[24]

The claims of the patent are three in number, | 28, 1882, has no spring and no elastic or resilient
as follows: "1. In combination with a wash-quality, does not yield to pressure, and has no
board, a protector constructed substantially as capacity of returning automatically to its nor-
described, so as to yield to pressure and to return mal position.
to position when said pressure is relieved, sub-
stantially as and for the purpose shown. 2.
The combination, with a wash-board, of a pro-
tector and a spring, said spring interposed be-
tween the wash-board and protector, and con-
structed to operate in retaining said protector
in its open position and to return it to that po-
sition when removed therefrom. 3. In combi-
nation with a wash-board, a protector located
below the crown piece and between the side-
pieces of the wash-board frame, and constructed
to fold down into or upon said wash-board even
with or below the general plane of said wash-protector from the cap piece, it can be placed
board frame, substantially as and for the pur-
pose shown." Only claim 3 is alleged to have
been infringed.
The defenses set up were want of novelty and
noninfringement. Several prior patents were
introduced in evidence, as bearing upon the
question of the proper construction of claim 3,
and upon the question of infringement. They
are No. 8161, to William T. Barnes, June 17,
1851; No. 127,325, to John Epeneter and Bern-
hardt Grahl, May 28, 1872; No. 146,433, to James
A Cole, January 13, 1874; No. 150,315, to Anna
Frike, April 28, 1874; and No. 222,846, to
Wyatt M. Stevens, December 23, 1879. The
circuit court dismissed the bill and the plaintiffs
have appealed.

The specification of the Gorham patent clearly shows that the protector whose combination with a wash-board is the subject of the invention, is a protector constructed to bend or yield to pressure, and to return to its position when such pressure is removed, in contradistinction to a protector which is rigid and is rigidly attached to the wash board frame; and also in contradistinction to a protector which is attached to the wash-board frame by a joint or pivot, and is allowed a swinging movement, but possesses no elastic or resilient function, and when moved by pressure has no power to return again to its normal position when such pressure is removed. The specification states that the invention of Gorham is designed to overcome the defects presented in those two old types of protectors. The invention does not comprehend a protector which is not constructed so as to bend or yield to pressure, and to return to its position when such pressure is removed. The description and drawings of the Gorham protector are limited to such a construction, and do not show or indicate any other.

The operation of the device is stated in the specification to be such that the spring or the elastic character of the protector itself serves always to keep the protector in operative position, because it yields to pressure against it in such a way as always to press snugly against the person, and to return at all times to position when such pressure is removed. This feature of the protector is not claimed to have been infringed by the defendant. The defendant's protector, constructed in accordance with the description contained in letters patent No. 255,555, granted to Charles H. Williams, March

In the defendant's structure, the ordinary [25] cap piece of the wash-board has a rounded exterior surface, and its inner surface performs the function of a protector. Upon the upper edge of such cap piece is mounted a supplemental protector, the two parts being locked rigidly together by a tongue-and-groove joint. From the ends of the supplemental protector are extended rigid arms, which are slotted and connected to the side pieces of the frame by means of pins, one of which passes through each slot. By removing the supplemental between the side pieces of the frame, so as to stand edgewise therein, by drawing it slightly backward, by then raising it slightly, by then advancing it to the front, and by then dropping it and placing it edgewise within the frame. In this latter position, the structure is adapted for packing. Not only is the defendant's protector without any yielding or resilient function, but it is not pivoted after the manner of the Gorham protector, nor does it fold down in the manner of the Gorham protector, in the sense of the words fold down," as used in claim 3 of the Gorham patent.

The contention of the plaintiff is that claim 3 of the patent does not require, as an element of the combination covered by it, that the protector should have any yielding, elastic or resilient function, or should be accompanied by a spring; but that it is sufficient if, by any mechanism, it can be so disposed of as to be packed away for convenience in shipment, or for other purposes, in a flat manner, in the vacant space in which it is packed; and that, as the defendant's protector is to a large extent packed away in the same vacant space, claim 3 is infringed. It may be questionable whether, if the claim were to be construed thus broadly, it would not be for merely a new use of a device before used in many things besides wash boards.

