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Carpenter v. The Providence Washington Insurance Co. 16 P.

tion, or that of those under whom he claims, to protect himself against his own laches in not giving notice of the policy to the underwriters. And it may well be doubted whether a party to a policy can be allowed to set up his own misrepresentations to avoid the obligations deducible from his own contract. Be this as it may, it is, in our judg ment, free from all reasonable doubt, that notice of a voidable policy must be given to the underwriters; for such a case falls within the words and the meaning of the stipulations in the policy. It is a prior policy, and it has a legal existence until avoided.

[* 510 ] * Indeed, we are not prepared to say that the court might not have gone further, and have held that a policy-existing and in the hands of the insured, and not utterly void upon its very face, without any reference whatever to any extrinsic factsshould have been notified to the underwriters, even although by proofs, afforded by such extrinsic facts, it might be held in its very origin and concoction a nullity. And this leads us to say a few words upon the nature and importance and sound policy of the clauses in fire policies, respecting notice of prior and subsequent policies. They are designed to enable the underwriters, who are almost necessarily ignorant of many facts, which might materially affect their rights and interests, to judge whether they ought to insure at all, or for what premium; and to ascertain whether there still remains any such substantial interest of the insured in the premises insured, as will guarantee on his part vigilance, care, and strenuous exertions to preserve the property. To quote the language of this court in the passage already cited, the underwriters do not rely so much upon the principles as upon the interest of the assured. Besides, in these policies there is an express provision that in cases of any prior or subsequent insurances, the underwriters are to be liable only for a ratable proportion of the loss or damage as the amount insured by them bears to the whole amount insured thereon. So that it constitutes a very important ingredient in ascertaining the amount which they are liable to contribute towards any loss; and whether there be any other insurance or not upon the property, is a fact perfectly known to the insured, and not easily or ordinarily within the means of knowledge of the underwriters. The public, too, have an interest in maintaining the validity of these clauses, and giving them full effect and operation. They have a tendency to keep premiums down to the lowest rates, and to uphold institutions of this sort, so essential in the present state of our country for the protection of the vast interests embarked in manufactures, and on consignments of goods in warehouses. If these clauses are to be construed with a close and scruti nizing jealousy, when they may be complied with in all cases by

Carpenter v. The Providence Washington Insurance Co. 16 P.

ordinary good faith and ordinary diligence on the part of the insured, the effect will be to discourage the establishment of fire insurance companies, or to restrict their operations to cases where the parties and the premises are within the personal observa- [* 511 ] tion and knowledge of the underwriters. Such a course would necessarily have a tendency to enhance premiums, and to make it difficult to obtain insurances where the parties live, or the property is situate, at a distance from the place where the insurance is sought.

But, be these considerations as they may, we see no reason why, as these clauses are a known part of the stipulations of the policy, they ought not to receive a fair and reasonable interpretation according to their terms and obvious import. The insured has no right to complain, for he assents to comply with all the stipulations on his side, in order to entitle himself to the benefit of the contract, which upon reason or principle, he has no right to ask the court to dispense with the performance of his own part of the agreement, and yet to bind the other party to obligations, which, but for those stipulations, would not have been entered into. We are, then, of opinion that there is no error in the second instruction. On the contrary, there is strong ground to contend that the stipulations in the policy as to notice of any prior and subsequent policies, were designed to apply to all cases of policies then existing in point of fact, without any inquiry into their original validity and effect, or whether they might be void or voidable.

We have not thought it necessary upon this occasion to go into an examination of the cases cited from the New York and Massachusetts Reports, either upon this last point, or upon the former point. The decisions in those cases are certainly open to some of the grave doubts and difficulties suggested at the bar, as to their true bearing and results. The circumstances, however, attending them, are distinguishable from those of the case now before us, and they certainly cannot be admitted to govern it. The questions under our consideration are questions of general commercial law, and depend upon the construction of a contract of insurance, which is by no means local in its character, or regulated by any local policy or customs. Whatever respect, therefore, the decisions of state tribunals may have on such a subject, and they certainly are entitled to great respect, they cannot conclude the judgment of this court. On the contrary, we are bound to interpret this instrument according to our own opinion of its true intent and objects, aided by all the lights which can be obtained from all external sources whatsoever; and [*512] if the result to which we have arrived differs from that of

Carver v. Hyde. 16 P.

these learned state courts, we may regret it, but it cannot be permitted to alter our judgment.

The third instruction prayed the court to instruct the jury that if the Washington Insurance Company had notice, in fact, of the exist ence of the policy in the American office, that "was in law a compliance with the terms of the policy." The court refused to give the instruction as prayed, but instructed the jury that at law, whatever might be the case in equity, mere parol notice of such insurance was not, of itself, sufficient to comply with the requirements of the policy declared on; but that it was necessary, in case of any such prior policy, that the same should not only be notified to the company, but should be mentioned in or indorsed upon the policy; otherwise the insurance was to be void and of no effect. We think this instruction was perfectly correct. It merely expresses the very language and sense of the stipulation of the policy; and it can never be properly said that the stipulation in the policy is complied with, when there has been no such mention or indorsement as it positively requires, and without which it declares the policy shall henceforth be void and of no effect.

The fourth and last instruction given by the court, stands upon the same considerations as those already mentioned; and it would be a useless task to repeat them. If the other instructions given by the court were correct, it is admitted that this cannot be deemed

erroneous.

