(navigation image)
Home American Libraries | Canadian Libraries | Universal Library | Community Texts | Project Gutenberg | Biodiversity Heritage Library | Children's Library | Additional Collections
Search: Advanced Search
Anonymous User (login or join us)
Upload
See other formats

Full text of "Federal Cases Volume 30_2"

DIGEST 



OF 



DECISIONS OF THE 
UNITED STATES CIRCUIT AND DISTRICT COURTS, 

FROM 1789 TO 1880, 
AS CONTAINED IN THE THIRTY VOLUMES 



OF 



THE FEDERAL CASES 



ALSO CONTAINING A TABLE OF CITATIONS 
AND AN ALPHABETICAL TABLE OF CASES 



EDITED BY MEMBERS OF THE EDITORIAL STAFF OF 
THE NATIONAL REPORTER SYSTEM 



BOOK 31 

PART 2 



WILLIAM S. HEIN & CO., INC. 

BUFFALO, NEW YORK 

1995 



Library of Congress Catalog Number 95-75068 

ISBN 0-89941-924-0 

Printed in the United States of America. 



The quality of this reprint is equivalent to the 
quality of the original work 




CO 



This volume is printed on acid-free paper by 
William S. Hein & Co., Inc. 



1573 (§1) 



OBSTRUCTING JUSTICE. 

[Fed. Cas. Digest.] 

OBSTRUCTING JUSTICE. 



(§ 2) 1574 



§ 1, Obstructing or resisting in general. § 2, Re- 
sisting unauthorized acts of officer. § 3, Persons 
liable. § 4, Indictment or information. 

$ 1. Obstructing or resisting in general. 

Resistance to a special custodian of attached 
property, employed by the marshal, though not 
■appointed a sworn deputy, is resistance to the 
marshal.— United States t. McDonald, Case No. 
15,667. 

A deputy marshal is an officer of the United 
States authorized to serve process. — United States 
v. Tinklepaugh, Case No. 16,526. 

Any obstruction to the free action of an officer 
or his lawful assistants in the service of process, 
willfully placed in their way, is sufficient to con- 
stitute the offense. Actual or threatened vio- 
lence is not necessary.— Charge to Grand Jury, 
Case No. 18,250. 

Obstructing process (in the case of habere 
facias) consists in refusing to give up possession, 
or in opposing or obstructing the execution of the 
writ by threats of violence, which it is in the 
power of the person to enforce.— United States 
v. Lowry, Case No. 15,636. 

On an indictment for conspiring to resist an 
officer, actual violence need not be shown, but 
threats, and acts intended to terrify, or of a char- 
acter to terrify, a prudent officer, are sufficient, 
■even though he be not prevented thereby from 
-executing his process.— United States v. Smith, 
€ase No. 16,333. 

A mere threat of resistance is not an offense. 
It must be accompanied by the exercise of force, 
or the capacity to employ it, whereby the officer 
Is prevented from executing the writ; but it is 
not necessary that the officer should risk his per- 
son or proceed to personal conflict.— United 
States v. Lowry, Case No. 15,636. 

The offense of resisting an officer in executing 
a warrant of arrest is complete when the person 
arrested refuses to come, and says he will not 
come, though no assault be committed.— United 
States v. Lukins, Case No. 15,639. 

A state court judge who. in pursuance of a 
•conspiracy, and in bad faith, releases on habeas 
corpus, without any ground therefor, a prisoner 
held on examination before a United States com- 
missioner to await the action of the grand jury, 
together with the other conspirators, is guilty 
of obstructing process.— United States v. Doss, 
Case No. 14,985. 

The issuing of a subpoena for a person, or in- 
dorsing his name on a complaint, makes him a 
witness, within Rev. St. § 5399, punishing the 
influencing or intimidation of witnesses by 
threats, force, or corrupt means.— United States 
v. Bittinger, Case No. 14,598. 

A case is pending, within the contemplation of 
the statute, when a complaint is lodged with a 
commissioner charging a violation of the laws 
of the United States.— United States v. Bittinger, 
Case No. 14.598. h ' 

It .is an offense under the statute to corruptly 
influence a witness to secrete or so dispose of 
himself as to prevent service of process upon him. 
—United States v. Bittinger, Case No. 14,598. 

The provisions of Act 1790, § 22, apply equally 
to the execution of process under the fugitive 
slave law. — Charge to Grand Jury, Fugitive 
Slave Law, Case No. 18,262. 

A warrant of distress is not a legal process, 
within Act 1790, § 22, in relation to resisting 
officers.— United States v. Myers, Case No. 15,- 
847. 

Act April 30, 1790, § 22, for the punishment 
of persons obstructing the execution of process, 
includes every species of process, legal and ju- 
dicial, whether issued by the court in session, or 



g process. 



by a judge or magistrate acting in his official 
capacity out of court.— United States v. Lukins, 

S?^.^ - 15 ,639; Charge to Grand Jury, Id. 
18,2o0. 

Under Rev. St, § 5398, it is an offense to re- 
sist an officer in the execution of process, as 
well as in serving process. Holding attached 
property after seizure is executing process, and 
one resisting or obstructing the officer therein 
commits the offense.— United States v. McDon- 
ald, Case No. 15,667. 

The taking away of a vessel by her owner 
after she has been attached by a marshal, but 
while not in his actual custody, or that of a 
keeper, is not an offense under Act March 2, 
1831, § 2.— United States v. Seeley, Case No. 
16,248a. 

The expressions "obstruct" and "impede," as 
used in the act, refer only to direct acts of vio- 
lence or menace, disturbing the ordinarv func- 
tions of the court— United States v. Seeley, Case 
No. 16,248a. 

Ignorance is no excuse where the offender 
might readily have known the truth upon inquiry. 
—United States v. Buck, Case No. 14,680. 

As to what facts amount to resisting „ 
—United States v. Buck, Case No. 14,680. 

Where a defendant has knowledge that the 
officers of justice are in pursuit of him for an 
offense committed by him against the law, he 
will not be justified in resisting such officers, 
even though such officers do not exhibit to him 
the warrant, or inform him of the particular 
cause of his arrest— Cross v. United States, 
Case No. 18,286. 

§ 2. Resisting nnanthorized acts of of- 
ficer. 

An officer who is acting without or in excess 
of authority may be lawfully resisted or ob- 
structed.— United States v. Fears, Case No. 15,- 

oso. 

Willful resistance of a warrant of attachment 
against a vessel, valid on its face, is indictable 
under Act April 30, 1790, § 22, though the libel 
for forfeiture of the vessel, on which it is found- 
ed, is not sufficient to authorize its issue.— Unit- 
ed States v. Tinklepaugh, Case No. 16,526. 

If an officer holding a writ of attachment, in 
good faith, and on reasonable grounds, seize the 
property of the wrong person, resistance by the 
latter is unlawful; contra if the officer act in 
bad faith.— United States v. McDonald, Case 
i\o. 15,66 (. 

It is an indictable offense to combine to op- 
nose the execution of a justice's warrant, with- 
out knowing its nature, and assaulting one of 
the parties attempting to execute it— United 
States v. O'Neale, Case No. 15,920. 

It is not an indictable offense to threaten to 
kill a constable if he should attempt to arrest a 
person whom he is searching for, with intent to 
arrest without a warrant— United States v. 
Goure, Case No. 15,240. 

It is not necessary that a constable should 
have a warrant to suppress an affray, in order 
to make opposition to him unlawful.— United 
States v. Pignel, Case No. 16,049. 

The hab. fac. poss. cannot be executed after 
the return day, and, if it be attempted, resist- 
ance to it is no offense against the act of con- 
gress.— United States v. Slaymaker, Case No. 
16,313. 

If .the first writ be returned executed, plain- 
tiff cannot issue out an alias. If the writ, 
though executed, has not been returned, and an 
alias issues on the suggestion of the plaintiff, 
resistance to such writ is an offense. Aliter, 
if the first writ had been returned.— United 
States v. Slaymaker, Case No. 16,313. 

Where the warrant is regular on its face, and 
show3 a case within the jurisdiction of the 



1575 (§3) 



magistrate, resistance thereto is unlawful, 
though the offense was not within the local ju- 
risdiction of the magistrate.— United States v. 
Thompson, Case No. 16,484. 

§ 3. Persons liable. 

An attorney and client conspiring to resist an 
officer are equally guilty.— United States v. 
Smith, Case No. 16,333. 

§ 4. Indictment or information. 

An averment that defendant "did knowingly, 
willfully, and unlawfully obstruct, resist, and 
oppose" an officer, sufficiently states the man- 
ner and method of resistance.— United. States v. 
Hudson, Case No. 15,412. 

An averment that a warrant was duly issued 
is insufficient. The facts constituting the due 
issue must be set forth.— United States v. Stow- 
ell, Case No. 16,409. 

An indictment under Act April 30, 1790, § 22, 
must show by proper averments that the process 
was legal.— United States v. Stowell, Case No. 
16,409. 

In an indictment for resisting an officer serv- 
ing an execution, it is unnecessary to set out 
the process in hsec verba, or to aver that it is 
in full force, when that fact appears from the 
description of it— United States v. Hudson, Case 
No. 15,412. 

Sufficiency of indictment for willfully resisting 
the execution of process under Act April 30, 
1790, § 22.— United States v. Tinklepaugh, Case 
No. 16,526. 

An indictment for using contemptuous lan- 
guage to a magistrate in the exercise of his 
office should set forth the words spoken, and the 
day and month, and that the magistrate was in 
the discharge of his judicial functions.— United 
States v. Beale, Case No. 14,549. 

The want ot an averment of the facts show- 
ing that the commissioner was authorized to 
issue the warrant cannot be aided by referring 
to the records of the court.— United States v. 
Stowell, Case No. 16,409. 

A commissioner empowered to issue a warrant 
under Act Sept 18, 1850, must be a commis- 
sioner particularly described therein; and an 
averment, in an indictment for resisting such a 
warrant, that it was issued by a commissioner 
of the circuit court of the United States, is not 
sufficient.— United States v. Stowell, Case No. 
16,409. 

In an indictment for resisting a public officer 
it is not necessary to set forth the particular 
exercise of office in which he was engaged, or 
the particular act and circumstance of obstruc- 
tion.— United States v. Bachelder, Case No. 14,- 
490. 

OBSTRUCTIONS. 

Of highways, see 'highways," §§ 4, 5. 

Of mail, see "Post Office," § 18. 

Of navigable waters, see "Navigable Waters, 

§§ 2, 9, 12-16. _, . f( 

Of process, see "Obstructing Justice." 



OBSTRUCTING JUSTICE -OFFICERS. 

[Fed. Cas. Digest.] 

OFFICERS. 



(§ 1) 1576 



Of water course, 
Courses," § 3. 



see "Waters and Water 



OCCUPATION. 

Of real property, see "Use and Occupation." 

OFFER. 

Of guaranty, see "Guaranty," § 2. 

Of proof, see "Trial," § 8. 

Proposal for contract, see "Contracts, § 3. 

To sell, see "Sales," § 1. 



§ 1, Compensation. § 2, De facto officers. § 3* 
Deputies and assistants. § 4, Exercise of power and 
liabilities. § 5, Action against officer— Pleading. § 6, 
Evidence. § 7, Liabilities on official bond— Req- 
uisites and validity of bond. § 8, Construction. 

and operation of bond. § 9, Rights and liabil- 
ities of sureties. 

Administration of oath, see "Oath," § 3. 

Bribery, see "Bribery." 

Embezzlement, see "Embezzlement." 

Extortion, see "Extortion." 

Habeas corpus to discharge from arrest, see 

"Courts," § 115. 
Injunctions affecting, see "Injunction," § 8. 
Intervention, see "Courts," § 54. 
Judicial notice, see "Evidence," § 2. 
Jurisdiction of suits against state officers, see 

"Courts," § 17. 
Mandamus, see "Mandamus," §§ 3, 4. 
Quo warranto, see "Quo Warranto." 
Resisting officer, see "Obstructing Justice." 
Bight to inventions, see "Patents," § 62. 

Particular classes of officers. 

See "Ambassadors and Consuls"; "Attorney 
General"; "Clerks of Courts"; "Coroners"; 
"Detectives"; "District and Prosecuting At- 
torneys"; "Justices of the Peace"; "Nota- 
ries"; "Receivers"; "Sheriffs and Constables"; 
"United States Commissioners"; "United 
States Marshals." 

Army and navy, see "Army and Navy," §§ 2, 3, 

8-11. 

Church officers, see "Beligious Societies," § 3. 

College officers, see "Colleges and Universities," 
§ 2. 

Corporate officers, see "Banks and Banking,"" 
§§ 6, 17; "Corporations," §§ 3Jr-37, 39; "In- 
surance," § 3; "Railroads." 

County officers, see "Counties," § 3. 

Court officers, see "Courts," § 4. 

Customs officers, see '"Customs Duties," §§ 17- 
27. 

Election officers, see "Elections," § 2. 

Highway officers, see "Highways," § 3. 

Indian agents, see "Indians," § 3. 

Interior department, see "Public Lands, §§ 46- 
49. 

Internal revenue, see "Internal Revenue," §§: 

1-6. 

Land officers, see "Public Lands," § 12. 

Militia officers, see "Militia," § 3. 

Municipal officers, see "Municipal Corpora- 
tions," §§ 8, 24. . 

Pension officers, see "Pensions." 

Postmasters and postmaster general, see Post 
Office," §§ 1, 2. 

State officers, see "States," § 8. 

Territories, see "Territories," § 2. 

Town officers, see "Towns," § 1. 

United States officers, see "United States," §§ 
6-13. 

§ 1. Compensation. 

Construction of Act Aug. 23, 1842, § 2, and 
Act March 3, 1S49, in relation to extra compen- 
sation to officers.— United States v. Converse, 
Case No. 14,848. 

Where the words of a statute prescribing com- 
pensation admit of two interpretations, they will 
be construed most favorably for the officer.— 
United States v. Morse, Case No. 15,820. 

An officer cannot be allowed extra compensa- 
tion for services performed properly pertaining 
by law to his office.— United States v. Smith, 
Case No. 16,321. 

Public officers are not entitled to extra com- 
pensation for services in sudden and unforeseen 
emergencies, but only where the services are 
rendered upon a matter of permanent character. 
—United States v. Brodhead, Case No. 14,654. 



1577 (§ 1) 



OFFICERS. 

[Fed. Cas. Dlgrest.] 



(§ 9) 1578 



No officer whose salary -or emoluments are 
fixed by law and regulation is entitled to extra 
compensation for disbursements or other serv- 
ices.— United States v. Jarvis, Case No. 15,468; 
Same v. White, Id. 16,684. 

Where an officer refuses to pay over the bal- 
ance found due upon the adjustment of his ac- 
count he forfeits the commissions due on such 
unsettled account only. Act March 3, 1797. — 
United States v. Wendell, Case No. 16,666. 

Public officer is required to perform duties im- 
posed by law passed after coming into office 
though his compensation is inadequate. — An- 
drews v. United States, Case No. 381. 

^ 2. De facto officers. 

The rule in regard to the binding force of acts 
of a de facto public officer is restricted to those 
Tvho hold office under some degree of notoriety, 
or are in the exercise of continuous official acts, 
or are in possession of a place which has the 
character of a public office. — Vaccari v. Max- 
well; Case No. 16,810. 

■§ 3. Deputies and assistants. 

Public officers are not responsible for the 
fraudulent transactions of their clerks, where 
they are free from negligence. — United States v. 
Brodhead, Case No. 14,654. 

An assistant employed by a public officer is 
ordinarily only responsible to him.— Trafton v. 
United States, Case No. 14,135. 

•§ 4. Exercise of power and liabilities. 

Where a particular authority is confided in a 
public officer to be exercised in his discretion 
upon an examination of facts of which he is the 
appropriate judge, his decision upon those facts, 
in the absence of any controlling provision, is 
.absolutely conclusive. — Allen v. Blunt, Case No. 
216. 

A public officer cannot, by subsequent declara- 
tions, invalidate his own official act. — United 
States v. Collins, Case No. 14,837. 

A public officer, who buys a bill of exchange 
for public use^ is not personally responsible. — 
"Stone v. Mason, Case No. 13,48o. 

An officer is personally liable where he did not 

act in good faith, and with intention to perform 

-duly the duties of his office, and where he acted 

with malice.— Stokes v. Kendall, Case No. 13,- 

-479. 

An unconstitutional law will not protect from 
personal liability an officer acting thereunder. — 
"Louisiana State Lottery Co. v. Fitzpatrick, Case 
No. 8,541. 

The fact that an officer is irregularly appointed 
does not absolve him from the legal obligation 
to account for public money placed in his hands, 
in consequence of such appointment. — United 
States v. Maurice, Case No. 15,747. 

An officer acting in good faith under a warrant 
purporting to come from his superior, whom he 
is bound to obey, is acting under "color of au- 
thority," though the superior has transgressed 
his power, and the warrant be irregular. — Hodg- 
tson v. Millward, Case No. 6,568. 

■% 5. Actions against officer— Pleading. 

Where the officer is charged with money re- 
ceived from third persons, the evidence on which 
the charge is made must be stated.— United 
States v. Hilliard, Case No. 15,368. 

~§ 6. — — Evidence. 

Proof that an individual has acted notoriously 
.as a public officer is prima facie evidence of his 
-character, without producing his commission or 
appointment.— Jacob v. United States, Case No. 
'7,157. 

The presumption of law in favor of the inno- 
cence of a public officer charged with fraud may 
*be overcome hy proof of previous delinquencies 



of a similar nature.— Bottomley v. United States, 
Case No. 1,688. 

If a public disbursing officer has lost his vouch- 
ers without fault, and has produced the best sec- 
ondary evidence in his power, it is for the jury 
to find .whether he has faithfully disbursed the 
moneys.— United States v. Laub, Case No. 15,- 
568. 

The rule that public acts of public officers, 
purporting to have been done in an official 
capacity, will be presumed to have been done by 
authority, applied in the case of Spanish officials 
in Mexico.— Den v. Hill, Case No. 3,784. 

Public officers, when acting under the scope of 
their duty, must be presumed to have fulfilled 
every requisite which the discharge of their duty 
demands.— Russell v. Beebe, Case No. 12,153. 

§ 7. Liabilities on official "bond— Requi- 
sites and validity o£ bond. 

A bond that the officer has faithfully and truly 
discharged his duties is not authorized under a 
statute requiring a bond for the true and faith- 
ful discharge of duties.— United States v. Brown, 
Case No. 14,663. 

The bond of an agent irregularly appointed, 
but whose office is established by law, though 
void as a statutory obligation, is valid as a con- 
tract to perform the duties appertaining to such 
office.— United States v. Maurice, Case No. 15,- 
747. 

Where an officer is required by his superior 
to give a bond with provisions and conditions 
not required by statute, the bond is void in toto. 
—United States v. Humason, Case No. 15,421. 

§ 8. — Construction and operation of 
bond. 

The condition of a bond of a public officer to 
discharge the duties according to law refers to 
existing laws and those passed during his term 
of office.— United States v. Gaussen, Case No. 
15,192. 

An official bond conditioned in the language 
of certain statutes cannot be held to include the 
liability of the officer under other statutes exist- 
ing at the time the bond was given, and not re- 
ferred to therein.— United States v. Cheeseman, 
Case No. 14,790. 

§ 9. Rights and liabilities of sure- 
ties. 

The liabilities of sureties on official bonds can- 
not be extended beyond the reasonable necessary 
import of the language of the bond.— United 
States v. Cheeseman, Case No. 14,790. 

Under the condition of a bond, given as addi- 
tional security, that the officer "has faithfully 
discharged, and shall continue faithfully to dis- 
charge," etc., held that the surety became abso- 
lutely bound for any default of the officer. — 
United States v. Anderson, Case No. 14,446; 
Same v. Brown, Id. 14,663. 

The condition in a bond to well and faithfully 
behave and execute the office, does not render 
the surety liable for want of skill.— Alexandria 
v. Corse, Case No. 183; Bank of United States 
v. Brent, Id. 910. 

The sureties on an official bond are liable for 
noncompliance with subsequent as well as past 
laws, or orders justified by law.— Boody v. Unit- 
ed States, Case No. 1,636. 

Rev. St. § 1766, authorizing the salary of an 
officer in arrears to be withheld, and Id. §§ 300, 
307, 308, in relation to the payment of warrants 
after three years from issuance, form no part 
of the contract with the officer's sureties.— Unit- 
ed States v. Potter, Case No. 16,076. 

The sureties on the old bond are not responsi- 
ble for moneys received by the officer after he 
has given the new bond required bv Act 1817, c. 
197.— United States v. Wardwell, Case No. 16,- 
640. 



1579 (§ 9) 



0FF1CERS- 

[Fed. Cas. 



-PARDOK 
Digest.] 



(§ 1) 1580 



The parties to an official bond for the safe- 
keeping or accounting for public money are not 
liable for a loss caused by the act of God or 
the public enemy.— United States v. Humason, 
Case No. 15,421. 

A civil officer has the right at any time to re- 
sign his office without the consent of the presi- 
dent, and his surety will not be bound beyond 
the time if the resignation is received at the 
proper department, and is to take effect. — Unit- 
ed States v. Wright, Case No. 16,775. 

The settlement and closing of an account of a 
public officer does not discharge his liability as 
surety of another officer, though the default of 
the latter was previously known. — United States 
v. Beattie, Case No. 14,554. 

The moneys of the second term of an officer, 
in which his new sureties are interested, can- 
not be taken to pay off an old debt or defalca- 
tion with which they had no concern.— United 
States v. Able, Case No. 14,417. 

Where a balance is left in the hands of a pub- 
lic officer at the expiration of his first term, 
its illegal appropriation by him will not be pre- 
sumed in favor of a surety on his second bond. 
—United States v. Earhart, Case No. 15,01S. 

On the acceptance of a new bond, sureties on 
old bond are released unless it affirmatively ap- 
pear that the default was committed prior there- 
to.— Alvord v. United States, Case No. 269. 

In a suit against a surety on an official bond, 
where the principal is dead, a plea of general 
performance, craving oyer of the bond and con- 
ditions, is good.— Jackson v. Rundlet, Case No. 
7,145. 

Where the breach of an official bond alleged is 
the failure to pay over or account for a certain 
sum, a dereliction of duty in not collecting such 
sum cannot be shown. — United States v. Glenn, 
Case No. 15,217. 

In a suit against the sureties on an official 
bond the admission of evidence of the good 
character and conduct of the officer, since de- 
ceased, is erroneous.— United States v. Wood, 
Case No. 16,752. 

Sureties are not answerable for interest be- 
yond the penalty of the bond, except such as 
accrued after notice of default of th&.prmcipal.— 
United States v. Hills, Case No. 15,369. 

OPEN ACCOUNTS. 

See "Account, Action on," § 1. 



OPENING. 



Administrator's account, see "Executors and 1 

Administrators," § 66. 
Case before master in chancery, see "Equity,"" 

§ 114. 
Decree in equity, see "Equity," § 124. 
Default, see "Judgment," §§ 12-14. 
Judgment, see "Judgment," §§ 35^£2. 

OPINION EVIDENCE. 

In civil actions, see "Evidence," §§ 75-79; "Pat- 
ents," §§ 200, 231. 

In criminal prosecutions, see "Criminal Law,"" 
§ 65. 

OPINIONS. 

Of courts, see "Courts"; "Reports." 
Of experts, see "Patents," §§ 200, 231. 

OPTIONS. 

On purchase or sale of goods, see "Sales," § 6- 

ORDERS. 

Of court, see "Motions." 

Keview of appealable orders, see "Appeal and 
Erior." 

ORDINANCES. 

Municipal ordinances, see "Municipal Corpora* 
tions," §§ 19-21. 

OREGON DONATION ACTS. 

See "Public Lands," §§ 28-34. 

ORPHANS' COURTS. 

Of District of Columbia, see "Courts," §§ 12,. 
108; "Judges," § 1. 

OYER. 

In pleading in general, see "Pleading," §§ 60-62. 

in suits for infriDgement of patent, see- 

"Patents," § 197. 



PALACE CARS. 

See "Carriers," § 52. 

PARDON. 

§ 1, Power to pardon in general. § 2, Conditional 
pardon. § 3, Partial or general pardons. § 4, De- 
livery of pardon. § 5, Revocation. § 6, Operation 
and effect. § 7, Pleading pardon. 

§ 1. Power to pardon in general. 

As to the power of the president to pardon 
political offenders by the amnesty proclamation 
of 1868.— United States v. Crozier, Case No. 
14,896. 

The power to discharge or to remit the sen- 
tence in the case of a person committed to pris- 



on until payment of a fine, imposed as a punish- 
ment for contempt in violating an injunction^ 
falls within the pardoning power vested in the- 
president. — In re Mullee, Case No. 9,911. 

The court cannot discharge such person, on* 
the ground that he is unable to pay the fine, 
until the president has disclaimed the power to- 
relieve by pardon. — In re Mullee, Case No. 9,911. 

The fact that the amount of the fine, in the- 
order imposing it, was directed to be paid to- 
plaintiff in the injunction suit, towards the re- 
imbursement of his expenses in the attachment 
proceedings for the contempt, does not take the- 
case out of the pardoning power of the presi- 
dent.— In re Mullee, Case No. 9,911. 

Pledges of protection given to criminals by the- 
executive department cannot be redeemed by- 



1581 (§1) 



PARDON— PARENT AND CHILD. 

[Fed. Cas. Digrest/J 



1582 



the courts.— United States v. Blaisdell, Case No. 
14,608. 

The president has the right to commute pun- 
ishment for a capital offense by directing im- 
prisonment in the United States penitentiary, 
though there is no law directing imprisonment 
therein for such offenses.— In re Wells, Case No. 
17,387a. 

§ 2. Conditional pardon. 

A pardon may contain any lawful conditions. 
—United States v. Six Lots of Ground, Case No. 
16,299. 

The president of the United States has the 
power to grant a conditional pardon for a capi- 
tal offense.— In re Wells, Case No. 17,3S7a. 

A pardon on condition of paying a fine and 
costs imposed with a sentence of imprisonment 
is wholly inoperative until such fine and costs 
are paid; and an application for discharge as a 
poor convict under Rev. St. § 1042, cannot he 
based thereon.— In re Ruhl, Case No. 12,124. 

A prisoner confined under a legal sentence can 
voluntarily accept a conditional pardon. — In re 
Greathouse, Case No. 5,741. 

§ 3. Partial or general pardons. 

A pardon may be partial. — United States v. 
Six Lots of Ground, Case No. 16,299. 

A grant of "a full and unconditional pardon," 
where the "offense has been recited in the pre- 
amble, is not a general pardon, and is valid. — 
Stetler's Case, Case No. 13,380. 

§ 4. Delivery of pardon. 

A delivery of a pardon to a marshal is not 
sufficient to give it validity.— In re De Puy, Case 
No. 3,814. 

§ 5. Revocation. 

A pardon by an outgoing president may be re- 
voked by the incoming president before its de- 
livery to the prisoner. — In re De Puy, Case No. 
3,814. 

A pardon has no validity until its delivery, and 
consequently may be revoked at any time before 
delivery.— In re De Puy, Case No. 3,814. 

§ 6. Operation and effect. 

The recital of a specific, distinct offense in a 
pardon by the president limits its operation to 
that offense, and such pardon does not embrace 
any other offense for which separate penalties 
and punishments are prescribed. — Ex parte Wei- 
mer, Case No. 17,362. 

A pardon from sentence for conspiracy to de- 
fraud the revenue does not entitle the defend- 
ant to demand cancellation of a judgment of 
forfeiture for fraud upon the revenue.— Ex parte 
Weimer, Case No. 17,362. 

A pardon for offenses against, the revenue 
laws cannot relieve the offenders of payment of 
taxes.— United States v. Roelle, Case No. 16,- 
186. 

An unconditional pardon of one convicted of 
conspiracy to defraud the United States by the 
unlawful removal of distilled spirits, without 
paying the taxes, bars a subsequent civil suit 
to recover the penalty of double the amount of 
such tax.— United States v. McKee, Case No. 
15,688. 

Where a prisoner was sentenced to both fine 
and imprisonment, and the president, by a par- 
don, remitted the fine only, Jield, that he had 
no authority to thereupon order the prisoner's 
discharge.— United States v. Lukins, Case No. 
15,638. 

A pardon by the president, after condemna- 
tion, as to all the interest of the United States 
in the penalty incurred by a violation of the 
embargo laws, and directing discontinuance of 
all further proceedings on behalf of the United 
States, does not remit the interest of the cus- 
tomhouse officers in a moiety.— United States v. 
Lancaster, Case No. 15,557. 



Quaere, whether the president can pardon in 
such a case, so as to affect the interests of third 
parties.— United States v. Lancaster, Case No. 
15,557. 

A pardon is effectual so long as any of the 
legal consequences of a conviction remain, 
though the term of imprisonment has expired. — 
Stetler's Case, Case No. 13,380. 

A pardon reciting a conviction at the June 
term, 1850, of the offense of counterfeiting, and 
a sentence to imprisonment for the term of one 
year, is inapplicable to a conviction at the ilay. 
term, 1850, for both counterfeiting and utter- 
ing counterfeit coin, where the sentence was 
both fine and imprisonment — Stetler's Case, 
Case No. 13,380. 

The crime of being accessory to the murder 
of the president was not embraced in the am- 
nesty proclamation of 1868.— Ex parte Mudd, 
Case No. 9,899. 

A duly-licensed attorney, who has accepted a 
full pardon from the president and taken the 
oath of amnesty, may resume his practice in 
the federal courts without taking the oath pre- 
scribed by Act Jan. 24, 1865. — Ex parte Law, 
Case No. 8,126. 

A proclamation by the president ordering peo- 
ple in insurrection to disperse to their homes 
does not operate, even when it is obeyed, as a 
pardon of offenses already committed. — Case of 
Fries, Case No. 5,126. 

The proclamation of the president of Decem- 
ber 8, 1863, extends to persons who, at its date, 
had been convicted and sentenced for the of- 
fenses described in it. — In re Greathouse, Case 
No. 5,741. 

The amnesty proclamation of July 4, 1868, 
did not have the effect to restore property con- 
demned in confiscation proceedings. — Bragg v. 
Lorio, Case No. 1,800; United States v. Six 
Lots of Ground, Id. 16,299. 

The proclamation of December 8, 1863, ex- 
tending amnesty to all who directly or indi- 
rectly participated in the Rebellion, included a 
citizen of Ohio under indictment for treason. — 
United States v. Hughes, Case No. 15,418. 

A citizen who has complied with such proc- 
lamation ^is not excluded from its protection 
by a subsequent explanatory proclamation de- 
barring persons in civil custody f;om its opera- 
tion.— United States v. Hughes, Case No. 15»- 
418. 

An unqualified pardon, granted to the owner 
prior to the seizure or condemnation proceedings, 
is a bar to a judgment of condemnation.— United 
States v. Athens Armory, Case No. 14,473. 

§ 7. Pleading pardon. 

An alleged pardon for treason in raising an 
insurrection by the operation of the president's 
proclamation ordering the people to disperse, to 
be available, must be pleaded.— Case of Fries, 
Case No. 5,126. 

A party accepting and pleading a pardon in a 
judicial proceeding admits that he is bound by 
the conditions mentioned therein. — Brown v. 
United States, Case No. 2,032. 

PARENT AND CHILD. 

§ 1, Custody and control of child. § 2, Services 
and earnings of child. § 3, Actions for loss of serv- 
ices of child. § 4, Conveyances and contracts. § 5, 
Possession . and control of property of child. 

See, also, "Adoption"; "Bastards"; "Guardian 
and Ward"; "Infants." 

