250

FEDE1l.AL

REPORTER.

it in it$jaU. This was in 1872. Judge DYER, in the case of May v. County of lAc, Wiscon9in, held the same way. This was.in May, 1886. See 27 695. It is s.tated by counsel that Judges JACKSON and BUNN have also decided that counties are liable for an infringement of this May patent. This seems to me to be the just and reasonable view, and to accord with the present doctrine as to the liability of counties. In regard to the objection that this action must be an action on th61 case, I think the present petition is substantially that. It seems to have followed 8ubstantially the forms given in the books for this kind of suit. The fact that it is called "a petition," and not "a declaration," can make no difference. The courts should give effect, as far as practicable, to bot.hsectiotis 4914 and 4919. In construing those sections together, we conclude that this action shOuld be an action on the case; but if the complaint, whether called a declaration or a petition under the Code, contains all the allegations material to make an action on the case, that will be $Ufficient. The Marion circuit court of Indiana had jurisdiction of the subjectmatter ,i. the estate of Edwin May, and it is a court of general jurisdiction, and that court has confirmed the sale of this right of action j hence this court will not attempt to revise that judgment, and declare either that by the statutes of Indiana that court could not legally sell such assets,· or that the order given by that court was not broad enough to include this chose in action. That court has construed its own order by confirmittg the sale, and this court will not attempt to revise it. The demurrer should be overruled; and it is so ordered in all of the Cl88eS similar to this one.

e.,

MAy e.

SAKE e.

BOARD OF BOARD OF

Cou'Rs

CoU'RS

OF OF

LoGAN Co., Omo. SENECA Co., Omo.

March 22, 1887.)

«(Meait (Jowrt, N. D. Ohio,

w: D.

4.

Rights of action for infringements of patents survive to the personal reprelentatives of the patentee. . ·· BAME-SUIT AND ASSIGNMENT ·BY ADMINISTRATOR. The executor or administrator of the patentee may not only sue on such causes of action, but may assign and transfer the same to another. .. SAME-SUIT BY AsSIGNEE· .The assignee may, in his own· name, maintain an action thereon. in any ltate the law whereof aUows.an aBsigneeof a chose in action to sue thereon in his own name.
s.um-PAsTmiuNGEMENT.

t.

PATBNTll POB INvENTIONS-INFRINGEMENT-ADMINISTRATION.

An assignment by an administrator, purporting to to the assignee "all the right, title, interest, claims, and demands whatsoever, which the estate has in, to,by, under, and. through" specified letters patent, and extensions thereof, covers rights of action theretofore accrued for infringements.

MAY.
5.

SAME-LIMITATIONS.

v. COUNTY OF LOGAN.

251

There is no federal statute of limitations in force respecting infringementll committed since June 22, 1874.

6.

'1.

SAME-STATE S T A T U T E S . -

State statutes of limitations have no appUcation to actions adsing out of the infringement of patents. . Counties are liable for infringements of patents. Jacoba v. Hamilron 500, disapproved. .
·

SAllE-LIABILITY OF· COliNTIES.!

aD., 1

8.

COllRTS-brDIANA CmCUIT8-AnMINIsTRATION-SALE.

The civil circuit courts of Indiana are courts of general jurisdiction, and may authorize the sale of property of decedents' estates, whenever Jt is deemed for the interest of the parties concerned, or necessary to wind up the administration. .

9.

SAME-RATIFICATION OF SALE-EFFECT OF.

The fact that the original order of court merely authorized a sale of the patent rights, does not invalidate the transfer therewith of accrued claims and demands of the estate arising thereunder, if such transfer and sale are duly approved, ratified, and confirmed by the court. The ratification and confirmation of the sale is equivalent to, and has the same legal effect an,d operation in transferring the claims and demand'! included therein, as if the court had previouslY directed their sale. . ThE\ court having jurisdiction to authorize the sale, and having exercised s.uchauthority, the propriety or validity of the sale is not open to examination in a collateral proceeding, though the record fail to disclose a strict compliance with all the provisions of the statute in making such sale.

10.

.

SAME-COLLA'l'ERAL ATTACK.

