[244]

2.

apparatus to a similar or analogous subject, with
no change in the manner of application, and no
result distinct in its nature, will not sustain a
patent, although the new form of result may not
have before been contemplated.

Competent knowledge and skill of an intelligent

mechanic would have enabled him to construct
the revolving billiard-cue rack in question with-
out calling the inventive faculty into play.

January 7, 1868, for a revolving cue rack, is void
for want of novelty.

[No. 257.]

Argued April 11, 1890. Decided April 28, 1890.

board has the same plenary power in respect to
this new department, and is not hampered by
limitations attached to the board which there-
tofore had control of it. The presumption
against implied repeal obtaining in the con-
struction of ordinary statutes yields to the in-
ferences arising from the subject matter of leg
islation. Plenary powers having been found
by experience valuable in the management of 3. The patent, No. 72,969, granted to Brunswick,
affairs already under the control of the board,
the transfer of another department to the same
control carries with it a strong implication that
the added department is subject to the same
plenary powers. The primary thought is not
a mere transfer of authority, but the bringing
of the added department within the control of APPEAL from a decree of the Circuit Court
of the United States for the District of
the general supervising board. It is unity of California in favor of complainant for an in-
administration and not change of commission.fringement of letters-patent. Reversed.
But our conclusions are not controlled by
this construction alone. The court below placed Statement by Mr. Chief Justice Fuller:
its decision on what we conceive to be the true This was a bill filed by Emanuel Brunswick
significance of the Act of 1878. As said by against Ferdinand de St. Germain in the Cir-
that court, it is to be regarded as an Organic cuit Court of the United States for the District
Act, intended to dispose of the whole question of California, October 25, 1880, for an alleged
of a government for this District. It is, as it infringement of letters-patent No. 72,969, grant-
were, a constitution for the District. It is de-ed to Brunswick January 7, 1868, for a revolv.
clared by its title to be an Act to provide ing cue rack.
permanent form of government for the Dis- The defendant demurred to the bill February
trict." The word "permanent" is suggestive. 16, 1881, and among other causes of demurrer
It implies that prior systems had been tempora- assigned that "the said complaint does not de-
ry and provisional. As permanent it is com- scribe or set forth any new or useful invention
plete in itself. It is the system of government. or discovery, or any invention or discovery
The powers which are conferred are organic patentable under the Patent Laws of the United
powers. We look to the Act itself for their ex- States, but, on the contrary, the descriptions
tent and limitations. It is not one Act in a of the alleged inventions contained in said com-
series of legislation, and to be made to fit into plaint show that the same is not patentable."
the provisions of the prior legislation; but is a The demurrer was overruled, whereupon the
single complete Act, the outcome of previous defendant answered, denying, among other
experiments, and the final judgment of Con- things, that the alleged invention was of any
gress as to the system of government which utility or value. Replication having been filed,
should obtain. It is the constitution of the proofs were taken, and an interlocutory decree
District, and its grants of power are to be taken was entered on the 12th of May, 1884, in favor
as new and independent grants, and expressing of the complainant, sustaining the patent, find-
in themselves both their extent and limitations. ing that there had been infringement, and
Such was the view taken by the court below; referring the case to a master to take and state
and such we believe is the true view to be taken an account of the gains and profits, and also
of the Statute. Regarded in this light, but one the damages. The master subsequently re-
interpretation can be placed upon the section ported that the defendant had realized $1,176
quoted. The power to remove is a power with-profits from the manufacture and sale of the
out limitations. The power is granted in gen-cue rack, but that no damages had been sus-
eral terms, as well as the authority to adopt such
provisions as may be necessary to carry it into
execution. Full authority is given to the com-
mission; and in the absence of rules and regu-
lations directing a different procedure, its act
of summary dismissal cannot be challenged.
The judgment is affirmed.

tained by complainant, by reason of respond-
ent's sales, over and above the profits. Excep-
tions were filed by both complainant and de-
fendant and were overruled by the court, and
on the 27th of May, 1886, a final decree in
complainant's favor was entered in the case,
for the amount reported by the master, with
interest and costs, and an appeal duly taken to
this court by the defendant.