Domicile of child, see "Domicile," § 4. 
Employment of minors, see "Seamen," § 17* 
Seduction of child, see "Seduction." 
Status of child, see "Indians," § 1. 



1583 (§ 1) 



PARENT AND CHILD— PARTIES. 

[Fed. Cas. Digest.} 

§ 1. Custody and control o£ child. 

The nature and extent of the parental power 
at common law discussed by Story, J. — United 
States v. Bainbridge, Case No. 14,497. 

A father is not, of course, entitled to the 
.custody of his infant child, if brought into court; 
tout the court will exercise its discretion on the 
subject, and place the infant where it will be 
most for its benefit.— United States v. Green, 
Case No. 15,256. 
See, also, "Divorce," § 3; "Habeas Corpus," § 3. 



1584 



^ 2. Services and earnings of cliild. 

The father forfeits his right to the earnings 
of his child where he neglects the obligation to 
protect, nurture, and educate the child, and 
abandons him.— The Etna, Case No. 4,542. 

A father assigned a portion of his infant son's 
wages in consideration of the assignee's en- 
gaging to teach the boy a certain trade. Held, 
that the son could not recover money thus re- 
ceived by such assignee in an action for money 
had and received.— Roby v. Lyndall, Case No. 
11,972. 

§ 3. Actions for loss of services of child. 

In a suit for the wrongful abduction of a 
minor child, where the damage is loss of service, 
the court may take into consideration the ad- 
vances for clothing and other necessaries.— The 
Platina, Case No. 11,210. 

It seems that knowledge by respondent of the 
minority of a person is essential to maintain an 
action for loss of services for a wrongful abduc- 
tion.— The Platina. Case No. 11,210; Somboy 
v. Loring, Id. 13,108. 

A parent may maintain a libel in admiralty 
for the wrongful abduction of his minor child, 
and carrying him beyond the sea, where there 
had not been an abandonment of all care of the 
child.— Steele v. Thacher, Case No. 13,348. 

§ 4. Conveyances and contracts. 

A conveyance to a parent by a child recently 
of age is prima facie valid, and its validity does 
not depend on adequacy of price.— Sullivan v. 
Sullivan, Case No. 13,598. 

An infant, after the death of his father, can- 
not recover his wages for services performed in 
the lifetime of the father under a contract made 
with the father.— Roby v. Lyndall* Case No. 
11,972. 

Fraudulent conveyances, see "Fraudulent Con- 
veyances," § 16. 

-§ 5. Possession and control of property 
of child. 

The mother of minor heirs has no power to 
authorize an agent to act for them in matters 
relating to their real estate.— Harmer v. Morris, 
Case No. 6,076. 

PAROL EVIDENCE 

In civil actions, see "Evidence," §§ 63-74. 

In criminal prosecutions, see "Criminal Law," 

§ 64. 
Of gift, see "Gifts," § 1. 
To explain contract of shipment of seamen, see 

"Seamen," § 34. 
To show fraud, see "Fraud." § 8. 
Weight of evidence, see "Evidence." § S6. 

PARTICULARS, BILL OF. 

See "Pleading," §§ C3, 64. 

PARTIES. 

§ 1, Plaintiffs. § 2, Defendants. § 3, Designation 
and description of parties. § 4, New parties and 
change of parties. ' § 5, Effect of misjoinder or non- 
joinder. § 6, Who may make objection. § 7, Time 
of making objection. § 3, Mode of raising objection. 



Admissions by, see "Evidence," § 31. 

Character, as ground of jurisdiction, see 
"Courts," §§ 41-63. 

Competency as witness, see "Witnesses," §§ 
28-50. 

Death, ground of abatement, see "Abatement 
and Revival," §§ 5, 6. 

Defects, ground of abatement, see "Abatement 
and Revival," § 3. 

Interpleading, see "Interpleader." 

Intervention of parties, see "Admiralty," § 64; 
"Bankruptcy," §§ 36. 103-105, 325, 567; 
"Equity," § 27; "Execution," § 13; "Execu- 
tors and Administrators," § 47; "Maritime 
Liens," § 58; "Salvage." § 63. 

Joinder of parties in civil actions or proceed- 
ings, see "Admiralty," § 53; "Bankruptcy," 
§§ 94r-100; "Collision," §§ 122, 124; "Eq- 
uity," § 24; "Salvage," §§ 63, 64. 

in criminal prosecutions, see "Criminal 

Law," §§ 6-8; "Indictment and Information," 
§ 17; "Internal Revenue," § 103; "Larceny," 
§ 4; "Receiving Stolen Goods," § 2. 

Misconduct, ground for new trial, see "New 
Trial," § 3. 

Persons concluded by judgment, see "Judg- 
ment," § 50. 

Privilege from arrest, see "Arrest," § 3. 

Rights and liabilities as to costs, see "Admiral- 
ty," §§ 127-135a; "Costs." 

— — to maintain action, see "Action," § 1. 

Transfer of interest ground of abatement, see 
"Abatement and Revival," § 4. 

In actions by or against particular classes of 

parties. 
See "Corporations," §§ 31, 51; "Executors and 

Administrators," § 46; "Husband and Wife," 

§§ 9, 10; "Judges"; "Partnership," § 34; 

"Seamen," % 137; "United States," §§ 28, 32, 

35. 
Alien enemies, see "War," § 3. 
Assignees in bankruptcy, see "Bankruptcy," § 

359 
Trustees, see "Trusts," § 31. 

In particular actions or proceedings. 

See "Admiralty," §§ 50-55. 64: "Attachments," 
§ 1; "Bankruptcy," §§ 36, 53, 91-105; "Can- 
cellation of Instruments," § 7; "Creditors' 
Suit," § 7; "Ejectment," §§ 8, 9; "Equity," 
§§ 22-29; "Judgment," § 15; "Reformation 
of Instruments," § 6; "Replevin," § 5; "Tres- 
pass," § 6. 

Appeal in admiralty, see "Admiralty," § 116. 

or writ of error, see "Appeal and Error," 

§ 10a. ^ 

Condemnation proceedings, see "Eminent Do- 
main," § 9. 

Criminal prosecutions, see "Criminal Law," §§ 
6-8; "Indictment and Information," § 17; 
"Internal Revenue," § 103; "Larceny," § 4; 
"Receiving Stolen Goods," § 2. 

For collision, see "Collision," §§ 121-124. 

For damage to tow, see "Towage," § 27. 

For dissolution and accounting, see "Partner- 
ship," § 53. 

For foreclosure, see "Mortgages," § 34. 

Forfeitures, see "Forfeitures," § 7. 

For ' infringement of copyright, see "Copy- 
rights " § 42 

of patents, see "Patents," §§ 193, 220. 

For injunction, see "Injunction," § 10. 

For removal of cause, see "Removal of 
Ciuses " § 36 

For salvage, see "Salvage," §§ 59, 60, 63. 

On bills or notes, see "Bills and Notes," §§ 94, 
95. 

On bonds, see "Bonds." § 19. 

On contract, see "Contracts," § 38. 

On covenant, see "Covenants," § 9. 

On insurance policy, see "Insurance," § 171. 

Prize proceedings, see "War," § 58. 

To enforce liability of stockholder, see "Corpo- 
rations," § 33. 

lien, see "Maritime Liens," § 58. 

trust, see "Trusts," § 47. 



2585 (§ 1) 



PARTIES. 

[Fed. Cas. Digest.] 



(§ 7) 1586 



To foreclose mortgage, see "Railroads," § 47. 
To recover share in estate, see "Descent and 
Distribution," § 3. 

To particular classes of conveyances^ contracts* 

or transactions. . 

See "Bills and Notes," §§ 15, 36a, 46; "Bonds," 
§2; "Contracts," §§ 2, 20; "Fraudulent Con- 
veyances," § 25; "Insurance," § 24. 

-Joint interests, see "Joint Adventures." 

-§ 1. Plaintiffs. 

Suit brought in name of plaintiff "who is nei- 
ther a natural nor an artificial person is a null- 
ity.— Alexander v. Knox, Case No. 170. 

Under an act appropriating moneys to a cer- 
tain person as assignee of C, "or to whomsoever 
shall appear to the comptroller to be entitled to 
his share," held, that C. was not entitled to the 
moneys in his own right, and a suit could be 
maintained in the name of any one legally enti- 
tled thereto.— Sands v. Delafield, Case No. 12,- 
304. 

Under a state law directing or authorizing 
all suits to be brought in the name of the real 
party in interest, such party has the right to 
sue in actions at law in the federal courts sit- 
ting in such state. — Weed Sewing Mach. Co. v. 
"Wicks, Case No. 17,34S. 

Where the parties are so numerous as not to 
be inserted conveniently in the record, suit may 
be maintained in the name of a part for the 
whole. — Piatt v. Oliver, Case No. 11,115. 

A person for whose benefit an action is 
hrought, but who does not appear to be a party 
upon the record, nor to be interested in the 
event, cannot appear and plead in his own 
name.— Welch v. Mandeville, Case No. 17,371. 

§ 2. Defendants. 

Persons against whom no relief is prayed, and 
whose interests cannot be injuriously affected by 
the suit, need not be joined as parties. — Van 
Bokkelen v. Cook, Case No. 16,831; Van Reims- 
dyk v. Kane, Id. 16,871. 

But, all persons whose interests will be af- 
fected should be made parties unless without the 
jurisdiction of the court, when such fact should 
"be stated.— Bowman v. Wathen, Case No. 1,740. 

And where no final decree can be made with- 
•out prejudice to parties not before the court, the 
•court will not proceed, even though the parties 
are beyond reach of its process. — Carson v. Rob- 
•ertson, Case No. 2,466. 

The collector is not a proper party to a suit 
hetween rival claimants to the ownership of im- 
ported goods in his custody in a bonded ware- 
house, where it is not alleged that he is acting 
wrongfully or without authority of law.— Rateau 
v. Bernard, Case No. 11,579. 

Assignees of British bankrupt allowed to be 
:made parties to defend a suit against the bank- 
rupt, on certificate of foreign notary public cer- 
tified by American consul.— Wilson v. Stewart, 
'Case No. 17,837. 

Several defendants who claim separate tracts 
of land from distinct sources of title may be 
joined in the same suit under Act Ky. 1796. — 
Lewis v. Marshall, Case No. 8,327. 

On a return of non est inventus as to one de- 
fendant and service on the other, plaintiff may 
proceed against the latter on a joint contract— 
Craig v. Cummings, Case No. 3,331. 

One who purchases pendente lite the interest 
of a defendant in the subject-matter of a suit 
•does not thereby become a necessary party to 
the suit, and if the court has no jurisdiction of 
him he cannot be compelled to come in as a 
party.— Myers v. Dorr, Case No. 9,98S. 

A person who has no interest, in a legal sense, 
in the subject-matter of a suit in personam, 
.and who is not a party to it, cannot compel the 



plaintiff to make him a party.— Coleman v. Mar- 
tin, Case No. 2,9S5. 

Several defendants, who have no connection 
with each other in interest, in estate, or in con- 
tract, and against whom jointly plaintiffs have 
no cause of action, cannot be joined. — United 
States v. Alexander, Case No. 14,42S. 

The alleged fraudulent indorsee of a note is 
a necessary party to a bill by the payee to avoid 
an assignment for fraud and compel the maker 
to pay a second time.— Alexander v. Horner," 
Case No. 169. 

§ 3. Designation and description of par- 
ties. 

Designation in equity, see "Equity," § 42. 

An action brought in the name of "Rawlings 
& Son" held too uncertain as a description of 
plaintiffs.— Rhea v. Rawlings, Case No. 11,737. 

The words "I. & C. Central R. R." cannot, 
without an allegation of misnomer, or offer to 
prove the identity, be taken to mean the Colum- 
bus & Indianapolis Railway Company. — Dixon 
v. Columbus, etc., R. Co., Case No. 3,929. 

§ 4. New parties and change of parties. 

An assignee of complainant's interest in the 
subject-matter, pending the litigation, must file 
an original bill in the nature of a supplemental 
bill to be substituted to complainant's right. — 
Tappan v. Smith, Case No. 13,748; Winter v. 
Ludlow, Id. 17,S91. 

Where the proper parties are not made, the 
court will suspend decree to bring them in. — 
Bowman v. Wathen, Case No. 1,740. 

Plaintiff must enter a nolle prosequi as to one 
of the joint defendants, against whom there is a 
stay of proceedings pending action upon his 
discharge in bankruptcy, before he can proceed 
against the others.— Hinman v. Cutler, Case No. 
6,524. 

Substitution of parties in bankruptcy proceed- 
ings, see "Bankruptcy," §§ 102, 567. 

§ 5. Effect of misjoinder or nonjoinder. 

That persons are unnecessarily made defend- 
ants does not oust the jurisdiction as to those 
who are properly before the court.— Bowman v. 
Wathen, Case No. 1,740. 

The court has no jurisdiction where a person 
within its jurisdiction, deemed an indispensable 
party, is not joined.— Tobin v. Walkinshaw, Case 
No. 14,068. 

An outstanding interest in a person without 
the jurisdiction of the court will not prevent a 
decree upon the merits, where the case may be 
completely decided between the litigant parties 
or without them. — Society for Propagation of 
the Gospel v. Hartland, Case No. 13,155. 

§ 6. "Who may make objection. 

Only those defendants who are improperly 
joined can take advantage of an objection for 
misjoinder of parties.— Spaulding v. McGovern, 
Case No. 13.217. 

§ 7. Time of making objection. 

Want of parties may be objected to at any 
time, even in the appellate court.— Carson v. 
Robertson, Case No. 2,466. 

After the evidence is closed on the trial, de- 
fendant cannot object, for the first time, to a 
recovery on the ground that plaintiff was not 
the real party in interest and had no capacirv 
to sue. Civ. Code Kan. §§ 10, 2S, 89, 91.— Per- 
kins v. Ingersoll, Case No. 10,988. 

An objection for want of proper parties de- 
fendant, not made by demurrer, plea, or answer, 
will be lield too late, where a decree can be 
made granting the relief sought without affect- 
ing the rights of absent parties; otherwise not, 
though they are beyond the jurisdiction of the 
court.— Florence Sewing Mach. Co. v. Singer 
Mfg. Co., Case No. 4,884. 



1587 (§ 8) 



PARTIES— PARTNERSHIP. 

[Fed. Cas. Digest.] 



158* 



§ 8. Mode of raising objection. 

Objection of nonjoinder need not be raised by 
pleadings —Alexander v. Horner, Case No. 169. 

An objection of want of parties can be taken 
only by plea or answer, and the name or descrip- 
tion of the parties who should be brought in 
must be specified.— Segee v. Thomas, Case No. 
12,633. 

If process is prayed against all necessary par- 
ties, a demurrer for want of proper parties will 
not lie on the ground that some have not been 
served. — Kilgour v. New Orleans Gas Light Co., 
Case No. 7,764. 

PARTITION. 

§ 1, By act of parties. § 2, Actions for partition— 

Risrht of action and defenses. § 3, Proceedings 

and relief. 

Conclusiveness of state court decision, see 
"Courts," § 117. 

§ 1. By act of parties. 

A parol partition executed by taking actual 
exclusive possession of the portions respectively 
assigned is valid, and the parties cease to be 
tenants in common.— Four Hundred and Twen- 
ty aiin. Co. v. Bullion Min. Co., Case No. 4,989. 

A partition between a tenant in tail of an un- 
divided half of land, and a tenant in fee of the 
other half, is binding only during the life of the 
former. — Buxton v. Bowen, Case No. 2,260. 

§ 2. Actions for partition— Right of ac- 
tion and defenses. 

A bill for partition will not be entertained 
unless claimant's title be clear to the portion 
to be received.— Barney v. Baltimore, Case No. 
1,029. 

The possession of a tenant in common, being 
the possession of his cotenant, will enable the 
latter to maintain a partition suit even where 
possession is necessary. — Lamb v. Starr, Case 
No. 8,021. 

If complainant's title is not doubtful or sus- 
picious, equity will decree partition whether he 
is in actual possession or not; but if he claim 
legal title, and that title is doubtful, it is usual 
to remit him to 3n action at law to try title, and 
retain the suit awaiting the result. If he claim 
equitable title, and that is doubtful, the court 
will first ascertain the title before making par- 
tition. — Lamb v. Starr, Case No. 8,021. 

The right to demand partition is ex debito jus- 
titise if complainant can show a plain legal title. 
—Vint v. King, Case No. 16,950; Findlay v. 
Vint, Id.; Allen v. Same, Id.; Sheffey v. Same, 
Id. 

§ 3, _ Proceedings and relief. 

The court of common pleas in Ohio may take 
jurisdiction of a bill for partition in two coun- 
ties, but the decree, to bind purchasers, must be 
recorded where the land lies. — Nelson v. Moon, 
Case No. 10,111. 

On a bill for partition a court of equity may 
examine questions of alleged fraud. — Vint v. 
King, Case No. 16,950; Findlay v. Vint, Id.; 
Allen v. Same, Id.; Sheffey v. Same, Id. 

Proceedings for partition or sale of real estate 
of an intestate under Act Md. 1786, c. 45, § 8.— 
Tolmie v. Thompson, Case No. 14,080. 

The effect of a decree in a partition suit con- 
sidered and declared.— Lamb v. Wakefield, Case 
No. 8,024. 

A decree of partition does not pass anything 
from one coparcener to another. — Contee v. 
Godfrey, Case No. 3,140. 

A partition by which allotments were made to 
some of the parties as heirs lield to estop them 
from claiming by purchase, and not as heirs. — 
Lamb v. Carter, Case No. 8,013. 



PARTNERSHIP. 



I. THE RELATION. 

§ 1, Creation and requisites. § 2, As to- 
third persons— What constitutes in general. 

§ 3, Holding out as partner. § 4, 

Dormant or secret partners. § 5, De- 
fective associations or corporations. § 6, Ev- 
idence. § 7, Duration. 

n. THE FIRM, ITS POWERS AND PROP- 
ERTY. 

§ S, Powers of firm as a body. § 9, "What Is 
firm property in general. § 10, Partnership 
real estate. § 11, Change of joint property 
into separate property. 

III. MUTUAL RIGHTS, DUTIES, AND LIA- 

BILITIES. 

§ 12, Firm property and business — Con- 
struction of partnership articles in general. 
§ 13, Capital of firm. § 14, Misap- 
propriation of firm property. § 15, 

Books of account. § 16, Liability for- 

losses. § 17, Individual transactions— Pur- 
chase of co-partner's interest. § 18, Actions 
between partners. 

IV. RIGHTS AND LIABILITIES AS TO 

THIRD PERSONS. 

§ 19, Representation of firm by partner — 

Scope of firm business. § 20, Restrictions- 

on partner's authority. § 21, Use of seal. 

§ 22, Disposition of firm property in 

general. § 23, Contracts. § 24, Sales. 

§ 25, Negotiable instruments. § 26, 

Mortgage. § 27, Payment of firm debts. 

§ 28, Acknowledgment of debt. § 29, 

Wrongful acts. § 30, Estoppel to- 

deny partner's authority. § 31, Ratifi- 
cation. § 32, Application of assets to liabili- 
ties—Assets of firm. § 33, Assets of in- 

* dividual partners. § 34, Actions by or against 
firm or partners — Parties. § 35, Attach- 
ment against firm property. § 36, Plead- 
ing. § 37, Issues and proof. § 38, ■ 

Evidence. § 39, Judgment and enforce- 
ment. 

V. RETIREMENT AND ADMISSION OF" 

PARTNERS. 

§ 40, Assent to admission of new partner, 
§ 41, Authority of continuing partner. § 42, 
Obligations of old firm. § 43, Assumption of 
obligations of old firm. § 44, Actions after 
change of membership. 

VL DEATH OF PARTNER AND SURVIV- 
ING PARTNERS. 

§ 45, Effect of death of partner. § 46, Reai 
property of firm. § 47, Obligations incurred in 
winding up business. § 48, Rights of surviv- 
or in estate of deceased. § 49, Actions by or- 
against surviving partners or representatives 
of deceased partner. 

VII. DISSOLUTION, SETTLEMENT, AND 

ACCOUNTING. 

§ 50, Causes of dissolution. § 51, Rights, 
powers, and liabilities after dissolution. § 52, 
Distribution and settlement. § 53, Actions- 
for dissolution and accounting. 

VIII. LIMITED PARTNERSHIP. 

§ 54, Certificate of formation. § 55, Con- 
tribution of special capital. § 56, Firm name- 
and sign. § 57, Withdrawal of capital or 
profits. § 58, Relations between special and 
general partners. § 59, Dissolution. 

See, also, "Associations"; "Joint Adventures";, 
"Joint Stock Companies." 



1589 (§ 1) 



PARTNERSHIP, I. 
[Fed. Cas. Digest.] 



(§ 3) 1590 



Bankruptcy, see "Bankruptcy," §§ 16, 33, 46- 
55, 447-456, 493, 633. trcXT ^ 

Disclosure of communications between, see Wit- 
nesses," § 55, 

Effect of assignment in bankruptcy, see "Bank- 
ruptcy," § 196, 

of change in or dissolution of partnership, 

see "Trade-Marks and Trade-Names," § 14. 

Exemptions, see "Bankruptcy," § 536. 

Part owners of vessel, see "Shipping," §§ 21-27. 

I, THE RELATION. 

§ 1. Creation and requisites. 

The actual intention of the parties will alone 
constitute a partnership, as between themselves. 
—Hazard v. Hazard, Case No. 6,279. 

A partnership does not exist from an agree- 
ment to form one in the future. — In re Goold, 
Case No. 5,60£. 

An advance of money by one to another in 
contemplation of their becoming copartners at a 
future time does not work a copartnership.— In 
re Goold, Case No. 5,604. 

To constitute a partnership, there must be a 
community of interest continuing to the time of 
the disposal of the property in which the parties 
are interested.— Felichy v. Hamilton, Case No. 
4,719. 

An agreement to furnish $3,000 and personal 
services to the business of another for a year, 
at a stipulated price, and not to be chargeable 
with losses, does not constitute a partnership 
as between* the parties.— Mattocks v. Rogers, 
Case No. 9,300. 

Persons owning merchandise in common, who 
ship it on joint account and risk for sale, are 
copartners in the adventure. — Two Hundred and 
Sixty Hogsheads of Molasses, Case No. 14.296. 

An agreement between equal owners of p. ves- 
sel, whereby they assumed various duties as 
master and supercargo, and agents and factors, 
Jield not to constitute a partnership.— De Wolf 
v. Howland, Case No. 3,S52. 

Tenants in common of a ship who purchased 
a cargo for a voyage 7iel& tenants in common of 
the cargo, and not partners. — Jackson v. Rob- 
inson, Case No. 7,144. 

A mere participation in the profits will not 
make the parties partners inter sese.— Hazard 
v. Hazard, Case No. 6,279. 

An agreement which does not provide for shar- 
ing in the profits does not constitute a partner- 
ship.— In re Blumenthal, Case No. 1,575. 

Agreement between owners of tug and barge 
to operate them jomtly in the freighting busi- 
ness, profits to be shared in proportion to the 
stipulated values of the vessels, constitutes a 
partnership.— Bowas v. Pioneer Tow Line, Case 
No. 1,713. 

The fact that two firms share in a certain 
venture, keeping their bank account in the 
name of one firm, adding the word "Co.," in 
which form they draw checks, does not make 
them partners.— In re Warner, Case No. 17,178. 

A joint purchase with a view to a joint sale 
and a communion of profit and loss, though for 
a single transaction, will constitute a partner- 
ship.— In re Warren, Case No. 17,191. 

An agreement for a salary, to be measured by 
the net profits received, does not create a part- 
nership.— In re Pierson, Case No. 11,153. 

A contract to work a farm on shares Jield to 
constitute a partnership, and to be abandoned by 
the failure of the narty who went into posses- 
sion to carry nut its terms.— Tibbatts v. Tib- 
batts, Case No. 14,020. . 

An association of pilots who placed their earn- 
ings in* a common fund, out of which expenses 
are paid and profits declared, is a partnership, 



liable for the misfeasance or negligence of one 
of such pilots while employed in piloting a ves- 
sel.— Santiago v. Morgan, Case No. 12,331. 

Persons who advance money for an enterprise 
run in another's name, with an option to share 
in the profits, or to receive back their money 
with interest, are not partners in the business. — 
Moore v. Walton, Case No. 9,779. 

§2. As to tMrd persons— What consti- 
tutes in general. 

A partnership, as to third persons, can only 
arise either by contract between the partners 
themselves, by implication of law arising front 
a contract which does make them partners as 
to third persons, or by some act or declaration 
of the partners by which third persons are rea- 
sonably led to suppose that the partnership ex- 
ists. — Einstein v. Gourdin, Case No. 4,320. 

An agreement to contribute capital or labor 
to carry on a business with equal participation in* 
the profits will constitute a partnership as to 
third persons, although the agreement expressly 
stipulates to the contrary, and although such 
third persons had no knowledge of the actual 
relation.— Bigelow v. Elliot, Case No. 1,399. 

Participation in profits is prima facie proof of 
partnership, rebuttable by showing that they 
were received as wages or interest for money 
loaned.— In re Francis, Case No. 5,031. 

A partnership licld to exist where the transac- 
tion was intentionally, and for collateral rea- 
sons, disguised under the cloak of a pretended 
loan and employment as bookkeeper. — In re- 
Francis, Case No. 5,031. 

A loan to a person engaged in trade on con- 
dition of a rate of interest in proportion to prof- 
its or a share, of the profits does not constitute- 
the lender a partner. — In re Ward, Case No. 17,- 
144. 

The receipt of a stated portion of the profits 
of an enterprise as compensation for services- 
will not alone constitute the recipient a partner. 
—Bigelow v. Elliot Case No. 1,399; In re 
Ward, Id. 17,144; Einstein v. Gourdin, Id. 4,- 
320. 

A person loaning money to another carrying- 
on business in his own name with the suffix 
"& Co." cannot be held liable as a partner, 
"where he neither held himself out as such, nor 
allowed others to do so. — Swann v. Sanborn,. 
Case No. 13,675. 

§ 3. Holding out as partner. 

One representing himself as a partner, or per- 
mitting others to do so, is responsible as such, 
although he may have no interest in the firm. — 
Buckingham v. Burgess, Cases Nos. 2,087, 2,- 
089. 

A person who permits himself to be held out 
as a partner is liable as such to one from whom- 
credit is secured upon the strength of the sup- 
posed relation.— In re Jewett, Case No. 7,306. 

Where a party furnishes a certain sum and 
personal services to the business of another for a 
year, not to be chargeable with losses, and holds 
himself out as a partner, he is liable as such to 
creditors, and, in case of insolvency, the sum- 
contributed is partnership assets.— Mattocks v- 
Rogers, Case No. 9,300. 

Holding one's self out to the world as a part- 
ner will make him liable as such to one who may 
be inferred to have knowledge thereof, though:, 
he in fact has no interest in the concern. — 
Benedict v. Davis, Case No. 1,293. 

Conduct to estop one from denying liability as- 
a partner must have been so open and notorious^ 
that all the creditors believed him to be a part- 
ner in the firm, and were thereby induced to be- 
come its cre'ditors. — In re Goold, Case No. 5,604- 

One advancing money for the purchase of ma- 
terials to be manufactured, retaining a lien 
thereon as security, held not liable as a partner 



1591 (§ 3) 



hecause hold out as such bv the debtor.— In re 
I>e Jletz, Case No. 3,781. 

Permitting the use of one's name in a firm 
rafter retiring therefrom makes one liable on a 
note of the new firm in the hands of a pur- 
chaser without notice.— In re Krueger, Case No. 
7,941. 

Where a man and wife hold themselves out 
as partners in trade, it will be presumed, in the 
absence of proof, that she contributed her share 
of the capital, and that her time, skill, and 
earnings went into the business.— In re Kin- 
kead, Case No. 7,824. 

^ £• Dormant or secret partners. 

A dormant partner is not liable on a note 
given in the individual name of the other for 
goods put into the business, conducted in the 
latter's name, where the payee did not know the 
relation.— Palmer v. Elliot, Case No. 10,690. 

Where the purchaser of a note made by a firm 
•did not know of any secret partners, and the 
note was made for the individual benefit of 
those whose names appeared thereon, held, that 
the secret partners were not liable.— In re jtfunn, 
•Case No. 9,925. 

To charge a secret partner with debts of the 
firm, it must be shown that the debts were con- 
tracted in the name and business of the firm, 
or that he had an interest in the contract or 
profits.— In re Munn, Case No. 9,925. 

Where one partner publicly avows all the 
partners, so that they become and are known 
4is such, and credit is obtained thereby, it is 
no longer a secret partnership, whether the firm 
be carried on in the name of one partner only 
or otherwise.— United States Bank v. Binnev, 
Case No. 16,791. 

Debt may be maintained upon a firm note 
against a secret partner, who has not signed it, 
but he is not liable if the money obtained on 
its discount was not used for the firm.— Bank of 
Alexandria v. Mandeville, Case No. 851. 

It is the joint interest in the whole which con- 
stitutes the joint liability of all for the contracts 
of one, and not the credit which is given to all, 
as in the instance of a dormant partner.— Fe- 
lichy v. Hamilton, Case No. 4,719. 

§ 5. — Defective associations or corpor 
rations. 

Persons assuming to act as a corporation, un- 
der a corporate name, without authority of law, 
are liable, as copartners, for the debts of the 
association.— In re Mendenhall, Case No. 9,425. 

§ 6. Evidence. 

A partnership cannot be proved by evidence 
of general reputation.— Wilson v. Colman, Case 
No. 17,798. 

The conduct of parties alleged to be partners 
is competent evidence to show the copartnership. 
— In re Goold, Case No. 5,604. 

On an issue of partnership, an offer to pay 
the partnership note if the holder would take 
property is evidence in connection with defend- 
ant's confession that the note was signed bv his 
partner.— Thomas v. Wolcott, Case No. 13,915. 

In an action against two persons as partners, 
an account book containing entries made by both 
defendants is admissible as evidence of partner- 
ship.— Champlin v. Tilley, Case No. 2,586. 

Parol evidence cannot be given of the contents 
of printed cards bearing the joint names of 
-defendants to prove partnership. — Wilson v. Col- 
man, Case No. 17,798. 

To rebut declarations, as conducing to estab- 
lish a partnership in fact, a parol contract be- 
tween the parties may be proved.— Benedict v. 
Davis, Case No. 1,293. 

Evidence tending to show some sort of joint 
interest in certain purchases of lumber lands 
JieJd not sufficiently definite and satisfactory to 



PARTNERSHIP, L, H. 
[Fed. Cas. Digest.] 



(§ 11) 1592 



establish a general copartnership in land and 
lumber speculations.— Smith v. Burnham, Case 
No. 13,019. 

A partnership in buying and selling lands, as 
to third persons, may be proved by the same 
evidence as a partnership in buying and selling 
merchandise.— In re Warren, Case No. 17,191. 

§ 7. Duration. 

The partnership articles will be considered as 
binding after the expiration of the stipulated 
term where the business is carried on without 
any change in the circumstances.— Robertson v. 
Aliller, Case No. 11,926. 

H. THE FIRM, ITS POWERS AND 

PROPERTY - . 

§ 8. Powers of firm as a body. 

A firm may negotiate its own paper to one of 
its partners, or take his paper and use it for 
the firm's purposes.— Baring v. Lyman, Case No. 
yoo. 

§ 9. Wnat is firm property in general. 

Where property is necessary for the ordinary 
operation of the partnership, and be actuallv so 
employed, it will be held partnership property, 
when purchased with partnership funds.— Hoxie 
v. Carr. Case No. 6,802. 

In the absence of fraud and breach of trust, 
property purchased with partnership funds does 
not. of necessity, become partnership property, 
if that is not the intention of the parties.— Hoxie 
v. Carr, Case No. 6,802. 

