The count was drawn under § 3296 of the Revised Statutes, which provides that:

not be limited to pink in its choice of colors. oaths aforesaid, do further present, that, at The legislative fancy or taste would be bound-the time and place and within the jurisdicless. It might equally as well provide that tion aforesaid, the said George Pounds unlaw. it should be colored blue or red or black. fully did conceal and aid in the concealment Nor do we see that it would be limited to the of distilled spirits on which the tax had not use of coloring matter. It might, instead of been paid, which said spirits had been rethat, provide that the article should only be moved to a place other than the distillery sold if mixed with some other article which, warehouse provided by law, contrary to the while not deleterious to health, would never- form of the statute in such case made and theless give out a most offensive smell. If provided, and against the peace and dignity the legislature have the power to direct that of the United States." the article shall be colored pink, which can only be accomplished by the use of some foreign substance that will have that effect, we "Whenever any person removes, or aids or do not know upon what principle it should be abets in the removal of, any distilled spirits confined to discoloration, or why a provision on which the tax has not been paid, to a place for an offensive odor would not be just as other than the distillery warehouse provided valid as one prescribing the particular color. by law, or conceals, or aids in the concealThe truth is, however, as we have above stat-ment of, any spirits so removed, or removes, ed, the statute in its necessary effect is pro- or aids or abets in the removal of, any dishibitory, and therefore upon the principle tilled spirits from any distillery warehouse, recognized in the Pennsylvania cases it is in- or other warehouse for distilled spirits auvalid. thorized by law, in any manner other than is The judgment of the Supreme Court of provided by law, or conceals or aids in the [36] New Hampshire is reversed, and the case re-concealment of any spirits so removed, he manded to that court for further proceedings shall be liable to a penalty of double the tax not inconsistent with this opinion. imposed on such distilled spirits so removed or concealed, and shall be fined not less than

Mr. Justice Harlan and Mr. Justice two hundred dollars nor more than five thou Gray dissented.

sand dollars, and imprisoned not less than three months nor more than three years."

GEORGE POUNDS, Piff. in Err.,


After the verdict, and before the judgment, the plaintiff in error filed his motion in arrest of judgment, as follows:


(See S. C. Reporter's ed. 35-38.)

Indictment for concealing distilled spirits separation of jury.

1. An indictment in the language of U. S. Rev. Stat. § 3296, charging the concealment of distilled spirits on which the tax had not been paid, which had been removed to a place

other than the distillery warehouse provided

by law, is sufficiently certain and sufficiently alleges the existence of a warehouse provided for such spirits.

2. A claim that a jury separated before the verdict was returned is ineffectual, where that fact does not appear on the record, but it does appear that a sealed verdict was returned, under agreement of counsel for both parties, in open court and in the presence of the defendant.

[No. 298.] Submitted May 6, 1898.


Afterwards an amended motion in arrest of judgment was filed, as follows:

"By leave of the court first had and obtained the defendant amends his motion in

arrest of judgment by adding the following grounds:

"First. The said

ment fails to s
house provided
alleged to hav
been removed,
"Second. T
Decided May 23, verdict of t

The over
as error.

"Now comes the defendant after the rendition of the verdict of the jury finding him guilty as charged in the sixth count of the indictment and before judgment and sentence, and moves the court to arrest the judgment in this case, upon the ground that the sixth count of the indictment is too vague and uncertain to authorize a judgment and sentence against the defendant."

Statement by Mr. Justice McKenna:

The indictment under which the defendant (plaintiff in error) was tried contained fifteen counts. He was convicted on the sixth count, which read as follows:

Mr. J.
Mr. Ja

IN ERROR to the District Court of the
United States for the Northern District of
Alabama to review a judgment convicting
George Pounds for concealing distilled spirits General,
on which the tax had not been paid.

Mr. J
ion of t
vides t
his own

on and


"The grand jurors aforesaid, upon their of disti

count of the indic there was a w

which the cealed should


s motion

h for
rd, A
t in/

until the tax thereon shall have been paid;
and such warehouse, when approved
by the Commissioner of Internal Revenue,
on report of the collector, is hereby declared
to be a bonded warehouse of the United
States, to be known as a distillery warehouse,
and shall be under the direction and control
of the collector of the district, and in charge
of an internal revenue storekeeper, assigned
thereto by the Commissioner."