The first error assigned is, "that the court

[227] FERDINAND DE ST. GERMAIN, Appt., erred in holding that the said letters-patent

EMANUEL BRUNSWICK.

(See 8. C. Reporter's ed. 227-231.)

were valid." The specification, drawings and
claim are as follows:

"Be it known that I, E. Brunswick, of the

Patentability of inventions—inventive faculty- City of Chicago, in the County of Cook, State

void patent.

[228]

of Illinois, have invented new and useful im. [229]
provements in billiard cue racks, and I do here-
by declare that the following is a full and ex-

1. The application of an old process or machine or
NOTE.-For what patents are granted; when de-act description thereof, reference being had to

clared void. See note to Evans v. Eaton, 4: 433.

As to patentability of inventions, see note to Thompson v. Boisselier, 29: 76; also note to Corning v. Burden, 14: 683.

the accompanying drawings, making part of
this specification, in which

"Drawing No. 1 represents the plain revolv.
ing cue rack; and

[244]

to revolve about a common centre and bring | also authorized Robertson, in case it should be
around dishes and decanters in that way, as de- deemed advisable and to the interest of all con-
sired. The office performed was the same in cerned that a sale of the property should take
respect to dishes and decanters as that per- place, to sell and make titles to it, provided the
formed by complainant's contrivance in respect consent of the said Frances and Fanny, their
to cues. The difference between revolving and guardian or guardians, should be first had and
stationary tables and casters and between re- obtained.
volving and stationary cue racks is the same.
Those revolve and these do not. We think
that competent knowledge and skill in his call-
ing on the part of an intelligent mechanic
would have enabled him, on request, to con-
struct the revolving billiard-cue rack in ques-
tion, without calling the inventive faculty into
play.

The patent was void for want of novelty, and the decree is reversed and the cause remanded, with a direction to dismiss the bill.

In March, 1879, Fanny Gardner filed a bill in equity, in the Superior Court of Richmond County, Georgia, setting forth the purchase of the lot of land by Gardner from Carrie, for $600, and the making of such deed; that Gardner, who was her husband, and the father, by a former wife, of Frances Gardner, who had intermarried with one Beatty, died in 1865; that all of those persons were free persons of color; that, on the 3d of May, 1854, Gardner and the plaintiff and Frances took possession of the property; that afterwards, Frances having married, Gardner divided the lot and erected a house on a part of it for Frances; that the

FRANCES BEATTY ET AL., Plffs. in Err., parties thus continued in the possession of the

V.

GEORGIA BENTON, Exr'x,

(See S. C. Reporter's ed. 244-254.)

Review of state judgment.

Where the case was decided by the state court on
an independent ground, broad enough to main-
tain the judgment and not involving a federal
question, even though the state court also decided
a federal question, this court will dismiss the writ
of error without considering the federal ques-
tion.

[No. 279.]
Submitted April 18, 1890.

1890.

Decided April 28,

IN ERROR to the Supreme Court of the
State of Georgia to review a judgment, af-
firming a judgment of the Superior Court of
Richmond County in that State, in favor of
plaintiff, settling her title to certain land. Dis

missed.

property until the death of Gardner; that from
that time Frances had remained in posses-
sion of the portion of the lot on which the
house was erected for her use, and the plaintiff
had occupied the remaining part of the lot; that
the deed to Robertson was void, because at
that time all conveyances of real estate in Au-
gusta to or for the use of free persons of color
residing therein were prohibited by law; that
the plaintiff acquired title to the property oc-
cupied by her, by actual adverse possession of
the same for twenty years, and Francis had
acquired title in the same way to the premises
occupied by her; that the plaintiff desired to
sell her part of the property, but could not do
so, because Frances claimed that under the
terms of the trust deed she owned a re-

mainder interest in the whole of the property.
and the plaintiff had only a life estate therein;
and that the property could not be sold except
with the consent of Frances.

owned a fee-simple title to the portion of the
The bill prayed for a decree that the plaintiff
lot so occupied by her; that the trust deed be
canceled; that, if the court should hold that the

The facts are stated in the opinion.
Mr. Salem Dutcher for plaintiffs in error. title of the plaintiff and of Frances was derived
(No counsel for defendant in error.)