On Demurrers to Plaintiff's Petitions. . These.are actions to recover of the defendants for alleged infringements of a patent, issued October 4, 1859, to Edwin May, for an improvement in the construction of prisons. The original term of the patent was fourteen years. which was subsequently extended for seven years, the extension expiring October 4, 1880. The patentee, a resident of Indianapolis, died testate February 27, 1880. Edwin Forrest May, appointed executor of his last will March 6, 1880, resigned June 7, 1880, when George F. McGinnis was appointed administrator de bonis non, with the will annexed. December 30,1880, said administrator reported to the civil circuitcourt, of Marion county, Indiana, that all the real and personal estate of said decedent which had come to his hands or knowledge had been sold, except the rights of said decedent in certain letters patent; that a favorable opportunity offered for selling such rights; and that he believed it for the best interest of said estate to sell said rights at private sale. The court thereupon authorized and empowered said administrator so :to sell said rights. March 7, 1882, said administrator reported that he had sold such rights to Sarah May, and had executed to her a deed of assignment of such rights, which he brought into court for approval. and thereupon the court ratified and confirmed said sale, and, upon examination, ratified, cOI!firmed. and approved the assignment thereof. The assignment recited the procuring of the said letters patent, and also five other letters patent of subsequent dates, and the sale of all the rjght, title, interest, claim, and demand of said estate in, to, by. UDder, and through the same, and purported to "sell, assign, transfer, and Bet over unto the said Sarah Mayall the right, title, interest, c1ainls, and

252

FEDERAL REPORTER.

demands whatsoever which the said estate of said Edwin May, deceased, has in, to, by, under, and through the said improvements and the letters patent and extensions thereof therefor aforesaid; the same to be held and enjoyed by the said Sarah May for her own use and behoof, and for the use and behoof of her legal representatives, to the full end of the term for which said letters patent and .extensions thereof are or may be granted, as fully and entirely as the same would have been held and enjoy.d by said estate had this assignment and sale not been made, and as by and under the order and authority aforesaid I, as such administrator, can or ought to grant, sell, and assign the same." John O. Lee, for Logan County. Perry M. Adams and Almon HaU, for Seneca County. Brown & Geddes, for plaintiff. Before JACKSON and WJ<:LKER,JJ.
JACKSON, J. The plaintiff makes no claim against the defendant counties for the infringement or use of the patented apparatus previous to the fourth day of October, 1873, the date at which the extended term of the patent commenced. The petition, which in all essential particulars may be treated and regarded as a declaration in an action on the case, avers that the defendant counties, "on the fourth day of October, 1873, and up to and on the fourth day of October, 1880, and within and during the term of seven years mentioned in the certificate of extension of said letters patent, and after the granting of said letters patent and said extension, and before the bringing of this suit, and within the district and division aforesaid," did unlawfully, wrongfully, and injuriously, and without license, make, use, and cause to be made and used, the paid patented apparatus; in and about the constructioq and use and operation of certain jails or prison. buildings, known and designated as the county jails ofsaid counties, in infringement of the exclusive rights secured to Edwin May by the original letters patent, and the extension thereof. The petitioner then claims, as the assignee of the patentee's right and cause of action for said alleged infringement during the extended term of the patent, damages to the extent of $1,500 against each of the defendant counties. The cause of action which the plaintiff, as assignee, is thus seeking to enforce originated 011 the fourth day of October, 1873. The present suits were commenced on the twenty-fifth day of September, 1886, within the period of six years from the expiration of the extended term of the patent, but more than six years after the right of action accrued. The defendants demurred to the petition, and for grounds of demurrer assigned the following: First, that the action is barred by the statute of limitations; second, that the boards of county commissioners nor the defendantcounties in Ohio are not liable in an action for damages for the infringement of a patent; thit'd, that the alleged cause of action did not survive the death of Edwin May, the patentee; foUrth, that such cause of action was not assignable by the administrator of said patentee; fifth, that these actions are not maintainable by the plaintiff in her own name; and

MAY

v.

COUNTY OF I.OGAN.