A legacy to the wife of one of the partners 
held to have become partnership" property, as, 
when received, it became the husband's* prop- 
erty.— Lyman y. Lyman, Case No. 8,628. 

One of the partners having received a large 
legacy and applied it to the partnership business, 
without the knowledge of the other, and the 
money haying been used for many years therein. 
held that it became partnership property.— Ly- 
man v. Lyman, Case No. 8,628. 

When a partnership is formed to make an 
article to which a given trade-mark is properly 
applied, such trade-mark, if belonging to one 
partner, becomes, in the absence of special regu- 
lations, part of the partnership property.— Fi Ik ins 
v. Blackman, Case No. 4,786. 

§ 10. Partnership real estate. 

A partnership in purchasing and selling lands 
is governed by the same principles as ordinary 
partnerships.— Olcott v. Wing, Case No. 10,481. 

The proceeds of a lot owned by one of the 
partners prior to the partnership, afterwards 
built upon with joint funds, and then sold and 
the proceeds used in the partnership business, 
must be considered as belonging to the partner- 
ship.— Lyman v. Lyman, Case No. 8,628. 

Lands bought by a commercial partnership, 
for partnership purposes, in equity stand on the 
same footing as personal property,. whether title 
is taken in one or both partners. — Lyman v. Ly- 
man, Case No. 8,628. 

Real estate held for partnership purposes or 
purchased with partnership means is personal 
assets for paying debts or balances due the part- 
ners.— Kleine v. Shanks. Case No. 7,870; His- 
cock y. Jaycox, Id. 6,531. 

Real estate purchased with partnership funds, 
and on partnership account, will, in equity, be 
treated as personal estate, irrespective of the 
condition of the title.— Hoxie v. Carr, Case No. 
6,802. 

Dower rights in partnership realty, see "Low- 
er," § 1. 

§11. Change of joint property into sep- 
arate prouerty. 

The exchange of a note of a firm dissolved bv 
the death of one partner, for a similar note 



1593 (§ 12) 



PARTNERSHIP, III., IV. 
[Fed. Cas. Digest.] 



.(§ 22) 15941- 



signed by the survivor, does not convert the firm 
debt into the separate debt of the survivor.— In 
re Clap, Case No. 2,784. 

HI. MUTUAL BIGHTS, DUTIES, AND 

LIABILITIES. 

See, also, post, §§ 40-44, 51, 58. 

§ 12. Firm property and business— Con- 
struction of partnership articles 
in general. 

The understanding that no charge was to be 
made for family expenses held to extend to the 
expenses of minor children, but not to advances 
made them after they became of age.— Lyman 
t. Lyman, Case No. 8,628/ 

Salaries paid to the children as clerks, after 
they became of age, held a charge against the 
partnership.— Lyman v. Lyman, Case No. 8,628. 

'Where a partnership between two brothers, 
made by parol in 1784, with an agreement that 
all their property should be in common, lasted 
until 1820, and was extended to numerous kinds 
of business, including the purchase of lands in 
various states, to which title was taken in the 
name of one or both, as the purchasing partner 
pleased, held, that the partnership was unlim- 
ited; that all property acquired by either was 
partnership property; and that each was bound 
by the acts of the other, however disastrous, if 
done in good faith.— Lyman v. Lyman, Case No. 
S,628. 

§ 13. Capital of firm, 

A partner, by failing to contribute his share of 
the partnership fund, does not forfeit the inter- 
est which he already has in the firm.— Piatt v. 
Oliver, Case No. 11,116. 

§ 14. Misappropriation of firm prop- 
erty- . . , 
An agreement to sell a member certain articles 

expressly for his individual use, to be paid for 
out of the partnership goods, is void as to the 
other partners.— Taylor v. Rasch, Case No. 13,- 
801. 

§ 15, _ Books of account. 

The presumption that all the partners in a firm 
have access to the partnership books, and know 
the entries therein, may be repelled by any 
circumstances which lead to a contrary presump- 
tion.— United States Bank v. Binney, Case No. 
16,791. 

§16. Liability for losses. 

Where a joint adventure was in the manage- J « 2Q Restrictions on partner's an- 

ment of one partner, and the other advised him j b ~ - 

to sell the cargo for cash or produce only, but 
he took bills on the French government, which 
were not paid, held that, his conduct being in 
good faith, he was not liable to the other part- 
ner.— Lyles v. Styles, Case No. 8,625. 



If there has been no settlement of the partner- 
ship accounts, one partner cannot maintain an 
action at law against the other for any matter 
relating to their partnership affairs.— Bote v fc 
Philips, Case No. 11,316; Lamalere v. Caze, Id. 
8,003; Halderman v. Halderman, Id. 5,909;. 
Goldsborough v. HcWilliams, Id. 5,518; Barry 
v. Barry, Id. 1,060. 

One partner who pays a judgment against all" 
the partners for a partnership debt cannot at 
law recover from the others their respective pro- 
portions.— Riggs v. Stewart, Case No. 11,830. 

Quaere, whether the debt of one partner in a 
joint concern with others, not yet closed, cant 
be set off in an action between partners.— Hurst 
v. Hurst, Case No. 6,930. 

In an action at law by one partner against 
the other, a partnership book kept by defendant 
is not evidence against plaintiff, although it has- 
been in his possession.— Sutton v. Mandeville^ 
Case No. 13,648. 

In an action at law between partners, ac- 
counts rendered are admissible to show that the- 
items are not of partnership accounts.— Barry v. 
Barry, Case No. 1,060. 

On a bill against a partner who has fraudu- 
lentlv suppressed books and falsified accounts,, 
complainant will not be held to strict proof. Suf- 
ficienev of proof.— Askew v. Odenheimer, Case- 
No. 587. 
See, also, ante, § 6; post, § 53. 

IV. RIGHTS AND LIABILITIES AS TO' 
THIRD PERSONS. 

Assignment for benefit of creditors, see "As- 
signments for Benefit of Creditors," §§ 1, 2. 

* 

§ 19. Representation of firm by partner 
— Scope of firm business. 

A partner can bind the firm only for objects, 
within the scope of its business.— United States 
Bank v. Binney, Case No. 16,791. 

A usurious loan and conveyance is not within 
the proper scope and business of the partner- 
ship, so as to make the ignorant partner liable, • 
in an action of tort, for the violation of law by 
his copartner.— Graham v. Meyer, Case No. 5,~ 
673. 

A partner is hound by the act of his co-part- 
ner, within the scope of his business, though the- 
act be fraudulent as between the partners. — 
Capelle v. Hall, Case No. 2,391. 



§17. Individual transactions — Purchase 
of copartner's interest. 

A bona fide transfer of partnership effects by 
one member of the partnership to another vests 
the title in the transferee as his separate es- 
tate.— In re Byrne, Case No. 2,270. 

A bona fide transfer of an interest in a part- 
nership may be made without writings or vouch- 
ers.— In re Great Western Tel. Co., Case No. 
5,740. 

§ 18. Actions bet-ween partners. 

A partner in a steamboat company, who acted 
as master and engineer, cannot maintain an 
action at law against his copartners for compen- 
sation as engineer.— Taylor v. Smith, Case No. 
13,806. 

A settlement of partnership accounts, and a 
balance acknowledged, will not support an ac- 
tion at' law between the partners without an 
express promise to pay.— Bote y. Philips, Case 
No. 11,316. 



tbority. 

Secret restrictions upon the rights of partners 
do not affect those persons who deal with the 
firm in ignorance of them.— United States Bank 
v. Binney, Case No. 16,791. 

& 21 m*m^— Use of seal 

A partner, with the assent of his copartners, 
may bind the firm by a joint and several bond 
made by him in the firm name, and under a sin- 
gle seal affixed to its signature.— United States, 
v. Brod, Case No. 14,653. 

A release under seal of one of copartners is a 
sufficient release as to the rights of both.— Beltz- 
hoover v. Stockton, Case No. 1,283. 

§ 22. — Disposition of firm property in 
general. 

The active partner cannot transfer partner- 
ship realty the same as personalty.— Piatt v. Oli- 
ver, Case No. 11,116. 

An assignment by one partner of partnership 
realty in payment of firm debt passes only his 
interest,— Anderson v. Tompkins, Case No. 365. 

A deed executed by one partner becomes the 
deed of all, where the others expresslv consent- 
ed at the time, or agreed to it, or recognized it 
afterwards.— Darst v. Roth, Case No. 3,582. 



1595 (§ 23) 



PARTNERSHIP, iy. 
[Fed. Cas. Digest.] 



(§ 32) 1596 



§ 23. — - Contracts. 

A contract in writing by one partner in his 
own name does not bind the other, though the 
money obtained by it comes into the joint con- 
cern.— Smith t. Hoffman, Case No. 13,061. 

A member of a firm cannot engage the firm 
in another partnership, so as to bind a member, 
not privy thereto. But his consent or ratifica- 
tion may be presumed by his silence without ob- 
jection after he has knowledge of the fact. — 
Tabb v. Gist, Case No. 13,719. 

Assumpsit will not He against partners on a 
bond given by one partner for a debt due from 
both where not executed in the presence or by 
the consent of the copartner. — United States v. 
Astley, Case No. 14,472. 

3 24. Sales. 

A joint owner may advise as to the manner 
of sale of the cargo, but he has no authority to 
order; and he is bound by the acts of the man- 
aging partner done in good faith, though his ad- 
vice is not followed.— Lyles v. Styles, Case No. 
8,625. 

The firm is not liable for goods sold to one of 
the partners with knowledge that they were for 
his separate use, although he ordered them to 
be charged to the firm.— Gullat v. Tucker, Case 
No. 5,866. 

§ 25. — Negotiable instruments. 

Notes made jointly by partners, if understood 
to be partnership transactions, and in fact so 
used, will be binding on the firm. — In re War- 
ren, Case No. 17,191. 

Where bills drawn in the name of one partner, 
and accepted by the other, are in fact partner- 
ship transactions, and so understood, the firm 
will be liable thereon.— In re Warren, Case No. 
17,191. 

A bill signed by one partner alone, where he 
has authority to sign for all, will, in equity, be 
enforced against all the partners in favor of the 
payee of the bill, who has trusted the money on 
the faith of the joint credit.— Van Reimsdyk v. 
Kane, Case No. 16,872. 

Where a partnership is carried on in the name 
of one partner, notes indorsed by him are not 
binding on the firm unless the indorsements were 
made for the benefit of the firm.— United States 
Bank v. Binney, Case No. 16,791. 

The firm is liable on a note signed by the 
members with their individual names, where the 
-consideration is treated as copartnership funds. 
—In re Thomas, Case No. 13,886. 

Where the proceeds of a firm note indorsed 
by a partner were credited on the firm books 
and were received by the firm, it is liable there- 
on, though they were subsequently used by the 
partner individually.— In re Xorris, Case No. 10,- 
302. 

A partnership is not liable on an indorsement 
in the firm name by one member without the 
knowledge of the other, of an accommodation 
note, for the benefit of the third person.— In re 
Irving, Case No. 7,074. 

The acceptance of the note of one partner on 
a loan of money for the use of the firm will 
prevent an action against the firm. — In re Her- 
rick, Case No. 6,420. 

Though the lender was ignorant that the loan 
was for the firm, he cannot sue the firm after 
recovering judgment on the note.— In re Her- 
rick, Case No. 6,420. 

Any partner may be agent of third person in 
drawing bills in favor of the firm for advances 
made under express authority. — Baring v. Ly- 
man, Case No. 983. 

A check upon a bank drawn in the name of 
one partner cannot be charged to the firm if not 
<drawn by its authority, although used in the 



business of the firm.— Patriotic Bank v. Coote. 
Case No. 10,807. 

A promissory note given by the active partner, 
in whose name the business was carried on, to 
the silent partner, for the amount of capital 
contributed by him, is the separate note of the 
active partner.— In re Waite, Case No. 17,044. 

§ 26. — Mortgage. 

A chattel mortgage executed by one partner 
under seal, in the firm name, for money ad- 
vanced to it, where the other partner subse- 
quently assents thereto, will bind the firm.— 
Hawkins v. Hastings Bank, Case No. 6,244. 

An assignment of partnership debts by one 
partner only, though void in law, sustained in 
equity if bona fide to .secure creditors. — Ander- 
son v. Tompkins, Case No. 365. 

§ 27* Payment of firm debts. 

One partner without prior consent of others 
may convey partnership personalty in payment 
of firm creditors.— Anderson v. Tompkins, Case 
No. 365. 

a One partner may give a preference to a par- 
ticular creditor without consent of others if they 
| are abroad.— Anderson v. Tompkins, Case No. 
[365. 

§ 28. Acknowledgment of debt. 

The acknowledgment of a debt by one partner 
will bind his copartner. — Corps v. Robinson, 
Case No. 3,252. 

§ 29. — "Wrongful acts. 

Partners are liable for the tort of one of their 
number committed by him as a partner in the 
course of the partnership business.— Stock well 
v. United States, Case No. 13,466. 

A tort of one partner will not bind the firm 
if not authorized or adopted by the firm, or with- 
in its proper scope and business.— Graham v. 
Meyer, Case No. 5,673. 

§ 30. — Estoppel to deny partner's an- 
tbority. 

A partner in a milling firm, who permits his 
co-partner to hold the firm out as a dealer in 
grains by the use of cards and letter heads in- 
dicating such business, will be liable on con- 
tracts for the sale and purchase of grain for 
future delivery, made in the name of the firm.— 
Williar v. Irwin, Case No. 17,761. 

The indorsement of a firm, made by a partner 
to raise money for his benefit, binds the other 
partners, when the firm books disclose the entire 
transaction and they make no objection to it.— 
In re Norris, Case No. 10,302. 

The representations of a member of a firm 
to the purchaser of its negotiable paper that it 
is business paper will estop the firm or their 
assignee from setting up that it is accommoda- 
tion paper, and void for usury.— In re Many, 
Case No. 9,054. ** 

§31. — - Ratification. 

A ratification for a firm may be made by one 
member.— United States v. Turner, Case No. 

An agreement between a member of a firm 
and his individual creditor that the claim should 
be set off against such creditor's liability to the 
firm is not available to the firm where it was 
not assented to by the other partners until after 
such creditor had made an assignment for the 
benefit of creditors, though before bankruptcy. 
—Clark v. Sparhawk, Case No. 2,836. 

§ 32. Application of assets to liabilities 
— Assets of firm. 
A simple contract creditor cannot sue to fol- 
low partnership property used to pay individual 
debts.— Case v. Beauregard, Case No. 2,4S7. 

The debts of the partnership must be first 
paid before the partnership property can be ap- 
plied in payment of the individual debt, of either 



1597 (§ 32) 



PARTNERSHIP, IT. 
[Fed. Cas. Digest.] 



(§ 38) 1598 



^partner.— United States v. Williams, Case No. 
16,719. 

One partner is not entitled to payment out of 
the firm assets of a debt due to him in the course 
of the business until all other firm debts are 
paid.— Cory v. Clark, Case No. 3,260. 

A partnership is not entitled to retain towards 
the payment of its debt the surplus arising from 
the securities held by one partner for his debt.— 
Sparhawk v. Drexel, Case No. 13,204. 

The crediting to each member of his interest 
in the firm" on taking in a new partner* will not 
affect the right of the firm creditors.— In re 
Shanahan, Case No. 12,701. 

A transfer by cne partner of his interest in 
the firm to his copartner, if made in good faith, 
as binding on the firm creditors.— Shimer v. 
"Huber, Case No. 12,787; Russell v. McCord, Id. 
12,157. 

A mortgage given by partners upon partner- 
■ship property to secure an individual debt of 
one of the partners is valid as against partner- 
ship creditors.— In re Kahley, Case No. 7,593. 

The application by a partner of funds of the 
firm to the payment of taxes on his individual 
■estate does not give the firm creditors a lien on 
the land.— United States v. Duncan, Case No. 
:15,003. 

Partnership creditors have no lien on the firm 
property before obtaining judgment and execu- 
xion. — Case v. Beauregard, Case No. 2,487; 
Tracy v. Walker, Id. 14,129. 
■See, also, post, § 52. 

~§ 33, _ Assets of individual partners. 

Where the surviving partner notified creditors 
-that his brother's capital remained in the busi- 
ness, a joint creditor of the firm, who did not 
receive the notice, could require the joint prop- 
erty to be applied to his debts to the exclusion 
of separate creditors.— In re Clap, Case No. 2,- 
'783. 

If there is no joint estate, the firm creditors 
.may share pari passu in the separate estate. — 
In re Collier, Case No. 3,002. 

A promise by one partner to pay all the firm 
.debts may be enforced by the firm creditors, 
though not parties thereto.— In re Collier, Case 
No. 3,002. 

In the absence of fraud, joint debts may be 
-converted into individual debts by one partner's 
undertaking, for a good consideration, to pay 
Hhem.— In re Collier, Case No. 3,002. 

Where all the property of a partnership be- 
longs to one member, and the others have no 
interest in the gains and profits, such property 
-will be liable in the first instance to the indi- 
vidual debts of the person owning it— Swann v. 
: Sanborn, Case No. 13,675. 

Under the Michigan statute authorizing sep- 
arate compromises of partnership debts with in- 
dividual partners, a partner who does not com- 
promise is not liable to the creditor for more 
than the balance due him. — Lowell Nat. Bank 
*v. Train, Case No. 8,571. 

; § 34. Actions by or against firm or part- 
ners—Parties. 

:See, also, ante, § 18. 

The bill of an unincorporated company should 
"be prosecuted in the names of the original part- 
ners, and not in the name of the company. — 
Metal Stamping Co. v. Crandall, Case No. 9,- 
493c. 

Action for goods sold belonging to a partner- 
ship, of which defendant was ignorant, must be 
brought in the name of all the partners.— Ben- 
nett v. Scott, Case No. 1,323. 

In a suit in equity for a demand due to a 
partnership, all th* partners must be joined, 



either as complainants or defendants.— Parsons 
v. Howard, Case No. 10,777. 

On a bill to recover a debt against the estate 
of a deceased partner, the other partners are 
proper and necessary parties, and cannot be 
dispensed with, when out of the jurisdiction, 
where the case involves their important rights. 
— Vose v. Philbrook, Case No. 17,010. 

When one of two partners sues on a partner- 
ship demand, defendant may take advantage of 
it at the trial.— Coffee v. Eastland, Case No. 
2,945. 

§ 35. Attachment against firm prop- 
erty. 

An injunction against attachment of partner- 
ship properly in a suit against a partnership 
will not be granted unless it appear that the 
property is needed to satisfy partnership claims, 
or that the partner has no interest in the surplus 
after payment of partnership debts.— Peck v. 
Schultze, Case No. 10,895. 

§ 36. _ Pleading. 

A declaration on a note signed by A. & I/. 
without their Christian names need not aver a 
partnership, where their names, are stated in full 
in the declaration. — Davis v. Abbott, Case No. 
3,622. 

A declaration on a- bill of exchange, payable 
to a firm, must aver that plaintiffs were joint 
partners or traders under the firm name. — La- 
peyre v. Gales, Case No. 8,081. 

If one of two partners be sued on a partner- 
ship demand, he must plead the matter in 
abatement, and set out the names of the part- 
ners.— Coffee v. Eastland, Case No. 2,945. 

An objection that the contract sued on was 
with defendant and another as partners can 
only be raised by plea in abatement— Clement- 
son v. Beatty, Case No. 2,884. 

A separate debt of one partner cannot be set 
off against a partnership claim.— Lynn v. Hall, 
Case No. 8,641; Howe v. Sheppard, Id. 6,773. 

§ 37. — Issues and proofs. 

In an action for goods sold by a firm, plain- 
tiffs must prove themselves to be the firm. — 
Tibbs v. Parrott, Case No. 14,023. 

It is not incumbent upon joint plaintiffs to 
prove that they are joint partners. — Woodward 
v. Sutton, Case No. 18,009. 

The fact that plaintiff is suing on a partner- 
ship debt in his own name is available to de- 
fendant at the trial under the general issue. — 
Jordan v. Wilkins, Case No. 7,527. 

Defendant may show, under the general is- 
sue, that the plaintiff is one of a firm which is 
indebted to him, in the same transaction, in a 
larger sum than that demanded. — Buckingham. 
v. Burgess, Case No. 2,087. 

Plea of general issue held to admit plain- 
tiffs' right to sue in their firm name without 
proving the partnership. — Maret v. Wood, Case 
No. 9,067. 

Under an allegation of a deed by persons as 
partners, a deed in the firm name, executed by 
one partner, is admissible with proof that the 
others agreed thereto.— Darst v. Roth, Case No. 
3.582. 

§ 38. — Evidence. 

After competent evidence has been given to 
prove a partnership, the declarations of one are 
admissible to prove that the debt is a partner- 
ship debt— Garrett v. Woodward, Case No. 5,- 
253. 

The confession of a silent partner, not known 
in the proceedings, may be given in evidence. — 
Weed v. Kellogg, Case No. 17,345. 

See, also, ante, % 6. 



1599 (§ 39) 



PARTNERSHIP, IY.-YL 
[Fed. Cas. Digest.] 



(§ 49) 160O 



§ 39. ■ Judgment and enforcement. 

A judgment against a partner individually is 
a hen upon real estate held by the firm, sub- 
ject, however, to the payment of the firm debts, 
and the equities of his copartners. — Johnson v. 
Rogers, Case No. 7,408. 

The officer, where necessary, may take pos- 
session of the entire property, and sell the in- 
dividual interest of the partner, and the pur- 
chaser will become a substituted partner.— Unit- 
ed States v. Williams, Case No. 16,719. 

A judgment against one of the partners will 
authorize the sheriff or marshal to levy on the 
right of the judgment debtor in the goods of 
the firm.— United States v. Williams, Case No. 
16,719. 

Corporeal property of a partnership cannot 
be taken in execution to satisfy the several 
debt of one partner, except to the extent of any 
interest he would have after full settlement of 
accounts.— Lyndon v. Gorham, Case No. 8,640. 

A purchaser under an execution against one 
partner becomes a tenant in common with the 
other partners in an undivided share of the 
land purchased, subject to all the rights of the 
other partners and the partnership creditors. — 
Gilmore v. North American Land Co., Case No. 
5,448. 

V. RETIREMENT AKD ADMISSION OF 

PARTNERS. 

§ 40. Assent to admission of new partner. 

A partner cannot compel his copartner to ac- 
cept a purchaser of the former's interest as a 
member of the firm. — McNamara v. Gaylord, 
Case No. 8,910. 

§ 41. Authority of continuing partner. 

Authority given the continuing partner "to 
settle all demands in favor of or against" the 
firm does not authorize him to give a note in 
the name of the firm. — Lockwood v. Comstock, 
Case No. 8,449. 

§ 42. Obligations of old firm. 

The retiring partner will be held discharged 
where the creditors, with full knowledge of 
the continuing partner's agreement to assume 
the debts, enter into a totally new contract 
with him, entirely changing the nature of the 
debt.— Harris v. Lindsay, Case No. 6,123. 

A firm formed by the taking in of a new 
partner held not liable for the proceeds of sale 
of goods consigned to the old firm, unless they 
came to the use of the new firm, who promised 
to pay the same. — Edmondson v. Barrel], Case 
No. 4,284. 

§ 43. Assumption of obligations of old 
firm. 

The continuing partner, who agrees to appro- 
priate the goods on hand to the payment of 
the debts of the firm, becomes a trustee for the 
retiring partner and the creditors. Sedam v. 
Williams, Case No. 12,G09. 

A bond and security given by the continuing 
partner to the retiring partner, to relieve him 
from payment of the firm debts and to assume 
their payment, is not merely an indemnity, but 
is an obligation to pay, and may be enforced 
by the creditors. — Hood v. Spencer, Case No. 
6,665. 

A partnership creditor who knows that one 
partner has retired under an agreement that 
the other shall take the firm effects and pay 
its debts cannot, in equity, take a lien on the 
joint effects for new advances to the remaining 
partner, and thereby exhaust them, and hold 
the retiring partner for the joint debt. — Mc- 
Clean v. Miller, Case No. 8,692. 

^A continuing partner who agrees, on dissolu- 
tion of the firm, to pay the firm creditors, is a 
trustee for them, and a subsequent assignment 



by him, with preferences, of the partnership 
effects, is fraudulent and void.— Marsh v. Ben- 
nett, Case No. 9,110. 

§ 44. Actions after change of member- 
ship. 
One who sells to a firm cannot maintain an 
action for the purchase price against a partner 
subsequently taken in.— Atwood v. Lockhart, 
Case No. 642. 

VX. DEATH OP PARTNER, AND SUR- 
VIVING PARTNERS. 

Right of survivor, see "Executors and Admin- 
istrators," § 14. 

§ 45. Effect of death of partner. 

Under articles of copartnership stipulating 
that m case of the death of a partner, in or- 
der to prevent altercation with the heirs, etc., 
the shares of the profits and capital of the de- 
ceased shall be paid by the survivors, agreea- 
bly to the yearly statements of the company's- 
affairs prior to his death, the entire interest 
in the partnership property passes to the sur- 
vivor.— Robertson v. Miller, Case No. 11,926. 

§ 46. Real property of firm. 

On the death of a partner his interest in 
partnership realty descends to his heirs at law, 
subject to partnership debts.— Piatt v. Oliver, 
Case No. 11,116. 

Real estate of a partnership, vested in the- 
partners as tenants in common, is subject to a 
trust in favor of creditors and the partners. 
Upon the death of one partner, this title de- 
scends to his heirs or devisees, subject to the- 
same trust.— Kleine v. Shanks, Case No. 7,870. 

§ 47. Obligations incurred in winding up 
business. 

The surviving partner cannot charge the es- 
tate of the firm by drawing bills, after the dis- 
solution, for advances on shipments made to* 
its regular factor.— Dick v. Laird, Case No. 3,- 
892. 

§ 4&. Rignts of survivor in estate of de- 
ceased. 

Surviving partner is entitled to license grant- 
ed to the firm.— Belding v. Turner, Case No. 
1,243. 

The administrator of a deceased partner may 
submit to arbitration the question as to the 
value of his interest in the partnership.— Hoyt 
v. Sprague, Case No. 6,810. 

§ 49. Actions by or against surviving 
partners or representatives of de- 
ceased partners. 

A bill to charge the executors of a deceased 
partner with a partnership debt must expressly 
allege the insolvency of the surviving partner. 
—Van Reimsdyk v. Kane, Case No. 16,S71. 

The creditors of a firm may enforce in equity 
the application of the joint estate to the pay- 
ment of the joint debts against the survivor. 
—In re Clap, Case No. 2,783. 

On a bill in equity to obtain satisfaction of 
a joint debt out of the estate of a deceased 
partner on account of the insolvency of the 
survivors, no decree need be had against the 
survivors.— Van Reimsdyk v. Kane, Case No. 
16,8 * 1. 

Equity will enforce against the executors of 
a deceased partner or joint contractor payment 
of a bill of exchange, where the survivors are 
insolvent— Van Reimsdyk v. Kane, Case No. 
16,872. 

The representatives of a deceased partner 
are not necessary parties to a bill by the surviv- 
or to set aside, for fraud, an assignment of a 
mortgage given in payment of a debt due the 
firm, and to recover such debt. — Pagan v- 
Sparks, Case No. 10,659. 



1601 (§ 49) 



PARTNERSHIP, VL, VII. 
[Fed; Cas. Digest.] 



(§ 53) 1602 



A suit cannot be sustained against the rep- 
resentatives of a deceased copartner to charge 
his estate for the copartnership debts if the 
surviving partners are solvent, and the as- 
sets of the firm are sufficient. — Troy Iron & 
Nail Factory v. Winslow, Case No. 14,199. 

A claim against the estate of a deceased part- 
ner, accruing, in consequence of the insolvency 
of the surviving partner, after the statute of 
limitations had run upon the claims against 
such estate generally, is not barred, though not 
exhibited within the period limited "by the stat- 
ute.— Pendleton v. Phelps, Case No. 10,923. 

TO. DISSOLUTION, SETTLEMENT, 
AND * AC COUNTING. 

§ 50. Causes of dissolution. 

An assignment of all interest in a firm to a 
copartner, stating that the firm is dissolved ex- 
cept so far as is necessary to continue the same 
for the final settlement of the business, does 
not dissolve the firm. — In re Shepard, Case No. 
12,754. 

Mere insolvency, in the absence of fraud, 
will not deprive the partners of their legal con- 
trol over the firm property, or their right to 
dispose of it as they see fit, — Tracy v. Walker, 
Case No. 14,129. 

One of the partners, having desired at one 
time to dissolve the partnership, agreed to con- 
tinue it if the other would make a will in his 
favor, but no time was fixed for making the 
will. One was made, however, but was after- 
wards revoked and destroyed. Held, that the 
revocation did not justify the other partner in 
dissolving the partnership, as a will pursuant 
to the agreement might still be made. — Lyman 
t. Lyman, Case No. 8,628. 

§ 51. Rights, powers, and liabilities after 
dissolution. 

Upon a dissolution, each partner has a lien 
upon the partnership property, both for an in- 
demnity against joint debts, and for his propor- 
tion of the surplus; but the creditors have no 
lien thereon for their debts. — Hoxie v. Carr, 
Case No. 6,802. 

A debt put at the disposal of one partner aft- 
er dissolution of the firm may be dealt with 
in equity as his individual property. — HcLana- 
han v. Ellery, Case No. 8,869. 

The partnership is bound by a settlement 
made by one partner who is authorized by an 
advertisement giving notice of dissolution to 
settle the firm accounts, but not by a new note 
given in payment.— Draper v. Bissel, Case No. 
4,008. 

After dissolution, neither party, by any note 

in writing, can bind the partnership, even for 

a debt contracted by it. — Lockwood v. Corn- 
stock, Case No. 8,449. 

Admissions of a partner after dissolution are 
inadmissible to charge the firm.— Bispham v. 
Patterson, Case No. 1,441. 

A bill drawn upon a partnership, but not ac- 
cepted until after its dissolution has been pub- 
licly ..announced, does not bind partners who 
did not consent thereto.— Tombeckbee Bank v. 
Durnell, Case No. 14,081. 

A note signed with a firm name after disso- 
lution will not support assumpsit against the 
partners.— Fraser vL Wolcott, Case No. 5,065. 

Notice of dissolution, which will discharge 
a retiring partner, may be by express notice 
(by circular or otherwise), or by publication 
in a newspaper of general circulation. — Shurlds 
v. Tilson, Case No. 12,827. 

Notice of dissolution by newspaper publica- 
tion is evidence for the jury, under all the cir- 
cumstances, on the question of notice to per- 
sons previously dealing with the firm, and is 

Fed.Cas.Dig.— 51 



conclusive of notice to all others.— Shurlds v. 
Tilson, Case No. 12,S27. 

Dormant partners need not give notice of the 
dissolution of the firm. — Bigelow v. Elliot, 
Case No. 1,399. 

A promise by partners to pay notes given 
by one after dissolution, in settlement of firm 
debts, is a ratification, and will render them 
liable thereon.— Draper v. Bissel, Case No. 4,- 
068. 

§ 52. Distribution and settlement. 

No agreement between the partners on their 
dissolution can affect the rights of their credit- 
ors, unless there is an express or implied 
agreement by the creditors to accept the con- 
tinuing partner as the debtor, and to discharge 
the other. — Harris v. Lindsay, Case No, 6,124. 

Under a partnership to deal in lands, the 
profits to be equally divided after reimburse- 
ment of advances by one partner, held, that at 
the close of the business where the speculation 
resulted .in a loss, the land would be sold and 
the loss equally divided.— Olcott v. Wing, Case 
No. 10,481. 

t Upon a dissolution, one partner is always en- 
titled to have partnership real estate sold, and 
the other cannot insist that it shall be simply 
divided between them.— Lyman v. Lyman, Case 
No. 8,628. 