Section 3287 provides that all distilled
spirits shall be drawn from the receiving cis-
terns into casks of a designated capacity and
the quantity of spirits marked thereon, "and
shall be immediately removed into the distil-
lery warehouse," and stamps designating the
quantity of spirits shall be applied thereto.

Other sections provide that no distilled

will not review it.

spirits upon which the tax has been paid Review of state judgment-when this court
shall be stored or allowed to remain on any
distillery premises, and such spirits found in
a cask containing 5 gallons or more without
having the stamp required by law shall be

To secure the enforcement of this provision,
3296 was enacted.

Plaintiff in error says:

e conc le tax ther

y law

age of

ct ut



of judgment, it is enough to say that there is nothing in the record to show that the jury separated before the verdict was returned into court, but the record does show that a sealed verdict was returned by e jury by agreement of counsel for both parties in open court and in the presence of the defendant. This verdict was rightly received and recorded. Commonwealth v. Carrington, 116 Mass. 37.

The judgment is affirmed.

"It seems clear that section 3296 of the Revised Statutes intended to provide a punishment for a distiller who had complied with the various provisions of chapter four of the Revised Statutes, and had provided a warehouse as required by section 3271, and then concealed or aided in the concealment of distilled spirits which had been removed, the tax not having been paid, to a place other than the distillery warehouse so provided."

This court will not review a state judg ment, although a Federal question was decided adversely to the plaintiff in error, if another question, not Federal, was also raised and decided against him, the decision of which is sufficient to sustain the judgment.

[No. 245.]


And it hence claimed that the indictment is Argued May 2, 3, 1898. Decided May 23, too uncertain to sustain the judgment, because it does not inform the defendant that a warehouse was provided in which the spirits which he is charged to have concealed State of Maryland to review a judgment of IN ERROR to the Court of Appeals of the

should have been stored until the tax was

to P sion [38] on co

paid. Undoubtedly, the statute was intended that court aflirming the judgment
of the
distiller who violated its provi-Franklin J. Morton, in an action brought by
state trial court in favor of the defendant,
also intended to punish any Walter H. Harrison, plaintiff, to recover dam-
d, and the "offense could be
removal of spirits from the ages for breach of contract for the sale of
storage in the distillery ware-
certain patent rights. Dismissed.
cealment of the spirits so re-
See same case below, 83 Md. 456.
is this
ment which
It also
aid. The
ch case it
e defend-
is of the
on of the


tence of
tax ha
ely sta
3 comin

i the su
ut any

ted Sta

1; Unit
acts w

96 U. S.

rtton, 107

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WALTER H. HARRISON, Plff. in Err.,



(See S. C. Reporter's ed. 38-47.)

1. To give this court jurisdiction to review a state judgment, a Federal question must have been presented to the state court and decided adversely to the party claiming the Federal right, or it must appear that the judgment could not have been rendered without deciding such question.


Statement by Mr. Justice McKenna: This suit was brought by the plaintiff in error Harrison against the defendant in error on the 8th of February, 1895, in the Baltimore city court, to recover the sum of $300,000 damages for the breach of a contract under seal for the sale of certain patent rights.

Under the alleged contract the plaintiff in error sold, and the defendant in error bought

NOTE. As to jurisdiction in the United States Supreme Court where Federal question arises offense by or where are drawn in question statutes, treaty, or Constitution,-sce notes to Martin v. Huailled spirits ter, 4:97; Matthews v. Zane, 2: 654; and Willid, removed lams v. Norris, 6:571.

warehouse As to jurisdiction of United States Supreme t charges in Court to declare state law void as in conflict performance with state Constitution; to revise decrees of e and place. state courts as to construction of state laws -see notes to Jackson, Hart, v. Lamphire, 7: 679, and Commercial Bank v. Buckingham, 12: 169.

otion in arrest

and agreed to pay for, a certain machine, were granted, bearing date January 22, 1895, method, and device for making barrels and as read in evidence, and that the plaintiff, et kegs, and all his right, title, and interest in the time of the execution of said agreement certain pending letters patent therefor, when with the plaintiff, had no knowledge or noissued, at and for the price of $300,000, tice of the agreement between Henry Campwhereof $100,000 were to be paid in cash bell and the Campbell Barrel Company offered within ten days after the issuing of letters in evidence, then the plaintiff is entitled to

patent, and the remaining $200,000 were to be paid in the full-paid, nonassessable shares of a corporation, to be incorporated and organized by the defendant in error Morton under the laws of Maryland, with a capital stock of $500,000.