253

sixth, that said cause of action was not assignable under the statutes of the state of Indiana; that the said circuit court of Marion county, Indiana, had no authority either to direct or to ratify and approve the assigmnent and transfer ofsaid patent-rights and causes of action made by the administrator to the plaintiff; and that the assignment as made by the legal representative of the patentee did not include said alleged cause ofaetion. Tbe tbird, fourth, fifth, and sixth grounds of demurrer, relating to plaintiff's title to the claim or cause of action sued on, and her right to maintain these suits in her own name, will be first briefly considered. It is hardly an open question at this day that a patentee's right of action for an infringement of his patent survives to his personal representatives;. and it is well settled that his executor or administrator may not only sue onsueh cause of action, but may assign aI1@:l transfer the same to another. A patent-right, with all the incidents arising from infringement thereof, is personal property, and goes, upon the death of the patentee, assignee, or grantee, to his executor or administrator. Section 4884, :R.ev. St., providing for the grant of a patent "to the patentee, his heirs and assigns," does not change the law, or prevent the personal representatives from succeeding to all such rights. Shaw Relief Valve Co. v. New Bedfard, 19 Fed. Rep. 753; Walk. Pat. §§ 396. 397, and cases cited in notes. The objection tnat plaintiff cannot maintain these actions in her own name is not well taken. Under the Ohio Oode of Procedure, an assignee of "a chose in action," being the real party in interest, may sue in his or her own name without joining the assignor. While the fifth section of the act of June 1, 1872, (Rev. St. § 914,) recognizes as permanentthe distinction between the jurisdiction of law and of equity, it adopts or prescribes for the federal courts any state statute which authorizes suits to be brought in the name of the real party in interest. But, aside from this provision of the statute, it was settled by the supreme court as early as 1829, in the case of Harper v. Butler, 2 Pet. 239, that the assignee of "a chose in action," assigned by an executor in the state where he had proved the will and taken out letters testamentary, and where the testator lived and died, could maintain an action in another state, without joining the assignor and without a new probate, if the law 'Of that state allowed an assignee of a "chose in action" to institute a suit thereon in his own name. See, also, Weed S. M. Co. v. Wicks, 3 Dill. 261, holding that an assignee of a "chose in action" can sue in his own name in the circuit court sitting in the state of Missouri, whose law, like that of Ohio, permitted suit in the name of the real party in interest. This rule is also recognized in Wilkins v. Ellett, 108 U. S. 257, 2 Sup. Ot. Rep. 641. ' But it is insisred that, under the statutes of Indiana relating to the administration of decedents' estates, neither the administrator with the will annexed of Edwin May, nor the civil circuit court of Marion county, Indiana, had any authority to sell and transfer to the plaintiff the rights of action which she is seeking to enforce in these suits. Sections 2217, 2260, 2270, 2281, 2289, 2299, 2301, 2308, of the Revised Statutes of

·

254

'

Indiana are referred to itl8l;1ppQrt of these propositions. These sections, which it is not deemed necessary to set out in detail,relate to the administration of estates, the duties of the personal representatives, the manner of disposing of the assets, and the jurisdiction of the civil circuit courts, as courts of probate, in making sales of the personal' property of the estate and settlements with the Jlxecutor or administrator. Tbey confer upon said probate court full authority to sell the property of es,tates, whenever it is deemed for the interest of parties conwrned, or, necessal'y' to wind up the administration. In the present case, the administrator, with, the will annexed, GeorgeF. McGinnis, reported to said court in December, 1880, that all the real and personal estate of the decedent which had come to his htl-nds or knowledge had been administered, except the rights ,of said decedent in certain letters patent, etc., and that.it was for the best interest of said estate, as he believed, to sell said rights ,at private sale. It appears from the record of said proceedings, which, by consent of parties, was submitted by defendants in support of this demurrer, that said circuit court of Marion county, Indiana, thereupon authorized and directed said administrator to sell said patentrights, which he accordingly did to the plaintiff, and in March, 1882, reported his action in the premises to said court, together with the transfer or deed of assignment which he had executed to the plaintiff. This transfer, which went beyond a mere sale of the patent-rights, and includedthe claims and demands of the estate arising thereunder, in terms sufficiently broad to cover rights of action for infringements of said patents, such as plaintiff seeks to enforce herein, was regularly approved by the court, and said sale and transfer were by proper decree ratified and confirmed. Counsel for defendants do not controvert the point that said Marion circuit court of Indiana is a court of general jurisdiction in respect to the administration and settlement of decedents' estates, and that, under the statutes of Indiana, it had full jurisdiction over the subjectmatter embraced in the proceeding under which plaintiff acquired her title; but they urge that the record in the case fails to disclose a full compliance with the conditions and requirements of the statutes in making the sale and transfer in question, and that, having only directed a sale of the patent-rights, the court improperly ratified and confirmed the administrator's sale, which went beyond that, and embraced "chases in action" in the nature of claims and demands for infringements of said patent-rights. The action of the court, in ratifying and confirming the sale as made and reported by the administrator, is equivalent to, and has the s,ame legal effect and operation in, transferring to plaintiff the claims and demands included therein, as if the court had previously directed their sale. Then, as to the failure of the record to disclose a strict compliance with all the provisions of the statute in making said sale, this will not invalidate the proceeding, and render the sale void. The jurisdiction of every court over the subject-matter it has determined or acted upon is of necessity examinable into by every tribunal which is called upon to enforce or give effect to such judgment. But when jurisdiction over the subject-matter exists, irregularities in the proceed-