Mr. Justice Blatchford delivered the opinion of the court:

On the 3d of May, 1854, one Carrie executed and delivered to Elijah D. Robertson, a white man, a warranty deed of a lot of land in Augusta, Georgia, 82 feet 6 inches in width by 200 feet in depth. The consideration expressed in the deed was $600, and it conveyed to Robertson, his heirs and assigns forever, the lot in question, in trust nevertheless, to and for the sole use, benefit and behoof of the follow

[245] ing free persons of color of Augusta, "to wit, Fanny Gardner, the wife of Thomas Gardner, and their daughter, Frances Gardner, and any future issue of the said Fanny by the said Thomas, and, in case of the death of the said Frances and Fanny, in trust for the next of kin of the said Thomas Gardner." The deed

NOTE.-Jurisdiction of United States Supreme Court; it is for state courts to construe their own statutes; supreme court will not review their decisions except when specially authorized by statute. See note to Commercial Bank v. Buckingham, 12:169.

from seven years' possession under the trust
terms of such deed did not bind the plaintiff or
deed, as color of title, it would decree that the
tiff did not have a fee-simple title to the part
limit her title in the property; that, if the plain-
in her possession, she and Frances might be
decreed to be tenants in common of the entire
property, and the same might be divided by
commissioners, or be sold and the proceeds
divided, share and share alike, between the
plaintiff and Frances; and for general relief.

The bill was afterwards amended by inserting
Gardner at the time of the purchase one half of
an allegation that the plaintiff furnished to
the purchase money of the property, the same
being the proceeds of her labor as a free person
of color; and further that if the court held that
division of the lot by Garduer, in the part which
the plaintiff acquired no legal interest under the
he gave to her and on which she had since lived,
and no interest that could ripen by prescription,
then Gardner died in possession of all of the
lot, leaving the plaintiff and Frances as his
only heirs; that such heirs had, by tacit con-
sent, actually occupied, held and claimed the

[246]

portions so divided to them by Gardner, from
the time of his death; and that Gardner made
no will and left no other heirs.

Frances, being then the wife of one Davis,
answered the bill, denying that the property
was ever divided between her and the plaintiff
by Gardner, or since his death, otherwise than
that Gardner built another house for her on the
property, for convenience, because she was
married and had many children; and that her
title and that of the plaintiff was that of co-cestuis
que trust for life, with remainder over to the
children of Frances who should be living at the
termination of such equitable life estate.

within the jurisdiction of the United States be-
came entitled to the equal benefit of all laws
and proceedings for the security of person and
property as was enjoyed by white citizens, and
all citizens of the United States became enti-
tled in every State to the same rights as were
enjoyed by the white citizens thereof, as re-
spected real and personal property; that, under
the first section of the 14th Article of Amend-
ment to the Constitution of the United States,
it was provided that no State should make or
enforce any law which should abridge the priv-
ileges or immunities of citizens of the United
States, nor deprive any person of life, liberty
or property without due process of law, nor
deny to any person within its jurisdiction the
equal protection of the laws; that under said
Act of Congress and said Amendment the de-
fendant became entitled to the same rights, as
to prescriptive title by possession under color
of title, as any white person; that under said
Act of Congress and said Amendment, the Act
of Georgia of December 19, 1818, and that of
December 22, 1819, could not be lawfully en-
forced as against the rights of the defendant
under the trust deed as color of title, even if
the deed were originally void; and that, under
said Act of Congress and the 14th Amend-
ment, the plaintiff and the defendant, under
the trust deed, and their occupancy of the lot
thereunder for seven years after the death of
Gardner, had an equitable life estate in com-
mon in the lot, with remainder in fee to the
next of kin of Gardner.