The pleas were:

First. Non est factum.

"Plaintiff's Second Prayer.

Second. That the signature of the defendant in error to the alleged agreement was procured by the fraud of the plaintiff in error. Third. That the signature of the defendant in error was procured by the undue influ-cured by the plaintiff from the defendant by ence of the plaintiff in error. fraud or by undue influence. (Conceded.) "Plaintiff's Third Prayer.

"The plaintif!, by his counsel, prays the court to rule that the defendant has offered no evidence legally sufficient to show that the contract set out in the declaration was pro

And also three supplemental pleas on equitable grounds:

1st. That there was no consideration for the alleged agreement.

2d. That at the date of the alleged agree[40]ment Harrison *was not the owner of and had no valid title to the machine, method, and device mentioned in the declaration.

"The plaintiff, by his counsel, prays the
court to rule that the defendant has offered
no evidence legally sufficient to show that
there was no consideration for the agreement
set out in the declaration. (Rejected.)
"Plaintiff's Fourth Prayer.

"The plaintiff prays the court to rule that
if the court shall find that on the 11th day of
September, 1894, Henry Campbell made to
the plaintiff the assignment of one-half inter-
est in his then pending application to the
United States Patent Office for a patent for
the invention in said assignment mentioned,
and subsequently, on or about the 26th of
November, 1894, made to the plaintiff a fur-
ther assignment of all his interest in his said
pending application and to the patent there-
on, whenever the same should thereafter be
granted; then, by virtue of said two assign-
ments, the plaintiff acquired an inchoate title
to said invention and to the patent thereon,
when the same should thereafter be granted,
which title it was competent for the plaintiff
to sell, assign, anu dispose of; and if the court
shall further find that on or about the 10th
day of December, 1894. the plaintiff executed
to the defendant the assignment read in the
evidence and dated the 8th day of December,
1894, for the consideration therein mentioned,
and that subsequently, on or about the 22d
day of January, 1895, a patent was issued by
the United States in the name of said Henry
Campbell, for the invention described *ir said [42]
several assignments from said Campbell to
the plaintiff and from the plaintiff to the de-
fendant, then the defendant, by virtue of
said letters patent, acquired a valid title to
and became the owner of said patent, and said
assignment from the plaintiff to the defend-
ant, bearing date the Sth day of December,
1894, was supported by a good and sufficient
consideration, and the plaintiff is entitled to
recover upon the contracts set out in the dec-
laration, provided the court, sitting as a jury,
shall find that the said contract was signed

"Plaintiff's First Prayer.

"The plaintiff, by his counsel, prays the court to rule that if it shall find from the evidence that the contract between the plaintiff and defendant, dated December 8, 1894, and read in evidence, was signed and sealed by the plaintiff and defendant, and left in the possession of the defendant as a complete and operative instrument according to its terms, and that in accordance with said contract, shortly after the execution thereof, the plaintiff executed to the defendant the assignment read in evidence of his right to the invention therein mentioned, on which application for a patent was then pending, and that defendant afterwards employed and paid patent attorneys to procure for him the patent from the government of the United States and from the governments of other countries; and if the court shall further find that the said and sealed by the plaintiff to the defendant, application for a patent was allowed by the and was designed by them to be an operative government of the United States, and subse-instrument according to its terms; and proquently that letters patent for said invention vided further that at that time of the execu

3d. That at the time of the alleged assignment of the patent Harrison was not the owner of and had not a valid title to the said patent.

The defendant also filed a plea of set-off, and upon demand for a bill of particulars of such set-off filed a bill of particulars, amounting to thirty-one thousand, seven hundred and ninety-one dollars and fifty-two cents ($31,791.52).


*" ("And that there is no evidence that the [41] plaintiff had any knowledge or notice of said agreement between said Campbell and said Campbell Barrel Company.') (Rejected as fered, but granted as modified by omitting the words in italics.)

Replications were duly filed and issues joined on all of them.

The case was tried before the judge without a jury.