MAY.

COUlIlTY OF LOGAN.

255

ings, or the failure of the record to show literal compliance with all the requirements of the law in the mode and manner of conducting the same, will not, when collaterally attacked, avail to defeat rights acquired thereunder. This well-established rule was very clearly stated by the supreme court in Voorhees v. Jac1cson, 10 Pet. 449, as follows: "When proceedings of a court of competent jUrisdiction are brought before another'court collaterally, they are by no means subject to all the exceptions which might be taken to them on direct appeal. The general and" ell-settled rule of·law such ,cases is that, when the proceedings are collaterally drawn in question, and it appears on the face of them that the subject-matter was within the jurisdiction of the court, they are voidable only. The errors and irregularities of any sort' are to be corrected by some direct proceeding, either before the same court to set them aside, or in an appellate court. If there is a total want of jurisdiction, the proceedings are void and a mere nullity, and confer no right and afford no protection, and may be rejected when collaterally drawn in question.. But the principle that every act of a court Of competent jurisdiction shall be presumed to have been rightfUlly done till the contrary appear, applies as well to every judgment or decree rendered in the varioull stages of the proceeding of a court of general jurisdiction, from the institution to their completion, as to the final adjudication. Every matter adjudicated becomes a part of their record, which thenceforth proves itself, without referring to the evidence on which it has been adjudged. Hence the order a court of general jurisdiction confirming a sale under attachment, upon inspection of the return, is conclusive in any collateral action on the questiQn of the validity of the sale. It may be conceded that the requirements of the in rej'erencetiJ the mode ofproceeding are conditions precedent to a t1aUd sale; but it is not essentia.l that the record should set forth the rious 8tep8necessary to the perfof'mance of such conditions. A sale cannot be declared a nullity in a action, because the record does not show oJftrmatit1ely the 6f)idence of a compliance with the termY prescribed by law in making such sale." See, also, to same effect, Moo're v. Greene, 19 How. 69; Ransom v. Williams, 2 Wall. 313; Oomstock v. Orawford, 3 Wall. 396. So, in Cornett v. Williams, 20 Wall. 226, it was held that, where a county court had jurisdiction to authorize a sale of a decedent's estate, and exerciBed such authority, the sale made thereunder must be presumed. to have been regularly made, and its propriety or validity is not open to examination otherwise than in an appellate court, in a proceeding had directly for that purpose. Courts of probate are courts of record, and their official acts, when not void upon their face for want of jurisdiction, are entitled to full faith and credit in the federal courts. &gee v. Thomas, 3 Blatchf. 11. . No of jurisdiction appearing in the record of the Marion county circuit court, under which plaintiff acquired her rights of action in the present suits, this court must give to that proceeding the same faith and credit to which it would be entitled in the courts of Indiana. It follows that she has a valid title to the cause of action which the present suits are brought to enforce, and th(l.t, under the laws of Ohio and the authorities above cited, she may sue thereon in her own name. This disposes of the defenses raised by the third, fourth;. fifth, and sixth grounds of demurrer. We come next to the first and second causes of demurrer, which set

256

FEDERAL REPORTER.