A partner is not entitled to compensation for 
his services except by special agreement; nor 
can he exact compensation for services render- 
ed after dissolution in respect to property in 
his hands, for he is then only a voluntary trus- 
tee entitled to actual charges and expenses.— 
Lyman v. Lyman, Case No. 8,628. 

The dissolution of a firm by agreement be-, 
tween its members will not affect the rights of 
its creditors.— Hudgins v. Lane, Case No. 6,- 
827. 

To constitute a settlement of accounts among 
partners, all must consent to and be bound by 
it or none are.— Lamalere v. Caze, Case No. 8?- 
003. 

The dissolution of a partnership by mutual 
consent does not affect the rights of existing 
creditors, nor of those who subsequently be- 
come creditors, if the members continue to 
treat each other as partners.— In re HcFar- 
land, Case No. 8,788. 

A partnership settlement will not be disturb- 
ed at the suit of an executor of a partner, in. 
the absence of error clearly shown, or fraud.— 
Brydie v. Miller, Case No. 2,071. 

Equity will not sustain suit to compel settle- 
ment of partnership accounts under a govern- 
ment contract participated in by government 
agent.— Bartle v. Coleman, Case No. 1,072. 

§ 53. Actions^ for dissolution and ac- 
counting. 

An action of account will not lie by partners 
against a copartner who had no hand in the 
management for a settlement of the partner- 
ship concerns, and to compel defendant to con- 
tribute his proportion.— Spear v. Newell, Case 

Creditors are not necessary or proper parties 
generally in a bill between partners to wind up 
the partnership affairs.— Hoxie v. Carr, Case 
No. 6,802. 

In a suit for the settlement of partnership 
accounts, where one partner died insolvent, his 
next of kin or other personal representatives 
are necessary parties.— Bartle v. Coleman, Case 
No. 1,072. 

All the partners, or their representatives, are 
indispensable parties to a bill filed to procure- 
a dissolution of the copartnership and an ac- 
count.— Gray v. Larrimore, Case No. 5,721. 



1603 (§ 53) 



PARTNERSHIP, YIL, VHL— PATENTS. 

[Fed. Cas. Digest.] 



1604 



Invalidity of a decree in such case against a 
partner not properly brought into court. — Gray 
v. ILarrimore, Case No. 5,721. 

Upon a dissolution, the court has jurisdiction 
to order a sale of partnership land outside the 
jurisdiction, for the order operates only on the 
parties, and the court can compel them to make 
conveyances. — Lyman v. Lyman, Case No. 8,7 
628. 

VUI. IiIMITED PARTNERSHIP. 

§ 54. Certificate of formation. 

The recorder of the city of New York is a 
judge of the county court, within the contem- 
plation of the New York statute, respecting 
special partnerships, and the certificate is prop- 
erly acknowledged before him. — Hubbard v. 
Morgan, Case No. 6,817. 

Persons dealing with a limited partnership 
are chargeable with notice as to the scope of 
its business as set forth in its duly-recorded ar- 
ticles. — Taylor v. Rasch, Case No. 13,800. 

§ 55* Contribution of special capital. 

In an attempt to form a limited partnership 
under the New York statute, the contribution 
by the special partner of a stock of goods, to- 
gether with cash, instead of cash alone, results 
in a general partnership. — In re Merrill, Case 
No. 9,467. 

In Massachusetts all the partners are held 
as general partners, if the transaction, while 
showing an apparent contribution in cash by a 
special partner, resulted in fact in putting in 
goods and debts equivalent to cash. — In re 
Thayer, Case No. 13,867. 

§ 56. Firm name and sign. 

Where the names of all the partners are cor- 
rectly given in a certificate of special part- 
nership, the use of the words "and Company" 
in the firm name, as a collective appellation to 
designate the persons specifically named, does 
not render a special partner liable as a general 
partner. — Hubbard v. Morgan, Case No. 6,817. 

The use of the word "Company" in the title 
of a firm formed as a special partnership un- 
der the New York statute renders all the part- 
ners liable as general partners. — Hampden 
Bank v. Morgan, Case No. 6,008. 

§ 57. .Withdrawal of capital or profits. 

A special partner, who has withdrawn any 
part of his capital from the firm, is liable, at 
suit of creditors, to pay it back. — Hampden Bank 
v. Morgan, Case No. 6,008. 

§ 58. Relations between special and gen- 
eral partners. 

A common or long-continued departure by gen- 
eral partners, not consented to or acquiesced in 
by the special partners, cannot change the scope 
of the business as specified in the copartnership 
articles.— Taylor v. Rasch, Case No. 13,800. 

§ 59. Dissolution. 

In Illinois, if the certificate of dissolution of 
a limited partnership does not fulfill the require- 
ments of the statute, the partnership still con- 
tinues as to creditors. — In re Terry, Case No. 
13,836. 

Notice of the dissolution of a limited partner- 
ship must be published on the same day in each 
week, under a statute requiring publication 
"once in each week for four weeks." 1 Rev. St. 
N. Y. p. 67, § 24.— In re King, Case No. 7,779. 



PART PAYMENT. 

Within statute of limitations, see "Limitation 
of Actions," § 25. 



PARTY WALLS. 



§ 1, Municipal regulations. § 2, Rebuilding and 
change of location. § 3, Actions. 

§ 1. Municipal regulations. 

Under the building regulations, there is no 
right to build a party wall for a brick house 
when there is already a frame building on the 
adjoining lot— Kraft v. Stott, Case No. 7.929. 

It is a condition annexed to the title of lots 
in the city of Washington, D. C, that the pro- 
prietor shall reimburse the adjoining owner a 
moiety of the charge of such part as he shall 
use of a partition wall built by him. — Miller v. 
Elliot, Case No. 9,568. 

The city surveyor must attend, when request- 
ed, and adjust the line of the front of the 
building, and his certificate is binding on the 
parties.— Miller v. Elliot, Case No. 9,568. 

§ 2. Rebuilding: and change of location. 

Where a 9-inch party wall is torn down, it 
cannot be rebuilt by a 14-inch party wall.— Wil- 
son v. Leiberman, Case No. 17,816a. 

A party wall, though built wholly on one lot, 
after it has remained there 12 years cannot be 
pulled down by the owner of such lot and re- 
built on the surveyed line.— Wilson v. Leiber- 
man, Case. No. 17,816a. 

§ 3. Actions. 

Under the condition annexed to the title of 
lots in the city of Washington, D. C, that the 
proprietor shall reimburse the adjoining owner 
a moiety of the charge of such party wall as 
he shall use, the value of such half used may 
be recovered in an action upon the case in as- 
sumpsit — Miller v. Elliot, Case No. 9,568. 

Where the defendant uses a party wall in the 
erection of his adjoining store, and is put to 
necessary expense in making the party wall fit 
for his use, the jury, in assessing the damages, 
may take into consideration such extra expense, 
unless the party, or those under whom he 
claims, waived the defects. — Dermott v. Fowler, 
Case No. 18,289. 

PASSENGERS. 

See "Carriers," §§ 38-52; "Shipping," §§ 194- 
207. 

Right to salvage compensation, see "Salvage," 
§ 22. 

PATENTS. 

I. SUBJECTS OP PATENTS. 

§ 1, Nature of patent rights. § 2, Power to 
grant patents. § 3, Constitutional and stat- 
utory provisions. § 4, Arts — In general. § 5, 
Principles or laws of nature. § 6, Pro- 
cesses or methods. § 7, Products or re- 
sults. § S, Machines. § 9, Manufactures. 

II. PATENTABILITY. 

(A) Invention. 

■ § 10, Nature of patentable invention. § 11, 
Nature and degree of skill involved. § 12, 
Simplicity or obviousness of device. § 13, 
Enlargement or change in degree. § 14, 
Change of form. § 15 f Substitution of ma- 
terials. § 16, Substitution of mechanical 
equivalents and duplication of parts. § 17, 
Omission of parts. § 18, Aggregation. § 19, 
Combination. § 20, Application to new use. 
§ 21, Designs. § 22, Reduction to practical 
use or operation. § 23, Evidence of inven- 
tion. 

(B) Novelty. 

§ 24, In general. § 25, Use of new means or 
new mode of construction or operation. § 26, 



1605 



PATENTS. 

[Fetl. Cas. Digest.] 



1606 



Use of material or device for new purpose 
or function. § 27, New combination. § 28, 
Production of new or improved result. § 29, 
Designs. § 30, Evidence of novelty. 

<0 Utility. 

§ 31, Nature of patentable utility. § 32, 
Capacity to produce result. § 33, Nature of 
product or result. § 34, Evidence of utility. 

<D) Anticipation. 

§ 35, Prior knowledge or use— Nature and 

extent in general. § 36, Accidental or 

unintentional production. § 37, Ex- 
periments and incomplete productions. § 33, 
Unsuccessful devices. § 39, Con- 
cealed inventions. § 40, Different use or 

purpose. § 41, Evidence of prior knowledge 
or use — Presumptions and burden of proof. 

§ 42, Admissibility. § 43, Weight 

and sufficiency. § 44, Prior patents. § 45, 
Prior description in printed publication— Req- 
uisites of publication. § 46, Sufficiency 

of description. § 47, Operation and ef- 
fect. § 48, Priority of anticipation to date of 
invention. 

<E) Prior Public Use or Sale. 

§ 49. What constitutes public use. § 50, 
What constitutes public sale. § 51, Time, 
priority, and continuance of use or sale. § 52, 
Use or sale in foreign country. § 53, Evidence 
of use or sale. 

(F) Abandonment. 

§ 54, Time of abandonment. § 55, What 
constitutes. § 56, Operation and effect. § 57, 
Evidence of abandonment. 

HI. PERSONS ENTITLED TO PATENTS. 

§ 58, Original inventors and priority be- 
tween inventors. § 59, Evidence as to orig- 
inality and priority. § CO, Joint inventors. § 
61, Employers and workmen. § 62, Public offi- 
cers and employes. § 63, Assignees of In- 
ventors. § 64, Personal representatives of de- 
ceased inventors. § 65, Aliens. 

XV. APPLICATION AND PROCEEDINGS 
THEREON. 

§ 66, Description and specifications — Suffi- 
ciency in general. § 67, Improvements. 

§ 68, Drawings, specimens, and models. § 69, 
Claims. § 70, Attestation and oath. § 71, 
Fees. § 72, Examination and proceedings in 
patent office in general. § 73, Caveats. § 74, 
Interferences— What constitutes and declara- 
tion thereof. § 75, Proof. § 76, 

Hearing and determination. § 77, Withdraw- 
al or abandonment of application. § 78, Re- 
jection of application. § 79, Amendment of 
application. § 80, Renewal of application. 
§ 81, Appeals in patent' office. § 82, Con- 
clusiveness and effect of decisions of pat- 
ent office. § S3, Appeals from decisions of 
commissioner of patents— Time of appeal and 

preliminary proceedings. § 84, Grounds 

of appeal and matters reviewable. § 85, . 

Reasons of appeal. § 86, Hearing and 

determination. § 87, Remedy In equity for 
refusal of patent. 

V. REQUISITES AND VALIDITY OF LET- 
TERS PATENT. 

§ 88, Nature of the instrument. § 89, Form 
and contents in general. § 90, Execution and 
issuance. § 91, Validity in general. § 92, 
Excessive claims by patentee. § 93, Inven- 
tions included in same patent. § 94, Patents 
for same invention. § 95, Correction or 
- , amendment. § 96, Annulment or repeal. 



VI. TERM. / 

(A) Date and Duration in General. 

§ 97, Date. § 98, Terms of patent. 

(B) Extensions. 

§ 99, Extensions by special act of congress. 
§ 100, Application to patent office for exten- 
sion and proceedings thereon. § 101, Con- 
struction and operation of extension. 

VII. REISSUES. 

§ 102, Power to reissue. § 103, Grounds of 
reissue. § 104, Persons entitled to reissue. 
§ 105, Time of making application. § 10C, 
Surrender of original patent. § 107, Applica- 
tion for reissue and proceedings thereon. 
§ 108, Identity of invention— In general. § 109, 

Evidence of identity. § 110, Reissues for 

parts of original invention. § 111, Conclu- 
siveness and effect of decisions of patent of- 
fice. § 112, Reissues of reissued patents. § 
113, Validity of reissued patents. § 114, Con- 
struction and operation of reissued patents. 

VIII. DISCLAIMERS. 

§ 115, Right to disclaim part of claims. 
§ 116, Patents and claims subject to disclaim- 
er. § 117, Persons entitled to disclaim. § 118, 
Sufficiency of disclaimer. § 119, Time of mak- 
ing disclaimer. ■§ 120, Effect of disclaimer. 

IX. CONSTRUCTION AND OPERATION 

OP LETTERS PATENT. 

(A) In General. 

§ 121, General rules of construction. § 122, 
"What law governs. § 123, ^Accompanying 
documents and proceedings in patent office. 
§ 124, Effect of patent as estoppel. § 125, 
Suits for construction* 

(B) Limitation of Claims. 

§ 126, Operation and effect of claims in 
general. § 127, Title of patent. § 128, Specifi- 
cations, drawings, and models and construc- 
tion of claim In connection therewith. § 129, 
State of art § 130, Agreements of patentee 
with commissioner and proceedings in patent 
office. § 131, Scope and character of inven- 
tions. § 132, Claims for processes. § 133, 
Claims for machines or manufactures in gen- 
eral. § 134, Claims for combinations. § 135. 
Including mechanical equivalents. § 136, 
Claims for compositions of matter. § 137, 
Claims for designs. 

X. TITLE, CONVEYANCES, AND. CON- 

TRACTS. 

(A) Rights of Patentees in General. 

§ 138, Title of inventor before issue of pat- 
ent. § 139, Assignment of invention or right 
to patent. § 140, Exclusive nature of right- 
Articles made or purchased by others before 

application for patent. § 141, Against 

government. § 141a, Rights and powers of 
patentee as to making, use, or sale of inven- 
tion. 

(B) Assignments and Other Transfers. 

§ 142, Contracts to assign. § 143, Assigna- 
bility of patents. § 144, Who may assign. 
§ 145, Requisites and validity of assignments 
and grants. § 146, Construction and opera- 
tion of assignments and grants— Property or 
interest conveyed. § 147, Rights and lia- 
bilities of assignees and grantees. § 148, 

Bona fide purchasers. § 149, Transfer on in. 
solvency or bankruptcy. 

(G) Licenses and Contracts. 

§ 150, What constitutes a license. § 151, 
"Who may make license. § 152, Requisites 



1607 



PATENTS, I. 

[Fed. Cas. Digest.] 



(§ 3) 1608 



and validity of licenses. § 153, Construction 
and operation of licenses — General rules. 

§ 154, Scope and extent. § 155, Rights 

and liabilities of licensees. § 156, Par- 
ticular licenses. § 157, Assignments and sub- 
licenses. § 158, Revocation, forfeiture, and 
abandonment of license. § 159, Royalties and 
license fees. 

XI. REGULATION OP DEALINGS IN PAT- 

ENT RIGHTS AND PATENTED 
ARTICLES. 

§ 160, Power to control and regulate. § 161, 
Marking patented articles. § 162, Effect of 
failure to mark. § 163, Penalties for viola- 
tion of regulations. 

XII. INFRINGEMENT. 

(A) What Constitutes Infringement. 

§ 164, In general. § 165, Knowledge or In- 
tent. § 166, Patents for processes. § 167, Pat- 
ents for machines or manufactures in gen- 
eral—Identity in general. § 168, Identi- 
ty of principle or mode of operation. § 169, 
— — Identity of form or arrangement. § 170, 

- Substitution of equivalents. § 171, 

Omission of parts. § 172, Addition, of 

parts. § 173, Identity of result. § 174, 

Patents for combinations — Identity in gener- 
al. § 175, Transposition of elements. 

§ 176, Substitution of equivalents. § 177, 

Omission of elements. § 178, Addi- 
tion of elements and improvements. § 179, 
Patents for compositions of matter. § 180. 
Patents for designs. § 181, Utility of infrin- 
ging device. § 182, Experiments. § 183, Making 
or repair of patented articles. § 184, Viola- 
tion of restrictions on manufacture, use, or 
sale of patented article. § 185, Contributory 
infringement. § 186, Knowledge or consent 
of patentee. § 187, Injuries from infringe- 
ment. 

(B) Actions at Law. 

§ 188, Grounds of action. § 189, Defenses. 
§ 190, Persons entitled to sue. § 191, Persons 
liable. § 192, Limitations and laches. § 193, 
Parties and process. § 194, Pleading — Dec- 
laration. § 195, Plea, answer, and repli- 
cation. § 196, Notice of special matter. 

§ 197, Profert and oyer. § 198, Issues, 

proof, and variance. § 399, Evidence — In gen- 
eral. § 200, Opinions of experts. § 201, 

Damages — In general. § 202, Actual dam- 
ages. § 203, Nominal damages. § 204, 

Measure of damages in general. § 205, 

Estimating damages and elements of 

compensation. § 206, Increase of actual 

damages. § 207, Exemplary damages. 

§ 208, Trial. § 209, Verdict and judgment. 
§ 210, Review. § 211, Costs. 

(C) Suits in Equity. 

§ 212, Nature and grounds of suit. § 213, 
Statutory provisions. § 214, Defenses. § 215, 
Persons entitled to sue. § 216, Persons liable. 
§ 217, Joinder of causes of action. § 218, Ju- 
risdiction. § 219, Limitations and laches. 
§ 220, Parties and process. § 221, Pleading- 
Original bill. § 222, Cross bill. § 223, 

Plea and answer. § 224, Replication. 

§ 225, Amended and supplemental plead- 
ings. § 226, Notice 'of special matter. § 

227, Issues and proof. § 228, Evidence— Pre- 
sumptions and burden of proof. § 229, 

Admissibility in general. § 230, Weight 

and sufficiency. § 231, Opinions of ex- 
perts. § 232, Preliminary injunctions, when 

granted — In general. § 233, Establishing 

right of patentee by trial at law or exclusive 

use. § 234, Irreparable or comparative 

* injury to parties. § 235, Defendant act- 



ing under claim and color of right. § 236, 
Threatened infringement. § 237, Ef- 
fectiveness of relief. § 238, Discontin- 
uance of infringement. § 239, Acquies- 
cence and misleading conduct of patentees. 

§ 240, Laches. § 241, Discretion of 

court. § 242, Security instead of injunction. 
§ 243, Against whom preliminary injunction 
will issue. § 244, Application for preliminary 
injunction and proceedings thereon — Plead- 
ings and affidavits. § 245, Jurisdiction. 

§ 246, Effect of prior decisions. § 247, 

Time of granting. § 24S, Hearing, 

evidence, and decree. § 249, Dissolving, va- 
cating, and modifying preliminary injunc- 
tions. § 250, Permanent injunction. § 251 r 
Violation of injunction — What constitutes. 

§ 252. Procedure and punishment. § 253, 

Damages. § 254, Profits— Nature of profits 

and right in general. § 255, Amount and 

estimation of profits. § 256, Interest. 

257, Particular instances. § 258, Bur- 
den of proof. § 259, Reference to master. 
§ 260, Hearing. § 261, Effect of prior deci- 
sions in general. § 262, Submission of issues- 
to jury. § 263, Rehearing. § 264, Decree and 
review. § 265, Costs. 

XIII. DECISIONS ON THE VALIDITY, 
CONSTRUCTION, AND INFRINGE- 
MENT OF PARTICULAR PAT- 
ENTS. 

§ 266, Original patents. § 267, Reissue pat- 
ents. § 268, Design patents. 

Competency of witnesses in patent cases, see- 
"Witnesses," § 46. 

For public lands, see "Mines and Minerals," §- 
9; "Public Lands," §§ 50-54, 72, 94. - 

Jurisdiction of actions respecting, see "Courts,"" 
§ 35. 

Parol evidence, see "Evidence," § 65. 

Right of master to inventions of employe, soe- 
"Master and Servant," § 1. 

Survival of action for infringement, see "Abate- 
ment and Revival," § 5. 

I. SUBJECTS OF PATENTS. 

§ 1. Nature of patent rights. 

Patents are not monopolies, because a mo- 
nopoly gives to one person or class what was 
common before, whereas a patent brings out 
from the realm of mind something that did not 
exist before, and gives it to the country. — Singer 
v. Walmsley, Case No. 12,900. 

The patent is not for a principle or a result 
but for the means described for accomplishing 
the result. — Wing v. Richardson, Case No. 17,- 
809. 

A patent is a contract with the public in tho- 
terms of the law, which must be complied with 
in the same good faith as other contracts, but. 
as it gives a right of property, it ought to be- 
protected by a liberal construction of the law 
and the acts of the patentee. — Whitney v. Kra- 
mett, Case No. 17,585. 

The exclusive grant in a patent is the con- 
struction and use of the thing patented. — Boyd 
v. Brown, Case No. 1,747. 

§ 2. Power to grant patents. 

Congress has the exclusive power to grant 
patents, and to renew or prolong the time for 
the continuance of the same. — Evans v. Robin- 
son, Case No. 4,571. 

A retrospective act giving a patent for an in- 
vention already in public use is within the pow- 
er of congress. — Blanchard v. Sprague, Case No. 
1,518. 

§ 3. Constitutional and statutory provi- 
sions. 

The statute, by defining the conditions under 
which the power conferred to issue patents shall 



1009 (§ 3) 



PATENTS, I., n. (A). 
£Fed. Cas. Digrest.] 



(§ 10) 1610 



be exercised, necessarily excluded all others. — 
Morton v. New York Eye Infirmary, Case No. 
9,865. 

An act giving a patent will not be construed 
to operate retrospectively unless such construc- 
tion is unavoidable.— Blanchard v. Sprague, 
Case No. 1,518. 

% 4. Arts— In general. 

The word "art," in the patent acts, means a 
useful art or manufacture, which is beneficial, 
and which is described with exactness in its 
mode of operation. — Smith v. Downing, Case No. 
13,036. 

An art is entitled to protection, as well as the 
machinery or processes which the art teaches, 
-employs, and makes useful.— French v. Rogers, 
Case No. 5,103. 

The inventor or discoverer of a new and use- 
ful art may have a valid patent, though igno- 
rant of the philosophical or abstract principle 
involved in the practice of the art — Piper v. 
Brown, Case No. 11,180. 

■§ 5. — Principles or laws of nature. 

A discovery of a new principle, force, or law, 
operating, or which can be made to operate, 
on matter, will not entitle the discoverer to a 
patent.— Morton v. New York Eye Infirmary, 
Case No. 9,865. 

The discovery of a law of nature or a geologic- 
al truth, as that the seams or rifts in oil-bear- 
ing rock would, if opened by a blast, yield oil, 
is not patentable. — Roberts v. Dickey, Case No. 
11,899. 

The principle that cotton spun directly from 
the gin produces a better and stronger yarn 
than cotton after it is baled, is not patentable. — 
In re Henry, Case No. 6,371. 

A patent is not grantable for a principle mere- 
ly, but only for an application of a principle, 
whether previously known or not, to some new 
and useful purpose.— Whitney v., Carter, Case 
No. 17,583. 

The application of a principle to some prac- 
tical and useful purpose, and not the principle 
itself, is patentable. — Bell v. Daniels, Case No. 
1,247. 

The discoverer can only secure exclusive con- 
trol of his discovery through the means by 
which he has brought it into practical action, 
or their equivalent. — Morton v. New York Efre 
Infirmary, Case No. 9,865; Sickels v. Borden, 
• Id. 12,832; Smith v. Downing, Id. 13,036. 

A mere principle may be the subject of a pat- 
ent, where embodied and applied so as to afford 
some result of practical utility in. the arts and 
manufactures. — Wintermute v. Redington, Case 
No. 17,896. 

An exclusive right to a motive power by elec- 
tricity or steam can only be secured by patent- 
ing the instrumentality or mechanism producing 
the result.— Smith v. Ely, Case No. 13,043. 

The propulsive effect of the vertical motion of 
water, in a reaction wheel, operating by its 
•centrifugal force, and so directed by mechanism 
as to operate in the appropriate direction, is 
patentable.— Parker v. Hulme, Case No. 10,740. 

"Where a party has discovered a new applica- 
tion of some property in nature, never before 
known or in use, by which he has produced a 
new and useful result, the discovery is the sub- 
ject of a patent, independently of any peculiar 
or new arrangement of machinery for the pur- 
pose of applying the new property. — Foote v. 
Silsby, Case No. 4,919. 

§ 6, — Processes or methods, 

A novel process or mode of operation which 
amounts to a successful application of known 
things to a practical use is patentable as an art. 
— Roberts v. Dickey, Case No. 11,899. 



The claim of the art of cutting ice by means 
of an apparatus worked by any other power 
than human is a claim of an abstract principle, 
and void.— Wyeth v. Stone, Case No. 18,107. 

A patent for a method of preserving fish or 
other articles in a close chamber by means of 
a freezing mixture having no contact with the 
atmosphere of the preserving chamber, is a pat- 
ent for an art— Piper v. Brown, Case No. 11,- 
180. 

Copper-plate printing on the back of bank 
notes is a patentable art. — Kneass v. Schuylkill 
Bank, Case No. 7,875. 

A patent of one making an improvement on 
an existing machine, or a new machine, should 
not be for a method, but for his machine, or 
improved machine.— Barrett v. Hall, Case No. 
1,047. 

§ 7. — Products or results. 

A result or an effect produced cannot be pat- 
ented.— Case v. Brown, Case No. 2,488; Burr 
v. Cowperthwait, Id. 2,188. 

The discovery of a new effect of that which 
existed before is not the subject of a patent. — 
In re Kemper, Case No. 7,6S7. ; .*.. 

§ 8* Machines. 

Neither the natural functions of an animal up- 
on which, or through which, a new force or 
principle may be designed to operate, nor any 
of the useful purposes to which it may be ap- 
plied, can form any essential part of a patenta- 
ble combination with it.— Morton v. New York 
33ye Infirmary, Case No. 9,865. 

The embodiment of the principle into a ma- 
chine as described, and not the abstract prin- 
ciple, is the patentable thing.— Bean v. Small- 
wood, Case No. 1,173. 

A discoverer of- the application of a law of 
nature to produce a particular result is entitled 
to a patent where he devises machinery to make 
it operative.— Parker v. Hulme, Case No. 10,- 
740. 

Mechanical and design patents distinguished. 
—Cone v. Morgan Envelope Co., Case No. 3,- 
096. 

An improvement, to be patentable, must be 
in the principles of the machine, art, or manu- 
facture, and not merely in the form or propor- 
tions.— Evans v. Eaton, Case No. 4,559. 

A new and improved method of producing a 
useful result or effect is as much the subject 
of a patent as an entire new machine. — Winter- 
mute v. Redington, Case No. 17,896 

§ 9. Manufactures. 

New articles of manufacture are not patent- 
able, unless their production involved the exer- 
cise of invention or discovery beyond what was 
necessary to construct the apparatus for their 
manufacture or production.— Milligan & Hig- 
gins Glue Co. v. TJpton, Case No. 9,607. 

A ruffle made by machinery at one operation, 
which theretofore required two or more, is not 
for that reason patentable. — Wooster v. Cal- 
houn, Case No. 18,035. 



H. PATENTABILITY; 

(A) INVENTION. 

§10. Nature of patentable invention. 

An invention in mechanics consists not im 
the discovery of new principles, but in new 
combinations of old principles. — Tyler v. Deval, 
Case No. 14,307. 

Invention is any new arrangement or com- 
bination of old or new materials producing a 
new and useful result. — McCormick v. Sey- 
mour, Case No. 8,725. 

While the result or effect of a process is not 
patentable, it may become the test of invention, 



1611 (§ 10) 



PATENTS, U. (A). 
[Fed. Cas. Digest.] 



(§ 15) 1612 



which may he inferred from the existence of 
the results.— Treadwell v. Fox, Case No. 14,- 
156. 

Invention is the conception, not the final de- 
velopment. — Adams v. Edwards, Case No. 53. 

Where a new or improved manufacture is 
produced by new contrivances, the usual test 
of invention is whether the production of the 
article is as good in quality at a cheaper rate, 
or better in quality at the, same rate, or with 
both these results combined! — In re Smith, Case 
No. 12,982. 

The principle or essential character of an in- 
vention involves two elements: (1) The object 
attained; (2) the means by which it is obtained; 
and if either of these be new, it may be the 
subject of a patent. — Wilton v. Railroad Co., 
Case No. 17,856. 

If a change in the mode of operation involves 
such ingenuity as to show the exercise of in- 
ventive faculties, the discoverer is entitled to a 
patent, though it be the result of accident. — 
In re Everson, Case No. 4,580. 

The various classes of inventions defined. — 
Union Sugar Refinery v. Matthiesson, Case No. 
14,399. 

§11. Nature and degree of skill involved. 

To authorize a patent, some inventive skill 
must be exercised, but the degree of that skill 
is not material. — Clark Patent Steam & Fire 
Regulator Co. v. Copeland, Case No. 2,866. 

A new and useful device, though involving 
but little invention, is patentable. — Potter v. 
Holland, Case No. 11,330. 

If a device is new, and accomplishes bene- 
ficial results, the court will not gauge by any 
nice standard the degree of inventive genius 
required — Middletown Tool Co. v. Judd, Case 
No. 9,536. 

Features which a skilled mechanic would 
devise or apply in operating a machine are 
not patentable.— Barry v. Gugenheim, Case No. 
1,061. 

The true test of invention is not whether an 
ordinary mechanic can make the combination, 
if it is suggested, but whether he would make 
the combination without suggestion, by means 
of his ordinary knowledge. — Woodman v. Stimp- 
son, Case No. 17,979. 

Perfecting machinery by superior skill in the 
mechanical arrangement and construction of 
the parts is not invention. — Parkhurst v. Kins- 
man, Case No. 10,757. 

A person who furnishes the ideas to pro- 
duce the result is entitled to avail himself of 
the mechanical skill of others to carry out his 
contrivance in practice.— Sparkman v. Higgins, 
Case No. 13,208. 

§ 12. Simplicity or obviousness of device. 

That a combination appears simple, and the 
invention not very great, is not a sufficient ob- 
jection to its patentability, if it be not frivolous 
and foolish.— In re Smith, Case No. 12,982. 

An elastic erasive pencil head, consisting sim- 
ply of a piece of India rubber, with a hole in 
it to slip over the end of the pencil, is not pat- 
entable. — Rubber Tip Pencil Co. v. Howard, 
Case No. 12,102. 

It is not invention to make the legs of a stove 
long enough to allow a lamp to be placed un- 
der it without touching it. — Couse v. Johnson, 
Case No. 3,288. 

There is no invention in placing a box over 
a sewing machine when not in use, to protect 
it from dust. — Ross v. Wolfinger, Case" No. 12,- 
081. 

A pavement made of blocks of wood cut from 
the trunks or branches of trees in their natural 
form, laid vertically upon a bed of gravel or 



sand, is not patentable. — Phillips v. Detroit* 
Case No. 11,100. 

The application to the moving and holding of 
a rudder of an endless screw working in the 
cogs on the periphery of a quadrant does not 
involve invention. — Cochrane v. Waterman,. 
Case No. 2,929. 

§ 13. Enlargement or change in degree. 

A new effect, produced by a change or pro- 
portion, may involve patentable invention. — In 
re Fultz, Case No. 5,156. 

Where a change from previous devices and 
its consequences, taken together and viewed as 
a whole, are considerable, there is patentable 
invention.— In re Walsh, Case No. 17,112. 