But, in view of the state of the art, as shown by the patents above referred to, and in view of the course of proceeding in the Patent Office on the application for the Gorham patent, we are of opinion that claim 3 of that patent cannot be so construed as to cover a protector which does not have the yielding, elastic or [26] resilient function of the Gorham protector, and is not accompanied by a spring or constructed substantially according to the description in the Gorham specification. Gorham evidently had no idea of such a construction as that of the Williams patent, found in the defendant's wash-board; and no person could, by following the description in the Gorham specification, arrive at the defendant's structure..

Claim 3 of the Gorham patent requires that the protector shall be "constructed to fold down," "substantially as" "shown." The defendant's protector is not constructed to fold down in the manner of the Gorham protector, and is not constructed substantially as shown in the Gorham specification.

The decree of the Circuit Court is affirmed.

[45] THE CITY OF NEW ORLEANS, Piff. in security, an injunction or prohibition may be

[46]

Err.,

0.

granted to stop the sale. If no injunction is
issued, and the sale takes place, if the opposi-
tion is sustained, the seizure and sale are an-

THE LOUISIANA CONSTRUCTION COM- nulled, and the property restored. In the case

PANY (Limited) ET AL.

(See S. C. Reporter's ed. 45-47.)

Legal and equitable remedies-Louisiana Code-
writ of error, when proper.

1. Remedies in the Courts of the United States are
at common law or in equity, according to the essen-
tial character of the case, uncontrolled in that par-
ticular by the practice of the state courts.

2. The objection that an intervention, called a "third opposition" by the Code of Louisiana, cannot be availed of by defendant in execution in regard to property so situated as that involved in this case, should have been made in the circuit court and cannot be properly disposed of on motion to

dismiss or affirm.

3. A judgment in a short and summary proceeding, analogous to the statutory remedy given in many of the States to try the right of property at the instance of the party whose property is alleged to be wrongfully seized, is a judgment at law and reviewable upon writ of error.

[No. 1104.]

Submitted Dec. 17, 1888. Decided Jan. 7, 1889.

ERROR to the Circuit Court of the United

I States for the Eastern District of Louisiana,

On motion to dismiss or affirm. denied.

Motions

at bar an order of prohibition was directed to
be issued upon the city giving security as pre-
scribed. This it failed to do, and the property
was sold to Newman, as before stated.

The construction company now moves that
the writ of error be dismissed, upon the ground
that the cause was in equity, and therefore
should have been brought here by appeal, and
if that motion is overruled, that the judgment
be affirmed.

The rule is thoroughly settled that remedies in the Courts of the United States are at common law or in equity, according to the essential character of the case, uncontrolled in that particular by the practice of the state courts. In Van Norden v. Morton, 99 U. S. 378 [25:453], where a bill addressed to the Circuit Court of the United States for the District of Louisiana, sitting in chancery, alleged that complainant was the owner of a dredge boat, which had been seized on an execution against another party, and prayed for an injunction, for the quieting of title and possession and for damages, it was held that, under the provisions of the Louisiana Code of Practice pertaining to

the subject, the remedy was at law and not in

to review a judgment rendered on verdict of equity, and the bill was for that reason dis-
a jury against the City of New Orleans upon missed. But it is urged that there the injunc
its" petition of intervention and of third option was sued out by a third person, not origin.
position," claiming property to be exempt from ally a party to the cause, claiming ownership
execution.
of the property seized; that the property was
personal; and that it was not burdened with
any trust; whereas, it is said that here the city
was the defendant in execution; that the prop-
erty seized was real; that the city claims it as
trustee because locus publicus; and that the
contention of the city involves the elements of
trust, injunction, and prevention of cloud on
title, all exclusively cognizable in a court of
equity.

The facts are stated in the opinion.
Mr. E. Howard McCaleb, for defend-
ants in error, in support of motions.

Messrs. Carleton Hunt and Henry C.
Miller, for the City of New Orleans, in op-
position.

Mr. Chief Justice Fuller delivered the opinion of the court:

By the writ of error in this case a judgment of the Circuit Court of the United States for the Eastern District of Louisiana is brought up for revision, which was rendered by that court, after a trial by jury and on the verdict found, against the City of New Orleans upon its "petition of intervention and of third opposition," claiming certain property to have been exempt from seizure and sale on execution, which had been advertised for sale by the United States Marshal under a writ of fieri facias issued upon a certain judgment recovered against said city by the Louisiana Construction Company, one of the defendants in error, and which, as appeared by an amended petition, was sold by said marshal to Isidore Newman, who, with Louis E. Lemaire, attorney in fact of said construction company, and R. B. Pleasants, the United States Marshal, were made parties to said petition as amended.