up the bar of the statute oflimitations, and deny the liability of the board ofcaunty commissioners or counties in Ohio for damages for the infringement of a patent. In respect to the former defense, it is clear that no national statute of limitations presents any bar to the present suits. The alleged infringements commenced,as averred in thepetition, on the fourth of October, 1873, and continued down to October 4, 1880, during the full period of the extension of the patent. The sui ts in question were begun on the twenty-fifth of September, 1886, within six years after the expiration of the extended term of the patent, and <lnly seek to· recover damages· for the infringement during· such extension. By the fifty-fifth section of the patent act of July 8,1870, it was provided that "all actions [for infringements of patents] shall be brought during the term for which letters patent shall be granted or extended, or within six years after tht expiration thereof." This provision remained in force until the enactment oftneRevised Statutes, June 22,1874, when, by operation pf section. 5596,it was repealed as to all rights of action therf/ajter to accrue; but, by section 5599, it was left in full force as to all rights of action in existence at the date of said repeal. Under the operation of these twosections,·thete is no federal statute oflimitations in spect to infringements committed since June 22, 1874; but in respect to causes of action arising, or acts of infringement done ordommitted, after July 8, 1870, and.before June 22, 1874, said statute of limitations still applies, and suits to enforce causes of action accruing be.t',Veen said dates "may be commencecl and prosecuted within the same time, as if said repeal had not been made." In other words, as to rights of action for infringements of patents committed pribr to June 22,1874; the national statute oflimitations, prescribed by the fifty-fifth section of the act of July 8, 1870, still applies under the saving clause of section 5599, and suits to enforce the same may be commenced and prosecuted "during the term for which letters patent shall be granted or extended,or within six years after the expiration thereof." This national statute of limitations is in force, and applies. to plaintiff's cause of action which arose in October, 1873; and her suit to enforce the same, having been brought within six years after the expiration of said extended term of the patent, is not subject to the bar of that statute. Counsel for defendants, however, rely chiefly upon the statute of limitations of the state of Ohio, which bar suits for torts in six years after cause of action accrued. But, as there is a federal statute of limitations in force and applicable to the present suits, or the causes of action they are brought to enforce, it is clear, under the authorities, that the state statute cannot be invoked to displace the federal statute, or shorten the period of limitations prescribed by the latter. If there was no national statute of limitations applicable to plaintiff's case, this court would still hold that the state statute of limitations would not constitute a bar to the suit. The supreme court of the United States has not directly, and in an authoritative way, passed upon this question, as to whether the state statute of limitations can be interposed as a bar to suits for the infringement of patents; but the point has been often presented in the United

MAY

'11.

COUNTY OF I,OGAN.

