The Ordinance of North Carolina, of October, 1865, recognized the difference between the standard of value existing in that State during the war, and usually referred to in the contracts of parties, and the legal standard adopted by the Government of the United States. It re quired that the Legislature should provide a scale of depreciation of the Confederate currency from the time of its first issue to the end of the war; and declared that all existing contracts solvable in money, whether under seal or not, made after the depreciation of that currency, before the first day of May, 1865, and then unfulfilled (except official bonds, and penal bonds, payable to the State), should "be deemed to have been made with the understanding that they were solvable in money of the value of the said currency;" but at the same time provided that it should be "competent for either of the parties to show, by parol or other relevant testimony, what the understanding was in regard to the kind of currency in which the same were solvable," and that in such case "the true understanding" should regulate the value of the contract. The Act of the Legisla ture of the State, passed in 1866, adopted a scale of depreciation of Confederate currency as required by the Ordinance, designating the value in such currency of the gold dollar on the first day of each month, from November, 1861 to April, 1865. The Confederate notes, being greatly increased in volume from time to time as the exigencies of the Confederate Government required, and the probability of their ultimate redemption growing constantly less, necessarily depreciated in value as the war progressed, until, in some portions of the insurgent territory, at the close of the year 1863, $20 in these notes, and at the close of the year 1864, $40 possessed only the purchasing power of $1 in lawful money. The precious metals, however, still constituted the legal money of the insurgent States, and alone answered the statutory definition of dollars, but in fact had ceased in nearly all, certainly in a large part of the dealings of 557*] parties, to be the measures of value. When the war closed, these notes, of course became at once valueless and ceased to be current, but contracts made upon their purchaseable quality, and in which they were designated as dollars, existed in great numbers. It was at once evident that great injustice would in many cases be done to parties if the terms used were interpreted only by reference to the coinage of the United States or their legal tender notes, instead of the standard adopted by the parties. The legal standard and the conventional stand ard differed, and justice to the parties could only be done by allowing evidence of the sense in which they used the terms, and enforcing the contracts thus interpreted. The anomalous condition of things at the South had created in the The Ordinance and Act require the courts, in meaning of the term "dollars" an ambiguity the construction of contracts made in the inwhich only parol evidence could in many in-surgent States between certain dates, to assume stances remove. It was, therefore, held in as a fact that the parties intended by the term Thorington v. Smith, where this condition of "dollars" Confederate notes, and understood things, and the general use of Confederate notes that the contracts were solvable in that currenas currency in the insurgent States were shown, cy; and they thus throw upon the party conthat parol evidence was admissible to prove testing the truth of the assumed fact the burthat a contract between parties in those States den of establishing a different understanding. during the war, payable in "dollars," was in It is contended by the complainants that the fact made for the payment of Confederate dol- Ordinance and statute in thus giving a suplars; the court observing, in the light of the posed conventional meaning to the terms used, facts respecting the currency of the Confederate in the absence of any evidence on the subject, notes, which were detailed, that it seemed instead of the meaning which otherwise would "hardly less than absurd to say that these dol- attach to the terms, impair the obligation of lars must be regarded as identical in kind and the contracts between them and the [*559 value with the dollars which constitute the Railroad Company, and are, therefore, void. money of the United States." Upon this question we refrain from expressing any opinion. It is unnecessary that we should do so, for there is sufficient in this case to rebut the presumption required by the Ordinance and statute. The decision upon which reliance is placed, as thus seen, only holds that a contract made during the war in the insurgent States, payable in Confederate notes, is not for that reason invalid, and that parol evidence, under the peculiar condition of things in those States, is admissible to prove the value of the notes, at the time the contract was made, in the legal currency of the United States. In the absence of such evidence the presumption of law would be that by the term "dollars," the lawful currency of the United States was intended. This case affords, therefore, no support to the position of the appellants here, for no evidence was produced by them that payment of the bonds 558*] in Confederate *notes was intended by the Railroad Company when they were issued, or by the parties who purchased them. 1. According to the Scaling Act of North Carolina one dollar in gold in that State was worth, at the close of 1863, $20, and at the close of 1864, $49 In Confederate notes. According to the Scaling Act of South Carolina one dollar in gold in that State was worth at those periods respectively. $13.90 and $22.22 in Confederate notes. The understanding of the parties may be shown from the nature of the transaction, and the attendant