Radich v. Hutchins, 95 U.S. 210

This was an action brought by Radich against Hutchins and Wells. He alleges in his petition that he is a subject of the Emperor of Russia, and that he was, in 1864, the owner of four hundred and fifty bales of cotton, of the value of $50,000, which he designed to export from Texas, where he then resided, to Mexico, and which were then in transit on their way to Matamoras; that the defendant Hutchins, claiming to be a lieutenant colonel in the army of the Confederate States, and chief of the cotton office at Houston in that State, combining with the de fendant Wells and others, had, without warrant of law, by a public notice, prohibited the exportation of cotton from t e State, except upon written permits from his office; that sue per mits would not be issued, except upon condition that the perso desiring to export cotton should sell to them an equal amoun, a a nominal and arbitrary price, for the benefit of the Con e era States; that, being desirous to export and sell his cotton, cause of the risk incurred of its destruction or loss during war, and knowing that if he should attempt to send it eyon p. 211the frontier of the State into Mexico the armed forces of the Confederate States, provided to carry out the illegal exactions of the defendants and their confederates, would capture and confiscate it, he was compelled to submit, and did submit, to the condition imposed, and accordingly delivered to the defendants one-half of his cotton, namely, two hundred and twenty-five bales, at a nominal and arbitrary price, as a consideration for a permit to export the other half, but upon a stipulation, however, insisted upon by himself, that he should have the privilege of redeeming the bales sold, and exporting them upon the payment of such sum as the defendants might demand; and that afterwards he paid them $13,357 in specie, and in goods, wares, and merchandise at specie values, in redemption of the bales and for a permit to export them. He alleges that the amount thus paid was illegally and oppressively exacted, and that he submitted to the wrong because of the armed forces to support and enforce it.

Mr. Justice Field delivered the opinion of the court. f at the time the transaction took place, which has given use to the present action, the plaintiff was a subject of the mperor of Russia, as he alleges, that fact cannot affect the ecision of the case, or any question presented for our considera ion. He was then a resident of the State of Texas, and agaged in business there. As a foreigner domiciled in the StT^y’ WaS b°und to obey all the laws of the United $ a es not immediately relating to citizenship, and was equally infr^-^ eitizens to the penalties prescribed for their cou^1011* owed allegiance to the government of the ry so long as he resided within its limits, and can claim p. 212no exemption from the statutes passed to punish treason, or the giving of aid and comfort to the insurgent States. The law on this subject is well settled and universally recognized. Carlisle n. United States, 16 Wall. 147.

There is nothing in these allegations showing that the defendants subjected the plaintiff to any coercion or duress, which would justify an action against them, either for the return of the money paid or for the value of the goods delivered in place of the money, or for damages of any kind. There is no averment that either of the defendants ever made, or attempted to make, any seizure of the cotton, or that either of them was an impressing or other officer, exercising or claiming to exercise any power for its seizure, or had any thing to do with the com mand or operations of the armed forces of the insurgents in the State of Texas. All that is directly charged against them is the publication of a notice that the exportation of cotton was forbidden, except on permits from the cotton office. ® armed force is not stated to have been under the direction o that office. The whole proceeding set forth in the petition was a voluntary one by the plaintiff. He applied to the cotton office, and sold the cotton subsequently redeemed. It is n p. 213pretended that either of the defendants made any application for its purchase.

At this time, also, it was the declared policy of the United and^?0 Preven^ intercourse between the insurgent States t e loyal States, and also between them and foreign thus to cut off from the insurgents the means of o onging the existing war. In pursuance of this policy, the and coasts of those States were blockaded, commerce p. 214with their inhabitants was prohibited, except as specially authorized under regulations of the Treasury Department, and property which eluded the blockade was subject to seizure and condemnation. The attention of the authorities was specially directed to prevent the exportation of cotton, upon which the insurgents chiefly relied to obtain the means for the continuance of their struggle. The plaintiff alleges that he paid money and delivered goods to the defendants for the use of the Confederate government, in order to obtain permission to violate this policy and legislation, and now he modestly asks that he should be allowed in the courts of the United States to recover damages from them because they took what he offered for the permission.

