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equivalent, between adjoining blocks of concrete, substantially as and for the purposes set forth."

The defendant answered the bill, denying the validity of the patent and denying infringement, and declaring that the concrete pavements made by him were made under and in accordance with certain letters patent granted to one J. B. Hurlburt, April 20, 1875, the process of which is described in the answer, as follows:

"The said Hurlburt invention is a novel method of forming blocks of artiicial stone or cement pavement, whereby they are prevented from becoming uneven by sinking below or rising above a common plane, and consists in beveling the edges of the blocks so that they will measure more across their under side in one direction and less across their upper side than across their under side in the other or opposite direction; and also consists in the novel construction of a forming frame, whereby the blocks are beveled as devised by using the different sides of the frame alternately; and also in the novel construction of a parting strip, whereby the colors are kept separate, showing a straight line between the blocks and while forming their edges in actual contact, the same strip being of great service to rest a straight edge upon while beveling the block in process of formation, and that by said invention the process of laying cement pavements saves from 10 to 15 per cent. in cost of labor over any other known process, entirely dispenses with tar paper or any equivalent, and all other expensive superfluities, and makes a close-beveled joint; it being impossible to raise, or attempt to raise, any separate piece of work without chiseling and digging and materially injuring adjacent work."

What the proof was as to the actual process employed by the defendant, whether it strictly accorded with Hurlburt's plan or not, does not distinctly appear. The appellee's counsel in his brief states that the respondent was originally adjudged to have infringed the rights secured by the patent, by reason of having pressed into the joints made by the cutting of the large sections into blocks with a trowel, a fine concrete which was held to be the equivalent of the tar paper, as it accomplished the objects claimed to be gained by the patented invention, viz., producing a suitable tight joint and yet allowing the blocks to be raised separately without affecting the block adjacent thereto, and allowed the several blocks to heave separately from the effects of frost. But this fact is not shown by the record before us, and we are in the dark as to what particular form of pavement was adjudged by the court to have been an infringement of the patent sued on. We only know that, proofs having been taken and the cause heard, the circuit court, on September 10, 1881, decreed as follows:

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"That the reissued letters patent No. 4,364, granted and issued on the second day of May, A. D. 1871, to John J. Schillinger, of New York, being the patent referred to in the bill of complaint herein, are good and valid in law. That the said defendant, Charles A. Molitor, has infringed said reissued letters patent, and upon the exclusive rights of the complainant under the same; that is to say, by making or selling one or more artificial concrete cement pavements within the state of California, and while the complainant was the owner of said reissued letters patent, as charged in said bill of complaint. * And that a perpetual injunction be issued in this suit against the said defendant, Charles A. Molitor, restraining him, his agents, clerks, servants, and all claiming or holding under or through him, from making, selling, or using, or in any manner disposing of, any artificial stoneblock pavements embracing the invention and improvements described in the said reissued letters patent, pursuant to the prayer of the said bill of complaint."

Had the defendant continued to make concrete pavements in the manner set up in his answer, or in the manner in which it was proved he did make

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them, and which the court decided to be an infringement, there could nave been no doubt that he would have violated the decree; but it would seem that he varied his mode of making the pavement by ceasing to make it in separate and detached blocks, and only making a mark or indentation on the surface while in a plastic state with a trowel or marker extending to a depth of from one-eighth of an inch to an inch, and thus giving the pavement the appearance of being made in detached blocks, and, in fact, answering all the purposes of detached blocks, the crease on the surface being sufficient to produce the results obtained by Schillinger's process.