circumstances, as satisfactorily as from the language used. A contract, for example, to pay $50 for a night's lodging at a house of public entertainment, where similar accommodation was usually afforded for one twentieth of that sum in coin, accompanied by proof of a corresponding depreciation of Confederate notes, would leave little doubt that the parties had Confederate money in contemplation when the contract was made. In Thorington v. Smith the land was sold for the nominal sum of $45,000, when its value in coin was only $3,000, a most persuasive fact to the conclusion that Confederate notes were alone intended in the original transaction. So, on the other hand, contracts made payable out of the Confederate States, or at distant periods, such as may be supposed to be desired as invest ments of moneys, or given upon a consideration | the Port of Indianola in the State of Texas, and 2 of gold, would, in the absence of other circumstances, justify the inference that the parties contemplated payment in the legal currency of the country. In the present case the intention of the Rail1 road Company that the principal of its bonds should be paid in lawful money instead of Confederate notes may justly be inferred, we think, from the nature of the contracts, particularly the long period before they were to mature. When they were issued, in May, 1862, it could not have been in the contemplation of the parties that the war would continue from seven to thirteen years. It is well known that at that time it was the general expectation on all sides that the war would be one of short duration. The Confederate notes were only payable by their terms after a ratification of peace between the Confederate States and the United States. The bonds of the railroad were intended for sale in the markets of the world generally, and not merely in the Confederate States; 560*] *they were payable to bearer and, therefore, transferable by delivery. They state on their face that they may be converted into the stock of the Company, at par, by the holder. The declarations of the officers of the Company up to July, 1863, show that the Company treated the bonds as having an exceptional value, and not subject to the fluctuation of Confederate currency. Repeated declarations of the of ficers were made to that import. There is sufficient in these circumstances to repel the presumption created by the Ordinance and Act of North Carolina, and that being rerelled, the ordinary presumption of law as to the meaning of the parties in the terms used must prevail. With reference to the interest payable semiannually a different presumption cannot be allowed, as the interest must follow the character of the principal. The other questions presented by counsel are not raised on the pleadings. Usury, as a defense, should have been specially pleaded or set up in the answer to entitle it to consideration. Decree affirmed. the other from Brushear in the State of Louisiana, by the Port of Sabine in the State of Texas, and back to Brushear. Peete, the appellant, was health officer of the City of Galveston and, as alleged in the bill, "Under the pretense of collecting quarantine dues to defray the expenses of keeping up a quarantine at said port of Galveston, by force and threats to stop said steamship and fine and imprison the commanders, compelled your orator to pay for and on account of each steamer each time it entered the Port of Galveston, a tonnage duty of $5 for the first one hundred tons burden, and also quarantine duty of one and one half cents for each and every added ton burden over one hundred tons." The bill further alleged that Peete threatened to continue these illegal exactions, and asked for an injunction. The defendant, Peete, justified his action under the proclamation of the Governor of the state and the Mayor of the City establishing quarantine, and under section 7 of the Act amending "An Act Authorizing Quarantine on the Coast of Texas, and Elsewhere within the State." This section was as follows: "There shall be collected by the examining health officer from every vessel arriving at each and every quarantine station, the following fees, to wit: for every vessel of one hundred tons burden or under, the sum of $5; from every vessel over one hundred tons burden, the sum of $5, and also, a further fee of one and one half cents for each and every ton. The aforesaid fees, collected as aforesaid, shall be reported to the proper authorities of the town or city at which such quarantine is established, and all the fees and fines, as hereinbefore provided for, shall be used to defray the expenses of keeping said quarantine." The circuit court decreed an injunction as prayed, and the defendant appealed to this court. Messrs. C. B. Sabin and A. H. Willie, for appellant. Mr. P. Phillips, for the appellee, referred to Gibbons v. Ogden, 9 Wheat., 203; Morgan ▼. Parham, 16 Wall., 472, 21 L. ed. 303; Passenger cases, 7 How., 283; Cox v. Collector, 12 Wall., 205, 218, 20 L. ed. 370, 375. Mr. Justice Davis delivered the opinion of the court: Morgan, a citizen of New York, and the owner of two lines of steamers registered and enrolled in New York, running from ports in Louisiana to ports in Texas, and back to the ports in Louisiana, brought his bill in equity in the Circuit Court of the United States for the Eastern District of Texas, to restrain Peete, the health officer at Galveston, from the future collection of quarantine fees, which had been antine ground, under claim of authority by virexacted from all his vessels coming to the quarThis legisla tue of the legislation of Texas; tion, which had the approval of the Governor, on the 13th of August, 1870, declared that every vessel arriving at the quarantine station should pay the sum of $5 for the first hundred tons, and one and a half cents for each