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Lawler et al. v. Walker et. -1.

It was in that view of the case that this court said, in its opinion, “ It is not enough that the record shows that the plaintiff contended and claimed, that the judgment of the court impaired the obligation of a contract and violated the provision of the Constitution of the United States, and that this claim was overruled by the court, but it must appear by clear and necessary intendment, from the record, that the question must have heen raised and must have been decided in order to induce the judgment.” And it was also in this view, when one State statute was said to be repugnant to another, both being admitted to be constitutional, that it was said in that case, “ It is the peculiar province and privilege of the State courts to construe their own statutes," and when they did so, “it was no pait of the functions of this court to review their decisions,” or, in such cases, “to assume jurisdiction over them, on the pretence that their judgments have impaired the obligation of contracts.”

Having said that this court had not jurisdiction in this ase on account of the insufficiency of the certificate, we now way, if it could be made as definite as that in the case of Bucking. ham's Executors, by inserting in it the statutes of Ohio, which the court supposed involved a constitutional question, that it would not give tms court jurisdiction. Then the cases would ke so much alike that the Buckingham case would rule this as to the question of jurisdiction. In the Buckingham case it was urged that the penalty, in a general statute upon banks, for refusing to pay their notes in specie, could not be imposed upon a bank subsequently chartered, in addition to the penalty imposed by its charter, without a violation of the Constitution of the United States. It is urged, in argument in this case, that a statute passed in 1816, entitled “ an act to prohibit the issuing and circulating of unauthorized bank paper," which was amended in 1839; could not be applied to make the defend. ants liable to pay notes which were issued in 1840 by a canal company, in its corporate name, and which notes were meant for circulation in the community as bank paper. It was not contended that the canal company could legally issue such paper for circulation as money, though it was said they could give notes payable to order in payment of its debts.

It was not denied that the company could give notes in pay. ment of debts, but it was said, that they could not make them for that purpose and for circulation, as bank paper. The point then raised for decision, was, whether the canal company could do so, without making its stockholders and directors liable to pay them to the holders of the notes, under the statute of 1816, amended in 1839. The Supreme Court decided that the defendants in this case, being directors and stockholders of the

Lawler et al. v. Walker et al.

canal company were liable, by the statutes of 1816 and 1839, to pay such notes. It seems to us, that the statement. gives its own answer, and that the Supreme Court, in making its deci. sion, only gave a construction to an act of Ohio, which neither of itself, nor by its application, involved in any way a repugnancy to the Constitution of the United States, by impairing the obligation of a contract. Whether the construction of the act and the charter of the canal company was correct, or not, we do not say. We do not mean to discuss that point, or to give any opinion upon it; but we mean to say, that the construction does not violate a constitutional point under the 25th section of the Judiciary Statute, so as to give this court jurisdiction of this cause.

If more was wanting in aid of our conclusion, it is to be found in the pleadings in the case, in the evidence given on the trial, the objections made to the admissibility of certain parts of it, in the prayers of the defendant to the court to instruct the jury, and in the charge which the court gave. By no one of them is a constitutional question raised. It was only suggested, in argument, and on that account it was, that the court certified that the “ validity of statutes of Ohio was drawn into ques. tion, which were said to be in violation of the Constitution of the United States, and not because the court considered, that such a point had been rightly raised before it, under the 25th section of the Judiciary Act of 1789.”

We do not think it necessary to repeat any thing which this court has hitherto said, from an early day to the present, concerning the 25th section. Its interpretation will be found in the case of Crowell v. Randall, 10 Peters, 308; in other cases, cited in that case; and in Armstrong v. The Treasurti of Athens County, 16 Peters, 281. We shall direct this suit to be dis. missed for want of jurisdiction.

Order. This cause came on to be heard on the transcript of the record from the Supreme Court of the State of Ohio, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that this cause be, and the same is hereby, dismissed, for the want of jurisdiction.

Le Roy ot al. v. Tatham et al.

Thomas Otis Le Roy, AND David SMITH, PLAINTIFFS IN ER

ROR, v. BENJAMIN Tatham, JUNIOR, GEORGE N. Tatham, AND HENRY B. TATHAM.

In a patent for improvements upon the machinery used for making pipes and tubes from lead, or tin, when in a set, or solid state, by forcing it under great pressure, from out of a receiver, through apertures, dies, and cores, the claim of the patentees was thus stated: “What we claim as our invention, and desire to secure by letterspatent, is the combination of the following parts, above described, to wit, the core and bridge, or guide-piece, the chamber, and the dię, when used to form pipes of metal, under heat and pressure, in the manner set forth, or in any other manner substantially the same." The Circuit Court charged the jury, " that the originality did not consist in the

novelty of the machinery, but in bringing a newly discovered principle into practical application, by which an useful article of manufacture is produced, and wrought pipe made as distinguished from cast pipe." This instruction was erroneous. Under the claim of the patent, the combination of the machinery must be novel.

The newly discovered principle, to wit, that lead could be forced, by extremo pressure, when in a set or solid state, to cohere and form a pipe, was not in the patent, and the question whether it was or was not the subject of a patent, was not in the case.

Mr. Justice Curtis, having been of counsel for the defendants in error, upon the letters-patent drawn in question in this case, did not sit at the hearing.

