is a sufficient quantity of ore beneath the titions, K." stamp the drop will not be sufficient to operate the cylinder; but when the quantity of ore beneath the stamp is reduced the drop is greater, and consequently the tappet strikes the arm qgers, so as to be able to move the cylinder and and operates the cylinder. "Having thus described our invention, what we claim and desire to secure by letters patent The It is contended, in defense, that claim 1 of the patent is really a claim only for making the timbers movable, by mounting them upon rollframe about as desired, and that this required no exercise of any inventive faculty. This seems to be the purport of the invention, as stated in the specification. It is the movable character of the frame on which the feed cylinder is mounted, so that the cylinder and frame may be readily shifted from place to place, when repairs are desired, that is designated as the invention. When the mill is in operation, the movable feature is not brought into play. It is only when the mill is out of operation that the movable feature is to be used. first claim does not appear to cover the functions or operation of the feeding cylinder I, as a part of the mill when in operation; and, interpreting it by its own language as well as by that of the description in the specification, it covers only the mounting upon rollers of the timbers which carry the feeding cylinder. Merely putting rollers under an article, so as to make it movable, when, without the rollers, it would not be movable, does not involve the inventive faculty, and is not patentable. Atlantic Works v. Brady, 107 U. S. 192, 200 [27: 438, 441]; Thompson v. Boisselier, 114 U. S. 1, 12 [29: 76, 80], and cases there cited; Yale Lock Mfg. Co. v. Greenleaf, 117 U. S. 554, 559 [29: 952, 954]; Clark Pomace Holder Co. v. Ferguson, 119 U.S. 335, 338 [30: 406, 407] and cases there cited. This defense is one which can be availed of without setting it up in an answer. Dunbar v. Myers, 94 U. S. 187 [24: 34]; Slawson v. Grand Street R. R. Co. 107 U. S. 649 [29: 576]; Mahn v. Harwood, 112 U. S. 354, 358 [28: 667]. Moreover, there is no patentable combination between the rollers which make the timbers movable and the feeding cylinder I, mounted upon the timbers. The union of parts is merely an aggregation. The feeding cylinder, The answer denies infringement, and sets up mounted upon timbers which have rollers, optwo patents on the question of novelty, and erates no differently from what it does when denies the utility of the invention. After rep-mounted upon timbers which have no rollers. lication, proofs were taken on both sides, and the circuit court, on a hearing, dismissed the bill. Hailes v. Van Wormer, 87 U. S. 20 Wall. 353, 368 [22: 241, 248]; Reckendorfer v. Faber, 92 U. S. 347, 357 [23: 719, 723]; Pickering v. McCullough, 104 U. S. 310, 318 [26: 749,751]; Bussey v. Excelsior Mfg. Co. 110 U. S. 131, 146 [28: 95, 100]. There is nothing patentable in the aggregation. Infringement is alleged of only the first claim, namely, "The feeding cylinder I, mounted upon the movable timbers H H, substantially as and for the purpose above described." The specification states, in regard! The defendants' machine has a smooth cylinto the subject of the first claim, that the im- der, and not a cylinder with chambers or deprovement consists "in mounting a feed cylin- pressions. The specification of the patent der upon a movable frame or truck, so that it describes the cylinder I as having its outer surcan be readily shifted from place to place when face formed into chambers or depressions, sepit is desired to repair the mill." The specifica- arated from each other by longitudinal partion speaks of the timbers H H as being the titions. The cylinder of claim 1 is "the feedfoundation timbers upon which the feeding ing cylinder I," and, to be such cylinder, must cylinder is mounted, and it says that those tim- be a cylinder substantially as described, and it bers are mounted upon rollers, so that the is described specifically as having chambers or cylinder and frame can be moved about as de- depressions. The claim cannot be construed sired." Therefore, "the movable timbers H H" to cover a cylinder with a smooth surface not of the claim are timbers made movable by be- formed into chambers. Fay v. Cordesman, 109 ing mounted upon rollers. The specification U. S. 408, 420, 421 [27: 979, 984]; Sargent v. also states that "the cylinder I is made of cast Hall Safe & Lock Co. 114 U.S. 63, 86 [29: 67, 76]; metal, and has its outer surface formed into Shepard v. Carrigan, 116 U. S. 593, 597, 598 chambers or depressions, J J, which are sep-[29:723, 724]; White v. Dunbar, 119 U. S. 47, 51, 52 [30: 303-305]; Crawford v. Heysinger, 123 U. S. 589, 606, 607 [31: 269, 274]. The decree of the Circuit Court is affirmed. J. D. HEGLER, Piff. in Err., v. GEORGE D. FAULKNER ET AL. (See S. C. Reporter's ed. 482-483.) Jurisdiction of circuit court. 