Difference in size and proportion of devices 
or machines, so long as the construction, prin- 
ciples, and mode of operation are the same, is 
entirely immaterial.— C a hoon v. Ring, Case No. 
2,292. 

Enlarging the chimney of a lamp so as to* 
form a globe and a deflector held not an inven- 
tion.— Dane v. Chicago Mfg. Co., Case No. 3,- 
557. 

Changing the location of lantern devices so- 
that the globe may be taken out from the top, 
instead of the bottom, held not an invention. — 
Dane v. Illinois Mfg. Co., Case No. 3,558. 

Increasing the curve of a wagon reach, and 
diminishing the diameter of the wheel, so as to- 
allow it to pass completely underneath, where 
before it only passed partly under, held not a 
patentable invention. — Flood v. Hicks, Case No~ 
4,877. 

The mere change of spaces of ogee lines so- 
that they may be used for writing paper does 
not constitute invention. — Cone v. Morgan En- 
velope Co., Case No. 3,096. 

A mere change in the angle in which recipro- 
cating cutters work in a machine for splitting 
wood held not to involve invention.— Conover v. 
Dohrman, Case No. 3,120. 

§14. Change of form. 

A patent will not be granted for a device dif- 
fering only in form from one in prior use. — Ex: 
parte Chatfield, Case No. 2,631a. 

A change in form, though slight, if it works- 
a successful result not befpre accomplished in 
a similar way, is patentable. — Isaacs v. Abrams, 
Case No. 7,095. 

There is no invention in shifting the raker's-, 
seat on a harvesting machine so that the raker 
sits facing the falling grain. — Kirby v. Beards- 
ley, Case No. 7,837. 

Combining a curved metal receiver with an 
elevated instead of a horizontal delivery in- 
volves no invention, and is not patentable. — 
Mann v. Bayliss, Case No. 9,034. 

The change of lateral ^notion from one part 
of a machine to another held no invention. — 
Blanchard's Gun-Stock Turning Factory v» 
Warner, Case No. 1,521. 

The substitution of a coiled or lengthened 
indicator pipe for a straight pipe in a boiler to 
regulate and control the supply of water held 
not patentable. — In re Nutting, Case No. 10,- 
385. 

The patent law protects simplicity and econo- 
my of construction as against prior, complex, 
and expensive combinations. — King v. Ham- 
mond, Case No. 7,797. 

§15. Substitution of materials. 

A mere change of material, without the exer- 
cise of mechanical skill, is not patentable. — 
Putnam -v. Yerrington, Case No. 11,486. 

The making of an article, of a new material, 
by an old method, is not patentable. — Hotchkiss 
v. Greenwood, Case No. 6,718. 



1613 (§ 15) 



PATENTS, H. (A). 

[Fed. Cas. Digest.] 



(§ 21) 1614 



The making in iron of a frame which had 
before been made in wood held not patentable. 
— Holbrook v. Small, Case No. 6,595. 

There is no invention in placing on a soft 
metal gun cartridge a bottom of hard metal, to 
give capacity for repeated discharges.— In re 
Maynard, Case No. 9,352. 

The double independent leather covering for 
base balls, where such covering had been pre- 
viously applied to soft balls, held not a patent- 
able invention.— Mahn v. Harwood, Case No. 
8,966. 

§ 16. Substitution of mechanical equiv- 
alents and duplication of parts. 
The substitution of one kind of power for 
another in operating a patented machine is not 
invention.— Crehore v. Norton, Case No. 3,381. 

* 

The substitution of a wheel and axle for a 
screw held not to constitute invention. — Blanch- 
ard's Gun-Stock Turning Factory v. Warner, 
Case No. 1,521. 

A rubber roller covered .with cloth is not an 
* equivalent of a roller with an outer covering of 
rubber.— Bailey Washing & Wringing Mach. 
Co. v. Lincoln, Case No. 750. 

The substitution of vulcanized rubber for a 
surface in a steam-gauge cock, in place of a 
combination of metal faced with cork, leather, 
or soft metal, held an invention. — Dalton v. 
Nelson, Case No. 3,549. 

A wire gauze dipper, substituted for a per- 
forated dipper, for stirring oil, and raising 
enough for a single operation, held a mere 
equivalent. — Harwood v. Mill River Woolen 
Mfg. Co., Case No. 6,187. 

A claim to the use of two deflecting plates, 
one on each side of a saw, sustained, as not 
being a mere duplication, although a single 
deflecting plate had before been used.— Myers 
v. Frame, Case No. 9,991. 

The substitution in a solar microscope of a 
photographic lens for a microscopic lens is 
patentable, if the latter did not produce the 
effect or perform the functions of the former. 
—Woodward v. Dinsmore, Case No. 18,003. 

See, also, post, § 170. 

§ 17. Omission of parts. 

The omission of an element from a device so 
that the less number of parts will perform all 
the functions of the greater may be an inven- 
tion. — Stow v. Chicago, Case No. 13,512. 

§ 18. Aggregation. 

A mere aggregation of old devices, in which 
the parts have no new operation and produce 
no result which is due to the combination itself, 
is not patentable. — Sarven v. Hall, Case No. 
12,369. 

The distinction between patentable combina- 
tions and aggregations considered. — Williams v. 
Rome, W. & O. R. Co., Case No. 17,735. 

§ 19. Combination. 

Combining elements so as to produce a new 
and practical result, not reached by their sep- 
arate action, involves invention. — Kerosene 
Lamp Heater Co. v. Littell, Case No. 7,724. 

Old instruments placed in a new and differ- 
ent organization do not prevent the new mech- 
anism from being patented. — Clark Patent 
Steam & Fire Regulator Co. v. Copeland, Case 
No. 2,866. 

A combination of old elements is patentable 
if involving inventive faculties. — Crosby v. La- 
pouraille, Case No. 3,424; Buck v. Hermance, 
Id. 2,082. 

A new combination, to be valid, must be dif- 
ferent, from the old one, not only in its me- 
chanical contrivance and construction, but in 
its practical operation and effect in producing 



the useful result.— Buck v. Hermance, Case No. 
2,082. 

A combination of old devices, which produces 
merely the aggregate of the several results of 
the devices when used separately, is not patent- 
able.— Hailes v. Van Wormer, Case No. 5,904. 

A combination which, by the addition of a 
new part, produces a new result with greater 
rapidity and economy than before produced, is 
patentable. — Gallahue v. Butterfield, Case No. 
5,198. * 

The combination of a movable reservoir with 
a jet bath, in substantially the same manner as 
a fixed reservoir was previously combined there- 
with, constitutes no invention, although the 
patentee had no knowledge of the previous com- 
bination; otherwise if the manner of connec- 
tion was substantially different. — Larabee v. 
Cortlan, Case No. 8,084. 

A combination of a known tool with a known 
machine, requiring only ordinary mechanical 
skill, is not patentable.— Bailey Washing & 
Wringing Mach. Co. v. Lincoln, Case No. 750. 

A combination of old devices, involving only 
mechanical, and not inventive, skill, is not pat- 
entable. — Blake v. Stafford, Case No. 1,504. 

To make a valid claim for a combination, it 
is not necessary that the several elementary 
parts of the combination should act simultane- 
ously.— Forbush v. Cook, Case No. 4,931; Bird- 
sail v. McDonald, Id. 1,434. 

Nor need all parts of the machine which are 
necessary to its action be included in the claim, 
save as they may be understood as entering 
into the mode of combining and arranging the 
elements of the combination.— Forbush v. Cook, 
Case No. 4,931. 

A combination of machinery for cooling meal 
in the process of converting grain into flour, 
with machinery for preventing the waste of 
meal. Jield patentable. — Herring v. Nelson, Case 
No. 6,424. 

§ 20. Application to new use. 

The adaptation of old devices or forms to new 
purposes, however convenient, useful, or beau- 
tiful they may be in their new role, is not in- 
vention. — Northrup v. Adams, Case No. 10,32S; 
Hovey v. Henry, Id. 6,742; Couse v. Johnson, 
Id. 3,288. 

The application of an old process to produce 
a new result is not a patentable invention. — 
Howe v. Abbott, Case No. 6,766. 

There is no invention in applying an old fabric 
to a new use. — Smith v. Elliott, Case No. 13,- 
041. 

The rule that the application of an old ma- 
chine or combination to a new purpose does 
not involve invention does not hold good in the 
case of the application of a new combination 
to an old purpose. — In re Hebbard, Case No. 
6,314. 

A change of a machine, not involving inven- 
tion, so as to adapt it to different uses, is not 
patentable.— Swift v. Whisen, Case No. 13,700. 

A new application of a principle not producing 
a new result is not an invention. — In re Blandy, 
Case No. 1,528. 

§ 21. Designs. 

A design for a billiard table having no other 
novelty than a greater bevel than usual in the 
sides and ends is not patentable. — Collender v. 
Griffith, Case No. 3,000. 

A design must possess originality and beauty 
to be patentable. Mere mechanical skill is in- 
sufficient.— Northrup v. Adams, Case No. 10,328. 

A patent for a design must be for the means 
of producing a certain result or appearance, and 
not for the result or appearance itself. — Gorham 
Mfg. Co. v. White, Case No. 5,627. 



1615 (§ 22) 



§ 22. Reduction to practical use or op- 
eration. 

Speculation must be reduced to practice, and 
not rest in uncertain experiments, to entitle an 
inventor to a patent.— Draper v. Potomska Mills 
Corp., Case No. 4,072; Ellithorp v. Robertson, 
Id. 4,408; llcCormick v. Seymour, Id. 8,725; 
Ransom v. New York, Id. 11,573; Roberts v. 
Reed Torpedo Co., Id. 11,910; White v. Allen, 
Id. 17,535. CONTRA, see Wheeler v. Clipper 
Mower, etc,., Co., Case No. 17,493. 

The use of a working model for two or three 
nours <by way of experiment is not a reduction 
of an invention to practical use.— Stainthorp v. 
Humiston, Case No. 13,281. 

§ 23. Evidence of invention. 

The prima facie proof that the person who 
made the first machine was the inventor is re- 
butted by proof that he allowed his employer to 
obtain a patent, and did not, until six months 
thereafter, himself make application or claim 
™e invention.— Warner v - Goodyear, Case No. 
17,1S3. 

Superior utility, where not derived from the 
use of better material or greater skill or care 
m the manufacture, is evidence of invention.— 
Many v. Sizer, Case No. 9,056. 

The desirability of an improvement, the diffi- 
culties to be encountered, and the unsuccessful 
experiments of others, tend to show inventive 
skill in the successful inventor.— Terrv Clock 
Co. v. New Haven Clock Co., Case No. 13,840. 

But slight evidence of invention is required 
when it is shown in what the invention consists, 
and where proof is given of practical utility.— 
In re Fultz, Case No. 5,156. 

The unopposed oath of the inventor, though 
not itself sufficient, is some evidence of inven- 
tion.— In re Fultz, Case No. 5,156. 

(B) NOVELTY. 

§ 24r. In general. 

A discovery which is patentable must be new. 
—Batten v. Clayton, Case No. 1,105; Bean v. 
Smallwood, Id. 1,173; Evans v. Eaton, Id. 4,- 
559; In re Kemper, Id. 7,687; McCormick v. 
Seymour, Id. 8,726, 8,727; Sloat v. Spring, Id. 
12,948a; Thompson v. Haight, Id. 13,957. 

The novelty required by the patent law is 
wanting where the superiority is obtained by 
the application of known means, in a known 
way, to produce a known result. — Smith v. Nich- 
ols, Case No. 13,084. 

The question of novelty does not depend upon 
comparative value.— Blandy v. Griffith, Case No. 
1,529. 

The amount of labor, study, or thought which 
the invention cost is of no consequence, if it be 
really a new and useful invention.— Many v. 
Sizer, Case No. 9,056. 

The question of novelty is to be settled by a 
comparison of prior machines with the machine 
patented, rather than the machine in use. — 
Blake v. Rawson, Case No. 1,499. 

§ 25. Use of new means or new mode of 
construction or operation. 

New contrivances applied to nld mirnospfi nre 
patentable, but not old contrivances applied to 
new uses, unless there is a change, consisting 
of a new and useful combination, a material 
alteration or modification, or an addition of a 
new device, in which case the new device must 
be distinguished in the claim.— Bray v. Harts- 
horn, Case No. 1,820; Brown v. Hall, Id. 2,008. 

The production of an old result by a new 
process is patentable.— Howe v. Abbott, Case 
No. 6,766. CONTRA, see Draper v. Hudson, 
Case No. 4,069. 

A pavement composed of stone blocks, of 
which the ends lying in the line of travel are 



PATENTS, H. (A), (B). 
[Fed. Cas. Digrest.] 



(§ 26) 1616 



smooth, and fit closely together, while the sides 
lying across the street are rough, so that spaces 
are left between them, in which the horses' feet 
may take hold, is patentable.— Guidet v. Barber, 
Case No. 5,857. 

A device consisting of perforated tubes set 
vertically in a grain bin, so as to allow a free 
circulation of air through the grain, thus pre- 
venting overheating, is anticipated by a prior 
invention of hollow perforated side walls for the 
same purpose.— Ex parte Marsh, Case No. 9,107. 

§ 26. TTse of material or device for new- 
purpose or function. 

The application of an old machine to a new 
purpose is not patentable, as there is a want of 
novelty.— Bean v. Smallwood, Case No. 1,173. 

The application of a known thing to a new 
purpose, as the use of rivets to fasten parts of a 
shoe instead of sewing, is not patentable.— Haz- 
ard v. Green, Case No. 6,277. 

_ The application of the principle of the expan- 
sion and contraction of a metallic rod by differ- 
ent degrees of heat, to the regulation of the 
heat of a stove, is the subject of a patent.— 
Foote v. Silsby, Case No. 4,916. 

A patent for an apparatus in which the alka- 
line solutions for forming carbonic acid gas 
were kept separate until required to extinguish 
a fire, when they could be readily mingled, 
held void, on it appearing that similar appara- 
tus had been employed in soda fountains for 
the supply of beverages.— Northwestern Fire 
Extinguisher Co. v. Philadelphia Fire Extin- 
guisher Co., Case No. 10,337. 

In the manufacture of hoop skirts the use 
of strands of twisted cord to sustain the hoops 
held a patentable invention, where the result 
was a better and cheaper article though a 
similar use of such cords was known in rope 
ladders and other constructions. — Ex parte 
Newman, Case No. 10,173; Ex parte Mann, 
Id. 9,032. 

A hand mirror with a handle extension of 
wire covered with cement forming the handle 
and back is patentable, as distinguished from 
a brush, though the handles and backs of the 
two are made in the same way.— Clark v. Scott, 
Case No. 2,833. 

The application of an old device for the con- 
struction of the exterior of iron safes to the 
construction of the interior of iron jail walls is 
patentable.— Ex parte Jacobs, Case No. 7,158. 

The application to railway carriages of an 
improvement in axles or bearings which was 
well known as applied to other carriages, held 
not patentable.— Winans v. Boston & P. R. 
Co., Case No. 17,858. 

The application and use of plaster of Paris 
to the filling of fireproof safes is patentable.— 
Rich v. Lippincott, Case No. 11,758. 

The substitution of wood for paper in the 
construction of a box of peculiar pattern does 
not amount to novelty. — Mannie v. Everett. 
Case No. 9,039. 

The application of a process for preserving 
perishable foods, to the preserving of green 
corn cut from the cob, is not patentable.— Jones 
v. Hodges, Case No. 7,469. 

A mere difference in the manner and form 
of applying an invention, which is the same in 
principle with one previously used, will not 
justify a patent.— Delano v. Scott, Case No. 3,- 
753. 

A mode of bookkeeping whereby a balance 
sheet and statement of assets and liabilities 
are constantly shown on a single sheet, thus 
obviating reference to the ledger, is not pat- 
entable, there being a want of novelty.— Ex 
parte Dixon, Case No. 3,927. 

The previous application of the principle to 
the regulation of heat, and a suggestion of its 



1617 (§ 26) 



PATENTS, II. (JB). 

£Fed. Cas. Digrest.] 



(§ 30) 1618 



use in stoves, will not invalidate the patent to 
one who first practically applied it.— Foote v. 
Silsby, Case No* 4,916. 

The inventor has a right to use any means, 
old or new, in the application of the new prop- 
erty to produce the new and useful result, to 
the exclusion . of all other means.— Foote v. 
Silsby, Case No. 4,919. 

% 27. New combination. 

A combination producing a new and useful 
result, though of old devices, is patentable. — 
Booth v. Parks, Case No 1,648; In re Bough- 
ton, Id. 1,696; Child v. Boston & F. Iron 
Works, Id. 2,675; Earle v. Sawyer, Id. 4,247; 
Evans v. Eaton, Id. 4,559; Francis v. Mellor, 
Id. 5,039; Hotchkiss v. Greenwood, Id. 6,718; 
Latta v. Shawk, Id. 8,116; Pennock v. Dia- 
logue, Id. 10,941; Ryan v. Goodwin, Id. 12,186; 
Sands v. Wardwell, Id. 12,306; Tatham v. Le 
Roy, Id. 13.761; In re Wagner, Id. 17,038; 
Watson v. Cunningham, Id. 17,280; Carr v. 
Rice, Id. 2,440. 

A combination, to be patentable, must dis- 
close something new, either in the combination 
itself or in the result achieved.— Ex parte 
Woodruff, Case No. 17,985. 

The mere location of an old apparatus on a 
machine is not patentable unless it results in 
a new combination, producing new and useful 
results.— Marsh v. Dodge & Stevenson Mfg. 
Co.. Case No. 9,115. 

A metallic paint produced by well-known 
methods from the refuse left in the manufac- 
ture of bichromate of potash is not patentable 
as a new composition of matter.— In re Maule, 
Case No. 9,308. 

A new combination of movable staples at the 
corners of a traveling bag frame, with a lock 
in the middle, is patentable as a fastening de- 
vice, though each had been in use separately 
theretofore. — Roemer v. Logowitz. Case No. 
11,996. 

Where the result of a new organization is 
considerable and useful, and the new article 
has superseded the old ones in the market, and 
can be manufactured with less expense, held 
sufficiently new to support a patent.— Stanley 
Works v. Sargent, Case No. 13,289. 

A new and useful combination of known ele- 
ments is patentable, though two out of three 
of them nave been combined in a prior ma- 
chine.— Forbush v. Cook, Case No. 4,931. 

The covering of a whip with a tubular knit 
fabric is patentable, though such fabric and 
the whip, and the idea of covering the whip, 
taken separately, were all old. — Strong v. No- 
ble, Case No. 13,543. 

A combination of old devices which produces 
a result different from any of its specific parts, 
and accomplishes the desired result with a sav- 
ing of material and force, is patentable.— In re 
Cole, Case No. 2,974. 

$ 28. Production of new or improved re- 
sult. 

A new and useful improvement on an old 
principle, applied to a new and useful purpose, 
is patentable.— Evans v. Robinson, Case No. 4,- 
571. 

A change by reversing the motion of the 
beater bars for regulating the feed in a corn- 
sheller, producing a result not before attained, 
held not void for want of novelty.— Adams v. 
Joliet Mfg. Co., Case No. 56. 

On the question of novelty in a reaping ma* 
chine, the inquiry is whether the prior machine 
was identical with plaintiff's, or whether the 
latter involves a new operation, and produces 
a new effect on the standing or tangled grain. 
— McCormick v. Seymour, Case No. 8,726. 



Duplication of parts producing a new and 
useful result may be patentable.— Parker v. 
Hulme, Case No. 10,740. 

A patent for cooked meat put up in a solid 
form, in its natural state, without disintegra- 
tion or desiccation, in hermetically sealed pack- 
ages, cannot be sustained as a new article of 
commerce.— Wilson Packing Co. v. Clapp, Case 
No. 17,851. 

The method of cutting up meat, preparing it 
with antiseptics, pressing, putting into cans, 
pressing afterwards, and then hermetically 
sealing the cans, is not patentable, for want of 
novelty.— Wilson Packing Co. v. Clapp, Case 
No. 17,851. 

A claim for caustic alkali incased or envelop- 
ed in a tight metallic integument or metallic 
casing, is good as being a proper subject of let- r 
ters patent. — Pennsylvania Salt Mfg. Co. v. 
Gugenheim, Case No. 10,954. 

The placing of two or more letters upon spell- 
ing blocks arranged systematically held not a 
patentable improvement. — Hill v. Houghton, 
Case No. 6,493. 

§29. Designs. 

A similarity in parts to parts of other pat- 
ented designs will not prevent a design being 
patentable, where the general result is differ- 
ent from anything known or used before.— Per- 
ry v. Starrett, Case No. 11,012. 

A patent for a design for a reel, consisting 
of the making of the reel in the shape of a well- 
known mathematical figure, — the reel itself, as 
an article of manufacture, being old,— is not 
valid, under Act March 2, 1861, § 11— Wooster 
v. Crane, Case No. 18,036. 

§ 30. Evidence of novelty. 

Grounds upon which presumptions of novelty 
of a patented invention may arise.— Hussey v. 
Whitely, Case No. 6,950. 

Xhe patent is prima facie evidence of novel- 
ty.— Batten v. Clayton, Case No. 1,105; Parker 
v. Stiles, Id. 10,749; Pitts v. Hall, Id. 11,192; 
Poppenhusen v. New York Gutta Percha Comb 
Co., Id. 11,283; Potter v. Holland, Id. 11,330; 
Putnam v. Yerrington, Case No. 11,486; Rice 
v. Heald, Id. 11,752; Rollhaus v. McPherson, 
Id. 12,026; Sloat v. Spring, Id. 12,948a; Smith 
v. Woodruff, Id. 13,128a; Sands v. Wardwell, 
Id. 12,306; Serrell v. Collins, Id. 12,672; Teese 
v. Phelps, Id. 13,819; Wayne v. Holmes, Id. 
17,303. 

The presumption of novelty arising from the 
patent itself may be overcome by showing that 
the thing was previously known. — Coleman v. 
Liesor, Case No. 2,984. 

The prima facie case' of novelty arising from 
the patent, even if uncorroborated, will prevail 
over inconsistent and contradictory testimony 
of defendant. — Crouch v. Speer, Case No. 3,438. 

The presumption of originality arising from 
the grant of a patent only extends back to the 
time when the application was filed in the pat- 
ent office.— White v. Allen, Case No. 17,535. 

The testimony upon the issue of novelty must 
be confined to a comparison of the prior ma- 
chines with that of the patentee. — Judson v. 
Cope, Case No. 7,565. 

The fact that a later device is better than an 
earlier one, and has driven it out of the market, 
is prima facie evidence that it is patentable. — 
Smith v. Woodruff, Case No. 13,128a. 

Where a patent is assailed upon the ground of 
want of novelty, the patentee may^ show, by 
sketches and drawings, the date of his inceptive 
invention; and, where he has exercised -reason- 
able diligence, the protection of the patent will 
be carried back to that date.— Reeves v. Key- 
stone Bridge Co., Case No. 11,660. 



1619 (§ 30) 



PATENTS, H.(B),(C). 
[Fed. Cas. Digest.] 



(§ 33) 1620 



Testimony of eminent chemists and books of 
reputation in science and art are competent evi- 
dence that a coloring matter patented was not 
previously known.— Stevens v. Felt, Case No. 
13,397. 

Claim of utility not made by specification is 
of but little weight on question of novelty. — In 
re Bishop, Case No. 1,439. 

Superiority over prior invention is proof tend- 
ing to show novelty .— Birdsall v. McDonald, 
Case No. 1,434. 

Patent for combination cannot be supported 
by evidence of novelty of one of its parts. — Bat- 
ten v. Clayton, Case No. 1,105. 

The result alone, even when shown to be more 
economical, useful, and beneficial to the public, 
in the manufacture of a better article, is not 
sufficient evidence of novelty. — Yearsley v. 
Brookfield, Case No. 18,131. 

The presumption of novelty arising from the 
issue of- a patent may be rebutted by affidavits 
on an application for an injunction if the patent 
is not ancient. — Wickersham v. Singer, Case No. 
17,610. 

The unopposed oath of the inventor, though 
not of itself sufficient, is some evidence of the 
novelty. — In re Fultz, Case No. 5,156. 

Decisive evidence that a new mode of opera- 
tion has been introduced is shown where the 
practical effect of a new combination is either 
a new effect, or a materially better effect, or as 
good an effect, more economically attained. — 
Eorbush v. Cook, Case No. 4,931. 

In such case, the amount of thought, time, ex- 
pense, or experiment required to make the 
change is not material. — Forbush v. Cook, Case 
No. 4,931. 

The issue, reissue, and extension of a patent, 
and the fact that it has been sustained in pre- 
vious suits, create a strong presumption against 
a defense of want of novelty. — Jordan v. Dob- 
son, Case No. 7,519. 

A prior patent of which no notice has been 
given cannot be considered on the question of 
novelty. — Odiorne v. Denney, Case No. 10,431. 

Mere applications for patents cannot be con- 
sidered on the question of novelty. — Barker v. 
Stowe, Case No. 994. 

The defense of want of novelty must be made 
out by satisfactory and preponderating evidence. 
— Tompkins v. Gage, Case No. 14,088. 

A patent can only be overthrown, on the ques- 
tion of novelty, by clear and satisfactory proof. 
—Herring v. Nelson, Case No. 6,424. 

The proof of prior use or previous knowledge, 
to defeat a patent for want of novelty, must be 
such as to establish the fact clearly, and beyond 
a reasonable doubt. Mere preponderance is not 
sufficient. — Hawes v. Antisdel, Case No. 6,234; 
Wood v. Cleveland Rolling-Mill Co., Id. 17,941. 

Weight and sufficiency of evidence as to the 
novelty. — Hayden v. Suffolk Mfg. Co., Case No. 
6,261. 

(C) UTILITY. 

§ 31. Nature of patentable utility. 

A new device, though inferior to prior devices 
for the same purpose, is useful and patentable 
if it be not frivolous nor injurious to public 
morals or to the well-being of society. — Roemer 
v. Logowitz, Case No. 11,996; Whitney v. Em- 
mett, Id. 17,585. 

The condition as to utility does not require 
that the thing invented should be the very best 
article for the use to which it is applied. Prac- 
ticability is all that is required. — Many v. Jag- 
ger, Case No. 9,055. 

A discovery which is patentable must be use- 
ful.— Thompson v. Haight, Case No. 13,957; 



Sloat v. Spring, Id. 12,948a; McCormick v. 
Seymour, Id. 8,726, 8,727; Evans v. Eaton, Id. 
4,559; Lrangdon v. De Groot, Id. 8,059. 

"Useful invention" means an invention which 
may be applied to a beneficial use in society, i» 
contradistinction to one injurious to the moral 
health or good order of soeietv.— Bedford v. 
Hunt, Case No. 1,217; Cox v. Griggs, Id. 3,302; 
Crompton v. Belknap Mills, Id. 3,406, 18,285 r 
Kneass v. Schuylkill Bank, Id. 7,875; I>owelI 
v. Lewis, Id. 8,56S; Page v. Ferry. Id. 10,662; 
Wintermute v. Redington, Id. 17,896. 

A machine cannot be pronounced useless or 
impracticable because it is susceptible of im- 
provement, which will obviate or prevent em- 
barrassments to its most perfect operation. — 
Wheeler v. Clipper Mower, etc., Co., Case No. 
17,493. 

The utility of an invention need not be great 
in order to render it patentable. The degree 
of utility is not material.— Bedford v. Hunt, 
Case No. 1,217; Chandler v. Dadd, Id. 2.593; 
Conover v. Roach. Id. 3,125; Dohertv v. Hav- 
nes, Id. 3,963; Hoffheins v. Brandt, Id. 6,575; 
Miller & Peters Mfg. Co. v. Du Brul, Id. 9,597r 
Tilghman v. Werk, Id. 14,046; Vance v. Camp- 
bell, Id. 16,837; Wilbur v. Beeeher, Id. 17.- 
634. 

There is sufficient utility to support a patent 
where the invention possesses peculiar advan- 
tages, not found in prior devices of a generally 
similar character. — Simmons v. Blackinton^ 
Case No. 12,866. 

That there is a difference in construction 
which allows the use of an invention claimed 
in a different way from an invention patented, 
though seldom required to be so used, does not 
deprive the claim of the qualities of a useful 
invention.— Chandler v. Ladd, Case No. 2,593- 

§ 32. Capacity to produce result. 

A machine possesses patentable merit where^ 
taken as a whole in its construction and opera- 
tion, it is an advance upon the state of the art 
to which it appertains, furnishing a better 
method of performing a useful function than 
was before available.— Seymour v. Marsh, Case- 
No. 12,687. 

A patent of an improvement to prevent loss^ 
of life by the explosion of powder mills is 
properly refused where it appears that it would* 
not have the effect designed. — Ex parte San- 
ders, Case No. 12,292. 

It is not necessary to the patentability of a 
device that it should have, in itself, apart from 
any connection with, or application to, other 
known devices or instrumentalities, capacity to- 
produce practically useful results.— Wheeler v. 
Clipper Mower, etc., Co., Case No. 17,493. 

An invention is patentable if it appears to be- 
capable of reduction to actual practical use, 
though it has not been so reduced.— Chandler 
v. Ladd, Case No. 2,593. 

The test of usefulness depends upon whether 
the thing is capable of use for a purpose from 
which some advantage can be derived ; not 
whether it is not mischievous, or hurtful, or in- 
significant.— Crouch v. Speer, Case No. 3,438. 

A new and useful invention will not be im- 
peached because it does not accomplish all the 
inventor claimed for it.— Eames v. Cook, Case 
No. 4,239. 

§ 33* Nature o£ product or result. 

The result produced by a process patent must 
be an improvement in the trade in the com- 
mercial sense.— Jones v. Wetherill, Case No- 

i ,OUo. 

An invention may be good which remedies a 
theoretical defect, although no injurious effects 
have been observed in practice.— Aiken v. Do- 
lan, Case No. 110. 



1621 (§ 33) 



PATENTS, II. (0), (D). 
[Fed. Cas. Digrest.] 



(§ 37) 1622 



•_ Protecting the treadle and pitman of a sew- 
ing machine from dust does not involve suffi- 
cient utility to sustain a patent. — Ross v. Wol- 
finger, Case No. 12,081. 

It is not material that the original machine 
was so inferior to other machines used for the 
same purpose as to have no intrinsic value. — 
Gray v. James, Case No. 5,719. 

A device to form a galvanic battery with the 
buried portion of a lightning rod, so as to fa- 
cilitate its discharge of electricity, held not suffi- 
ciently useful to warrant a patent. — In re Cush- 
man, Case No. 3,513. 

The invention of an ornamental mode of put- 
ting up thread, which gave it no additional 
value, but merely made it sell more readily and 
for a larger price at retail, held not useful. — 
Langdon v. De Groot, Case No. 8,059. 

An artificial honey, being a good imitation, 
a new composition, and not deleterious, must 
be regarded as "useful and novel/' and a pat- 
ent will not be denied on the ground that it will 
operate to aid in deceiving the public. — In re 
Corbin, Case No. 3,224. 

Ingredients composing artificial honey held 
not to be considered as mere equivalents of the 
elements contained in the genuine honey. — In 
re Corbin, Case No. 3,224. 

§ 34. Evidence of utility. 

The patent is prima facie evidence of utility. 
—Batten v. Clayton, Case No. 1,105; Bell v. 
Daniels, Id. 1,247; Coleman v. Iaesor, Id. 2,- 
984; Geier,v. Goetinger, Id. 5,299; Parker v. 
Stiles, Id. 10,749; Pitts v. Hall, Id. 11,192; 
Poppenhusen v. New York Gutta Percha Comb 
Co., Id. 11,283; Potter v. Holland, Id. 11,330; 
Putnam v. Yerrington, Id. 11,486; Rice v. 
Heald, Id. 11,752; Sands v. Wardwell, Id. 12,- 
306; Serrell v. Collins, Id. 12,672; Sloat v. 
Spring, Id. 12,948a; Smith v. Woodruff, Id. 
13,128a. 