additional ton. The case was heard on bill and answer, and a decree rendered granting the injunction prayed for and making it perpetual. The object of this appeal is to review that I that the inhibition in the Federal Constitution decision. That the power to establish quarantine laws rests with the States, and has not been surrendered to the General Government, is settled in Gibbons v. Ogden, 9 Wheat., 203. The source of this power is in the acknowledged right of a State to provide for the health of its people, and although this power when set in motion may in a greater or less degree affect commerce, yet the laws passed in the exercise of this power are not enacted for such an object. They are enacted for the sole purpose of preserving the public health, and if they injuriously affect commerce, Congress, under the power to regulate it, may control them. Of necessity, they operate on vessels engaged in commerce, and 583*] may produce delay or inconvenience, but they are still lawful when not opposed to any constitutional provision, or any Act of Congress on the subject. It is evident that the power to establish quarantine regulations cannot be executed without the State possesses the means to raise a revenue for their enforcement, but it is equally evident that the means used for this purpose must be of such a character as the restrictions imposed by the Federal Constitution upon the taxing power of the States authorize. We are not called upon in this case to go into the general subject of the limitations imposed by these restrictions, because the tax in question is manifestly outside the jurisdiction of the State to impose; as it is a "duty of tonnage," within the meaning of the Constitution. prevented the State from taxing in this mode. Submitted Mar. 27, 1874. Deoided Apr. 13, 1874. APPEAL from the District Court of the United States for the District of Louisiana. The case sufficiently appears in the opinion. Mr. C. H. Hill, Asst. Atty. Gen., for appellant. Messrs. R. H. Bradford and J. L. Bradford for appellees. Mr. Justice Hunt delivered the opinion of the court: On the 2d of March, 1867, 14 Stat. at L., 544, an Act was passed extending the time for filing a petition under the said Act of 1860 for three years from and after the passage of the Act. This duty was doubtless imposed to raise revenue, but Chief Justice Marshall, in commenting on this subject in Gibbons v. Ogden, supra, says: "It is true, that duties may often be, and in fact often are, imposed on tonnage, with a view to the regulation of commerce; This is the case of a petition presented under but they may be also imposed with a view to the Act of 1860, 12 Stat. at L. 85, for the conrevenue; and it was, therefore, a prudent pre-firmation of a grant of land under the Spanish caution to prohibit the States from exercising Government. this power. This power cannot be exercised without the permission of Congress, and Congress has never consented that the States should lay any duty on tonnage. On the contrary, so apprehensive was Congress that its legislation in 1799, 1 Stat. at L., 619, directing the collectors of customs and officers commanding forts and revenue-cutters to aid in the execution of the quarantine and health laws of the States, rendered necessary on account of the prevalence of yellow fever in New York, might be construed into an admission of the right of the States to lay this duty, that it used the following words of exclusion: "That nothing herein shall enable any State to collect a duty of tonnage or impost, without the consent of the Congress of the United States thereto." On the first of March, 1870, the heirs of James Innerarity filed a petition alleging that, as heirs and representatives of Innerarity, they were entitled to a recognition of a Spanish patent of 20,000 arpents, made to one Ramos, which lands afterwards became the property of their ancestor. The court held, and rightly, that their petition was filed in time. It now appears that the allegations of the petition were made in ignorance of the facts, and that Innerarity really had no claim in law or in equity to the land described. This necessarily disposes of the case as to his heirs. It is, however, not necessary to discuss this The attempt to set up a claim under this pesubject, as it has been recently fully considered tition, or a supplemental petition, by Innerari584*] by this court in the State *Tonnage Tax ty's heirs in favor of the heirs of John WatCases, reported in 12 Wall., 204, 20 L. ed. 370.kins, cannot be sustained. It does not appear In these cases the law of Alabama levied a tax at so much per ton on all steamboats. The boats on which the tax was levied were owned by citizens of the State, and were employed exclusively in the internal commerce of the State, over which Congress has no control. This court, while conceding the full power of the State to tax the property of its citizens, held that Watkins derived title from Innerarity, or that Innerarity ever had any title. The case is simply this: Innerarity's heirs have filed their petition in time, but have no title. Watkins' heirs have a title, but have not filed a petition for its allowance. Watkins' title cannot be interposed by the present petitioners. Such prac tice is unknown. If a suit be commenced by A to recover land or money, he, failing on the merits, carnot bring into his suit a new plaintiff, especially one whose action, if then commenced, would be barred by the Statute of Limitations. If otherwise, the same suit can be continued indefinitely, constantly making new plaintiffs, until some one shall be found who has a meritorious claim. It would be a practical abrogation of the limitation of the statute. The Act of 1867, 14 Stat. at L., 544, has been further extended, and the heirs of Ramos must make an original application in