By way of cross-bill, the answer averred that, before January 1, 1863, no proceedings were ever instituted to escheat the property as being conveyed for the benefit of free persons of color; that by section 2627 of the Code of [247] Georgia, becoming of force on January 1, 1863, it was declared that escheat should lie only on failure of heirs; that by the Act of Georgia of March 17, 1866, free persons of color were vested with all the property rights of white persons; that among those rights was that to a prescriptive title by adverse possession for seven years under written evidence of title; that by possession adverse to all the world, under the trust deed, for seven years and more prior to the bringing of the bill, the plaintiff and Frances had a good prescriptive title to the property under the limitations of the deed, and had an equitable life estate in common, with remainder in fee, on their death, to the next of kin of Gardner; that Frances bad six children The answer was also amended by averring then living, two of them by her first husband, that the claim of the plaintiff that she had furBeatty, one of whom was an adult and the other nished to Gardner, at the time of the purchase, a minor, and four of them by her husband one half of the purchase money of the prop Davis, all of whom were minors, such six chil-erty, was barred by the Statute of Limitadren being the next of kin after Frances to Gardner, their grandfather; and that Gardner had no issue by the plaintiff.

[248]

tions, the claim being first asserted by an
amendment to the bill, made June 28, 1884,
more than thirty years after the purchase of
the property by Gardner; and that the plaintiff
was estopped by laches from asserting such
claim.

The answer prayed that the court might de-
clare the trust to be valid, and appoint a trustee
to hold the property for the joint use and
benefit of the plaintiff and the defendant during A guardian ad litem was appointed for the
their lives, or the life of either of them, and, at minors, and he and the adult Beatty were
the termination of such lives, to convey the made defendants. The case was tried by a
property to such children of the defendant as jury. The court at the trial charged the jury
might then be living, and should there be none as follows: Under the law in force at the
such, then to whoever should be next of kin time of making this deed, free persons of color
to Gardner; and that the adult son of the de- could not hold real estate, and the deed from
fendant be made a defendant, with a guardian Carrie to Gardner in trust was absolutely void,
ad litem to be appointed for her minor children. and the fact that the war and its results, as de-
The answer was afterwards amended by clared by the Constitution of the United States
averring that Gardner died in November, 1865; and the Acts of our own Legislature, have put
that from the date of the trust deed to that all colored persons on the same footing with
time the plaintiff and the defendant and Gard-white persons, does not and cannot make the
ner resided together on the lot, being in occu-
pation of it under and by virtue only of the
trust deed; that from the time Gardner died
until the bringing of the suit, the plaintiff and
the defendant continued to occupy the lot;
that more than seven years elapsed from the
death of Gardner to the bringing of the suit;
that under the laws of Georgia, as they existed
from the date of the trust deed, any instrument
in writing purporting to convey a title to land,
even if void, was good as color of title, and
adverse possession of the land thereunder for
seven years gave a good title by prescription to
the land; that, under the first section of the
Act of Congress of April 9, 1866, all persons

laws invalid or validate any title acquired un-
der them, and no continuance of possession for
any number of years by the wife and daughter
under this void deed can ripen it into a good
title. The transaction being illegal and void,
no act of either and no post-war enactments
can galvanize it into life. If you believe that
Thomas Gardner paid Carrie for this land, it
being admitted that there were no proceedings
before 1860 to escheat this property, and re-
mained in possession of the land until after the
close of the war, and died in November, 1865,
then, notwithstanding the law which made a
trust deed void, and he died in possession of
the land, the wife and daughter took this