Every doubt upon the question of utility 
should be resolved against an infringer who 
uses the patented process.— Whitney v. Mowry, 
Case No. 17,594. 

Actual tests are admissible on question of 
practicability where evidence is conflicting. — 
Bell v. Hill, Case No. 1,252. 

The use by defendants of the patented in- 
vention is evidence of its utility.— Adams v. 
Edwards, Case No. 53; Simpson v. Mad River 
R. Co., Id. 12,8S5; Turrill v. Illinois Cent. R. 
Co., Id. 14,270. 

A former license from plaintiff to defendant 
to use the patented machine is evidence of 
utility.— Lee v. Blandy, Case No. 8,182. 

The fact that subsequent inventions have 
driven complainant's invention out of use does 
not tend to prove that it lacks utility. — Cook y- 
Ernest, Case No. 3,155. 

That defendant prefers to use the patented 
mechanism instead of other mechanism which 
would accomplish his purpose without infring- 
ing is sufficient evidence of utility. — Smith v. 
Glendale Elastic Fabrics Co., Case No. 13,050. 

Acts of the inventor to determine the value, 
utility, or success of his invention are to be 
liberally construed if not inconsistent with the 
clear intention to hold exclusive privilege. — 
Jennings v. Pierce, Case No. "7,283. 

The unopposed oath of the inventor, though 
not itself sufficient, is some evidence of utility. 
—In re Fultz, Case No. 5,156. 

The presumption of usefulness arising from 
the use of a patent may be rebutted by affi- 
davits on an application for an injunction if the 
patent is not ancient.— Wickersham v. Singer. 
Case No. 17,610. 



(D) ANTICIPATION. 

§ 35. Prior knowledge or use — Nature 
and extent in general. 

See, also, post, § 58. 

The invention should not be known or used 
as the invention of any other person than the 
patentee before the application for a patent. 
Act 1793, § 1.— ilorris v. Huntington, Case No. 
9,831. 

A patent is valid although the invention may 
have- been in use for years anterior to the pat- 
ent, if the patentee was the original inventor. 
Act 1793.— Goodyear v. Mathews, Case No. 
5,576. 

To justify finding of anticipation the jury 
must find that the alleged anticipation embodied 
substantially the same organized mechanism 
operating in the same manner as that described 
in patents.— Clark Patent Steam & Fire Regu- 
lator Co. v. Copeland, Case No. 2,866. 

A structure which might have suggested ideas 
or led to experiments resulting in discovery is 
not an anticipation.— Parker v. Stiles, Case No. 
10,749. 

One who exhibits his invention of an im- 
proved lock to three lock makers, though he 
does not put it to any practical use, gives such 
a knowledge of it to the public as a complete 
invention as will deprive another person of his 
right as first patentor.— Coffin v. Ogden, Case 
No. 2,950. 

A combination of a cabinet and sewing ma- 
chine is not patentable where crude combina- 
tions of the shipping box and the machine have 
been made by manufacturers.— Ross v. Wol- 
finger, Case No. 12,081. 

The construction of a complete machine em- 
bodying the idea is not necessary if the discov- 
ery has been so manifested before the world 
that one skilled in the particular art would be 
able to reproduce it.— Farley v. National Steam- 
Gauge Co., Case No. 4,648. 

Discovery and actual use prior to the discov- 
ery by the patentee, however limited the use or 
knowledge of the discovery, will invalidate the 
patent.— Rich v. Lippincott, Case No. 11,758. 

* 

§ 36, — Accidental or unintentional 
production. 

A chance operation 04a principle unrecognized 
at the time will not defeat patent to one who 
discovers principle, and puts it to intelligent use. 
—Andrews v. Carman, Case No. 371. 

The accidental making of an improved article 
in a single instance, without knowledge on the 
part of the producer of how it was accomplished, 
or how to make another like it, is not invention. 
— Pelton v. Waters, Case No. 10,913. 

Prior contrivances which might by a little 
change bave been made into the patented con- 
trivance, though not so intended by the maker, 
will not defeat the originality of the invention. — 
Livingston v. Jones, Case No. 8,413. 

The fact that the inventor of a feature in a 
machine which anticipates the patented inven- 
tion did not understand nor have in view the 
particular advantage of, or function performed 
by, such feature, will not prevent its invalidat- 
ing the patent. — Woodbury Patent Planing 
Mach. Co. v. Keith, Case No. 17,970. 

§ 37. — - Experiments and incomplete 
productions. 

A prior invention, to anticipate, must have 
been reduced to practical use; the mere concep- 
tion of the invention and experiments alone are 
insufficient— Albright v. Celluloid Harness- 
Trimming Co., Case No. 147; Allen v. Blunt, 
Id. 217; Same v. Hunter, Id. 225; Aultman v. 
Holley, Id. 656; Bell v. Daniels, Id. 1,247; Ca- 
hoon v. Ring, Id. 2,292; Gottfried v. Phillip 



1623 (§ 37) 



Best Brewing Co., Id. 5,633; Hitchcock t. Shon- 
inger Melodeon Co., Id. 6.537; Same v. Tre- 
maine, Id. 6,538, 6,540; Howe v. Underwood, 
Id. 6,775; Judson v. Bradford, Id. 7,564; La 
Baw v. Hawkins, Id. 7,960; Latta v. Shawk, 
Id. 8,116; Many v. Jagger, Id. 9,055; Same 
v. Sizer, Id. 9,056; Matthews v. Skates, Id. 
9,291; Parkhurst v. Kinsman, Id. 10,757; Singer 
v. Walmsley, Id. 12,900; Union Sugar Refinery 
v. Matthiesson, Id. 14,399; Webb v. Quintard, 
Id. 17,324; Winans v. New York & H. R. Co., 
Id. 17,864; Woodman v. Stimpson, Id. 17,979. 

"Reduced to practice" does not import bring- 
ing the invention into use, but rather reducing 
it to such form as to remove it from the condi' 
tion of mere theory.— Heath v. Hildreth, Case 
No. 6,309. 

The making of a model and drawings from 
which one skilled in the art would be enabled 
to carry the invention into actual use is a re- 
ducing to practice.— Heath v. Hildreth, Case No. 
6,309. 

Abandoned experiments, however suggested, 
producing no practical and useful results, do not 
affect the validity of a subsequent patent to an 
original inventor.— United Nickel Co. v. Anthes, 
Case No. 14,406; Union Paper-Bag Mach. Co. 
v. Pultz & Walkley Co., Id. 14,392, 14,393; 
Sloat v. Spring, Id. 12,948a. 

Prior use of substantially the patented com- 
bination, sufficiently to illustrate and test its 
complete efficiency, is an anticipation, and not 
an abandoned experiment, though such use was 
quickly discontinued.— Shoup v. Henrici, Case 
No. 12,814. 

Prior invention will defeat a subsequent pat- 
ent, though the invention was abandoned. — Colt 
v. Massachusetts Arms Co., Case No. 3,030. 

Machines which never proved satisfactory on 
trial, and have been laid aside for years, are 
properly held to be unsuccessful and abandoned 
experiments. — Parham v. American Buttonhole, 
Overseaming & Sewing Mach. Co., Case No. 
10,713. 

A single experimental use of an apparatus in 
such way as to involve the practice of the pat- 
ented process, where afterwards destroyed, does 
not affect the patent of a subsequent original 
inventor. — Piper v. Brown, Case No. 11,180. 

The construction of articles as experiments, 
never made public, and ultimately abandoned 
and lost, does not affect the right of a subse- 
quent original inventor of substantially the same 
article to take out a patent therefor. — Murphy 
v. Eastham, Case No. 9,949. 

A rude machine, constructed for the purpose 
of experiment, and subsequently broken up, 
deserted, and abandoned, will not defeat a pat- 
ent.— Gottfried v. Phillip Best Brewing Co., Case 
No. 5,633. 

A machine never brought into effective opera- 
tion, and taken apart without intention to re- 
construct it, held an abandoned experiment. — 
Gallahue v. Butterfield, Case No. 5,198. 

A long course of fruitless experiments to re- 
duce a principle to practice is not an anticipa- 
tion; but where a prior inventor has been using 
reasonable diligence to reduce his idea to prac- 
tical use his right will be preserved, though he 
may not have attained perfect success.— McCor- 
mick v. Howard, Case No. 8,719. 

It is immaterial by whom experiments were 
made where the specimen was made by the pat- 
entee.— Pennock v. Dialogue, Case No. 10,941: 

It is sufficient anticipation if the prior inventor 
performed the operation substantially upon the 
method which the patentee claims, and with the 
degree of success which demonstrated its use- 
fulness, though not with the degree attained by 
the patentee.— Waterman v. Thomson, Case No. 
17,260. 



PATENTS, II. (D). (§ 40) 1624 

[Fed. Cas. Digrest.] 

Recollection of a prior imperfect machine and 
its product, and ^reservation of the same, ren- 
ders patent void for want of novelty. — Aiken v. 
Dolan, Case No. 110. 

Uncertainty as to the principle of a machine, 
as well as imperfect organization and imperfect 
power, Jield to prevent it from being an anticipa- 
tion.— Smith v. Fay, Case No. 13,045. 

Proof of an article which might have been 
made by a machine similar to that for which 
plaintiff afterwards obtained a patent is not 
sufficient to invalidate the patent.— Treadw*ell 
v. Bladen, Case No. 14,154. 



An invention held not anticipated by a prior 
machine, substantially abandoned, and passing 
out of the memory of those who used it, until 
recalled by the patented invention. — Hall v. Bird, 
Case No. 5,926. 

The mere fact that a prior inventor ceased to 
use his invention because he had no occasion 
to do so will not prevent its being an anticipa- 
tion. — Waterman v. Thomson, Case No. 17,260. 

A trial of a machine in public, which proves 
the capacity of the machine to effect what its 
inventor proposed, entitles him to the merit of 
having produced a complete invention, and can- 
not be regarded as a mere experiment, entitling 
a subsequent inventor to a patent for the same 
invention.— Northwestern Fire Extinguisher Co. 
v. Philadelphia Fire Extinguisher Co., Case No. 
10,337. 

Two prior patents, which, taken together, 
would have made up the invention of the pat- 
entee, will not anticipate his invention, where 
neither of them alone shows the complete inven- 
tion.— Munson v. Gilbert & B. Mfg. Co., Case 
No. 9,934. 

§ 38. — Unsuccessful devices. 

A machine so imperfect as to be altogether 
unfit to perform the functions of a later ma- 
chine will not defeat a claim of novelty in the 
latter.— Knight v. Gavit, Case No. 7,SS4; Tur- 
rill v. Illinois Cent. R. Co., Id. 14,270. 

The previous construction of a machine re- 
sembling that of a patent, but which proved un- 
satisfactory in operation, and was therefore 
abandoned, does not operate as an anticipation 
of the patent. — Winans v. Danforth, Case No. 
17,859. 

§ 39. — Concealed inventions. 

A prior discovery and use of a patented thing 
by a stranger will destroy the validity of the 
patent, however limited such use may be, pro- 
vided it be not intentionally secret and conceal- 
ed.— Packard v. Gilbert, Case No. 10,651; Pas- 
saic Zinc Co. v. Spear, Id. 10,789. 

An invention made and used in a private way 
and abandoned, and not given to the public, to 
which a subsequent inventor had no access, will 
not invalidate the patent to him. — Haselden v. 
Ogden, Case No. 6,190; Hayden v. Suffolk Mfg. 
Co., Id. 6,261; Hedden v. Eaton, Id. 6,318; Ca- 
hoon v. Ring, Id. 2,292; Hartshorn v. Tripp, Id. 
6,168. 

A written description of a machine, with draw- 
ings, not made public, does not anticipate. — Ly- 
man Ventilating & Refrigerator Co. v. Lalor, 
Case No. 8,632. 

A prior discovery and practical use, however 
limited, will defeat a patent unless such use 
was secret, and confined to the knowledge of 
the discoverer alone.— Stephens v. Felt, Case No. 
13,368a. 

§ 40. — Different use or purpose. 

No machine can be an anticipation which can- 
not be made to produce, without substantial al- 
teration of its construction, the same results as 
those of the patented machine. — Rice v. Heald, 
Case No. 11,752; Zane v. Peck, Id. 18,200. 



1625 (§ 40) 



PATENTS, II. (D). 
[Fed. Cas. Digest.] 



(§ 43) 1626 



The rule that a claim for a combination of old 
instrumentalities in a machine is not anticipated 
by a prior , invention in which the combination 
of equivalent instrumentalities appears, when 
the inventor of the second patent has changed 
the mechanism so as to produce new and valu- 
able results, stated.— Willimantic Linen Co. v. 
Clarke Thread Co., Case No. 17,763; Gottfried 
v. Phillip Best Brewing Co., Id. 5,633. 

A patent which introduces into an existing 
machine a new element not used before, which 
produces a new and useful result, is not antici- 
pated bv such prior machine. — Rice v. Heald, 
Case No. 11.752. 

A device for raising the cutter bar of a mow- 
ing machine, to pass over obstacles, is not an- 
ticipated by a devise which holds the cutter bar 
permanently above the ground. — Ex parte Em- 
ery, Case No. 4,444. 

A prior machine for discharging seed in hori- 
zontal planes will not anticipate a machine for 
sowing seed in vertical planes, if it required in- 
vention to make modifications in the former to 
adapt it to the latter form.— Cahoon v. Ring, 
Case No. 2,292. 

An hotel register with side margin occupied 
with printed advertisements and the middle left 
vacant for names of guests, lield patentable, and 
not anticipated by city directories containing 
marginal advertisements. — Hawes v. Antisdel, 
Case No. 6,234; Same v. Cook, Id. 6,236; Same 
v. Washburne, Id. 6,242. 

The application of paper embossed in imita- 
tion of linen to the making of collars and cuffs 
is not patentable where paper collars and cuffs 
and paper embossed in imitation of textile fab- 
rics were previously known. — Union Paper-Col- 
lar Co. v. Leland, Case , No. 14,394. 

An invention of a flour paste containing cor- 
rosive sublimate to prevent putrefaction, but 
in such small quantities in proportion to the 
flour that its poisonous and corrosive quali- 
ties are neutralized by the flour, and the paste 
thus rendered innocuous, is not anticipated by 
a flour paste in which a larger proportion of 
corrosive sublimate was used for the purpose 
of making the paste poisonous and corrosive. — 
Woodward v. Morrison, Case No. 18,008. 

A patent for the separation of a pavement 
into sections, while it is being formed in the 
place where it is to be used, is not anticipated 
by a pavement made of blocks of cement made 
elsewhere, and laid like bricks or flags.— Schil- 
linger v. Gunther, Case No. 12,458. 

A carriage steD with a corrugated rubber 
surface is not anticipated by the use of rubber 
on shoe soles or stirrups, or corrugated iron for 
carriage steps. — Rubber Step Mfg. Co. v. Met- 
ropolitan R. Co., Case No. 12,101. 

A device to raise and suspend a finger bar 
to an angle of 45 degrees is anticipated by one 
which raises and suspends the bar in a per- 
pendicular position.— Ex parte Allen, Case No. 
207b. 

Machine for rolling puddler's balls held not 
anticipated by machine for making bullets and 
milling buttons and coins. — Burden v. Corning, 
Case No. 2,144. 

A simple, economical invention is not antici- 
pated by a complex and expensive one. — Gott- 
fried v. Bartholomae, Case No. 5,632. 

The fact that the prior use was not that 
contemplated by the patentee is immaterial. — 
Stephens v. Felt, Case No. 13,368a. 

The prior machine need not have been actual- 
ly used for the purpose intended, if capable 
of such use, to anticipate the invention.— Pitts 
v. Wemple, Case No. 11,194. 

Making steam self-packing by introducing it 
into small grooves in one of two contiguous 
surfaces held not anticipated by a like device 



used in air engines.— Poillon v. Schmidt, Case 
No. 11,241. 

A mixture of pulverized argillaceous rock 
and coal tar, hardening on exposure into a solid 
slate roof, held not anticipated by a prior use of 
thin mixtures of the same material for paints 
for sides and roofs of buildings. — Plastic Slate- 
Roofing Joint-Stock Co. v. Moore, Case No. 11,- 
209. 

A device for mending rents in firemen's hose 
by 'clamping the torn edges together between 
metal plates is not anticipated by a similar de- 
vice for making preserving cans air-tight. — Ex 
parte Mackay, Case No. 8,836. 

§41, Evidence o£ prior Itnowledge or use 
— Presumptions and "burden of 
proof. 

The patentee has the burden of sustaining 
by competent and sufficient evidence his claim 
that his invention antedated his original » appli- 
cation.— Johnson v. Root, Case No. 7,409. 

§42. Admissibility. 

A foreign patent is not admissible as evi- 
dence to anticipate an American patent of a 
date anterior to the enrollment of the foreign 
patent. — Willimantic Linen Co. v. Clarke 
Thread Co., Case No. 17,763. 

It may be shown that the devices set forth 
in the foreign patent offered to show anticipa- 
tion are inoperative, impracticable, and worth- 
less.— Harwood v. Mill River Woolen Mfg. 
Co., Case No. 6.187. 

An exemplification of a patent afterwards 
surrendered and canceled may be given in evi- 
dence to show that an improvement, subse- 
quently patented, is not original. — Delano v. 
Scott, Case No. 3,753. 

§ 43. —— Weight and sufficiency. 

The evidence on the subject of anticipation 
must be clear and convincing. — Magic Rutfie 
Co. v. Douglas, Case No. 8,948; Parham v. 
American Buttonhole, Overseaming & Sewing 
Mach. Co., Id. 10,713. 

The court ought to be fully convinced, by a 
clear preponderance of evidence, before declar- 
ing a patent void on the ground of prior knowl- 
edge and use. — Gear v. Grosvenor, Case No. 5,- 
291. 

Priority will not be adjudged on vague testi- 
mony, wanting in precision in respect to essen- 
tial features.— Cornell v. Hyatt, Case No. 3,- 
237. 

An anticipation remote in date must be es- 
tablished by more than a mere preponderance 
of evidence.— Smith v. Fay, Case No. 13,045. 

Testimony of the actual construction, by the 
assistance of witness, of a perfect device iden- 
tical with the patented device, and prior thereto, 
held sufficient proof of anticipation, though it 
did not appear that such device was ever used. 
—Parker v. Ferguson, Case No. 10,733. 

A patent for abdominal supporters for well- 
formed persons held not anticipated on oral tes- 
timony of the construction of several support- 
ers "of the same general character" for de- 
formed patients.— Moody v. Taber, Case No. 9,- 
747. 

Reliance will not be placed upon the recollec- 
tion of a witness who describes a machine 
from memory only, after the lapse of 21 years. 
—Ely v. Monson & B. Mfg. Co., Case No. 4,- 
431. 

On an issue as to anticipation it is a perti- 
nent question why the mechanism described in 
the prior patent, and known to the whole 
world, was not applied to the same uses as 
plaintiff's.— Clark Patent Steam & Fire Regu- 
lator Co. v. Copeland, Case No. 2,866. 

In determining anticipation and infringe- 
ment, the machines or their several devices 



1627 (§ 43) 



PATENTS, II. (D). 
[Fed. Cas. Digrest.] 



(§ 48) 1628 



must be examined in the light of what they 
do, or what office or function they perform, 
and how they perform it. — Johnson t. Root, 
Case No. 7,410. 

Testimony that a machine of great merit 
was anticipated by an old machine, made years 
ago, will be examined with great care. — Hay- 
den v. Suffolk Mfg. Co., Case No. 6,261. 

Positive testimony of witnesses as to the ex- 
istence of prior mechanism will outweigh merely 
negative proof.— Sayles v. Chicago & N. W. R. 
Co., Case No. 12,415. 

§ 44. Prior patents. 

A patent is not anticipated by prior patents, 
whose specifications contain nothing to aid a 
mechanic to construct the patented article. — Ca- 
hill v. Brown, Case No. 2,291. 

The specification of a prior patent, to antici- 
pate an invention of a compound, must state 
the relative proportions of the ingredients in 
terms sufficient to enable one skilled in the art 
to make and use the compound without experi- 
ment of his own.— Jenkins v. Walker. Case No. 
7,275. 

To establish a diversity between a patented 
device and another, long known to the trade, it 
is not sufficient to rely upon a description of 
the result obtained— Burrall v. Rumsey, Case 
No. 2,197; Graham v. Gammon, Id. 5,668. 

A British provisional specification of prior date 
will not invalidate a patent unless sufficiently 
full to enable a person skilled in the art to con- 
struct or practice the invention. — Goff v. Staf- 
ford, Case No. 5,504. 

A rejected application for a patent is not 
evidence that the thing described was ever used, 
nor is such description a patent or a publication, 
within the statute. — Herring v. Nelson, Case No. 
6,424. 

A new and patentable use suggested in the 
specification does not prevent the invention be- 
ing anticipated by a prior machine of substan- 
tially the same construction. — Boston Elastic 
Fabrics Co. v. East Hampton Rubber-Thread 
Co., Case No. 1,676. 

§ 45. Prior description in printed publi- 
cation — Requisites of publication. 

The publication must have been prior to the 
time when the invention was actually made. — 
Judson v. Cope, Case No. 7,565; Bartholomew 
v. Sawyer, Id. 1,070. 

The description of an invention contained in 
a rejected application has not the effect of a 
publication. — Northwestern Fire Extinguisher 
Co. v. Philadelphia Fire Extinguisher Co., Case 
No. 10,337. 

A report made to a hose company, describing 
a hose subsequently patented, is not a public 
work, within section 6 of the patent law. — Pen- 
nock v. Dialogue, Case No. 10,941. 

To anticipate an invention by a prior publi- 
cation, there must be a description of the al- 
leged invention contained in a work of a public 
character, and intended for the public, which 
is made accessible to the public by publication 
before the discovery of the invention by the 
patentee. — Reeves v. Keystone Bridge Co., Case 
No. 11,660. 

§ 46. — Sufficiency of description. 

A patent is rendered invalid by a prior pub- 
lished description only where that description 
was sufficient to give to the public a practical 
knowledge of the invention claimed. — Roberts 
v. Dickey, Case No. 11,899. 

Prior publications which do not so describe the 
invention that the public may construct and 
put it in practice without further invention do 
not destroy the patent. — McMilUn v. Barclay, 
Case No. 8,902. * 



The patent is not invalidated by statements 
in an earlier publication, unless such statements 
are full and definite enough to inform those 
skilled in the art how to practice the patented 
invention.— Hays v. Sulsor, Case No. 6,271; Jud- 
son v. Cope, Id. 7,565; Parker v. Stiles, Id. 10,- 
749; Stephens v. Salisbury, Id. 13,369; United 
Nickel Co. v. Manhattan Brass Co., Id. 14,410; 
Woodman v. Stimpson, Id. 17,979. 

A prior description, to invalidate a patent, 
must be such as to show that the article de- 
scribed in the patent can be certainly arrived 
at. — Atlantic Giant Powder Co. v. Parker, Case 
No. 625; Same v. Rand, Id. 626; Cohn v. 
United States Corset Co.. Id. 2,969; Coleman 
1 v. Liesor, Id. 2,9S4; Colgate v. Gold & Stock 
Tel. Co., Id. 2,991. 

An illustration by drawing, unaccompanied 
with verbal description, is not such a prior de- 
scription as will defeat a patent. — Reeves v. 
Keystone Bridge Co., Case No. 11,660. 

The invention in a foreign country, or de- 
scription in a public work, to defeat a patent, 
must be in principle the same. — Brooks v. Biek* 
nell, Case No. 1,944. 

Where the description in a foreign publication 
is fully as definite as the specifications in the 
application for the patent in this country, it is 
sufficient to defeat the patent.— Woven Wire 
Mattress Co. v. Whittlesey, Case No. 18,058. 

A prior description of a part cannot invalidate 
a patent for the whole. — Westinghouse v. Gard- 
ner, etc., Air-Brake Co., Case No. 17,450. 

§ 47. — — Operation and effect. 

Prior construction or a description in a public 
work will invalidate a patent.— Brooks v. Jen- 
kins, Case No. 1,953; Judson v. Cope, Id. 7,565. 

If the invention has been previously de- 
scribed, it is not material, as against a subse- 
quent inventor, that it was not patented. — 
Whipple v. Baldwin Mfg. Co., Case No. 17,514. 

The description of an invention in a public 
work will bar the right to a patent, though it 
has not been put in use.— Ex parte Seelev, Case 
No. 12,627; Smith v. Higgins, Id. 13,05§. 

The fact of publication of a manufacturer's 
catalogue must be proved by evidence inde- 
pendent of the imprint. — Reeves v. Kevstone 
Bridge Co., Case No. 11,660. 

§ 48. Priority of anticipation to date of 
invention. 

The patent relates back to the date of the 
application. — Johnsen v. Fassman, Case No. 7,- 
365; Dane v. Chicago Mfg. Co., Id. 3,557. 

The date of invention is the time when the 
patentee conceives the idea of doing the thing 
in substantially the way in which he patents it. 
— Woodman v. Stimpson, Case No. 17,979. 

The date of an invention held to be when the 
same was embodied in a complete machine in 
actual, though private, use. — Knox v. Loweree, 
Case No. 7,910. 

The date of the invention is the date of the 
discovery of the principle involved, and the at- 
tempt to embody that in some machine; not 
the date of perfecting the instrument. — Colt v. 
Massachusetts Arms Co., Case No. 3,030. 

The protection of the patent will be carried 
back to the time when the invention was con- 
ceived, if the patentee has exercised reasonable 
diligence in perfecting and adapting it, and 
applying for a patent— Draper v. Potomska 
Mills Corp., Case No. 4,072. 

Patent held, on the evidence, to date back for 
12 years before the application. — MacDonald v. 
Blackmer, Case No. 8,757. 

The date of an invention may be fixed by 
reference to another circumstance, the date of 
which latter is sworn to by another witness. — 
Sherwood v. Sherman, Case No. 12,780. 



1629 (§ 48) 



PATENTS, H. (D), (E). 
[Fed. Cas. Digrest.] 



(§ 50) 1630 



Verbal declarations and explanations of the 
inventor are competent evidence to give date 
to an invention.— -Stephens v. Salisbury, Case 
No. 13,369. 

To defeat a patent, the construction by an- 
other must have preceded the actual invention 
of the patentee; not merely the issuance of the 
patent.— Brodie v. Ophir Silver Min. Co., Case 
No. 1,919. 

The foreign patent, to invalidate a domestic 
patent, must have been granted before the in- 
vention here, not merely before the application 
for a patent. — Howe v. Morton, Case No. 6,769. 
But see Forbush v. Cook, Case No. 4,931. 

. (E) PRIOR PUBLIC USE OR SALE. 

■§ 49. WJiat constitutes public use. 

The inventor must sue out his patent while 
the invention is yet recent, and before it has 
come into general use. — Thompson v. Haight, 
Case No. 13,957; Carr v. Rice, Id. 2,440. 

Public use if in good faith for experimental 
purposes will not avoid the patent. — Birdsall 
v. McDonald, Case No. 1,434; Bedford v. Hunt, 
Id. 1,217; Boston Elastic Fabrics Co. v. East 
Hampton Rubber-Thread Co., Id. 1,675; Henry 
v. Francestown Soap-Stone Stove Co., Id. 6,- 
382; Morris v. Huntington, Id. 9,831; Pitts v. 
Hall, Id. 11,192; Winans v. New York & H. 
R. Co., Id. 17,864; Same v. Schenectady & T. 
R. Co., Id. 17,865. 

Using a machine with a view to an experi- 
ment to test its value is a using, within section 
6 of the patent act. 1 Stat. 318.— Watson v. 
Bladen, Case No. 17,277. 

Manufacture and sale by the inventor through 
several years, and the use of the machine by 
his allowance over six years more before the 
application, held not an experimental use. — Sis- 
son v. Gilbert, Case No. 12,912. 

# 

The use of an invention for mere competitive 
examination experiment, and test is not a pub- 
lic use.— United States Rifle, etc., Co. v. Whit- 
ney Arms Co., Case No. 16,793. 

Public use which renders the patent void 
may be a public use by the inventor himself of 
si single machine. — McMillin v. Barclay, Case 
No. 8.902. But see Cleveland v. Towle, Case 
No. 2,888. 

A public exhibition of the invention by a per- 
son to whom a half interest has been sold is a 
public use with the consent of the inventor, 
within the rule. — Hunt v. Howe, Case No. 
<3,S91. 

So is a public use for years by others of ma- 
chines constructed upon substantially the same 
principle as that of the applicant, of which he 
might have had knowledge. — Hunt v. Howe, 
Case No. 6,891. 

The mere using by the inventor of his patent 
in trying experiments, or by his neighbors, 
with his consent, as an act of kindness, for 
temporary and occasional purposes only, will 
not destroy his right to a patent therefor. — 
Wyeth v. Stone, Case No. 18,107, 

A prior public use which will destroy the in- 
ventor's right to a patent must appear to have 
been with his knowledge and consent. — Bar- 
tholomew v. Sawyer, Case No. 1,070; Draper 
■v. Wattles, Id. 4,073; Egbert v. Lippmann, 
Id. 4,306; Russell & Erwin Mfg. Co. v. Mal- 
lory, Id. 12,166; Whitney v. Emmett, Id. 17,- 
585; Wyeth v. Stone, Id. 18,107. CONTRA, 
see Kelleher v. Darling, Case No. 7,653. 

It is the use, and not the intention of an in- 
ventor to use an improvement to be found in 
plaintiff's machine, that invalidates plaintiff's 
patent under section 6 of the patent act. — 
Treadwell v. Bladen, Case No. 14,154. 



A "public use" means a use in public, as 
distinguished from a secret use.— Hunt v. 
Howe, Case No. 6,891; Blackinton v. Douglass, 
Id. 1^470. 

"Public use" means use in a public manner, 
and not use by the public generally. — Henry 
v. Providence Tool Co., Case No. 6,3S4. 

The "public and common use" for more than 
two years prior to application which will in- 
validate a patent is a common and general 
use by the community.— American Hide & 
Leather Splitting & Dressing. Mach. Co. v. 
American Tool & Mach. Co., Case No. 302. 

The use of an article made by the inventor 
for himself at his place of business is private 
and not public— Adams v. Edwards, Case No. 
53. 

The use of the invention in the inventor's 
factories, when not for the purpose of experi- 
ment, is a public use.— Manning v. Cape Ann 
Isinglass & Glue Co., Case No. 9,041. 

The use of a machine for profit while per- 
fecting the same, where it was concealed from 
all persons save the workmen in the business, 
Jield not sufficient to invalidate a patent there- 
for. — Jennings v. Pierce, Case No. 7,283. 

The use of corset springs made for a per- 
son who subsequently became the wife of the 
inventor Jield to be a public use, invalidating 
the patent.— Egbert v. Lippmann, Case No. 
4,306. 

A prior use is not necessary to destroy a 
patent to a subsequent inventor, where the con- 
struction of the thing itself shows that it was 
within the principle of the patented invention. 
— Sayles v. Chicago & N. W. R. Co., Case No. 
12,41o. 

Mere public use by others before issuance of 
the patent is not decisive against the inventor 
here, as in England. — Melius v. Silsbee, Case 
No. 9,404. 

Section 7 of the act of 1836 does not ap- 
ply to a public use by or under another inde- 
pendent inventor of the same thing. — Ellithorp 
v. Robertson, Case No. 4,409. 