In October, 1883, more than two years after the decree was entered, the complainant obtained a rule on the defendant to show cause why he should not be punished for a contempt of court in disobeying the decree; the alleged contempt consisting of the construction by the defendant of concrete pavements in the manner last mentioned, to-wit, at Redwood City, in San Mateo county. Of course, the question was at once raised whether the process now used by the defendant was an infringement of the patent. The judges being opposed in opinion, a decree was made in conformity with that of the circuit judge, declaring that the pavements thus constructed by the defendant did not infringe the patent; that there was no violation of the injunction; and that the order to show cause be discharged. A certificate was thereupon made, showing the points on which the judges disagreed, and the cause has been brought here both by appeal and by writ of error,-brought in both ways, as counsel state, because of the uncertainty as to which was the right method. *For the purpose of showing how the points of disagreement arose, and of furnishing materials for deciding them, the certificate exhibits the record and facts upon which (it is stated) the matter was heard below, consisting of— (1) The bill, answer, replication, decree, and injunction, and the order to show cause why the defendant should not be punished for contempt. (2) A statement of facts deduced by the court below from the evidence in the case, and the report of a master. This statement embraces a copy of the reissued patent of Schillinger, with the drawings annexed thereto, and a statement deduced from the testimony, describing, among other things, the manner in which the defendant, after the entry of the decree, constructed a certain pavement in Redwood City, to-wit, substantially as before mentioned. The statement closes with the following declaration, to-wit: "While the blocks laid in strict accordance with the specifications in the Schillinger patent can be more readily taken up, still the cutting and marking, or the mere marking of the surface with the marker alone, as described, affords, to a very large extent, the advantages mentioned obtained by the use of the Schillinger patent; the additional cutting with the trowel, during the process of formation, to a greater or less extent, increasing those advantages. The Exhibit C, offered as follows, is a photograph of the sidewalk as laid by defendant Molitor, claimed to be an infringement of the patent in question." The photograph exhibit is annexed to the statement.

The certificate then concludes as follows: "At the hearing of said order to show cause, at the present term of the court, upon said record, and upon the facts hereinbefore stated, there occurred as questions arising thereon-(1) Whether the laying of said concrete pavement of plastic material on the ground in the manner stated, and dividing it into smaller blocks upon the surface by cutting across the surface of the larger blocks with a trowel, and afterwards running the marker along the line of the cutting with the trowel, in all respects as hereinbefore stated, constitutes an infringement of the patent to Schillinger set out in this certificate? (2) Whether the laying of the said concrete pavement of plastic material on the ground in the manner stated, and dividing it into smaller blocks upon the surface, by cutting across the surface of the larger blocks by running the marker, without any other cutting with a trowel or other instrument than the marker described, across

the blocks, on a line previously marked, as a guide, in all respects in the manner as herein before stated, thereby controlling the line of cracking, and obtaining in a greater or less degree the advantages pertaining and belonging to the pavements laid in all respects in accordance with the specifications of said Schillinger patent, constitutes an infringement of said patent? (3) Whether the defendant Molitor, by constructing the said pavement in all respects in the manner hereinbefore stated, is guilty of violating the injunc tion granted and made perpetual by the decree in this case? Upon which said several questions and upon each of them the opinions of the judges were opposed.

etc.