1. In a suit to recover the possession of lands, brought in a ate court, where there was no evidence of any petition or order for the removal of the case into the Circuit Court of the United States, nor any statement anywhere in the record of the citizenship of the parties,-Held, that the circuit court had no jurisdiction of the case, and that its judgment and verdict therein must be set aside. [No. 283.] Submitted May 3, 1888. Decided May 14, 1888. circuit court, in which that trial took place, is a short stipulation between the parties, made in that court December 8, 1882, by which it was agreed that the amount in controversy in the action exceeded $5,000. A judgment in favor of the defendants was entered upon this verdict, to which the present writ of error is directed. It is very clear that. this verdict and judgment must be set aside, because the circuit court had no jurisdiction of the case. The judgment of the court below is reversed, and the case remanded for further proceedings.. CHARLES L. EASTON, Appt., v. GERMAN-AMERICAN BANK. (See S. C. Reporter's ed. 532-539.) Pledge of property-right of pledgee-trustee IN ERROR to the Circuit Court of the United purchase by trustee-by creditors-dccd of trust: -payment. States for District of Nebraska, to review a judgment in favor of defendants in a suit to recover possession of lands in Nebraska, originally brought in the State Court. Re- acquires the legal title and the possession. If it versed. The facts are stated in the opinion. Messrs. J. W. Denver and J. H. Broady, for plaintiff in error: The certificate of acknowledgment is prima facie proof of a deed, and to impeach it the evidence should be extremely clear. Morris v. Sargent, 18 Iowa, 90; Van Orman v. McGregor, 23 Iowa, 300; Best on Presumptions of Law and Fact, 64, 65. Messrs. T. M. Marquett and Isham Reavis, for defendants in error. Mr. Justice Miller delivered the opinion of the court: This is a writ of error to the Circuit Court of the United States for the District of Nebraska. There is in the record presented here a transcript showing that the action was first brought October 4, 1878, in the District Court of Richardson County, in the State of Nebraska, in which the original petition or declaration was filed. The suit was to recover the possession of a tract of land situated in that county containing 320 acres, and for rents and profits alleged to be of the value of $2,500. The defendants entered their appearance on May 6, 1879, and leave was granted them to answer in thirty days. The plaintiff was ruled to reply in fifty days, and the cause continued. An answer was filed May 17, 1879, and this appears to have been done in the Circuit Court of the United States for the District of Nebraska, in which all the subsequent proceedings in the progress of the cause were taken. 1. Where personal property is pledged, the pledgee remain in the apparent possession of the pledgor, he holds as agent of the pledgee. right by law, on the default of the pledgor, to sell 2. By virtue of the pledge, the pledgee has the the property pledged in satisfaction of the pledgor's obligation. he cannot also be the vendee. He is in the position 3. As in that transaction the pledgee is the vendor, of a trustee to sell, and is forbidden to purchase for his own use at his own sale. where real estate is conveyed by a debtor directly 4. The same principle applies with a like result to a creditor, as security for the payment of an obligation, with a power to sell in case of default. There the creditor is also a trustee to sell, and cannot purchase the property at his own sale for his own use. 5. At a sale made under the direction and control of a trustee, creditors, who hold the obligation sechasers. In reference to such sale they occupy no cured by the deed of trust, may become the purposition, towards the debtor,of trust or confidence. 6. The relation of a creditor, secured by a deed as trustee, does not differ from that of a mortgagee of trust, to a sale under a power given to a stranger, of real estate sold under judicial proceedings for foreclosure by a decree of a court of equity. 7. Where the whole amount bid by a person at the sale, which was the consideration for the conveyance to him by the trustee, was credited by the creditors for whom he was acting as agent, as a debtors, this was, in fact and in law, a payment to credit of cash upon the overdue obligation of the the use and benefit of the debtors. [No. 291.] Argued May 4, 1888. Decided May 14, 1888. APPEAL from a decree of the Circuit Court of the United States for the Southern District of New York, dismissing a suit to hold the German-American Bank accountable for the proceeds of certain collaterals held by it. Affirmed. Reported below in 23 Blatchf. 271. There is no evidence of any petition or order for the removal of the case into this latter court Statement by Mr. Justice Matthews: from the state court sitting in the County of On April 14, 1875, the firm of Bowen BrothRichardson, nor is there any statement any-ers, of Chicago, borrowed of the Germanwhere of the citizenship of the parties. It appears that a trial was thereafter had and a verdict rendered for the defendants. The only attempt made to show any jurisdiction in the American Bank of New York the sum of $27,500, for which they gave their promissory notes, payable, respectively, in two, three, and four months from date. As collateral security |