A machine which, if used after the patent 
issued, would not be considered an infringe- 
ment, cannot be invoked to destroy the patent 
if used before such time. — Stainthorp v. Elkin- 
ton, Case No. 13,278. 

A mere abstract knowledge by others of the 
preparation of a compound, or of the properties 
of its ingredients and their effect upon each 
other, will not defeat the patent, unless there 
was an actual prior use. — Stephens v. Pelt, 
Case No. 13,368a. 



§ 50. What constitutes public sale. 

The sale of a single device, embodying the 
invention, eight years before applying for a 
patent, will invalidate the same.— Schneider v. 
Thill, Case No. 12,470a. 

A sale of a perfected machine on trial, with 
the right to return or keep it, where made more 
than two years before the application, will bar 
the right to a patent.^*-Seeley v. Bean, Case 
No. 12,629. 

Act 1839, § 7, providing that a patent shall 
be invalid where sales were made more than 
two years before application therefor, does not 
refer to sales made by persons claiming prior 
inventions.— Carroll v. Gambrill,. Case No. 2,- 
454. 

The public sale of on invention, without the 
knowledge or consent of the inventor, after the 
application for a patent, and before the grant, 
will not deprive him of the right to a patent.— 
R. an v. Goodwin, Case No. 12,186. 

Quaere, whether a patent is defeated by the 
prior sale of an article which* is not the whole 



1631 (§ 50) 



PATENTS, 1L (E), (F). 
[Fed. Cas. Digest.] 



(§ 54) 16'dl 



of the patented invention.— Draper v. Wattles, 
Case No. 4,073. 

An agreement for the transfer of the inven- 
tion, for the joint benefit of the inventors and 
those who will advance money for the manufac- 
ture or use of the machines invented, not car- 
ried into execution, and unaccompanied by any 
public use of the machine, will not affect the 
validity of the patent. — Elm City Co. v. Woos- 
ter, Case No. 4,415. 

"Where the application is returned for in- 
formality, but is followed up with reasonable 
diligence, the right of the patentee will not be 
defeated by a sale of machine, after the appli- 
cation, and before the patent is "granted. — 
Sparkman v. Higgins, Case No. 13,208. 

§ 51. Time, priority, and continuance of 
use or sale. 

One prior use before plaintiff's invention will 
defeat his patent. — Sayles v. Chicago & N. W. 
R. Co., Case No. 12,415. 

Neglect to apply for a patent within two years 
after a sale or public use is fatal. — Blandy v. 
Griffith, Case No. 1,529; Lovering v. Dutcher, 
Id. 8,553; Pitts v, Hall, Id. 11,192; Toppan v. 
National Bank-Note Co., Id. 14,100; Rugg v. 
Haines, Id. 12,114. 

The use in public for more than two years of 
a machine substantially the same as that after- 
wards patented cannot be alleged to be experi- 
mental. — Sanders v. Logan, Case No. 12^295; 
Sides v. Pacific Mail S. S. Co., Id. 12,842. 

Under the act of March 3, 1839, a patentee 
may make, vend, and use his invention with'n 
two entire years before applying for a patent 
without forfeiting his right. — McCormick v. Sey- 
mour, Case No. 8,726. 

A use or sale which has not exceeded two 
years before the application for a patent will 
not invalidate it.— Root v. Ball, Case No. 12,035. 

Public use and sale, with the inventor's con- 
sent, for mere than two years before applica- 
tion, make the patent invalid, whatever hin- 
drances or misfortunes delayed the application. — 
Sisson v. Gilbert, Case No. 12,912. 

A willful omission to apply for a patent for 
more than two years after knowledge that an- 
other is publicly using and claiming the in- 
vention as his own bars the right to a patent — 
Justice v. Jones, Case No. 7,588. 

Where the applications were not for the same 
invention, and the invention was in public use 
for more than two years before the second appli- 
cation, the patent is void. — Rich v. Lippincott, 
Case No. 11,75S. 

The continuity of an application is not neces- 
sarily destroyed by the withdrawal of the first 
application and the filing of a second one so as 
to render the patent void because of a public 
use or sale more than two years before the 
filing of the second application. — Howe v. New- 
ton, Case No. 6,771. 

Use of an invention by public for 11 months 
will not bar right to patent.— Bab cock v. De- 
gener, Case No. 698. 

A new, original patent cannot be issued eight 
years after the invention has been in public 
use.— Child v. Adams, Case No. 2,673. 

In the case of successive applications, public 
use or sale must antedate the first application 
by two years to defeat inventor's right. — Adams 
v. Edwards, Case No. 53. 

The date from which the time of prior use or 
sale is to be leckoned is the date of the earliest 
application, where the same was rejected im- 
properlv. — Henry v. Francestown Soap-Stone 
Stove Co., Case No. 6,382. 

The two-years public use must be dated back 
from original application, and not from amend- 
ed specification, 26 months later, where there 



is no evidence of abandonment. — Bell v. Dan- 
iels, Case No. 1,247. 

The invention may be fairly held to date back 
to the time when the inventor made models, 
and entered into a contract for its manufacture. 
— Comstock v. Sandusky Seat Co., Case No. 
3,082. 

§ 52. Use or sale in foreign country, 

A prior use alone, in a foreign country, will 
not avoid the patent. — Bartholomew v. Sawyer, 
Case No. 1,070. 

Evidence of mere use in a foreign country 
prior to plaintiff's application is not alone suffi- 
cient to justify refusal of a patent. Act 1830. 
§ 15.— Ex parte Fry, Case No. 5,143. 

Prior use in a foreign land does not invalidate 
the patent, where the patentee supposed him- 
self to be the first inventor, unless the prior 
invention has been patented or described in 
some printed public work.— Hays v. Sulsor, Case 
No. 6,271; Coleman v. Liesor, Id. 2,984; Roem- 
er v. Logowitz, Id. 11,996. 

The independent invention and introduction 
into public use in this country of a machine 
previously patented in a foreign country will 
defeat an application by a second inventor of 
the same thing, under the act of 1836, as modi- 
fied by the act of 1839. — Covering v. Dutcher, 
Case No. 8,553. 

§ 53. Evidence of use or sale. 

The burden of proof is on defendant alleging 
prior public use. — Allen v. Blunt, Case No. 217. 

After four years from the grant of a patent, 
the invention will be presumed to have been 
carried into public use as against the first in- 
ventor then applying for a patent. — Ellithorp 
v. Robertson, Case No. 4,409. 

The presumption is in favor of the patent, 
where it is doubtful whether there was public 
use for more than two years prior to the appli- 
cation. — Brown v. Whittemore, Case No. 2,033. 

A doubt raised by the evidence as to prior 
public use or sale for more than two years 
should be resolved against the defendant.— Corn- 
stock v. Sandusky Seat Co., Case No. 3,082. 

To invalidate a patent it is not sufficient to 
show use prior co plaintiff's application, but it 
should be shown to have been prior to his dis- 
covery. — Treadwell v. Bladen, Case No. 14,15-1. 

* 

Proof that at a particular time the inventor 
made drawings of his invention is sufficient evi- 
dence of reduction to practice. — Stephenson v. 
Hoyt, Case No. 13,373. 

The fact that a patent has been issued by the 
United States for an invention does not, of it- 
self, prove the introduction of the invention into 
public and common use in the United States. — 
Weston v. White, Case No. 17,458. 

Defendant should clearly show that the use 
relied on to invalidate the patent was not mere- 
ly experimental. — Pitts v. Hall, Case No. 11,- 
192. 

The defense under the statute is only made 
out by proof that the invention was on sale or 
in public use, with the consent and allowance 
of the inventor, for a period exceeding two years 
before his application. — Jones v. Sewall, Case 
No. 7,495. 

(F) ABANDONMENT. 

§ 54. Time of abandonment 

The inventor may abandon his invention, or 
dedicate it to the public, at any time before pro- 
curing a patent. — Pitts v. Hall, Case No. 11,192. 

Abandonment may take place within the two 
years prior to the application for a patent. — 
Sanders v. Logan, Case No. 12,295. 

An invention may be abandoned after the pat- 
ent has issued; and an abandonment may be 



1633 t§ 55) 



PATENTS, n. (F). 
[Fed. Cas. Digest.] 



l§ 55) 1634 



inferred from the neglect to utilize the same, or 
to assert claims against others who are using it. 
— Ransom v. New York, Case No. 11,573. 

§ 55. What constitutes. 

A public disclosure of the invention, and per- 
mission of free use by others without objection 
or assertion of claim to the invention, is an 
abandonment. — Pennock v. Dialogue, Case No. 
10,941. 

It is not necessary that the disclosure of the 
invention be such as to enable the public to use 
it after the patent has expired. — Whitney v. 
Emmett, Case No. 17,585. 

Mere use or sale within two years of apply- 
ing for a patent will not work an abandonment 
without an act showing an intention to abandon 
the invention to the public. — Pitts v. Hall, Case 
No. 11,192. 

The fact of abandonment must result from the 
intention of the patentee, expressly declared or 
clearly indicated by his acts. — .Tohnsen v. Fass- 
man, Case No. 7,365; Sayles v. Chicago & N. 
W. R. Co., Id. 12,414; Pitts v. Hall, Id. 11,192. 

But the inventor and those holding under him 
are estopped by his declarations of intention 
from asserting any right against one acting on 
the faith thereof.— Pitts v. Hall, Case No. 11,- 
192. 

The publication of an invention on discovery 
by a defective specification is not an abandon- 
ment. — Goodyear v. Day, Case No. 5,566. 

The sale of a peculiar manufacture, which 
does not disclose the process, is not an abandon- 
ment of the discovery. — Goodyear v. Day, Case 
No. 5,566. 

Putting a number of cooking stoves out for 
trial in several families, for experiment and im- 
provement, held not an abandonment. — Stanley 
v. Hewitt, Case No. 13,285. 

An abandonment may be found from the fact 
that an inventor laid the parts of his machine 
aside, and did nothing more for four years to 
perfect his invention. — Johnson v. Root, Cases 
Nos. 7,409, 7,410. 

An inventor who knowingly suffers his inven- 
tion to be in public use for years without objec- 
tion dedicates the same to the public. — Melius v. 
Silsbee, Case No. 9,404. 

'Merely withholding an invention from the pub- 
lic does not amount to an abandonment. — Bab- 
cock v. Degener, Case No. 698; Russell & Er- 
win Mfg. Co. v. Mallory, Id. 12,166; Wood v. 
Cleveland Rolling Mill Co., Case No. 17,941; 
Same v. Union Iron-Works Co., Id. 

Unless another in the meantime make the in- 
vention and secure a patent therefor.— Kelleher 
v. Darling, Case No. 7,653; Berg v. Thistle, 
Id. 1,337; Spear v. Belson, Id. 13,223. 

Concealment of invention, because of infor- 
mation that another had anticipated it, will not 
forfeit right to patent.— Ayling v. Hull, Case 
No. 686. 

A delay of over four years in filing an appli- 
cation, during which time another has invented 
the same thing and applied for a patent, will 
bar the first inventor's right. — Savary v." Lauth, 
Case No. 12,389. 

, An inventor who does not reduce his invention 
to practice, or apply for a patent till after 18 
months, others in the meantime having invented 
the same thing, and reduced it to practice, can- 
not recover for a breach of his patent. — Wilton 
v. Railroad Co., Case No. 17,856. 

Delay of four years after filing caveat will 
not defeat right where constant effort was made 
to perfect invention. — Appleton v. Chambers, 
Case No. 497a. 

An abandonment cannot be predicated upon 
two years' delay in filing the application, due 
Eed.Cas.Dig.— 52 



j wholly to the neglect of the patentee's solicitors, 
1 of which he was ignorant. — Birdsall v. McDon- 
ald, Case No. 1,434. 

A patent will be held invalid where there was 
unreasonable delay in making application, after 
another inventor had made public the invention. 
— Ransom v. New York, Case No. 11,573. 

A delay of over five years in applying for a 
patent without any excuse except financial in- 
ability will bar the right, where a patent has 
in the meantime issued to another independent 
inventor, with the applicant's knowledge.— Spear 
v. Belson, Case No. 13,223. 

The inventor who first perfected the invention 
did not apply for a patent until 14 months later, 
and nearly a year after another had applied for 
a patent, and after a patent had been issued to 
him. Held, that he was not entitled to a patent 
where no excuse was given for his delay.— 
Walker v. Forbes, Case No. 17,069. 

A delay of four years before applying for a 
patent held not an abandonment, where the in- 
ventor was in straitened circumstances, and 
there was no acquiescence in the acts of inter- 
vening inventors. — Sprague v. Adriance, Case 
No. 13,248. 

Loss of means by one of two joints inventors, 
rendering him unable to prosecute his plans in 
respect to the invention, combined with the as- 
surance of his co-inventor that when the latter 
should move in the matter of procuring a patent 
the former should have an equal interest there- 
in, held to excuse laches.— Yearsley v. Brook- 
field, Case No. 18,131.- 

Poverty is not to be accepted as an excuse for 
delay when it appears that during the period of 
the delay the inventor was able to find money 
and friends to prosecute other applications for 
patents both in this country and England, and 
even to go to England himself to urge his 
claims.— Wickersham v. Singer, Case No. 17,- 
610. 

A delay for three years after an invention 
was perfected held not an abandonment where 
the inventor, during such delay, was in the em- 
ploy of a person who held a prior and control- 
ling patent, which prevented the use of his im- 
provement—White v. Allen, Case No. 17,535. 

An inventor is not prejudiced by a delay in 
applying for a patent, where he is diligently 
experimenting as to other forms of the same 
invention, and machinery to perfect it. — Mix v. 
Perkins, Case No. 9,677; Hill v. Dunklee, Id.- 
6,489; Jones v. Sewall, Id. 7,495. 

* Delay by an inventor residing in the Confed- 
erate States held not an abandonment, where 
the invention was so guarded that no knowledge 
of it came to the public.— Knox v. Loweree, 
Case No. 7*910. 

Eleven years' delay after making complete 
drawings before filing an application, where the 
invention had gone into use in the meantime 
under patent to a later discoverer, held an 
abandonment, where the only excuse was a mis- 
taken belief that the drawings had been burn- 
ed.— Ellithorp v. Robertson, Cases Nos. 4,409,. 
4,410. 

A delay of three years after showing forth a 
complete invention on paper held not to bar a 
patent, where no patent had been previously 
granted, and the case involved only conflicting- 
applications.— Perry v. Cornell, Case No. 11,002. 

A delay of not quite two years from the date 
of perfecting a design before applying for a pat- 
ent is not such laches as will defeat the in- 
ventor's right, when he has not used or sold 
the invention for profit, or secreted it. — Gibbs. 
v. Ellithorp, Case No. 5,383. 

The first inventor's delay to apply for a pat- 
ent for eight years after the second inventor- 
has secured one bars him from thereafter mak- 



1035 (§ 55; 



PATENTS, H. (P), HI. 
[Fed. Cas. Digrest.] 



(§ 58) 1636 



ing application. — Marcy v. Trotter, Case No. 
9,063. 

A disuse after the patent is granted is not an 
abandonment of the rights of the patentee. — 
Gray v. James, Case No. 5,718. 

Involuntary delays in prosecuting application 
will not work a forfeiture. — Adams v. Jones, 
Case No. 57; Dental Vulcanite Co. v. Wether- 
bee, Id. 3,810. 

An alien patentee need not take active meas- 
ures for putting his invention in the market 
within 18 months after the grant. It is suffi- 
cient if he is ready at all times to sell at a fair 
price when a reasonable offer is made. Act 
183G, § 15.— Tatham v. Le Roy, Case No. 13,- 
761; Same v. Lowber, Id. 13,764. 

An applicant cannot be prejudiced by failure 
of the officers of the patent office to give in- 
formation of his application to a person who 
makes inquiry there in regard to it. — Sparkman 
v. Higgins, Case No. 13,208. 

See, also, post, § 80. 

§ 56. Operation and effect. 

An abandonment or dedication once made can- 
not be recalled. — Ransoni v. New York, Case 
No. 11,573; Batten v. Taggert, Id. 1,107. 

The abandonment of a perfected invention 
after its merit has been demonstrated by trial 
will inure to the benefit of the public, and not 
to that of a subsequent inventor. — Pickering v. 
McCuIlough, Case No. 11,121; Sayles v. Chi- 
cago & N. W. R. Co., Id. 12,414; Shoup v. 
Henrici, Id. 12,814. 

If an inventor make a gift of his invention 
to the public, - and suffer it to go into general 
nse, he cannot afterwards resume the invention, 
and hold a patent.— Whittemore v. Cutter, Case 
No. 17,601. 

The abandonment of the right to a patent by 
the original inventor does not entitle another to 
a patent therefor. — Evans v. Eaton, Case No. 
4,559; Same v. Hettick, Id. 4,562. 

§ 57. Evidence of abandonment. 

The issue of letters patent is prima facie evi- 
dence that there has been no abandonment. — 
Johnsen v. Eassman, Case No. 7,365. 

A reissue is prima facie evidence that there 
has been no abandonment. — Hoffheins v. 
Brandt, Case No. 6,575. 

A presumption of abandonment will not ob- 
tain from the lapse of six years after putting 
down a pavement before applying for a patent, 
in the face of a manifest contrary intent. — 
American Nicholson Pavement Co. v. Elizabeth, 
Case No. 311. 

Experimental use of an invention made in 
public from necessity is not a public use, and is 
no evidence of abandonment. — Locomotive En- 
gine Safety Truck Co. v. Pennsylvania R. Co., 
Case No. 8,453. 

The imparting to others by the inventor of 
imperfect and crude descriptions, at a time 
when he did not have a complete conception of 
the invention, is no evidence of an intention to 
abandon. — Locomotive Engine Safety Truck Co. 
v. Pennsylvania B. Co., Case No. 8,453. 

Use of the invention without the inventor's 
consent during delays in the patent office is no 
evidence of abandonment. — Jones v. Sewall, 
Case No. 7,495. 

An admission as to time of discovery, made 
deliberately to intending purchaser, is admissi- 
ble against inventor to prove laches. — Berg v. 
Thistle, Case No. 1,337. 

On the question of abandonment the patentee 
is entitled to give evidence of the filing of his 
drawings, or of any other act done by him in 
assertion of his right. — Emerson v. Hogg, Case 
No. 4,440. 



Proof of knowledge of and acquiescence in the 
use by others, to show an abandonment, must 
be beyond all reasonable doubt. — Jones v. Sew- 
all, Case No. 7,495. 

Undisputed acts of abandonment are entitled 
to more weight than testimony of an intent not 
to abandon. — Bevin v. East Hampton Bell Co., 
Case No. 1,379. 

Facts field not to constitute a dedication of a 
patented product to a patented use. — Goodyear 
v. Blake, Case No. 5,560. 

Application is conclusive evidence of intent 
not to abandon invention. — Adams v. Jones, 
Case No. 57. 

Under the act of 1839 abandonment is proved 
only by public use for the required time.— An- 
drews v. Carman, Case No. 371; Same v. 
Wright, Id. 382. 

If the patentee, after obtaining his patent, 
dedicates or surrenders it to public use, or ac- 
quiesces for a long period in the public use 
thereof, without objection, he is not entitled to 
the aid of a court of equity to protect his pat- 
ent; and such acquiescence may amount to 
complete proof of a dedication or surrender 
thereof to the public— Wyeth v. Stone, Case 
No. 1S,107. 

During two years before application made, 
the inventor may publicly use and sell his in- 
vention without any presumption of abandon- 
ment. — McMillin v. Barclay, Case No. 8,902. 

The mere fact of making, selling, or putting 
in public use, within two years prior to applica- 
tion, does not show an abandonment. There 
must be something more, indicating an intention 
to devote the invention to the public. — McCor- 
mick v. Seymour, Case No. 8,726. 

HI. PERSONS ENTITIiED TO PAT- 
ENTS. 

§ 58. Original inventors and priority "be- 
tween inventors. 

The patentee must not only be an original in- 
ventor, but the first inventor. — Hayden v. Suf- 
folk Mfg. Co., Case No. 6,261; Lowell v. Lew- 
is, Id. 8,568; Heed v. Cutter, Id. 11,645; Roem- 
er v. Simon, Id. 11,997; Spain v. Gamble, Id. 
13,199. 

First inventor is the original discoverer first 
perfecting and adapting invention to actual 
use.— Albright v. Celluloid Harness-Trimming 
Co., Case No. 147; Cos v. Griggs, Id. 3,302. 

Suggestions made to a person who has con- 
ceived the idea of his invention, while he is in 
the process of developing it, will not affect his 
right to a patent — Spaulding v. Tucker, Case 
No. 13,220. 

Communications to the patentee by one who 
has a distinct conception of the invention, so as 
to enable the patentee to construct the thing 
itself, destroys its originality.— Alden v. Dewey, 
Case No. 153; Judson v. Moore, Id. 7,569; Pitts 
v. Hall, Id. 11,192; Thomas v. Weeks, Id. 
13,914. 

Suggestions made by a mechanic who con- 
structed the first machine, as to its forms or 
proportions, though incorporated in the specifi- 
cation of the patent, will not invalidate it. — 
Pennock v. Dialogue, Case No. 10,941; Wat- 
son v. Bladen, Id. 17,277. 

Where there was no product of the machine 
invented until after the maker had seen similar 
machines of another for the same purpose, he is 
not the prior inventor. — Carter v. Carter, Case 
No. 2,475. 

The first discoverer of a mode of combining 
elements and means previously known into one 
organized machine, to accomplish the end de- 
sired, is the original inventor of such machine. 
, — Sloat v. Spring, Case No. 12,948a. 



1637 (§ 58) 



PATENTS, in. 

[Fed. Cas, Dig: est.] 



(§ 59) 1638 



The person who first makes known the prin- 
ciple of the invention, so that another would be 
able, from his description, to put it in use, is 
the first inventor, though he did not put it into 
practical operation.— Hill v. Dunklee, Case No. 
6,489. 

An inventor who described his invention to a 
workman, so as to enable the latter to construct 
it, will be entitled to a patent, if due diligence 
is used, as against a subsequent inventor, who 
first perfected his machine and obtained a pat- 
ent— JDietz v. Wade, Case No. 3,903. 

The first inventor need not have constructed 
a practical machine, though a subsequent in- 
ventor has done so; nor must he have reduced 
the invention to practice, otherwise than by 
filing specifications and drawings and furnish- 
ing a model.— New England Screw Co. v. Sloan, 
Case No. 10,158; Perry v. Cornell, Id. 11,002. 

Where an invention is voluntarily broken up 
and laid aside, a subsequent independent in- 
ventor who reduces the same to practice, and 
applies for and takes out his patent, introduces 
the invention into public use, and must be re- 
garded as the original and first inventor. — White 
v. Allen, Case No. 17,535; Union Paper-Bag 
Mach. Co. v. Pultz & Walkley Co., Id. 14,392; 
Packard v. Gilbert, Id. 10,651. But, see Rich v. 
Xiippincott, Case No. 11,758. 

Priority of conception, followed by a prior 
patent, gives priority of right.— Sayles v. Hap- 
good, Case No. 12,420. 

The original inventor of a machine, who has 
reduced his invention to practice, is entitled to 
a priority of patent right, although subsequent- 
ly the same machine may have been invented 
by another person.— Woodcock v. Parker, Case 
No. 17,971; Nichols v. Pearce, Id. 10,246. 

One first conceiving an invention, and using 
reasonable diligence to perfect it, and doing so 
in fact, is entitled to a patent over a subse- 
quent original inventor who first reduces it to 
actual use. — Bartholomew v. Sawyer, Case No. 
1,070; Chandler v. Xadd, Id. 2,593; Davidson 
v. Lewis, Id. 3,606; Heath v. Hildreth, Id. 6,- 
309; Hicks v. Shaver, Id. 6,462; Marshall v. 
Mee, Id. 9,129; Mis v. Perkins, Id. 9,677; 
Phelps v. Brown, Id. 11,072; Reed v. Cutter, 
Id. 11,645; Reeves v. Keystone Bridge Co., Id. 
11,660; White v.' Allen, Id. 17,535; Stearns v. 
Davis, Id. 13,338. But see Goodyear v. Day, 
Case No. 5,569; Ransom v. New York, Id. 11,- 
573; Reed v. Cutter, Id. 11,645; Reeves v. 
Keystone Bridge Co., Id. 11,660; Smith v. Prior, 
Id. 13,095; Washburn v. Gould, Id. 17,214; 
Winans v. New York & H. R. Co., Id. 17,864. 

The person who has made a model of the in- 
vention before another inventor has made a 
model or drawing, though he has previously de- 
scribed it to others, first perfects the invention. 
—Walker v. Forbes, Case No. 17,069. 

But the mere making of a model by a person 
does not constitute invention, as against a pat- 
ent granted another for the same thing. — Stil- 
well & Bierce Mfg. Co. v. Cincinnati Gaslight 
& Coke Co., Case No. 13,453. 

The want of knowledge of the. utility of an 
invention by the first discoverer will not pre- 
vent his being entitled to a patent as against a 
subsequent inventor. — Farley v. National 
Steam-Gauge Co., Case No. 4,648. 

The fact that a subsequent equivalent inven- 
tion makes a more durable product will not af- 
fect the question of priority. — Mix v. Perkins, 
Case No. 9,677. 

One who made an invention in 1846 and filed 
his application in 1S51, and was attempting to 
perfect the machine in the meantime, Jield en- 
titled to a patent, as against another who in- 
vented the same thing in 1849 and applied for 
a patent in 1852.— New England Screw Co. v. 
Sloan, Case No. 10,15S. 



The fact that the patentee takes into part- 
nership the assignees of another, who also 
claims^ to be the original inventor, instead of 
litigating the question of priority, is not an ad- 
mission of priority, if the arrangement is in- 
duced by fraud.— Sloat v. Spring, Case No. 12,- 
948a. 

As between an inventor, unsuccessfully ex- 
perimenting with the invention, and one who, 
with knowledge thereof, perfects the process 
and operation, the former is the prior inventor. 
—Burrows v. Wetherill, Case No. 2,208. * 

If two persons are jointly experimenting and 
equally meritorious, a doubt should be solved in 
favor of him who first obtains a patent. — Cox t. 
Griggs, Case No. 3,302. 

The patentee cannot carry back his invention 
to a period before the attempted restoration of 
a machine which four years before he had 
taken apart as incomplete, where in the mean- 
time another has perfected and patented the 
same machine, and placed it on the market. — 
Johnson v. Root, Case No. 7,409. 

Priority of invention between two patents, up- 
on both of which the suit is brought, is not ma- 
terial, unless defendant shows that a third per- 
son claims to have made the invention between 
the date of the two patents.— Richardson v. 
Noyes, Case No. 11,792. 

See, also, ante, §§ 35-48. 

§ 59. Evidence as to originality and pri- 
ority. 

The patent is prima facie evidence that the 
patentee was the first inventor. — Brodie v. Ophir 
Silver Min. Co., Case No. 1,919; Brooks v. 
Jenkins, Id. 1,953; Doherty v. Haynes, Id. 3,- 
963; Fisk v. Church, Id. 4,826; Goodyear Den- 
tal Vulcanite Co. v. Gardiner, Id. 5,591; Hask- 
ell v. Shoe Machinery Mfg. Co., Id. 6,194; John- 
son v. Root, Id. 7,409, 7,410; Knight v. Balti- 
more & O. R. Co., Id. 7,882; McMillin v. Bar- 
clay, Id. 8,902; Parker v. Remhoff, Id. 10,747; 
Pitts v. Hall, Id. 11,192; Poppenhusen v. New 
York Gutta Percha Comb Co., Id. 11,283; Pot- 
ter v. Holland, Id. 11,330; Putnam v. Yerrinc:- 
ton, Id. 11,4S6; Rice v. Heald, Id. 11,752; 
Sands v. Wardwell, Id. 12,306; Serrell v. Col- 
lins, Id.' 12,672; Sloat v. Spring, Id. 12,948a; 
Smith v. Woodruff, Id. 13,128a; Washburn v. 
Gould, Id. 17,214. 

The presumption, arising from the letters pat- 
ent, that the patentee was the original and 
first inventor, in the absence of the application 
for the patent, extends back only to the date of 
the letters patent, tind in no case does it extend 
further back than to the time of the filing of 
the original application.— Wing v. Richardson, 
Case No. 17,869; Union Sugar Refinery v. 
Matthiesson, Id. 14,399. 

The testimony of a witness that he made and 
peddled the patented article six months before 
the date of plaintiff's application Held sufficient 
to overcome the prima facie evidence of the pat- 
ent that plaintiff was the first inventor.— Riley 
v. Daniels, Case No. 11,837. 

When a defendant has shown prior knowledge 
and use, the burden of showing prior invention 
is on the plaintiff.— Webster Loom Co. v. Hig- 
gins, Case No. 17,342. 

Where a foreign patent, granted before the 
application of the American patentee, is relied 
upon to destroy the novelty of the American 
patent, the patentee may prove that his inven- 
tion was made, prior to the granting of the for- 
eign patent.— White v. Allen, Case No. 17,535. 

The prima facie force of a patent as to prior- 
ity of invention is absolutely destroyed by evi- 
dence of priority of invention by another*. — Bar- 
stow v. Swan, Case No. 1,065. 

The extension of a patent resisted on the 
ground of want of novelty strengthens the pre- 



1639 (§ 59) 



PATENTS, HL, IT. 
[Fed. Cas. Digest.] 



(§ (36) 1640 



sumption that the patentee was the original in- 
ventor. — Cook v. Ernest, Case No. 3,155. 

Complainant is not required, in addition to 
his patent, to present, in the first instance, full 
evidence that he is the first inventor. Very 
slight evidence thereof is sufficient to put de- 
fendant on his justification. — Stevens v. Felt, 
Case No. 13,397. 

The applicant's oath, at *the time of the ap- 
plication, that he believed that he was the first 
inventor, is sufficient evidence of that fact, 
where uncontradicted. — Bartholomew v. Sawyer, 
Case No. 1,070. 

Sufficiency of evidence to show priority of in- 
vention. — Beach v. Tucker, Case No. 1,153. 

The declarations and conversations of a per- 
son made at the time of exhibiting and ex- 
plaining his invention are a part of the res ges- 
tae, and admissible to prove priority of inven- 
tion. — Gibbs v. Johnson, Case No. 5,384. 

§ 60. Joint inventors. 

One who reduces to practice theory of another 
hy his help is not the sole inventor. — Arnold v. 
Bishop, Case No. 552. 

To overthrow the presumption of joint in- 
vention raised by the filing of a joint applica- 
tion upon a joint oath, the evidence must be 
clear and unequivocal.— Gottfried v. Phillip Best 
Brewing Co., Case No. 5,633. 

Joint invention is the result of mutual contri- 
butions of the parties.— Gottfried v. Phillip Best 
Brewing Co., Case No. 5,633. 

A person employed to make experiments under 
a contract by which' the employer is to be 
treated as inventor, although conducting such 
experiments to a successful issue, Jield neither 
a sole nor a joint inventor. — Dental Vulcanite 
Co. v. Wetherbee, Case No. 3,810. 

Where the inventor of a machine and the in- 
ventor of an improvement agree to mutually 
use the same, the patent must issue in the 
name of both; and, where issued in the name 
of one only, there can be no recovery for in- 
fringement.— Reutgen v. Kanowrs, Case No. 11,- 
710. 

A joint patent may be issued to two persons, 
where each has invented a distinct improvement 
on the same machine, the object sought to be 
attained being a unit, and the legal effect there- 
of is to vest in each of them a joint interest in 
both improvements. — Wilson v. Singer, Case No. 
17,835. 

A patent issued to two for a thing which is 
the sole invention of one is invalid. — Hansom 
v. New York, Case No. 11,573. 