At the trial the parties asked the court to rule on certain propositions contained in what the record calls "prayers." They were as follows, with the action of the court expressed thereon:

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tion of said contract, the plaintiff had no embrace rulings on testimony, on the knowledge or notice of the agreement between prayers, and the following: Henry Campbell and the Campbell Barrel "1. It was error to decide that under the Company, Dearing date the day of January, laws of the United States the assignments 1892, and offered in evidence by the defend- from Henry Campbell to Walter H. Harrison, ant, and that there is no evidence legally suf-dated the 11th day of September, a. d. 1894, ficient to show that the plaintiff had any and the 26th day of November, 1894, resuch knowledge or notice of said agreement. spectively, purporting to convey to the said (Rejected.) Harrison the entire right, title, and interest "Fifth Prayer. in and to the application for patent-serial number, 522,266 and the patent right contained therein and covered thereby,' operated to convey to the plaintiff Harrison merely the equitable title in and to said invention and the patent rights covered by said application.

"That the agreement of January, 1892, between Henry Campbell and the Campbell Barrel Company, offered in evidence by the defendant, is no defense to this action, if the court shall find that by the true construction of said agreement the invention and device described in the contract set out in the dec- "2. It was error to decide that the said aslaration is not embraced within said agree-signments were not drawn as the laws re- [44] ment. (Granted.)" quired and hence did not convey the legal title to the invention in question."

And the defendant offered the following two prayers:

"Defendant's First Prayer.

"The defendant asks the court to rule as matter of law that upon the pleadings of the case the burden is upon the plaintiff to prove the delivery of the sealed instrument sued on, and if the court, sitting as a jury, finds that the paper sued on never was delivered, the verdict must be for the defendant. (Granted.)

"We think there can be no doubt that the

defendant's two prayers were properly granted. By the first the court declared as matter of law that upon the pleadings the burden was upon the plaintiff to prove the delivery of the sealed instrument sued on, and that if the court, sitting as a jury, should find that said paper never was de

"Defendant's Second Prayer.

"If the court, sitting as a jury, shall find that when the paper sued on was presented [43] by the plaintiff to the defendant *for the lat-livered, the verdict must be for the defendter's signature, with the request that he ant. The second prayer recites the evidence would sign it, the defendant declined so to more at length, but asserts the same propodo, as the terms of such papers did not corre-sition of law which appears to be well settled spond with any agreement made or talked of in this state. Edelin v. Sanders, 8 Md. 129. between the plaintiff and defendant, and that We discover no inconsistency between the thereupon it was agreed between them that two prayers. The plaintiff specially exthe papers in duplicate should be signed by cepted to the second on the ground that there the defendant, and both kept in his posses- was no evidence in the cause legally sufficient sion, and should not be of any force, and to prove the facts therein set forth. It is should belong to the defendant until he clear, however, that the testimony of the chose to put them in force, and that in pur-witnesses Morton and Coale support the facts suance of this agreement they were then set forth in this prayer, and we have already signed by the defendant, and always after-held it to be competent and admissible under wards kept in his possession until produced the issue made by the plea of non est factum. at the trial of this cause, on notice, and that "We will now consider the prayers of the at no time after the signing of said papers plaintiff. He offered five, the second having did the defendant ever exercise his option of been conceded and the fifth granted. putting into force, but, on the contrary, subsequently thereto, exercised his option by declining to recognize them as in force, then the verdict shall be for the defendant. (Granted.)"

The trial judge rendered a general verdict for the defendant, on which judgment was entered for $35,091.65, with interest and costs.

The opinion of the supreme court of Mary. land is quite long, necessarily so, as it passes upon all the points which were raised by plaintiffs. The parts of it which concern the case are as follows:

An appeal having been taken to the court of appeals of Maryland by the plaintiff Harrison, the judgment of the court below was affirmed by the said court of appeals on the 17th of June, 1896, for $39,091.65, with interest from the 13th of December, 1894, until paid, and costs.

On September 21, 1896, a writ of error to review this judgment was issued to the court of appeals of Maryland.


There are nine assignments of error. 171 U. S. U. S., BOOK 43.


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"The controlling proposition in this part of the case is that contended for by the plaintiff in his first, third, and fourth prayers, namely, that there is no legally sufficient evidence in the case to show that he had any knowledge or notice of the agreement between the inventor, Campbell, and the Campbell Barrel Company.