257

States circuit courts, and,whiIethe decisions of those courts are in conflict on ti:)e question, the decided weight of authority and reason is against the proposition that the state statute of limitations can be successfully intel'posedas a defense in such suits. It is not deemed necessary toreview the cases on this subject, which is discussed in the valuable work of Walker on Patents, §477, and some of the conflicting decisions cited in notes. Instead of four decisions (as stated by Walker) favoring the proposition that the stare statute of limitations may. be interposed as a defense in such actions, there are five cases to that effect, as follows: Parkerv, Hauk, 2 Fish. Pat. Cas,. 58, (decided in 1857 by Judge LEAVITT;) Parker v, Hall, 2 Fish. Pat. Cas. 62, note, (decided by Judges and LEAVITT shortly after decision in Parker v. Hauk;) Rich v. Ricketts, 7 Blatchf. 230, (decided by Judge HALL in 1870;) Sayles v. Oregon Cent. Ry. (h., 6 Sawy.31, (decided by Judge DEADY in 1879;) and Hayden v. Oriental Mills, 15 Fed. Rep. 605, (decided in 1883 by Judge LowELL.) In support of the contrary proposition there may be cited ten decisions instead ofBia;, as follows: Collins v. Peebles, 2 Fish. Pat. Cas. 541, (decided by Justice SWAYNE in 1865;) Parker v. Halleck, 2 Fish. Pat. Cas. 54,3, (by Justice GRIER in Pennsylvanir.;) Read v. Miller, 2 Biss. 12, (by Judge McDONALD in 1867;) Wetherill v. New Jersey, 1 Ban. & A. 105, (by Judge MCKENNAN in 1874.;) Anthony v. Carroll, 2 Ban. & A. 195, (by Judge SHEPLEY in 1875;) Saylesv.Lake Shore &- M. S. Ry. C-o., 9 Fed. Rep. 515, (by Mr. Justice HARLAN in 1879;) Sayles v. Dubuque &S. C. Ry. Co., 9 Fed. Rep. 516, (by Judges DILLON and LOVE in 1879;) Hayward v. City of St. Lotf,is, 11 Fed. Rep. 427, (by Judge TREAT in 1882;) Wood v. Cleveland Rolling7mill, 4 Fish. Pat. Cas. 550, (by Judges, SWAYNE and SHERMAN in 1871;) May v. County of Fond du Lac, 27 Fed. Rep. 691, (July 6, 1886, by Judge DYER.) In addition to these authorities, this court has on two occasions. had this question before it, and, after full consideration of the subject, and a careful review of the de7 cisions, the conclusion that state statutes of limitation have no application to actions arising out of infringement of a patent, even in the absence qf a federal statute of limitations on the subject. Subsequent reflection and examination have only served to confirm this view of the question. The process and procedure acts of congress, as embodied' in section 34 of the judiciary act of 1789, and in section 721, Rev. Sf., which seem to have controlled the opinions to the contrary, have their full operation when applied and confined to civil actions or suits at common Jaw, in which there is concurrent jurisdiction in the state and federal courts. Letters patent, together with the rights of action and remedies given for the infringement of the same, are matters under th6 exclusive control of the artd federal judiciary, In &hreiber v. Sharpless, 17 Fed. Rep. 589, Judges McKENNAN: and BUTLER had occasion to consider section 721, Rev. St., in its application to an action the penalty provided by section 4965, Rev. St." for infringementofa copyright, which in most respects stands upon the same v.30F.no.4-17

258

FEDERAL REPORTER.

footing as patent-rights, and they hold that said section Cl refers to cases where the federal courts obtain jurisdiction by reason of the of parties, and has no application to those cases in which'the jurisdiction of the court arises out of the cause of action, and consequently involves rights over which the state legislature can exercise no authority, except in so far as the same may relate to the method of proceeding and practice." But, without going further into this subject, it is clear that, under section 5599, Rev. St., which reserves all existing causes of action, so far as limitations are concerned, precisely as though the act of July 8, 1870, had not been repealed, there is no bar of the statute as to the infringements committed by defendants between October 4, 1873, and June 22, 1874. The plea relied on covers this period, and is therefore too broad, and it should for that, .if not for other, reasons be overruled. The last ground of demurrer to in the liability of boards of county commissioners or countieS in Ohio to suits for the infringement of this May patent, presents a question of more difficulty than any yet considered. By the statutes of Ohio (section 845, c. 1, tit. 8) it is provided that "the board of [county] commissioners shall be capable of suing and being sued, pleading and being impleaded, in any court of judicature; * * * and in all suits, either in law or equity, brought by or against them in their officiaJ capacity, relating to any of the duties required hy law to be performed by them, to employ counsel," etc. By section 859 it is made the dutyaf the county commissioners, among other to provide for the county a sufficient jail, Clof such style, dimensions, and expense aa the commissioners may determine." In the construction of the jaTIs for the defendant counties, the commissioners caused the patented apparatus of Edwin May to be employed, and said counties have continued to use said apparatus therein. Under the authority conferred upon them by the law, it is perfectly clear that the county commissioners for Logan and Seneca countiescotild have contracted for the use of said patented. apparatus, and that such contract would have been binding uporiand enforceahle against said counties. But, instead of contracting for Hsuse, the commissioners wrongfully and without license appropriate this patented apparatus, and the counties now dispute their liability for such appropriation of thepatentee'i! property, on the ground that they had no authority so to appropriate it, and because the remedy prescribed bY congress for the redress of the injury done the patentee is an action oli the case, which at common law implied or involved a tort, for which c9Utities, as political subdivisions of the state or quasi corporations, could not be held responsible. To the credit of modern jurisprudence it may be said that neither private nor public corporations can now shield themselves frolll liability behind such a technicality; in cases where·theyhave derived a benefit from their wrongful act; even when such act is "ul.tra vires," and no question of public As was said by the supreme court in Marsh v. Fulton policy is OJ., 10 Wall. 676-684, and repeated in Louis-kma v.Wood, 102 U. S. 294: "The obligation to do justice rests upon all persoJ;ls. natural and artifi· cial; and if a county obtains the money or property of others, without