By articles 395, 396, 397, 398, 399 and 400 of the Code of Practice of Louisiana, when property not liable is seized on execution, the remedy of the owner is by an intervention called a third opposition, on which, by giving

The circuit court, however, took jurisdiction of the intervention of the city as "third opponent," and the intervention being answered, proceeded to trial on the merits and to judg ment accordingly.

The objection of the construction company that third opposition cannot be availed of by a defendant in execution or in regard to such property and so situated, as that involved in this case, should have been made in the circuit court, and cannot be properly disposed of on this motion.

As the judgment stands, it is a judgment in a short and summary proceeding before the court under whose authority the marshal was acting, analogous to the statutory remedy given in many of the States to try the right of property at the instance of the party whose property is alleged to be wrongfully seized, and as such, as determined in lan Norden v. Morton, supra, is at law, and properly review able upon writ of error. The motion to dismiss is therefore denied; and as we do not think there was color for it, the motion to affirm must be denied also.

Motions denied

[47]

After the report of sale by a master is confirmed there are, according to the English practice, three means of remedying the failure of the purchaser to comply with terms of sale. 1. The acceptance or rejection of a bid, at a sale Lansdown v. Elderton, 14 Ves. Jr. 512; Hardunder a chancery decree, is within the sound equi-ing v. Harding, 4 Mylne & C. 514; Anderson table discretion of the court, to be exercised with v. Foulke, 2 Har. & G. 346; Gordon v. Saundue regard to the special circumstances of the case ders, 2 McCord, Ch. 151; Brasher v. Cortlandt, 2 Johns. Ch. 505; 2 Dan. Ch. Pr. 1460, 1461, 1462; Clarkson v. Read, 15 Gratt. 291; Hill v. Hill, 58 Ill. 239; Rorer, Sales, § 159.

APPEAL from an order of the Circuit Court Wall, 238 (17; 827); Gordon T. Saunders, 2 Mo

[74]

On the first of May, 1884, the property was offered by commissioners for sale at public auction, and Charles H. Shattuck became the purchaser at the price of $163,000, although he was at the time special receiver of the rents, profits and product arising therefrom. He was personally interested in his bid to the extent of about $20,000. Who his associates were is not disclosed by the record. The sale was duly reported, the commissioners receiving from Shattuck on the day of sale the entire amoun

West Virginia Oil and Oil Land Company was | each asserting a right to have his demand paid indebted, in specified amounts, to various cred-out of the proceeds; some of them claiming itors, who were entitled to be paid out of the priority over any creditor whose debt had been property in question, according to certain pri- specifically provided for by the decree. orities, and that upon its failure to pay them, within a prescribed time, the property should be sold at public auction, "upon the terms cash in hand on the day of sale." The decree shows that William D. Thompson, Richard A. Storrs, and Heman Lewis held debts that were to be first paid, equally and ratably, out of the proceeds of sale. The other debts, made liens up on the property by the decree, were held by James H. Carrington, A. C. Worth, W. H. Beach, the Toledo National Bank, R. S. Blair, Benjamin B. Valentine and Heman Loomis.bid by him. Before the property was offered for sale, a writing was prepared purporting in its caption to be an "agreement made this day of November, 1883, between J. N. Camden, J. H. Carrington, W. H. Beach, A. C. Worth, Toledo National Bank, R. S. Blair, B. B. Valentine and Heman Loomis." It provided, among other things, that Camden should purchase the property, when sold under the decree, for the mutual benefit of "the parties hereto," if it sold for a sum not exceeding the aggregate amount of the claims against it, including interest and costs; that if he bought, he should, as agent and trustee of the parties, apply their claims in payment of the purchase money required at the sale, and place on record a declaration of trust showing that the property was 5] held by him in trust for the payment of said debts, but that it should belong to him, in fee simple, when he paid them off; the rents, issues and profits thereof, after deducting necessary expenses, to be applied by the trustee as follows:

William P. Thompson and Oliver H. Payne, with William N. Chancellor as their surety, having executed a bond conditioned that if the property was resold they would bid the sum of $173,000, and having deposited the sum of $10,000, as additional security, the court directed a resale, and required the commissioners to return to the purchaser (which they did) the moneys theretofore received from him.