[24

estate by inheritance absolutely, each being | his rights, or unless he assumes exclusive pos-
entitled to one half. If the evidence does not session of the whole property, and refuses to
show that, but shows that Thomas Gardner admit his co-tenant to his rightful participa- [251]
paid the purchase money and went into posses- tion, after the co tenant demands such admis-
sion and then divided the lot between Fanny sion. If, therefore, you find that Frances and
and Frances, and that they both went into pos- Fanny became simultaneously entitled to the
session and remained in possession until after use and enjoyment of this lot, they were ten-
the war closed and are still in possession, ants in common and are so still, unless you
Frances is estopped from denying the title of find that Fanny has taken some of the steps
Fanny to the one half now claimed by her; so above mentioned against Frances and followed
that you see that my view of the law is that it up with adverse possession for seven years
the trust deed cannot be enforced or be made under color of title or twenty years without it.
the basis of any title. If, therefore, you find 4. The next of kin to Thomas Gardner, as the
for the complainant, Fanny, you may appoint words are used in the deed of 1854, mean bis
three discreet persons to make the division of nearest blood relations after his own child
the lot, providing for a sale in case no division Frances. A man's nearest blood relations after
of the kind can be made."
his own children are bis grandchildren. Thom-
The defendants requested the court to charge as Gardner's grandchildren are parties respond-
the jury as follows, which requests were de- ent to this bill. If Fanny and Frances are ten-
clined: "2. If you find from the evidence in ants in common for life in this land, these
this case that Thomas Gardner bought this grandchildren, should they outlive them, would
land for the joint use of Fanny and Frances be entitled to the land, share and share alike.
during their lives, and at their death to go to Fanny claims that she has a fee-simple interest
his next of kin, and had the deed of 1854 made in a part of this land, by possession thereof for
to carry out this purpose, and that Frances and twenty years, and consequently there is no re-
Fanny entered on the occupancy of the land | mainder in this part for the next of kin. You
by virtue of the deed, and were in the occu- cannot find that Fanny has a fee-simple inter-
pancy of the land under the deed at the time est in any part of this land by adverse posses
free persons of color became entitled to equal sion for twenty years unless you find that she
property rights under the law with white per- has been in such possession of such part for the
sons, and remained in such possession and full period of twenty years from the time that
occupancy for seven years thereafter, then I free persons of color became vested in this
charge you that, even if the deed itself were State with the same property rights as white
void, they obtained a good prescriptive title persons. 5. If you find that a good prescrip-
such as set out in the deed-that is, a good pre- tive title has arisen under this trust deed, the
scriptive title to the joint use and enjoyment of effect is that Fanny and Frances will each be
the land during their lives. The fact that the entitled for life to the use and enjoyment of
deed was void, or that Fanny or Frances were one half of the property, and at their death it
free persons of color, in no wise prevents such goes to the next of kin of Thomas Gardner.
a prescriptive title as stated accruing to them, If you find that Fanny has a fee-simple inter-
if the evidence shows the facts above stated.est in that part of the lot whereon she now re-
3. Whenever two persons are from any cause
entitled to the possession simultaneously of
any property in this State, they are tenants in
common and each entitled to the use and enjoy
ment of one half of the common property, and
are each liable for one half of the burdens im-
posed by law on the common property, such as
taxes. If, therefore, you find, from the evi-
dence in this case, that Fanny and Frances be-
came simultaneously entitled to the possession
of this property, they were tenants in com-
mon, equally entitled to its benefits and equally
liable for its burdens. If you find that one
lived on one half and one on the other, this is
nothing more than the law entitled them to;
and if one paid the taxes on her half and the
other on hers, this is nothing but what the law
required them to do. The fact of one living
on one half and the other on the other, or of
one paying the taxes on one half and the other
the taxes on the other, no matter how long
this was kept up, would not give either one a
fee-simple title to the particular half on which
she lived and paid taxes. At the end of half a
century they would still be tenants in com-
mon, each having the right to possess the joint
property and to use and enjoy one half of it.
No tenant in common can set up an exclusive
right by prescription against his co-tenant in
the whole or any part of the property, unless
he actually ousts his co-tenant, or expressly
notifies his co-tenant that he holds adversely to

sides, the next of kin of Thomas have no
rights whatever therein. Fanny may dispose
of it while living, as she pleases, and if she
dies intestate it would go to her next of kin.
6. If you find, from the evidence, that the
complainant did not set up any claim to the
property in dispute, by having furnished part
of the purchase money, until twenty years had
expired from the time the purchase was made,
I charge you that she is now barred by the
Statute of Limitations from setting up title to
the property, for that reason."

We, [252]

The jury found the following verdict:
the jury, find for the complainant the exclu-
sive right and fee-simple title to that portion
of said property now occupied by her." The
defendants moved for a new trial, alleging as
grounds therefor error on the part of the court
in charging the jury as set forth, and in refus-
ing to charge them as requested. The motion
for a new trial was overruled, and a judgment
was entered to that effect. The defendants ex-
cepted to the judgment, and a bill of exceptions
was made and certified to the Supreme Court
of Georgia, to which the defendants took the
case by a writ of error. The plaintiff having
died, leaving a will which was duly admitted
to probate, her executrix and sole legatee,
Georgia Benton, was made a party in her place.
The case was heard in the supreme court, and
it affirmed the judgment of the Superior Court
of Richmond County, in an opinion reported