Clements v. Odorless Excavating Apparatus Co.

Bryan, J., filed the following dissenting opinion : In the third count of his declaration, Clements, the plaintiff below, alleged that the defendant falsely and maliciously procured an injunction to be issued against him, by falsely alleging in its bill of complaint filed in the Circuit Court of the United States, for the District of Maryland, that he, Clements, was infringing its patent rights by making, using and selling a machine or apparatus for emptying sinks, wells and privies; and that by reason of said false and malicious charges, it was enabled to procure said injunction to be issued against Clements for the purpose, and with the intent of oppressing him and breaking up his business, and to prevent him from competing with it in the business of cleaning sinks, wells and privies, and that by so doing it subjected bim to great loss and expense. The record of the injunction suit showed that the decree of the Circuit Court made the injunction perpetual, ⁶⁰⁶ but that on appeal to the Supreme Court, the decree was reversed and the bill dismissed. In the bill the complainant, the Odorless Excavating Apparatus Company, alleged that the letters patent had been in controversy before the Circuit Court in a suit in equity by the same complainant against one Thomas Quillan, and that the Circuit Court had passed a decree affirming the validity of-said letters patent. In its opinion in the suit against Clements, the Circuit Court use this language: “The validity of this patent as reissued, was established by this Court in the case instituted by the present complainant against Quillan, which was decided by the late Judge Giles, and all the questions as to the validity of the re-' issue, and the identity of the apparatus covered by this patent with the apparatus used by the defendant, having been considered and passed upon by Judge Giles in that case, we should not without most cogent reasons disturb that decision.” It thus appears that the decree against Quillan operated with great and almost conclusive force against Clements in the suit against him; that it interposed in the way of his defence, obstacles of a very serious and almost insurmountable character.

Now Clements sought to prove that the decree against Quillan was collusively obtained by means of a fraudulent combination between Quillan and the Excavating Company, and that the combination was made for the purpose of establishing a precedent in the Circuit Court by which the Excavating Company would be the better enabled to maintain a suit of the kind against him (Clements) and others for the infringement of the alleged patent rights. I will state the offers of evidence. In the first exception it is stated : “ The plaintiff then offered in evidence, as tending to prove a want of probable cause, fraud and malice, the record and all the proceedings, together with the decree, in the case of this defendant against said Quillan, in said Circuit Court of the U. S. for the District ⁶⁰⁷ of Maryland, and as tending to prove that said decree was the result of fraud and collusion between this defendant and Quillan, and that there was no bona fide defence made to said action — no argument made for the said Quillan at the trial of the case ; and further, that this plaintiff had offered to secure at his own expense, an able and competent patent lawyer to defend said case.”. In the second exception this offer is made: “the plaintiff further offered evidence tending to prove that the defence in the Quillan case was not an honest and bona fide defence, but on the contrary, that it was a combination entered into between the parties thereto (this defendant and Quillan,) for the purpose of establishing a precedent in that Court by which this defendant might be the better enabled to maintain an action of the same kind against the plaintiff and others for the infringement of its pretended patent rights, and that after the injunction had been issued against said Quillan upon decree passed in said cause; that said Quillan continued to use the same apparatus up to the time of his death, some years subsequent thereto ; and further, that before the decree in the Clements’ appeal case to the U. S. Supreme Court was promulgated, the defendant here (the Odorless Excavating Apparatus Co.) offered this plaintiff $5000.00 and an interest in the corporation, if he (Clements) would dismiss his appeal and join in crushing out all opposition to its pretended patent claims to the apparatus, mentioned in its bill against him.” The Court below refused to permit this evidence to be given.

For the purpose of deciding these exceptions, we must, of course, assume the truth of the matters stated in them. They show that the defendant inflicted great injury on Clements, and that the injury was effected by a fraudulent and malicious use of the proceedings of a Court of justice. The means used included a deception practiced on the Court, and a conspiracy for the purpose of making the deception successful. A great wrong is done, and the ⁶⁰⁸ means of doing it are marked by very great turpitude.

I know of no reason whatever why the law should not give redress in such a case. Assuredly there are no circumstances to palliate the enormity of the defendant’s conduct. Any one who maliciously and without