MAY V. COUNTY OF LOGAN.

authority, law independent of any statute, will compel restitution .. . or compensation." In the present suits,the "compensation" to which the patentee, or the plaintiff as the assignee of bis right, is justly entitled, for the property appropriated and used by the defendant counties without authority, is sought to be recovered in the mode or form of action directed by the law. which conferred the right, and which had exclusive jurisdiction over the subject. It would be a st"rangeanomaly in the law if a county, which had. thus wrongfully appropriated a patentee's invention and property, could escape liability for damages thence resulting to the owner, by the simple device of calling the illegal act a tort, or by saying that the remedy by an action on the case, which congress had provided, was appropriate or applicable only to torts. If the state of Ohio had itself appropriated this patent, the owner would have had a valid claim for damages for the infringement, which he could not, however, have enforced against the state, without its consent to be sued. Without such consent, his difficulty would be, not as to the right, but only as to the remedy. No such difficulty is presented in respect to counties in Ohio,· even treating them as mere political subdivisions of the state, for, by the statute already cited, they are "capable of suing and being sued, ing and being impleaded, in any court of judicature." But it is urged on behalf of defendants, under the authority of Board Ulm'r8 Hamilton Co. v. lrfighel8, 7 Ohio St. 110, that the board of commissioners of the county are not liable in this quasi corporate capacity to an action for damages for injury resulting to a private party by their wrongful act. In that case the injury complained of resulted from the negligence of the commissioners in leaving a fltairway at the court-house in an unfinished anel impracticable condition, by reason of which plaintiff ·had fallen and sustained serious injury. It is well settled by the authorities that political subdivisions of the state, such as counties and townships, are not responsible for acts of omission by their officials, as for their negligence in constructing public buildings, odn erecting, maintaining, and repairing highways, bridges, etc. The 7 Ohio St. case belongs to this class of authorities, which exempts counties from liability for mere per80nal injuries arising from negligent acts of omission or commission on the part of their agents. It has no application whatever to cases like the present, in which the property of another has been either willfully or appropriated by such agents to the use ana benefit of the county. In such cases the benefit secured cannot be retained and enjoyed by setting up the wrongful act in obtaining it. To allow thill would violate the plainest dictates of justice and common honesty. In Jacob8 v. Hamilton Co., 1 Bond, 500, it was, however, held that a county in Ohio was not liable for the infringement of a patent-right. This decision was avowedly based upon the case of Hamilton Co. v. Mighels, 7 Ohio St. 110, and fails to recognize the distinction, now well settled, between the Jiability of a county for the negligence of its officers, caulling mere injury to another without advantage to itself, and their wrongful acts which result in benefit to the county, as well as damage and
I

FEDERAL REPORTER.