The next sale occurred on the first day of October, 1884, when Thompson and Payne, by Camden, acting as their agent, bid the sum of $173,000. But Camden bid, in his own name, the sum of $173,050, and, being the highest bidder, was declared the purchaser. In their report of sale the commissioners state:

"The said Camden did not, and has not as yet, paid to your commissioners the sum of money so bid and offered by him for said property as aforesaid, or any part thereof; but when your commissioners required the cash from said Camden, pursuant to the terms of said sale, he tendered to us a paper purporting to be a "1. The balance, if any, due to J. N. Cam- copy of a contract in writing made between den, assignee of W. D. Thompson, shall be several of the creditors mentioned in said defully paid. 2. Then forty per cent of the pro- cree of the 17th of November, 1883, authorizceeds of said property shall be paid to Heman ing the said Camden, as the agent or trustee of Loomis and sixty per cent thereof to the said the said creditors who signed said contract, to Carrington, Worth, Beach, Toledo Nation-purchase the said property at any sale thereof al Bank, Blair and Valentine, according to their rights and priorities, as fixed by the said decree, as between the six parties last named, until they and each of them are fully paid. 3. Then sixty per cent of said proceeds shall be paid to said Carrington, so far as to reimburse and indemnify him such sums of money, if any, as he may be held liable for as maker, acceptor, or indorser of two certain bills of exchange, for the payment of which the said West Virginia Oil and Oil Land Company is primarily liable, one of which bills is supposed to be held by Marietta Arnold, of Michigan, and is for the sum of $1,500, and the other is held by the National Bank of Commerce in New York, and is for the sum of $2,481.89. 4. After the payment of the foregoing amounts the said property shall be held in trust for the payment of any balance due the said Heman Loomis until the same is fully paid."

This writing was signed by all the parties named in its, caption, except Beach and the Toledo National Bank.

It should be here stated that before any sale took place several judgment creditors of the West Virginia Oil and Oil Land Company were allowed to intervene in the cause by petition,

that might be made under said decree, and as-
signing to him the amounts decreed in favor
of each of said several creditors, for the pur-
pose of his using and applying the same in
payment of the sums so bid by him for said
property. Said copy of the contract, with the
paper thereto attached, signed by Heman
Loomis, by B. M. Ambler, his attorney, bear-
ing date September 30, 1884, is herewith filed.
Said Camden also exhibited to your commis-
sioners the original of the said contract from
which the copy hereto attached was made.
Your commissioners declined to receive the
said contract in payment, in whole or in part,
of the purchase money so bid by said Camden
for said property, or to accept anything in pay-
ment thereof except lawful and current money
of the United States, and this the said Camden
has not as yet paid."

The "paper" here referred to was a letter
from Loomis, in which he notified Camden
that the latter would be held liable if he did not
buy the property pursuant to the terms and
conditions of the writing of November, 1883.

On the 6th of October, 1884, Camden filed his petition in said suit, in which he states that it was distinctly agreed by all whose names are mentioned in its caption, that he should, as

[76]

[77]

[78]

Shattuck, and all costs rendered necessary by
his_failure to comply with the terms of sale,
and that the last sale to Shattuck should be
confirmed, unless either Camden or Thompson
and Payne would take the property at the
amounts of their respective bids.

their agent, purchase the property, and that
each of them did, in person, or by their repre-
sentatives, assent to that contract and its terms.
He alleges: "Your petitioner now discovers
that the paper was not actually signed by W.
H. Beach or by said bank. He believes and
charges that both are bound by said agreement The record shows that after announcing this
though they did not sign the same, but to avoid opinion the court offered Camden, who was
any vexatious litigation your petitioner is will- then present, with his counsel, the privilege of
ing to pay, if required by the court, the full taking the property at the sum bid by him, and
amount of the claims of said Beach and of said of having his purchase confirmed, if he would
bank in cash. Your petitioner prays that, the pay in cash the amount bid by him. This of-
premises being considered, he may be allowed fer was refused, Camden declaring in open [79]
to apply the claims and debts adjudged by said court that he would not take the property un-
decree in discharge of his liability for the pur-less the sale was confirmed on the basis of the
chase money; that his compliance with the terms alleged contract of November, 1883, between
of said contract may be considered and decreed him and others. The court then called on him,
a compliance with the terms of said sale; that as the agent of Thompson and Payne, to elect
the said contract may be received in discharge for them whether they would take the property
of his bid; that the sale be confirmed, and that at the sum he had bid for them, and pay the
a deed be made to your petitioner for the said cash therefor; and he thereupon declared that,
property, and that the court will make such while he had authority to make the bid origi
further order or decree and grant such other nally, he had not authority to make an election
and general and further relief in the premises for them under the offer now made. An order
as your honors may deem right, as in equity was thereupon, May 15, 1885, entered, vacat-
may be proper."
ing the order of the third day of November,
1884, canceling the bond of Thompson, Payne
and Chancellor, confirming the last sale of
Shattuck, and directing the commissioners, by
proper deed, to convey the property to him.

