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Syllabus.

alent. Prouty v. Ruggles, 16 Pet. 336; Gould v. Rees, 15 Wall. 187; Rowell v. Lindsay, ante, 97, and cases therein cited.

But counsel for appellee insists that the patent was not intended to cover a combination, but inerely, the forming of the under side of the pad by the use of a smooth sheet of leather crimped in order to have its ends turned up without producing wrinkles.

As already stated, the appellant does not use the crimped leather as the inner lining of a stuffed pad. He uses the crimped leather stiffened by a metal plate as a substitute for a stuffed pad with a crimped leather lining.

There is, therefore, no infringement, unless the patent of the appellee should be construed to cover simply a piece of leather crimped to the proper shape, and having its under side smooth and free from wrinkles, to be used to keep the upper part of the collar from galling the neck of the horse. If the patent is so construed it must be held void, for the evidence in the record is conclusive to show that such a device was made, sold, and used by many persons years before the date of the appellee's patent.

The result of these views is that
The decree of the Circuit Court must be reversed, and the

cause remanded to that court, with directions to dismiss the
bill.

CAILLOT & Another v. DEETKEN.

IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE

DISTRICT OF CALIFORNIA.

Submitted January 12, 1885.—Decided January 26, 1885.

This court can acquire no jurisdiction under & writ of error where the return to

it is made by filing the transcript of the record here after the expiration of the term of this court next succeeding the filing of the writ in the Circuit Court.

The facts are stated in the opinion of the court.

Syllabus.

Mr. J. J. Scrivner for plaintiffs in error.

Mr. John A. Wright, Mr. John F. Hanna and Mr. James M. Johnston for defendant in error.

MR. JUSTICE MILLER delivered the opinion of the court.

It has been repeatedly decided by this court that where no return has been made to a writ of error by filing the transcript of the record here, either before or during the term of the court next succeeding the filing of the writ in the Circuit Court, this court has acquired no jurisdiction of the case, and the writ having then expired, can acquire none under that writ, and it must, therefore, be dismissed. Villabolos v. United States, 6 How. 81; Castro v. United States, 3 Wall. 46; Mussina v. Cavasos, 6 Wall. 355, 358; Murdock v. Memphis, 20 Wall. 590, 624.

In the case before us the writ of error was filed in the Circuit Court in which the record was March 16, 1882, and the transcript that was returned with it was filed in this court November 28, 1884. Two full terms of the court had passed, therefore, between the filing of the writ of error in the Circuit Court and its return with the transcript into this court. It must, therefore, be

Dismissed for want of jurisdiction.

CHEONG AH MOY v. UNITED STATES.

IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE

DISTRICT OF CALIFORNIA.

Submitted January 9, 1885.-Decided January 26, 1885.

The court declines to decide a question arising in a case which no longer exists,

in regard to rights which it cannot enforce.

The facts are stated in the opinion of the court.

Opinion of the Court.

Mr. H. S. Brown and Mr. Thomas D. Riordan for plaintiff in error.

Mr. Assistant Attorney-General Maury for defendant in error.

MR. JUSTICE MILLER delivered the opinion of the court.

The plaintiff in error here is a Chinese woman who, arriving at San Francisco from China, was not permitted to land in that city, by reason of the acts of Congress of May 6, 1882, and the amendatory act of 1884, and, being forcibly kept on board the vessel, sued out a writ of habeas corpus to obtain her release.

On a hearing in the Circuit Court of the United States, it was ordered that she be returned on board the vessel in which she came, or some other vessel of the same line, to be carried back to China; and she was placed in the custody of the marshal who was directed to execute the order.

On undertaking to do this, it was found that the vessel had sailed, and the marshal placed his prisoner in jail for safe keeping, until another vessel should be at hand to remove her.

Her counsel, upon this state of facts, applied to the Circuit Court for permission to give bail on behalf of the woman and have her released from custody. The judges of the Circuit Court were opposed in opinion on the question of granting this motion, and, having overruled it, have certified the division to this court.

In the mean time it is made to appear to us, by the return of the marshal, and by affidavits, that on the 2d day of October, three days after the order was made overruling the motion, and ten days before the writ of error herein was served by filing it in the clerk's office of the Circuit Court, the marshal had executed the original order of the court by placing the prisoner on board the steamship New York, one of the Pacific Mail Steamships, about to start for China, and that she departed on said vessel on the 7th day of October. It thus appears that the order of deportation had been fully executed, and the petitioner in the writ of habeas corpus placed without the

Statement of Facts.

jurisdiction of the court, and of the United States, six days be fore the writ of error was filed in the Circuit Court, and several days before it was issued,

The question, therefore, which we are asked to decide is a moot question as to plaintiff in error, and if she was permitted to give bail, it could be of no value to her, as the order by which she was remanded has been executed, and she is no longer in the custody of the marshal or in prison.

This court does not sit here to decide questions arising in cases which no longer exist, in regard to rights which it cannot enforce.

The writ of error is dismissed.

PRICE & Others v. PENNSYLVANIA RAILROAD

COMPANY.

IN ERROR TO THE SUPREME COURT OF THE

STATE OF PENNSYL

VANIA.

Argaed January 15, 1885.—Decided January 26, 1883.

A person travelling on a railroad in charge of mails, under the provision of

$ 4000 Rev. Stat., does not thereby acquire the rights of a passenger, in case he is injured on the railroad through negligence of the company's serTants.

A statute of Pennsylvania, passed April 15, 1851, Purdon, Tit. Negligence 2, 1093, makes the provision, now become common, for a recovery by the widow or children of a person whose death was caused by the negligence of another, of damages for the loss of the deceased.

A statute passed April 4, 1868, Purdon, Tit. Negligence 5, 1094, provides that “where any person shall sustain personal injury or loss of life while lawfully engaged or employed on or about the road, works, depot and premises of a railroad company, or in or about any train or car therein or thereon, of which company such person is not an employé, the right of

Statement of Facts.

action or recovery in all such cases against the company shall be such only as would exist if such person were an employé : Provided, That this section shall not apply to passengers.”

The plaintiff in error sued the defendant in error for the loss of her husband by a death which the jury, by the following special verdict, found to be caused by the negligence of the company's servant or servants :

“We find for the plaintiff in the sum of ($5,000) five thousand dollars, subject to the opinion of the court on the question of law reserved, to wit: We find that A. J. Price at the time of his death was route agent of the United States Post Office Department, duly appointed and commissioned, his route being on the Western Pennsylvania Railroad from Allegheny City to Blairsville, in the State of Pennsylvania ; that his duties as such agent required him to be on the mail car on the mail train of said road to receive and deliver mail matter; that for the purpose of his business and that of the postal department, and in accordance with the laws of the United States and the regulations of the Post Office Department, and acceptance thereof by the railroad company, one end of the baggage car on the mail train was divided off and fitted up for the use of the Department in carrying the mails, and that the duties of the said route agent required him to be in said room in the car during the running of the train; that said Price was daily on said train, making a round trip from Allegheny City to Blairsville and return; that on the 23d day of July, 1877, while at his post in his room on said car, Mr. Price was killed in a collision of the mail train coming west with another train of the defendant company going east.

“That said collision was caused by the negligence or misconduct of the conductor and engineer in charge of the train going east in neglecting or disobeying orders, and in failing to take necessary precaution to avoid a collision.

“We find that the Pennsylvania Railroad Company, by resolution dated April 16, 1868, accepted the provisions of the act of Assembly, approved 4th April, 1868, P. L. p. 59, and that [at the) time of the collision the Pa. R. R. Co. was operating the Western Pennsylvania Railroad under lease.

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