loss to the injured party. Itwa5 further assumed, in JacOQS v. Hamilton 00., that some state legislative sanction was necessary in order to maintain suits sounding in tort against. counties, and that the action on the case for the infringement thus complained of, being ofthe same technical form, .could not be maintained, etc. The state could not, by either direct or indirect legislation, exempt its counties from: liability for the iIifringement of patents, nor has it attempted to do so. The patentee's rights and remedies are created and defined by congress; which has, under the constitution, the exclusive control of the subject. The right is given and remedy created byfel1eral statute, which does not exceptcounties from the obligation to respect the exclusive grant to the patentee of making, selling, and using his inve)itiCin. Judicial refinements and distinctions upon the character of theremedy prescribed by congress for violations of the patentee's rights, conferred by statute of the general government,should not be resorted to,either to defeat the right or impair the remedy. If congress had not directed that an action on the case should l:>e the remedy for the' recovery of damages for the infringement of a patent, the patentee could, in cases like the present, waive what is upon the implied contract called the tortious act, and bring against-the county to recover the va]ue of his property appropriated. It is refining too much to allow the nature of the action :to defeat the actual and substantial rights. It is equally unsound to say that the plaintiff's rights in -such cases are dependent upon the state permission to make countiesliablefor torts. No special enactment of the stateof Ohio is needed to make her counties liable for the infringement of a patent. The legislature of New York, by special act, sought to make the city officials of Brooklyn liable in such cases, and to exempt the city itself from responsibIlity; but, in the case of Blws v. City of Brooklyn, 8 Blatchf. 533, the learnedjudgfl held the cityliable to Bliss, the patentee, for the appropriation of his patent by thedty, notwithstanding the statute which attempted to exempt the corporation from liability. The case of Jacobs v. Hamilton Co., 1 Bond, 500, which lays down a different rule, has never been recognized or followed, and cannot be sustained ltpon any sound principle. In thesubsequeot case of May v. ComrnWsioners Johnson Co., MS., which was tried before Mr. Justice DAVIS on the circuit, the county was held liable for the infringement of this patent; Judge DAVIS saying that "a was secured by congress in his patented rights against the encroachment of any person or society." In May v. County of Fond du Lac, 27 Fed. Rep. 695, Judge DYER decided the point in the same way. In May v. County of Meteer, ante, 246, Judge BARR reached the same con" clusion. The weight of authority and reason is clearly in favor of hold" ing counties liable for the unauthorized appropriation and use of pa,tented articles or apparatus. One of the latest and most instructive cases upon the general subject of the liability of corporations for the wrongful acts of their agents, reBultingin benefit to the corporation, is that of Salt Lake City v. Hollister, 118 U. S. 259-263, 6 Sup. Ct. Rep. 1055. The principles so clearly and forcibly announced in that case are directly applicable to the present

SUMNER

v.

WALKER.

261

suits, and the question raised by the cause of demurrer under consideration. Cooley, Torts, 119, 122, and 2 Hill, Torts, c. 48, p. 414, also sustain the general position herein presented. . Our conclusion is that the defendant counties are liable for the infringement of the patent in question, and that the plaintiff's remedy against theIA is complete and enforceable. It follows that this, as well as all the grounds of defendants' demurrer must be overruled. It is accordingly so adjudged. W ELKERJ J. J concurs.

SUMNER

v.

WALKER.

(District OOU'1't, S. D. New YO'1'k.

March 4, 1887.)

1.

2.

CARRIERS-OIl' GOODS-CONNECTING LINES-NEGLIGENCE.

Connecting carriers are not liable to the owner of goods for the negligence of each other, except upon some contract or understanding making them so.

SAME-TJmoUGH BILLS OF LADING-TRANSmPMENT-PRIOR DAMAGES-OnSET.

A through bill of lading, providing for a transhipment to another vessel at an intermediate port, and for ,payment of the whole freight at the port of discharge, does not import the j{)int liability of each, or that the latter carrier is the agent of the former, but independent rights of the latter ship, and does not impose upon the latter vessel any liability for damages occasioned by prior negligence. She is therefore entitled to collect her just freight upon delivery of the goods, without offset or deduction for prior damages without her fault.

Putney <to Bishop, for defendants.

Owen <to Gray, for libelant.

BROWN, J. The libel in this case was filed to recover the sum of $576.86, the balance of freight due the ship Reporter upon the delivery of 1,129 packages of tea brought from Hong Kong, China, and delivered to the defendants in February, 1886. The answer denies that the goods were delivered by the ship to the defendants, and alleges that the deliv. ery was made by the ship to Russell & Co., and that Russell & Co. delivered the teas to the defendants, and that on the voyage the cases were so damaged by the carrier's negligence that the cases required cooperage to the amount of some $500, which they claim to offset, ifliable at all. The tea was shipped at Amoy , China, by Brown & Co., on board the steamer Esmeralda, and a bill oflading therefor, dated September 25, 1885, was given, signed by the" Agents of Russell & Co., Charterers of the Reporter," which recited the shipment of the tea by "Brown & Co. in good order, on board the Esmeralda, bound for Hong Kong, * * * for transhipment to American ship Reporter for.New York, and to be delivered, in like good order and condition at New York, to the order of Messrs.