These are the questions which we are now called upon to answer. We are met, however, at the outset, by a preliminary question, to-wit, whether the points thus presented by the certificate of the judges below come within the meaning of the statute which authorizes this court to decide questions of law on which the judges of the circuit court are opposed in opinion. It is not a difference of opinion on the general case which may be thus certified. Such a difference would properly result in a decree for the defendant, or party holding the negative, subject to an appeal to this court in the ordinary course. It is only a difference on a special point of law which can be distinctly stated, that may be certified to this court under the statute. Section 652 of the Revised Statutes declares that when a judgment or decree is entered in a civil suit, in a circuit court held by two judges, in the trial or hearing whereof any question has occurred upon which the opinions of the judges were opposed, the point upon which they so disagreed shall be stated and certified, The language is copied from the act of 1802, and shows that a certificate can only be resorted to when*"a question" has occurred on which the judges have differed, and where "the point" of disagreement may be distinctly stated. This court has frequently held that the "question" referred to must be a question of law, and must be capable of being presented in a single point. Chief Justice MARSHALL, in Wayman v. Southard, 10 Wheat. 20, said: "The law which empowers this court to take cognizance of questions adjourned from a circuit, gives jurisdiction over the single point on which the judges were divided, not over the whole cause. In Dennistoun v. Stewart, 18 How. 565, the matter is examined with precision. In that case the judges differed in opinion as to the charge which should be given to the jury upon the evidence adduced. The evidence was set forth in the certificate, and the points upon which the judges differed as to the charge to be given were stated. The court, speaking by Mr. Justice DANIEL, (page 568,) recapitulated the interpretations which had been given to the act in reference to the requisites of its jurisdiction on such certificates. (1) They must be questions of law, and not questions of fact,-not such as involve or imply conclusions or judgment by the judges upon the weight or effect of the testimony or facts adduced in the cause, (referring to Wilson v. Barnum, 8 How. 258.) And the question on which the judges differed must be stated; not whether a demurrer made on several grounds should be sustained, (referring to U. S. v. Briggs, 5 How. 208.) (2) The points stated must be single, and must not bring up the whole case for decision, (referring to U. S. v. Bailey, 9 Pet. 267; Adams v. Jones, 12 Pet. 207; White v. Turk, Id. 238; Nesmith v. Sheldon, 6 How. 41; Webster v. Cooper, 10 How. 54.) And, inasmuch as the certificate in that case (Dennistoun v. Stewart) did not present a single or specific question of law arising in the progress of the cause, but referred to this court the entire law of the case as it might arise upon all the facts supposed by the court, the case was remanded to the circuit court to be proceeded in according to law, without any answer to the questions propounded.

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The cases and points adjudged on the subject are very fully rehearsed by Mr. Justice SWAYNE, in Daniels v. Railroad Co.*8 Wall. 250. That was an action for an injury caused by a collision of railroad cars, and, after reciting

the evidence, the certificate stated that this was all the evidence, and thereupon it occurred as a question whether, in point of law, upon the facts as stated and proved, the action could be maintained, and whether or not the jury should be so instructed; and, on this question, the judges were opposed in opinion. The court refused to consider the case, and dismissed the certificate.

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The case of Wilson v. Barnum, 8 How. 258, is especially worthy of note in this connection. The question certified in that case was whether, upon the evidence given, the defendant infringed the complainant's patent. Chief Justice TANEY, delivering the opinion of the court, said: "The question thus certified is one of fact, and has been discussed as such in the arguments offered on both sides. It is a question as to the substantial identity of the two machines. The jurisdiction of this court to hear and determine a question certified from the circuit court is derived altogether from the act of 1802, and that act evidently gives the jurisdiction only in cases where the judges of the circuit court differ in opinion on a point of law. * * * In the multitude of questions which have been certified, this court has never taken jurisdiction of a question of fact. And in a question of law it requires the precise point to be stated, otherwise the case is remanded without an answer." And the case was remanded for want of jurisdiction.

It seems to us that the certificate in the present case is obnoxious to the objections presented in the cases cited. The new controversy raised by the defendant's construction of the pavement in Redwood City is substantially a new suit on the patent; and we are asked to decide it. We are asked to say whether a pavement constructed in such and such a manner is an infringement of the patent as the circuit court has construed the patent. And this is a mixed question of fact and law. By the final decree in the case, made in 1881, the court decided that the pavements which the defendant had been theretofore making did infringe the patent. How those pavements were constructed we are not informed; and therefore we do not know what was the precise construction given by the court to the patent. Whether the new pavement, constructed in Redwood City, is an infringement or not, is just as much a mixed question of law and fact (as the case is presented to us) as was the question whether the pavements formerly constructed by the defendant were an infringement. It is a question which the circuit court must decide for itself in the ordinary way. If the judges disagree there can be no judg ment of contempt; and the defendant must be discharged. The complainant may then either seek a review of that decision in this court, or bring a new suit against the defendant for the alleged infringement. The latter method is by far the most appropriate one where it is really a doubtful question whether the new process adopted is an infringement or not. Process of con. tempt is a severe remedy, and should not be resorted to where there is fair ground of doubt as to the wrongfulness of the defendant's conduct. The case must be dismissed, with directions to the circuit court to proceed therein according to law.