their own names. We understand the case of U. S. v. Patterson, 15 How, 12, to be a decisive authority against the present claim. The decree is reversed, and the case is remit ted to the District Court of Louisiana, with directions to dismiss the petition. & THE WASHINGTON, ALEXANDRIA, The controversy arises out of the use by the defendants below of the improvement in the steam engine known as the Sickles cut-off, for which Sickles, one of the plaintiffs, had received a patent. All the trials in the court below previous to the one under review, had been founded on a special count, the substantial allegation of which were, that after an experiment to ascertain the saving in fuel due to the use of the patented invention, the defendant would pay to the plaintiffs three fourths of the value of said saving of fuel during the existence of the patent, if the vessel on which it was to be used should last so long. Very large savings were proved to the satisfaction of juries, and several heavy verdicts and judgments were rendered, which were reversed on different grounds in this court. The last of these reversals was in the present case, and is reported in 5 Wall., 580, 18 L. ed. 550. It was there held that this special contract, on which the case had always been previously FREDERICK E. SICKLES and Truman Cook, tried, was void under the Statute of Frauds, be v. use of GEO. MATTINGLY. (See S. C., 19 Wall., 611-618.) cause it was not to be performed within one year and was not in writing. This was in 1867, and the case being remanded, the plaintiff, by Plea of Statute of Limitations-rules as to leave of the court, filed, on 4th March, 1868, rule for damages for infringement of patentright. the following amendment to the declaration: "The plaintiffs sue the defendant for money payable to the plaintiffs, for the use of a cer 1. Whilst the right to plead the Statute of Lim-tain apparatus patented by one Frederick E. Itations is no more within the discretion of the court than other pleas, when the refusal of the court to permit that plea to be filed is based on the allegation that it is not filed within the time pre scribed by the rules of practice adopted in that court, it is necessary that the party excepting to the refusal shall incorporate the rule in his bill of exceptions, or this court will presume that the court below construed correctly its own rule. tice under them. 2. Such rules are indispensable to the dispatch of business and the orderly administration of justice, and it must be presumed that the court below is familiar with the construction and course of prac3. The rule of damages in actions at law for infringement of the rights of patentees has long been established in this court to be the customary price at which the patentee has licensed the use of his invention, where a sufficient number of licenses or sales have been made to establish a market value. 4. The reason for this rule is still stronger when the use of the patented invention has been, with the consent of the patentee, express or implied, without any rate of compensation fixed by the partles. [No. 265.] Sickles, on the 20th day of May, 1842, for lifting and tripping the valves of steam-engines and also an improved water reservoir and plunger. And the plaintiffs sue the defendant for money received by the defendant for the plaintiffs; and the plaintiffs claim $25,000." To this the defendants, on the first day of March, 1871, three years afterwards, without leave of the court, filed a plea of non assumpsit and two pleas of the Statute of Limitations. On motion of the plaintiffs the two latter pleas were stricken from the files, on the ground that not having been filed within time, according to the rules of the court, it would in furtherance of the ends of justice, refuse to permit them to stand as part of the issue to be tried. This ruling is the ground of the first exception, and of one of the assignments of errors. The rule of the court below is not made a part of the bill of exceptions. What purports Argued Mar. 31, and Apr. 1, 1874. Decided to be a rule on the general subject of notice to Apr. 13, 1874. plead, is put at the bottom of the page in a note, a mode of making up records on writs of error IN ERROR to the not be judicially noticed by this court, and we are much embarrassed as to the effect of the The case is stated by the court. Messrs. T. J. D. Fuller and W. D. Dav-reference to those rules in the bill of exceptions. idge, for plaintiff in error. Messrs. J. H. Bradley, E. N. Dickerson and J. H. Bradley, Jr., for defendants in error. Mr. Justice Miller delivered the opinion of the court: This suit is part of a litigation of twenty-five years' standing, which is now in this court for the fourth time. ⚫Headnotes by Mr. Justice MILLER. NOTE.-Rules of practice, their effect, construc The right to plead the Statute of Limitations, like any other defense, does not depend on the pleasure or discretion of the court. And if the action of the court was rested solely on that ground, we should have no hesitation in tions to be weighed. The right of a court to reversing it. But there are other consideraprescribe rules to regulate the time and manner of filing pleas is beyond question, if they are reasonable, and *such rules are indis- [*616 pensable to the dispatch of business and the tion and conclusiveness-see note to U. S. V. Breit-orderly administration of justice. ling, 15 L. ed. U. S. 900. 