Exceptions were filed by Carrington, Worth, Beach, the Toledo National Bank, Valentine and Blair to the report of sale, and, on their motion, a rule was awarded against Camden to show cause why he should not pay the sum of $173,050 bid by him for the property, or why the sale should not be set aside, and a resale had at his risk and cost. His petition above referred to was accepted as his answer to that rule. After answers filed by various creditors to Camden's petition, the court, upon application of Thompson and Payne, made an order canceling their bond, and ordering that the $10,000, deposited in the registry of the court, be returned to them, which was done. Subsequently a motion was made by several creditors to set aside that order as having been improperly procured and made, without notice to them.

The exceptions to the report of sale were sustained, the sale set aside, and the commission ers directed to resell the property at the cost of Camden for cash in accordance with the original decree; and "If the said property shall be sold for a less sum than $173,050, the said bid of the said Camden, the court reserves for future determination in this cause the question whether the said Camden will be required to pay the deficiency."

The third sale occurred March 17, 1885, and the property then brought only $119,100, Shattuck becoming the purchaser, and paying that amount in cash to the commissioners. To this sale certain creditors filed exceptions on the ground, among others, that the amount bid was grossly inadequate. In addition, some of them filed petitions which Camden answered, whereby an issue was made as to the confirmation of the last sale, and as to his liability for the deficiency. Upon these matters the parties took proof. The cause was heard before Chief Justice Waite, when a final order was made, June 6, 1885, reciting, among other things, that the court was of opinion that, if the last sale was confirmed, Camden, by virtue of his bid, was liable to pay the difference between the sum of $173,050 and the amount, $119,100, bid by

It was further decreed that Camden pay into the registry of the court, for the benefit of such of the parties to the suit or other persons as might be entitled thereto, the sum of $53,950, with interest, and the costs rendered necessary by his failure to comply with the terms of his bid in cash. Mayhew v. West Virginia Oil & Oil Land Co. 24 Fed. Rep. 205. This is the decree which is here for review upon Camden's appeal.

It is undoubtedly true that Camden's bid of $173,050 was, in legal effect, only an offer to take the property at that price; and that the acceptance or rejection of that offer was within the sound and equitable discretion of the court, to be exercised with due regard to the special circumstances of the case and to the stability of judicial sales. Milwaukee & M. R. Co. v. Soutter, 72 U. S. 5 Wall. 662 [18: 680]; Williamson v. Dale, 3 Johns. Ch. 290, 292; Kable v. Mitchell, 9 W. Va. 492, 509; Core v. Strickler, 24 W. Va. 696; Busey v. Har din,2 B. Mon. 407, 411; Hays' App. 51 Pa. 58,61; Childress v. Hurt, 2 Swan,489; Duncan v. Dodd, 2 Paige, 100, 101. It is further contended that an acceptance of that offer could only have been manifested by an order confirming the sale; and as no such order was in fact made, that Camden could not be held liable for a deficiency [83] arising upon a resale of the property. In support of this position his counsel cite Daniell's Chancery Practice and Pleading, Vol. 2, *1281, Cooper's ed., in which it is said: "The rule that the master's report of a purchase must be absolutely confirmed before the contract can be considered as binding, applies equally to cases in which it is sought to compel a purchaser to complete his purchase, as where it is sought to enforce the contract against the vendor. As a preliminary step, therefore, towards enforcing the completion of the contract, it is necessary to have the report confirmed." The present case, however, is not one in which it is