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1. MORTGAGE-CONSTRUCTIVE POSSESSION BY MORTGAGEE-USE AND OCCUPATION-INTER

EST.

If a mortgagee, who takes a merely constructive possession of the mortgaged premises, has not therein such a valuable interest as warrants a claim upon him by the mortgagor for use and occupation, the mortgagor cannot, on the ground of set-off, ask to be relieved of his liability for interest on the debt secured.

2 SAME-USE AND OCCUPATION-DAMAGES FOR WITHHOLDING LAND.

in an action for use and occupation, the plaintiff cannot recover for his failure, through defendant's withholding the land from him, to make a profitable sale.

819.

PEUGH V. DAVIS.

SAME-INTEREST-TENDER OF MONEY.

623

In order to be relieved of interest on a debt secured by mortgage, accounting from a certain time, the plaintiff should show that at that time he made an actual tender of the money owed.

Appeal from the Supreme Court of the District of Columbia.

R. T. Merrick, M. F. Morris, T. T. Crittenden, and L. H. Pike, for appelant. A. G. Riddle and H. E. Davis, for appellee.

*MILLER, J. This case was before us at the October term, 1877, and the question then was whether certain instruments of writing, made by Peugh So Davis, constituted an absolute conveyance of lots in the District of Columoia, or were in the nature of a mortgage security for loan of money. The court was of opinion that, on all the facts of the case, the latter was the true construction of the transaction between the parties. The court below was directed to permit the plaintiff Peugh to redeem the property by the payment of the loan, with interest at 6 per cent. per annum, and, as it appeared that the defendant had taken possession of the property, it was said in the opinion that he "should be charged with a reasonable sum for the use and occupation of the premises from the time he took possession in 1865, and allowed for the taxes paid and other necessary expenses incurred by him." 96 U. S. 332. Upon the return of the case to the supreme court of the District of Columbia it was referred to an auditor to ascertain the sum necessary to redeem on that basis. Two reports were made, neither of which were entirely acceptable to the parties or to the court, which finally, by a decree in general term, allowed nothing for use and occupation by defendant, but did make an allowance for a sum received from the United States for its use, after deducting from this latter sum the amount paid to an agent for its collection.

The appellant assigns for error that no allowance was made him for the use, and occupation by defendant. The reply to this is that he never used and occupied it or received any rents, except the amount for which he is charged as▾ received from the government. The lots were open, uninclosed, with no buildings on them, and no actual possession or use of them was had by the defendant. His possession was merely constructive under his interpretation The witnesses say it was worth of the contract, that the land was his own. nothing in its actual condition, and no evidence is given to the contrary. It is urged that a sum equal to the interest on the money borrowed by Peugh should be allowed as rent, or for occupation, from the time Davis asserted his ownership and possession. We can see no reason for this, and it would have been in conflict with the instruction contained in the opinion of this court that he "should be charged a reasonable sum for the use and occupation." If this was worth nothing, that was the end of that matter.

It is said that during the period in question the land rapidly rose in value and afterwards declined; that Peugh could have sold it, and probably was offered a sum for it which would have left him a large profit; and that he ought in this transaction to set off this loss against the amount he must pay to redeem. This is not allowance for use and occupation. It is damages for a tort. It cannot be recovered in this suit, if it could be recovered in any. The short answer to all this is that Mr. Peugh owed the money he had borrowed from Davis. What he is now claiming in the original suit is the right to pay the money and have a reconveyance of the land. Nothing hindered during all this time that he should pay this money; and if, as he alleges, Davis denied his right to do so, then he should have made a regular If he had done so, the interest would and lawful tender of the amount due.

have ceased to run against him, and the amount that he is now required to pay would have been diminished by more than one-half. A lame attempt is made to show that he did make this tender. Some evidence is offered that, he told Davis that he was ready to account with him and pay what was due, and that he had the money with him. But in order to make a tender that

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