enice was made; and the respondents appeared and filed an answer, in which they deny that they have ever in any way infringed the letters-patent described in the bill of complaint; and they also set up several other defences, as follows: 1. That e specification filed in the Patent Office contains less than e whole truth relative to the invention, or more than is ecessary to produce the described effect. 2. That the patent . as surreptitiously and unjustly obtained for that which was hadb^ ^1Ven^ec^ ^7 another. 3. That the alleged invention plain een P™r to the supposed invention by the comnan. 4. That the alleged invention had been described in p. 216a certain publication prior to the alleged invention by the patentee. 5. That the complainant was not the original and first inventor of the supposed improvement; that the same had been previously invented and known and used by the persons named in the answer, and by many other persons whose names are unknown to the respondents, which, when discovered, the respondents pray leave to insert and set forth in the answer.

Much reference to the specification is unnecessary, a p. 217defence, that the respondents have not infringed the supposed invention, is not pressed in the argument for the appellee. My invention, says the patentee, consists in the application of two staples or clamps, one at or near each end, to the frame of a travelling-bag in such a manner that when the bag is packed full the staples or clamps shall fasten the ends or corners together. In the same connection he also describes a mode of fastening the staples or clamps to the frame of the bag by a strap which passes over the centre of each staple; and he adds, that the staple or clamp “ is made of strong iron turned down at each end.” Sufficient description is given of the staple or clamp; but the strap is not described, except by being exhibited in the drawings.

> and the law is well settled that nothing short of p. 218invention or discovery will support a patent for any such alleged new and useful improvement. Certain other important conditions are also annexed to the exercise of the right to obtain such a muniment of title for such an invention or discovery; as, for example, the improvement must not only he new and useful, but it must be one not known or used by others in this country and not patented, or described before the invention or discovery in any printed publication in this or any foreign country, and must not have been in public use or on sale more than two years prior to the application for a patent. 16 Stat. 201; Rev. Stat. sect. 4886; Collar Company v. Van Dusen, 23 Wall. 531; Dunbar y. Myers, 94 U. S. 196.

Competent proof of a prior patent anywhere is entirely wan ing, nor is there any satisfactory evidence that the invention was previously described in any printed publication; 6 evidence shows beyond any reasonable doubt that the ing patented was known and used extensively by others i country before the invention or discovery made by the patente, as set forth and described in the bill of complaint. Sue w the finding of the court below; and the evidence is so fu the point, and is so fully set forth in the record and in the op p. 219ion delivered in the Circuit Court, that it is not necessary to reproduce it in the present opinion.

easonable objection was made in that case by the plaintiff, evy U1t e*ng an acfion at law, and the court held that the with th6 WaS without an antecedent compliance court' 6 .COnc^^ons the patent act; but the case before the Due 18 distinguished from that in several particulars, everv ^Ven answer that the invention and y material and substantial part thereof had been previously p. 220invented and used by and was known to certain persons therein named, twelve in all; and the respondents in due form stated the names and residences of the persons alleged to have had such prior knowledge, and where and by whom the invention had been used. Superadded to that, they also alleged that the supposed invention had previously been known to and used by many other persons to the respondents unknown; and they prayed leave, as before remarked, that, when discovered, they might be permitted to insert and set forth their names in the answer. Pursuant to that reservation, two witnesses were examined upon that subject by the respondents without objection; nor does the record, irrespective of the opinion of the court, show that any objection to the admissibility of the evidence was ever made.

Default having been made in the payment of the interest aPon lasUnamed bonds, Samuel A. Strang, claiming to be fie holder of some of them, filed May 10, 1872, a bill for the orec osure of the mortgage, in the District Court of the United a es for the Middle District of Alabama, then possessing mort^ C°Ur^ Powers* To this bill, the trustees named in the gaSe’ Um railroad company, and one of its judgment creds, were alone made parties. No mention was made of the p. 222first mortgage to the State. On the 17th January, 1874, the South and North Alabama Railroad Company was, upon its own petition, admitted as a defendant in the suit, with leave to answer and file a cross-bill. In its answer it set forth its ownership of the $30,000 mortgage to the State, and insisted upon the priority of its security ; and, in the cross-bill, prayed a sale of the mortgaged property, for the purpose of paying the debt.