13 When in a bill of exceptions the court places "In cases where there is no established patent or license fee in the case," says the court in The Suffolk Co. v. Hayden, “or even an approximation to it, general evidence must necessarily be resorted to." its action on such rules, with the construction | price for such licenses, that price should be takof which and the course of practice under them, en as the measure of his damages against the it must be familiar, it would seem that the infringer. The rule thus declared has remained party assigning error on such rulings should be the established criterion of damages in cases to bound to exhibit in his bill of exceptions so which it was applicable ever since. Sickles v. much of the rule or rules as affects the question. Borden, 4 Blatchf., 14; The Suffolk Co. v. HayNo little weight is added to these views by the den, 3 Wall., 315, 18 L. ed. 76; Livingston v. fact that the defendants did not file their pleas Jones, 3 Wall., Jr., 330. until three years after the filing of the amended declaration, to which they were answers, and until the day before the case was tried by the jury. In addition to this, while it may be true that the amended declaration, as a general rule, is to be taken at the commencement of the suit, in reference to the defense of the statute, it may be doubted whether in this particular case, where, after years of fierce litigation, only a common count is added, which is intended to cover the same subject-matter, justice will be promoted by allowing this plea, which can only be valid by reason of the time elapsed pending the litigation. On the whole we do not think, as the case appears before us, that the exception is well taken. The case went to trial on the plea of non assumpsit to the amended declaration. Evidence was admitted, to which defendants excepted, proving the special contract, the value of the saving in fuel made by the use of the patented improvement, and the length of time it was in use by defendants. Evidence was also given by defendants that the plaintiffs had sold a great many licenses for the use of the patent on steamboats, that the patent fees were numerous and ranged from $250 to $1,500 for the use of the patent during its existence, and that though they had produced evidence of all the sales made of licenses for the use of the patent on steaboats during its existence, the fee in no case exceeded the latter sum. Notwithstanding this testimony, which seems to have been uncontradicted, the verdict of the jury and the judgment of the court was for $11,333, with interest from the date of the commencement of the suit. 617*] *The defendants in various forms prayed the court to instruct the jury that the measure of damages was the established rate for the license to use their invention, as ascertained by the sales made by plaintiffs of such license to others. If this was the true rule of estimating the damage, the bill of exceptions shows that a sufficient number of such licenses, and the prices at which they were granted, were in evidence to enable the jury to apply the principle to the case before them. And we are of opinion that this was the sound rule, and that in refusing the prayers for instruction based on it, as well as in admitting evidence of the saving of fuel and its value as affecting the amount of the verdict, the court below was in error. And the same error is to be found in the charge of the court to the jury on that subject. On that subject in the case of Seymour v. McCormick, 16 How., 480, this court, on full consideration, and without dissent, laid down the proposition that in suits at law for infringement of patents, where the sale of licenses by the patentee had been sufficient to establish a In the case of Seymour v. McCormick, a charge very similar to the one given in the present case was held erroneous and the principles we have stated established. The rule in suits in equity, of ascertaining by a reference to a master the profits which the defendant has made by the use of the plaintiff's invention, stands on a different principle. It is that of converting the infringer into a trustee for the patentee as regards the profits thus made; and the adjustment of these [*618 profits is subject to all the equitable considerations which are necessary to do complete justice between the parties, many of which would be inappropriate in a trial by jury. With these corrective powers in the hands of a chancellor, the rule of assuming profits as the groundwork for estimating the compensation due from the infringer to the patentee has produced results calculated to suggest distrust to its universal application even in courts of equity. Certainly any unnecessary relaxation of the rule we have laid down in cases at law, where the patentee has been in the habit of selling his invention or license to use it, so that a fair deduction can be made as to the value which he and those using it have established for it, does not commend itself to our judgment, nor is it encouraged by our experience. If such be the proper rule in case of the infringer who uses the invention without license and against the consent of the owner, it should not be harsher against the party who uses it with consent of the owner, express or implied, but without any agreement as to the rate of compensation. In such case nothing can be more reasonable than that the price fixed by the patentee for the use of his invention, in his dealings with others, and submitted to by them before using it, should govern. The case was tried in the court below upon an entirely different theory, against the steady remonstrance and exceptions of the defendants. With the special contract eliminated from the case, it seems to us to be a very simple one. The defendants have used or are charged with using the invention of plaintiffs, with their consent, until the expiration of the patent. If this is proven to the satisfaction of the jury, the plaintiffs have furnished the rule which must measure their compensation, in the prices at which they have sold the same privilege to others, and they must be bound by it. The judgment of the Supreme Court of the District of Columbia is reversed, with direo tions to order a new trial. |