"The correctness of this contention of the plaintiff depends first, upon the legal effect of the assignments from Campbell to the plaintiff, and, secondly, upon the effect of the contract of Campbell with the Campbell Barrel Company-that is to say, whether said company thereby assigned to said company an equitable title to his invention prior in date to the title he claims to have assigned to [45] the defendant, which latter title the plaintiff claims to be an absolute legal title, and the defendant's contention, on the contrary, is


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that it is a mere equitable title, subsequent
in date and therefore inferior to the title of ion of the court:

the barrel company. The plaintiff claims It is manifest that the pleadings of the par-
title through two assignments from Camp-ties presented for decision other questions be-
bell, each being for one-half interest in a cer- sides Federal ones, and which could be, inde-
tain application filed in the Patent Office of pendent of the Federal ones, determinative
the United States, at Washington, D. C., of the controversy. Assuming, therefore,
which application is for letters patent cover-that a Federal question was involved, it does
ing the invention of a machine for forming not appear but that the decision was given
and making barrels and kegs.
on the contention of the defendant that the
"It will befound upon an examination of agreement never became operative for want
these instruments that they do not contain a of delivery. This contention was clearly pre-
request to the Commissioner of Patents to sented by defendant's prayers, and they con-
issue letters patent to the plaintiff. Not-tained the only rulings urged upon the court
withstanding they were recorded in the Pat- in that way, that is, in the nature of instruc-
ent Office, letters patent were issued in the tions. They were given and the verdict was
name of Henry Campbell, the inventor, and generally for the defendant. It is therefore
the defendant contends that the legal effect natural to presume that the verdict was ren-
of such an assignment, in which the inventor dered on account of them and on the ground
fails to embody a request to the Commis- urged by them. The ruling of the court
sioner of Patents to issue letters to the as-granting them was sustained by the supreme
signee, is to convey to such assignee only an court of the state. It affirmed the ruling as
equitable title. It is conceded that by one correct in law and as supported by competent
of the rules of the Patent Office the Commis- testimony. The supreme court, it is true,
sioner will not and cannot issue the letters passed on other grounds, passed on the one
patent to an assignee, unless specially re-
which it is claimed involved a Federal ques- [47]
quested so to do by the terms of the assign- tion, and decided it adversely to plaintiff.
ment. One of the witnesses refers to this But the rule in such cases has been repeatedly
rule in his testimony. The patent having declared by this court.
It is not necessary to
been issued to Campbell instead of to the de-review the decisions. That has been done by
fendant, the witness thus explains: I ascer- Mr. Justice Shiras in Eustis v. Bolles, 150 U.
tained that the probable reason why it (the S. 361 [37:1111]. It is sufficient to announce
patent) had not been issued to Mr. Morton the rule pronounced in the case:
was this: The original assignment from Mr.
Campbell to Mr. Harrison did not contain
the request which the rules of the Patent
Office required in order that the patent
should be issued in the name of the assignee.'
Rule 26, Rules of Practice in the United
States Patent Office, page 9. Revised April
1, 1892."

"It is settled law that, to give this court
jurisdiction of a writ of error to a state court
it must appear affirmatively, not only that a
Federal question was presented for decision
by the state court, but that its decision was
necessary to the determination of the cause,
and that it was actually decided adversely to
the party claiming a right under the Federal
laws or Constitution, or that the judgment
as rendered could not have been given with-
S. 20 Wall. 590 [22: 429]; Cook County v.
out deciding it. Murdock v Memphis, 87 U.
Calumet & Chicago Canal & D. Co. 138 U. S.
635 [34:1110]. It is likewise settled law
that, where the record discloses that if a
question has been raised and decided adverse-
vision of the Constitution or laws of the
ly to a party claiming the benefit of a pro-
United States, another question, not Federal,
has been also raised, and decided against
such party, and the decision of the latter
question is sufficient, notwithstanding the
Federal question, to sustain the judgment,
this court will not review the judgment."
See also Wade v. Lauder, 165 U. S. 624

After considering authorities, the opinion

decides that

"If, therefore, the Campbell Barrel Com pany acquired an equitable title to the patent, as it undoubtedly did, under its contract with the inventor, before the assignment of the equity to the defendant, the latter took subject to the equitable title in the said company, and the first, third and fourth prayers [46] of the plaintiff were properly refused, for they all asked the court to say that there was no legally sufficient evidence to show that the plaintiff had knowledge or notice of the agreement between the plaintiff and the barrel company, but, as we have seen, knowledge and notice will be imputed to him, as Ch. J. Gibson said in Chew v. Barnet, supra [11 Serg. & R. 389], 'whether he had notice or not,' holding as he did only an equitable


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Mr. Justice McKenna delivered the opin

The writ of error must therefore be dis-

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