Part f cree July 3, 1877, is final, and the petitioner, as a y 01 e suit, had the right to an appeal to this court. Stovall p. 224v. Banks, 10 Wall. 583; Railroad Company v. Bradleys, 7 id. 575 ; The Douro, 3 id. 564; United States v. Adams, 6 id. 101; Ex parte Jordan, 94 U. S. 248; Phillips’s Practice, 76-81.

This petition for a mandamus is resisted, upon the gene ground that the South and North Alabama Railroad ComPa cannot appeal, because its rights are not injuriously affecte the decree. That company was a party to each of the sui s c solidated for the purposes of the decree. It was, there or, p. 225party to the consolidated suit, and entitled to be heard upon the pleadings as they stood before the consolidation, since no change in that particular was ordered or deemed necessary by the court. Among the pleadings in the Strang suit, thus brought into the consolidated suit, was the cross-bill of this company praying affirmative relief in the final determination of the cause. It matters not that at a former day in the term a special decree had been rendered upon the subject-matter of the cross-bill, and that an appeal from that decree had been taken; for “ a cross-bill is a mere auxiliary suit and a dependency of the original.” Cross v. DeValle, 1 Wall. 5. As we have said in Ayres et al. v. Carver et al., 17 How. 591, “ both the original and cross-bill constitute one suit,” and ought to be heard at the same time. Consequently, “ any decision or decree in the proceedings upon the cross-bill is not a final decree in the suit, and . . . not the subject of an appeal to this court. . . . The decree, whether maintaining or dismissing the bill, disposes of a proceeding simply incidental to the principal matter in litigation, and can only be reviewed on an appeal from the final decree disposing of the whole case. That appeal rings up all the proceedings for re-examination, when the party aggrieved by any determination in respect to the cross, ill has the opportunity to review it, as in the case of any other interlocutory proceeding in the case.” A cross-bill must grow out of the matters alleged in the original bill, and is used to ring the whole dispute before the court, so that there may be 9 ^ecree touching the subject-matter of the action.

But it is claimed that, as in the answer of the South and North Alabama Company to the bill of Young, it was stated that pending that suit, and consequently pending that of Strang and the cross-bill, the company had assigned its debt, it had now no right to insist upon affirmative relief in the action, and, therefore, could not appeal. In both the suits it was a defendant against whom relief was asked. It defended against the claims of the several complainants, and, as an incident to that defence, sought to obtain protection for its own rights. It is well settled that an assignment by a defendant of his interest in a litigation does not necessarily defeat a suit. His assignee taking pendente lite is bound by what is done against him. The assignee may, at his own election, come in by an appropriate application, and make himself a party, so as to assume the burden of the litigation in his own name, or he may act in the name of his assignor. A pendente lite assignment carries with it an implied license by the assignor for the use of his name in the cause by the assignee to protect the rights assigned. Of this, the plaintiffs in the action cannot complain, because the assignee is bound by all that is done, whether a party by name or not. Acting upon this principle, notwithstanding t e statement in the answer, the company has all the time, in the whole course of the subsequent proceedings, been treated as the representative of the interest of its assignee. Subsequent to the answer, and during the May Term, 1876, the cause was submitted by consent of all parties for decision and decree upon the question whether the mortgage claim or lien asserted an disclosed in the answer and cross-bill in the Strang suit an n the answer in the Young suit was, and still continued to paramount and superior to the claims and liens of the o e parties. Upon this submission, the court found that t e was paramount, and entered an interlocutory decree to effect. In addition to this, on the 6th June, 1877, . stipulated, for the purposes of evidence in the cause, a South and North Alabama Company was the owner of t e and the mortgage to secure them. It is thus apparent t the purposes of the suit, by the understanding of all t e pa p. 227that company represented the claim which was being enforced in its name, and was entitled to take such steps as might be deemed necessary for the protection of those in whose behalf it was acting.