Upon the whole, our opinion is, that the judgment of the circuit court ought to be affirmed, with costs.

4 H. 185; 12 H. 139; 19 H. 393.

ELEAZER CARVER, Plaintiff in Error, v. JOSEPH A. HYDE, and others, Defendants in Error.

16 P. 513.

A patentee having described and claimed his improvement on the cotton-gin, as consisting in a particular form of the rib, and a particular mode of fastening it to the framework of the gin: Held, 1. That this mode of fastening was an essential part of the invention claimed. 2. That if the defendant used a substantially different mode of fastening, he did not infringe. 3. That it was a question of fact for the jury, whether the mode used by the defendant was substantially different from that described and claimed by the plaintiff.

THE case is stated in the opinion of the court.

Dexter, for the plaintiff.

Fletcher and Phillips, contrà.

Carver v. Hyde. 16 P.

TANEY, C. J., delivered the opinion of the court.

This case is brought here by writ of error, directed to the circuit court of the United States for the district of Massachusetts. It is an action by the plaintiff in error against the defendants, to recover damages for the infringement of a patent right, obtained by the plaintiff on the 16th of November, 1839. The patent is in the usual form, and the questions before us depend upon the construction of the specification, which is in the following words:

"Be it known, that I, Eleazer Carver, of Bridgewater, in the county of Plymouth, and State of Massachusetts, have invented a certain improvement in the manner of forming the ribs of saw-gins, for the ginning of cotton; and I do hereby declare that the following is a full and exact description thereof:

"In the cotton-gin, as heretofore known and used, the fibres of the cotton are drawn by the teeth of circular saws through a *grating formed of a number of parallel bars or ribs, having [*514 ] spaces between them sufficient to allow the saws to pass, carrying the fibres of the cotton with them, (which are then brushed off by a revolving brush,) but not wide enough to let the seeds, and other foreign substances, pass through. Above the saws the ribs come in close contact, thus forming a shoulder at the top of the space between them. Various forms have been given to the bars or ribs, with a view to procure a free passage of the cotton; but the cotton-gin, as heretofore made, has been always subject to the inconvenience of the grate becoming choked by hard masses of cotton and motes, or false seeds, collecting in the upper part of the spaces between the ribs, and impeding the action of the saws, and also preventing the mass of cotton which is drawn by the saws up to the top of the spaces, but not drawn through them, from rolling back freely, so as to pass again over the saws, as it should do.

"My improvement, which I am about to describe, is intended to obviate these difficulties, and it consists in giving a new form to the ribs composing the grate. Instead of making the ribs of a bar of iron of equal thickness throughout, so that the upper and under surfaces shall be parallel, I so form the rib, that at the part where the saws pass through carrying the cotton with them, the space or depth between the upper and outer surface and the lower or inner sur face, shall be greater than the thickness of the rib in other parts has heretofore been or needs to be, and so great as to be equal to the length of the fibre of the cotton to be ginned, so that the fibre shall be kept extended between the ribs for about its full length, while it is drawn through them by the saws. This mill of course requires, either that the rib should be as thick at that part as the length of the fibre, or

Carver v. Hyde. 16 P.

that the rib should be forked or divided about that part, so that the upper or outer surface, and the under or inner surface, shall diverge to that distance of each other, instead of being parallel as formerly, when the rib was made of one bar of uniform thickness. This under or inner surface, then takes a new direction upwards, and slopes towards the upper or outer surface, until the two surfaces meet above the periphery of the saw. This last-described part of the under surface is fastened against the framework of the gin. The operation [*515] of this improvement is, that those fibres of the cotton

which are so firmly caught by the teeth of the saws as to be disengaged from the mass of the cotton to be ginned, are drawn out to their full length, and pass clear through the grate, and are then brushed off by the revolving brush, while the fibres that are drawn into the grate, but not caught by the teeth of the saws firmly enough to be carried quite through, are disengaged and pass up to where the under surface meets the upper surface above the saws, and finding no obstruction there, pass back out of the grate without choking it, and roll down again with the mass of unginned cotton, and are caught below by the saws and carried up again, and so on until all the fibres are drawn through."

The specification then proceeds to describe the invention more particularly, by referring to and explaining the drawings annexed to it, showing the advantages of his improvement, the manner of arranging the ribs in the gin, and the mode of inserting and fastening them in the framework. This description could not be comprehended without an exact drawing; nor is it necessary, in order to understand the questions of law in dispute between the parties. It is therefore omitted. After giving this description, the specification states the improvement, of which the patentee claims to be the inventor, as follows:

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Having thus described my improved rib and its advantages, I now claim, as my invention, and desire to secure by letters-patent, the increasing the depth or space between the upper or outer surface of the rib, and the lower or inner surface of it, at the part where the cotton is drawn through the grate, so that it shall be equal to the length of the fibre of the cotton to be ginned, (whether this be done by making the ribs thicker at that part, or by a fork or division of the rib, or by any other variation of the particular form ;) and I also claim, as part of the said improvement, the sloping up of the lower or inner surface of the rib, so as to meet the upper or outer surface above the saws, leaving, when the rib is inserted into the frame, no break or shoulder between the two surfaces, but a smooth and uninterrupted passage upwards between the ribs, as above described."

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