This case was brought up, by writ of error, from the Circuit Court of the United States for the Southern District of New York.

The declaration was filed by the defendants in error, on the 8th of May, 1817, to recover damages in a plea of trespass upon the case, from the plaintiffs in error, and Robert W. Lowber, for the alleged infringement of their patent, for new and useful improvements in machinery, or apparatus for making pipes and tubes from metallic substances.

The declaration alleged, that John and Charles Hanson, of Huddersfield, England, were the inyentors of the alleged improvements, on or before the 31st of August, 1837.

That on the 10th of January, 1840, the Hansons, assigned, in writing, to H. B. and B. Tatham, (two of the defendants in error,) the full and exclusive right to the said improvements.

That on the 29th of March, 1841, letters-patent of the United States were granted to H. B. & B. Tatham, as assignees of the Hansons, for the said improvements.

That on the 12th of October, 1841, H. B. & B. Tatham, assigned to G. N. Tatham, (the remaining defendant in error,) one undivided third part of the said letters-patent.

That, on the 14th of March, 1846, the said letters-patent having been surrendered, on account of the defective specifications

Le Roy et al. v. Tatham et al.

of the said improvements, new letters-patent were issued therefor, on an amended specification, whereby there was granted to the plaintiffs below, their heirs, &c., for the term of fourteen years from the 31st of August, 1837, the full and exclusive right of making, vending, &c., the said improvements; a description whereof was annexed to and n.ade a part of such patent.

That the letters-patent were of the value of $50,000; and that the defendants below had wrongfully and unlawfully made, used, and vended the said improvements, and made lead pipe to the amount of 2,000 tons, thereby to the injury of the plaintiffs, $20,000.

To this declaration, the deiendants, Le Roy and Smith, pleaded not guilty; the defendant, Lowber, making no defence, and permitting a default to be taken against him.

The cause was tried at the April Term, 1849, and a verdict rendered by the jury in favor of the plaintiffs, for $11,394, and costs, and a bill of exceptions was tendered by the defendants below.

On the trial of the cause below, the plaintiffs produced,

1. Their patent of 1846, and the specification referred to therein, and making a part of the same.

2. They read in evidence certain agreements between the defendant, Lowber, and the defendants, Le Roy and Smith.

3. They gave evidence, tending to prove that J. & C. Hanson were the original and first inventors of the improvement; that the invention was a valuable one, &c.

4. That lead, recently become set, under heat and pressure, in a close vessel, would reunite perfectly after a separation of its parts; that, in the process described in the said patent, pipe was so made; that the Hansons were the first and original discoverers thereof; and that such discovery, and its reduction to a práctical result, in the mode described in the patent, was useful and important.

5. That the defendants, Smith and Leroy, had been jointly engaged with Lowber in making lead pipe upon the plan described in the letters-patent, and selling the same, and had thus made and sold large quantities of pipe; that the agreement between them, relative to the manufacture of pipe, was colorable only, and was made as a cover to protect Le Roy and Smith, and throw the responsibility on the defendant, Lowber, who was insolvent.

6. That the improvement described in the said letters-patent was the same invention for which letters-patent had been granted to the Hansons, in England, and to H. B. & B. Tatham, here, as their assignees.

7. That the plaintiffs had been ready, and had offered to sell VOL. XIV.

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Le Roy et al. v. Tatham et al.

the said invention, and had sold the same for a large portion of the United States, within the last eighteen months

The defendants below then read in evidence,
1. The description of the English patent to the Hansons.

2. The patent to H. B. & B. Tatham, of 1841, and the specification thereof.

3. The specification of an English patent, granted to Thomas Burr, of 11th April, 1820.

4. The patent and specification of Burroughs Titus, granted in 1831.

5. The patent granted to George W. Potter, in 1833.

6. The evidence of George Fox, tending to show the invention and use by him of a similar machine, in 1830.

7. The specification of a patent to John Hague, in 1822.

8. The specification of a patent granted to Busk & Harvey, in 1817.

9. The specification of a patent granted to Ellis & Burr, in 1836.

10. The specification of a patent granted to Joseph Bramah, in 1797.

11. The defendants then gave evidence tending to prove that J. & C. Hanson were not the original and first inventors of the combination of machinery described in the letters-patent.

12. That the invention was not useful, nor the lead pipe, made upon the plan described, good.

13. That the combination of machinery described in public works, as having been invented by Titus, Potter, Fox, Hague, Bramah, and Busk & Harvey, were substantially the same as that described in the plaintiffs' patent.

14. That lead, when recently become set, under, heat and extreme pressure, in a close vessel, would not reunite perfectly after a separation of its parts; and that, in the process as described in the plaintiffs' patent, it was not in a set, but in a fluid state when it passed the bridge.

15. That the defendants, Le Roy & Smith were not concerned in the manufacture of the pipe, or in making or using the machinery; that it was made for them by the defendant, Lowber, at a certain price per hundred pounds; and that they had not infringed upon the patent of the plaintiffs.

16. That the improvement described in the plaintiff's patent, of 1846, was not the same invention as that for which letterspatent had previously been granted to the Hansons, and to H. B. & B. Tatham.

17. That, for the space of eighteen months, from the date of the patent of 1841, the plaintiffs had neglected to put and continue on sale to the public, on reasonable trust, the invention or discovery for which the said patent issued.

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