A joint patent cannot be obtained for a sole 
invention of one.— Barrett v. Hall, Case No. 
1,047. 

§ 61. Employers and workmen. 

Improvements introduced by workmen without 
patentee's knowledge cannot be appropriated by 
him.— Berdan Fire-Arms Mfg. Co. v. Reming- 
ton, Case No. 1,336. 

The employer is the inventor where he con- 
ceives the result, and employs others to carry 
the conception out, even though the latter use 
inventive skill in the details— Wellm an v. Blood, 
Case No. 17,385; Same v. Woodman, Id. 

An employer who conceives the general idea 
of a machine, but uses the manual dexterity 
or even the inventive skill of his servant in 
carrying out the mechanical details, is entitled 
to a patent, as against the servant.— King v. 
Gedney, Case No. 7,795. 

§ 62. Fnolie officers and employes. 

The commissioner of patents is not disquali- 
fied from obtaining a patent after expiration of 
his term of office, for an invention made during 
such term.— Poote v. Frost, Case No. 4,910. 



§ 63. Assignees o£ inventors. 

A patent taken out by assignees of an alien 
and nonresident inventor is invalid. — Tatham v. 
Loring, Case No. 13,763. 

§ 64. Personal representatives of deceas- 
ed inventors. 

On the death of the inventor, the patent may 
be issued to his executor as such, though it is 
not stated to be in trust for the devisees in the 
will. Act July 4, 1836, § 10.— Stimpson v. 
Rogers, Case No. 13,457. 

§65. Aliens. 

A naturalized subject of Great Britain, who 
subsequently takes up his residence in Canada, 
is entitled to take out letters patent there. — 
Stainthorp v. Humiston, Case No. 13,2S1. 

The oath of citizenship and other duties re- 
quired by Act July 4, 1836, § 6, are conditions, 
precedent to the authority to issue a patent.-— 
Child v. Adams, Case No. 2,673. 

A foreign patentee may at any time during 
the life of the foreign patent obtain a patent 
in this country, provided the invention shall not 
have been introduced into public use in this- 
country for more than two years prior to the 
application. Act 1870.— Henry v. Providence- 
Tool Co., Case No. 6,384. 

IV. APPLICATION AND PROCEED- 
INGS THEREON. 

§ 66. Description and specifications — 
Sufficiency in general. 

See, also, post, § 92. 

The thing invented must be so described as. 
to be distinguished and known. — Brooks v. Jen- 
kins, Case No. 1,953. 

The patent is invalid where the invention is. 
not described with reasonable certainty and pre- 
cision.— Parker v. Stiles, Case No. 10,749. 

Technical defect in description will not defeat 
patent. — Adams v. Joliet Mfg. Co., Case No. 56. 

The title or description given to the invention 
in the patent is not expected to be specific, but 
only to indicate the nature and design of the- 
invention. — Sickles v. Gloucester Mfg. Co., Case- 
No. 12,841. 

A mere error of judgment in describing the in- 
vention is not sufficient to invalidate the patent.. 
Whitney v. Carter, Case No. 17,5S3. 

Mistake in expression shown to be such by 
other parts of the specification will not vitiate 
a patent. — Kneass v. Schuylkill Bank, Case 
No. 7,875. 

A specification, alleged to be defective in not 
pointing out the means of operation, must he 
read in view of the preceding state of the art 
immediately connected with the particular sub- 
ject-matter.— Tompkins v. Gage, Case No. 14,- 
OSS. 

Failure of a patentee to mention in his speci- 
fication an indispensable addition renders his 
title bad.— Carr v. Bice, Case No. 2,440. 

Incompleteness of prior application is no evi- 
dence of a change in patentable features, where- 
it appears that the machines are identical. — Ex 
parte Hayden, Case No. 6,256. 

The concluding part of the application where 
the applicant sums up what he claims as new 
will control. The court looks at the other parts 
only in case of doubt — Whipple v. Baldwin 
Mfg. Co., Case No. 17,514. 

If the description clearly indicates the meth- 
od of the use of the thing claimed, and its re- 
lations to the other mechanical elements op- 
erating with it, a claim for a combination of" 
part of them is good, although it may not em- 
brace some that are essential to the operative 
efficiency of the combination. — Parham v. Amer- 



i<m (§ 66) 



PATENTS, IY. 
[Fed. Gas. Digest.] 



(§ 67) 1642 



ican Buttonhole, Overseaming & Sewing Mach. 
Co., Case No. 10,713. 

A patent is not invalidated by the fact that 
the invention claimed in it is described, but not 
claimed, in another patent granted pending the 
application. — Singer v. Braunsdorf, Case No. 12,- 
897. 

Where the specification of a patent for a prod- 
uct fully describes the machine, and the process 
by which the product is produced, such patent 
may be good, even though the same specifica- 
tion, annexed to a patent for the machine, may 
not fully secure the patentee against the use 
of his actual invention because of a defect in 
the claim of the latter patent — Waterbury Brass 
Co. v. Miller, Case No. 17,254. 

The invention should be so clearly described 
as to enable the public to put it in use. — Sullivan 
v. Redfield, Case No. 13,597. 

Certainty and definiteness in the description 
is required that the public may know precisely 
what the invention is, and, after the expiration 
of the patent, may have an unerring guide to the 
construction of the patented invention. — Wayne 
v. Holmes, Case No. 17,303. 

The specification's will be held sufficiently defi- 
nite if, Tvhen taken in connection with the model 
and drawings filed, the invention has been com : 
municated to the public, so that a skillful work- 
man would be able to carry it into execution.— 
Allen v. Hunter, Case No. 225; American Hide 
& Leather Splitting & Dressing jtfach. Co. v. 
American Tool & Machine Co., Id. 302; Brooks 
v. Bicknell, Id. 1,944; Calkins v. Bertrand, Id. 
2,317; Dorsey Harvester Revolving-Rake Co. 
v. Marsh, Id. 4,014; Forbes v. Barstow Stove 
Co., Id. 4,923; Judson v. Moore, Id. 7,569; St. 
Louis Stamping Co. v. Quinby, Id. 12,240; Teese 
v. Phelps, Id. 13,819; Stephens v. Salisbury, 
Id. 13.369; Vogler v. Semple, Id. 10,987; In 
re Walsh, Id. 17,112. 

If competent mechanics, skilled in the business, 
testify there would be no difficulty in construct- 
ing the machine from the specifications and 
drawing, the assumption of vagueness and un- 
certainty in the description is repelled unless 
it clearly arises from the language used by the 
patentee.— Wayne v. Holmes, Case No. 17,303. 

A description so clear and full as to enable 
one skilled in the art to construct the machine 
is required — First, that the public may avail 
themselves of it at the expiration of the patent; 
and, second, that they may not ignorantly in- 
fringe it. — Mabie v. Haskell, Case No. 8,653. 

It is not enough that some very skillful artisan 
is able, from the specifications and drawings, to 
make and use the machine; they must be such 
as to enable persons of ordinary skill in the 
art to make and use the machine. — Lippincott v. 
Kellv. Case No. 8,381; Stanley v. Whipple, Id. 
13,286. 

If the patented machine can be made from the 
specifications and drawings without the model, 
the patent is not defective.— Grant & Townsend 
v. , Case No. 5,701. 

Mistake in describing the action of some part 
will not invalidate the patent if, from the whole 
specifications and drawings, one skilled in the 
art could still construct the machine. — Singer 
v. Walmsley, Case No. 12,900. 

A claim is properly rejected when it does not 
set forth particularly and specifically the points 
of novelty relied on to distinguish the machine 
from prior ones.— In re Davis, Case No. 3,617. 

The applicant need not point out all possible 
contrivances by which the principle of his in* 
vention can be applied. — Blanchard v. Eldridge, 
Case No. 1,509. 

The specification must fully disclose the se- 
cret, and give the best method known to the in- 
ventor.— Page v* Ferry, Case No. 10,662. 



4 The mechanical parts, principles, or combina- 
tions not claimed as new, but mentioned in the 
specification, are admitted to be old and need 
not be so stated or particularly described. — Win* 
ans v. New York & E. R. Co., Case No. 17,S63. 

A claim for an effect or function, in the ab- 
stract, cannot be sustained. The means by 
which the effect is produced, or the function 
performed, must be specified. — Wheeler v. Simp- 
son, Case No. 17,500; Hoe v. Same, Id. 

It need not be stated whether certain parts 
of the machine should be made of wood or 
metal.— Brooks v. Bicknell, Case No. 1,944. 

The essential features of the invention must 
be shown in the specification; their appearance 
in the patent office model is not sufficient.— 
JBarry v. Gugenheim, Case No. 1,061. 

An inventor is bound to describe, in his speci- 
fication, in what his invention consists, and 
what his particular claim is. But he is not 
bound to any precise form of words, provided 
their import can be clearly ascertained by fair 
interpretation, even though the expressions may 
be inaccurate.— Wyeth v. Stone, Case No. 18,- 
107. 

The specifications need not describe what is 
In common use and well known. — Kneass v. 
Schuylkill Bank, Case No. 7,875; Gibbs v. 
Ellithorp, Id. 5.383. 

Sufficiency of specification. Act 1836, c. 357,' 
§ 2.— Burrows v. Wetherill, Case No. 2,208. 

It is discretionary with patent office to de- 
termine whether specimens of the ingredients 
or of the compound in a patent product are 
necessary.— Badische Anilin & Soda Fabrik v. 
Cochrane, Case No. 719. 

Ambiguity and uncertainty, requiring conjec- 
ture to make out the true meaning of a claim, 
will invalidate the patent, regardless of the 
question of good faith, and irrespective of in- 
dividual merit.— Blake v. Stafford, Case No. 
1,504. 

Defects in the specifications, in order to ren- 
der the patent void, must be the result of fraud- 
ulent or intentional concealment by the pat- 
entee. — Grant & Townsend v. , Case 

No. 5,701; Gray v. James, Id. 5,718; Lowell 
v. Lewis, Id. 8,568; Whitney v. Carter, Id. 
17,583; Whittemore v. Cutter, Id. 17,600; Park 
v. Little, Id. 10,715. 

§ 67. — -^ Improvements, 

The specification, on a patent for an improve- 
ment, must state in what the improvement con- 
sists.— Barrett v. Hall, Case No. 1,047; Dixon 
v. Moyer, Id. 3,931; Evans v. Eaton, Id. 4,560; 
Evans v. BCettick, Id. 4,562; Peterson v. Wood- 
en, Id. 11,038. 

Such specification must distinguish the new 
from the old.— Blake v, Sperry, Case No. 1,503; 
Brooks v. Jenkins, Id. 1,953; Brown v. Selbv, 
Id. 2,030; Hovey v. Stevens, Id. 6,746; Lowell 
v. Lewis, Id. 8,568. 

A patent for an improvement without speci- 
fying the original invention, or referring to any- 
thing for information, is fatally defective. — 
Isaacs v. Cooper, Case No. 7,096. 

The specifications need not give a particular 
description of the machine improved.— Brooks 
v. Bicknell, Case No. 1,944; Davis v. Palmer, 
Id. 3,645; Valentine v. Marshal, Id. 16,812a. 
CONTRA, see Sullivan v. Redfield, Case No. 
13,597. 

When necessary to make the description of 
an improvement to a machine understood by a 
person in the trade to which it belongs, the 
whole machine must be described. — Wintermute 
v. Redington r Case No. 17,896. 

The old machinery with which an invention 
is to be connected need not be described or 
delineated in either the specification or the 



164a (§ 67) 



PATENTS, IY. 
[Fed. Cas. Digrest.J 



(g 72) 1644 



drawing, where the patent describes how the 
invention is to be applied. — Emerson v. Hogg, 
Case No. 4,440. 

Where the specification in a patent for "a 
new and useful improvement in the steam tow- 
boat" did not mention the invention as an im- 
provement, but simply described a towboat, 
held, that the patent was void. — Sullivan v. 
Redfield, Case No. 13,597. 

In the case of an improvement, the proofs or 
instrumentality by which the result is attained 
need not be given in the summary. — Valentine 
v. Marshal, Case No. 16,812a. 

The inventor may show the successful opera- 
tion of his invention by another, though the 
improvement described in the specification will 
not produce the result. — Burrows v. Wetherill, 
Case No. 2,208. 

§ 68. Drawings, specimens, and models. s 

Tne patentee may put on file, with his speci- 
fications, drawings and written references, 
without their being mentioned in the specifica- 
tions; and, if the references are written on the 
drawings, the statute is complied with. Act 
Feb. 21, 1793.— Emerson v. Hogg, Case No. 
4,440. 

The mere deposit of a model in the patent 
office, will not warrant an inference that the 
model was accompanied by an application for 
a patent. — Draper v. Wattles, Case No. 4,073. 

The duplicate drawings, required by Act 1837, 
§ 6, are unnecessary until the patent issues, 
and need not accompany the application. — 
French v. Rogers, Case No. 5,103. 

The court cannot consider loose drawings sent 
up with the papers, which are not signed by 
the inventor, and attested by two witnesses. — 
In re Henry, Case No. 6,371. 

Illustrative drawings of conceived ideas, not 
followed up by a seasonable observance of the 
requirements of the patent laws, can have no 
effect upon a subsequently granted patent to 
another.— Reeves v. Keystone Bridge Co., Case 
No. 11,660. 

A failure to deposit in the patent office a 
sample of one of the ingredients of a compo- 
sition of matter does not invalidate a patent 
for such composition, when the specification 
describes all the ingredients. — Tarr v. Folsom, 
Case No. 13,756. 

§ 69. Claims. 

A claim cannot be made in the alternative. 
—Brown v. Whittemore, Case No. 2,033; Burr 
v. Smith, Id. 2,196. 

See, also, post, §§ 126-137. 

§ 70. Attestation and oath.. 

The jurat to an application for a patent need 
not be dated. — French v. Rogers, Case No. 
5,103. 

The oath of the patentee is not confined to 
the specific claim, but applies to the whole 
specification. — King v. Gedney, Case No. 7,795. 

If the oath required by the patent act, pre- 
vious to the issuing of a patent, be not taken, 
still the patent is valid. — Whittemore v. Cutter, 
Case No. 17,600; Crompton v. Belknap Mills, 
Id. 18,285. 

The fact that a blank form of oath not exe- 
cuted is found among the papers cannot over- 
come the direct recital of the letters patent 
that the oath w T as taken, or the presumption 
that the requirements of the law were complied 
with in issuing the patent. — Crompton v. Bel- 
knap Mills, Case No. 18,285. 

§71. Fees. 

The failure to pay the fee will not render the 
patent void. — Crompton v. Belknap Mills, Case 
No. 18.285. 



§ 72. Examination and proceedings in 
patent office in general. 

Application will be refused where applicant 
is one of three joint inventors. — Arnold v. Bish- 
op, Case No. 553. 

The chief clerk is the acting commissioner 
as well in the necessary absence of the head 
of the office as in case of a vacancy de jure. — 
Woodworth v. Hall, Case No. 18,017; Same v. 
Stone, Id. 

The commissioner obtains jurisdiction by the 
filing of the petition, and it is his duty to cause 
a proper notice to be published. — Gear v. Gros- 
venor, Case No. 5,291. 

The commissioner cannot delegate duty of 
examining new invention. Act July 4, 1836, 
§ 7— In re Aiken, Case No. 107. 

The commissioner, on the application, may 
consider the degree of usefulness. Act 1836. 
§ 7.— In re Cushman, Case No. 3,513. 

The question of usefulness of electrical ap- 
pliances, in the absence of experiments, held 
should be determined by the application of 
received and approved scientific principles. — In 
re Cushman, Case No. 3,513. 

Upon the application for a patent, the testi- 
mony of practical men as to the utility of the 
invention is entitled to consideration. — Hayden 
v. James, Case No. 6,260. 

The extent of the examination under oathof 
the commissioner and examiners in explanation 
of the principles of a machine or other thing 
for which a patent is prayed for, under Act 
March 3, 1839, § 11.— Richardson v. Hicks, 
Case No. 11,783. 

A commissioner has full authority to exam- 
ine and adjudicate on the question of aban- 
donment, and to compel the attendance of wit- 
nesses for that purpose. Act March 3, 1839. — 
Hunt v. Howe, Case No. 6,891; Wickersham 
v. Singer, Id. 17,610. 

The determination of the patent office as to 
whether two things are equivalents cannot be 
limited or restrained by the admissions or de- 
nials of the parties. — Hutchinson v. Meyer, 
Case No. 6,957. 

Affidavits included among the papers sent up 
from the office, but which were not taken by 
authority of the commissioner or acted upon 
by him in forming his decision, cannot be con- 
sidered.— In re Jackson, Case No. 7,126. 

The burden of proof is on the applicant to 
show that a change in form produces a better 
result. The question cannot be decided by a 
mere a priori argument. — In re Jackson, Case 
No. 7.126. 

Letters and memoranda of a witness ex- 
perimenting for the inventor, describing ap- 
pliances and results, are only admissible for the 
purpose of refreshing his recollection. — Jones v. 
Wetherill, Case No. 7,508. 

The commissioner must decide whether the 
invention is the proper subject of a patent, and 
refuse the patent when he holds against such 
contention. — In re Kemper, Case No. 7,6S7. 

The commissioner cannot require evidence 
that the combination will produce the result 
claimed, where the application conforms to the 
requirements of the office, and the invention 
does not fall within any of the conditions men- 
tioned in the law as a sufficient ground for 
rejection.— In re Seely, Case No. 12,632. 

The granting or refusal of an extension of 
time for the hearing upon an affidavit of one 
of the parties stating the grounds therefor is 
a matter within the discretion of the com- 
missioner, and from which no appeal lies, un- 
less in cases of gross abuse, which is not to be 
presumed.— Wellman v. Blood, Case No. 17,- 



1645 (§ 72) 



PATENTS, IV. 
[Fed. Cas. Digest.] 



(§ 75) 1646 



385; Same v. Woodman, Id.; O'Reilly v. 
Smith, Id. 10,566. 

An agreement that all testimony taken be- 
fore certain commissioners before a given date 
"shall be heard and considered by the commis- 
sioner of patents, whether the same be filed" 
before a certain date or not, operates as ^ a 
waiver of objections to the competency of wit- 
nesses.— Warner v. Goodyear, Case No. 17,183. 

Upon the application, the commissioner should 
decide, not only questions of law, but also of 
fact, including abandonment or neglect. — Mar- 
cy v. Trotter, Case No. 9,063. 

When all the conditions exist as prescribed 
by Act 1836, § 6, the commissioner is bound 
prima facie to issue a patent. But it is his 
duty to decide whether the invention is new, 
and the proper subject of a patent.— In re Wag- 
ner, Case No. 17,038. 

The commissioner has authority to examine 
and decide the question of prior public use or 
♦ sale. Act 1836, § 6.— Howry v. Barber, Case 
No. 9i892. 

The rule requiring a commissioner of patents 
to set forth the grounds of his decision fully 
in writing must be strictly followed.— Chandler 
v. Ladd, Case No. 2,593. 

The rule that, where the question is at all 
doubtful, the patent should be granted, is super- 
seded by Act 1839, giving a right of appeal.— 
In re Kemper, Case No. 7,687. 

On the withdrawal of the application and re- 
ceiving back the $20, the commissioner's decision 
becomes final.— Ex parte O'Hara, Case No. 10,- 
464. 
See, also, ante, § 55; post, § 74. 

§ 73. Caveats. 

A caveat is intended to give notice of an in- 
vention and prevent a patent to another. — Allen 
v. Hunter, Case No. 225. 

Inadvertence in granting a patent while a ca- 
veat is pending does not authorize the granting 
of a patent to the other party unless he shows 
priority of invention.— Cochrane v. Waterman, 
Case No. 2,929. - 

A caveat will not protect inventor who allows 
his invention to go into public use before appli- 
cation filed.— Bell v. Daniels, Case No. 1,247. 

The omission to file a caveat while maturing 
an invention does not impair the rights of the 
inventor.— Heath v. Hildreth, Case No. 6,309. 

An inventor cannot, by virtue of a caveat, car- 
ry back his invention beyond the date of his ap- 
plication, where he did nothing within the year 
-after the caveat was filed to mature and perfect 
what he described therein. — Johnson v. Root, 
Case No. 7,410. 

A caveat is not conclusive evidence that the in- 
vention is part perfected.— Johnson v. Root, Case 
No. 7,411. 

A caveat will not protect an unperfected inven- 
tion which the inventor did not use due dili- 
gence to perfect.— Johnson v. Root, Case No. 
7,411. 

A person who has filed a caveat cannot be 
prejudiced by the omission of the commissioner 
to give him notice of the application for a pat- 
ent by a person who had filed a prior caveat. — 
Phelps v. Brown, Case No. 11,072. 

Where a caveat is nrecise and definite in every 
detail, and the application does not vary there- 
from, the patentee cannot claim that the caveat 
protected anything more. — Ex parte Woodruff 
and Cobb, Case No. 17,9S9. 

A caveat will protect only one of several dis- 
tinct patentable subjects falling within its gen- 
eral scope, though, in connection with other cir- 
cumstances, it may furnish strong proof of his 
claim to priority in another invention in the same 



line.— Ex parte Woodruff and Cobb, Case No. 
17,989. 

A paper adjudged by a commission appointed 
by the commissioner of patents to be fraudulent, 
and to have been surreptitiously introduced into 
the file of a caveat, held to form no part thereof. 
—Robertson v. Secombe Mfg. Co., Case No. 11,- 
928. 

§ 74. Interferences,— What constitutes, 
and declaration thereof. 

On interference, the application should be dis- 
missed where it appears that the claim has no 
patentable novelty, irrespective of the question 
of* priority of invention.— Collins v. White, Case 
No. 3,019. 

An interference is properly declared where the 
object of both parties is to guard against dan- 
ger from the use of camphene in common glass 
lamps by placing a metallic lining in the bowl. 
—Nichols v. Harris, Case No. 10,244. 

Two patents interfere, within the meaning of 
Act 1836, § 16, only when they claim, in whole 
or in part, the same invention.— Gold & Silver 
Ore Separating Co. v. United States Disintegrat- 
ing Ore Co., Case No. 5,508. 

In the case of two inventions consisting in 
placing flanges on the periphery of propeller 
blades to prevent the formation of lateral waves, 
one to be used on canals and the other for gen- 
eral navisation, held* that there was no inter- 
ference. — Tyson v. Rankin, Case No. 14,320. 

The power of the commissioner is not limited 
to a single interference, and a second may be 
declared after the court on appeal has decided 
in favor of an applicant, and ordered that a pat- 
ent issue to him.— Potter v. Dixon, Case No. 11,- 
325. 

The commissioner, after deciding an interfer- 
ence, may, for cause shown, allow one party to 
withdraw and refile his apnlication, and may 
then declare an interference anew. — Matthews v. 
Wade, Case No. 9,292. 

The failure of the patent office to declare an 
interference when a patentee is seeking a reissue, 
pending an application by another, is not a 
decision that the claims are for different inven- 
tions. — Hicks v. Shaver. Case. No. 6.462. 

§75. Proof. 

Rules of the patent office made in pursuance 
of Act March 3, 1839, § 12, in relation to taking 
testimony in contested cases, are binding upon 
both the parties and the commissioner. — O'Hara 
v. Hawes, Case No. 10,466. 

Failure of officer to certify to sealing of depo- 
sition in an interference case is ground of ex- 
clusion. — Arnold v. Bishop, Case No. 552. 

Depositions taken without notice to one of the 
parties, who has not waived his right thereto, 
cannot be used against him. A notice to pro- 
duce the depositions for inspection and examina- 
tion is not a waiver of such right.— Perry v. Cor- 
nell, Case No. 11,001. 

Failure to give notice of taking of depositions 
in interference proceedings is waived by appear- 
ance.— Gibbs v. Ellithorp, Case No. 5,383. 

A party to an interference may, from necessity, 
be allowed by his own oath to prove the loss out 
of his own custody of a paper as a foundation 
for proving by other testimony the contents 
thereof.— Yearsley v. Brookfield, Case No. 18,- 
.131. 

One who was present at the examination of 
witnesses by consent cannot complain that he 
was not notified of such examination. — Walker 
v. Forbes, Case No. 17,069. 

The deposition of one not a party to the in- 
terference, tending to show that he was a joint 
inventor with one of two parties who are claim- 
ing as joint inventors, and that the other had 
no part in it, though not admissible to establish 



1647 (§ 76) PATENTS, IV. 

[Fed. Cas. Digest.] 

the opponent's claim, may yet be considered as 
affecting the rights of the joint applicants.— 
Yearsley v. Brookfield, Case No. 18,131. 

Neither the inventor nor a person interested 
in a patent if issued are competent in an inter- 
ference case.— Appleton v. Chambers, Case No. 
497a. 

A party who, pending an interference proceed- 
ing, assigns all his interest in the subject-matter, 
and remains merely a nominal party, is never- 
theless incompetent to testify therein. — Yearsley 
v. Brookfield, Case No. 18,131, 

In the case of a joint invention, the deposition 
of one of the inventors alone may be received to 
show the loss of a drawing which he had made. 
—Yearsley v. Brookfield, Case No. 18,131. 

The assignor of the patent is not competent to 
prove priority upon an interference declared. — 
Barstow v. Swan, Case No. 1,065. 



The issuance of the patent establishes prima 
facie in an interference case the patentee's title 
as an original inventor. — Spear v. Belson, Case 
No. 13.223. 

In the case of interfering patents the patentee 
under the earlier patent is entitled to the pre- 
sumption of priority and novelty. — Pelton v. 
Waters, Case No. 10,913. 

Prior invention defeats the application for a 
patent, and may be shown on interference, 
though the prior inventor failed to avail himself 
of his invention in a patent subsequently pro- 
cured by him.— Burlew v. O'Neil, Case No. 2,167. 

"Where an interference has been declared be- 
tween an invention claimed and a patent grant- 
ed, and the patentee fails to appear, it is error 
to refuse to grant the patent applied for because 
of failure to furnish unequivocal proof of the 
priority of the invention, where the applicant fur- 
nishes the best proof under the circumstances, his 
principal witness having died pending the hearing. 
' — Chandler v. Ladd, Case No. 2,593. 

On an interference the fact of priority is alone 
important; the length of time of such priority, 
whether a day, month, or year, is immaterial. — 
Karnes v. Richards, Case No. 4,240. 

In an interference proceeding, a caveat filed by 
one of the parties is admissible in evidence, as 
part of the res gestae, so far as it described the 
machinery then constructed. — Jones v. Wetherill, 
Case No. 7,50$. 

Declarations of a party to an interference at 
any time before the contest arose, describing his 
invention, are admissible from necessity, and as 
part of the res gestae, for the purpose of showing 
what he had invented at the date of such decla- 
rations. — Yearsley v. Brookfield, Case No. 18,131. 

On deciding an interference between an appli- 
cation and a patent, the nature and extent of 
the patentee's invention is not necessarily to be 
ascertained from his specification and claim alone, 
but parol evidence is admissible. — Stephenson v. 
Hoyt, Case No. 13,373. 

The fact that the first inventor of a new and 
useful improvement has not in its specifications 
described the same with the clearness and par- 
ticularity required by the statute as a condi- 
tion of obtaining a patent will not aid a subse- 
quent inventor upon an interference between 
them.— Yearsley v. Brookfield, Case No. 18,131. 

Where evidence as to priority of issuance is 
conflicting, its weight must govern. — Clarke v. 
Cramer, Case No. 2,848. 

On a second interference, granted for cause 
shown, testimony taken on the former inter- 
ference is admissible, although a new party has 
been introduced, by way of assignment. — Eames 
v. Richards, Case No. 4,240. 

Conversations and declarations of a party in 
the statement of an invention will be deemed 
an assertion of his right at that time, as an in- 



(§ 78) 1648 



ventor, to the extent only of the facts and de- 
tails which he then makes known. — Garratt v. 
Davidson, Case No. 5,247. 



Failure to produce, as witnesses, workmen in 
the inventor's shop, at a time (previous to his 
application) when, it is claimed, a machine em- 
bodying the invention was put in actual use, 
raises no unfavorable presumption, as publicity 
might take away his right. — New England Screw- 
Co. v. Sloan, Case No. 10,158. 

Competent testimony as to priority, not con- 
tradicted or assailed for bias or prejudice, must 
be accepted as true.— Collins v. White, Case No. 
3,019. 

§ 76. Hearing and determination. 

Where both parties to an interference are mere 
applicants, lapse of time is immaterial, except oa 
the question of abandonment of the invention. — 
Stephens v. Salisbury, Case No. 13,369. 

The question of fraud arising on interference 
must be tried by a jury.— Burlew v. O'Neil, Case 
No. 2,167. 

The respective merits of the machines will not 
be considered on a claim of the first invention 
on a hearing of an interference between two 
parties.— Spain v. Gamble, Case No. 13,199. 

The rule requiring a party to examine all his 
witnesses in chief before closing his opening ex- 
amination does not apply in an interference case. 
—Spear v. Abbott, Case No. 13,222. 

The rule providing that in contested cases no 
evidence shall be considered at the hearing which 
was not taken and filed in compliance with the 
rules does not prevent the commissioner from 
examining an informal deposition, to ascertain 
the character of the evidence; and, if he deems 
that the ends of justice require it, he can post- 
pone the hearing until the informalities are cor- 
rected.— Smith v. Fliekenger, Case No. 13,047. 

An affidavit in support of a motion for an ex- 
tension of time for the hearing, on the ground 
of inability to procure the attendance of witness- 
es, is entirely insufficient when it does not state 
the names, competency, or materiality of the wit- 
nesses.— O'Reilly v. Smith, Case No. 10,566. 

Where a new party comes in on rehearing, he 
comes in subject to the testimony as to priority 
of invention previously taken.— Carter v. Carter, 
Case No. 2,475. 

In a suit under Rev. St. § 4918, concerning in- 
terfering patents, the court may declare either 
one or both of the patents void on any ground 
which, in a suit for infringement, would invali- 
date it.— Foster y. Lindsay, Cases Nos. 4,975, 
4,976. 

§ 77. Withdrawal or abandonment of ap- 
plication. 

The receipt of the amount paid as a fee after 
the rejection of the application held not to oper- 
ate as a withdrawal of the application.— Col- 
gate v. Western Union Tel. Co., Case No. 2,995. 

The withdrawal of an application and the re- 
turn of the fee is not of itself an abandonment 
of the invention to the public. — Wickersham v. 
Singer, Case No. 17,610. 

A withdrawal of the application under a mis- 
take caused by an error of the patent office is no 
abandonment, though the applicant suffer his in- 
vention to go into public use. — Hayden v. James, 
Case No. 6,260. 

§ 78. Rejection of application* 

The action of the office in twice returning the 
specifications and drawings to the applicant be- 
cause they did not conform to fie regulations of 
the office is not to be construed as a rejection 
of the claims, and does not relieve the inventor 
of the duty of prosecuting his application with 
due diligence.— Wickersham y. Singer, Case No. 
17,610. 



1649 (§ 79) 



PATENTS, IV. 
[Fed. Cas. Digest.] 



(§ 80) 1650 



•§ 79. Amendment of application. 

A delay of three years in making an amend- 
ment is no ground of rejection of the amended 
.specification, where the patent office had acted 
upon the merits of the case.— Ex parte Hayden, 
Case No. 6,256. 

Where a combination is claimed, the patentee 
■cannot abandon part of said combination and 
maintain a claim to the residue, nor prove any 
part thereof immaterial or useless without de- 
stroying the whole.— Westlake v. Cartter, Case 
No. 17,451. 

The description and claims of an application 
.are open to amendment, and the addition of new 
matter shown in the drawings and model, until 
the case is finally disposed of by the patent 
-office.— Singer v. Braunsdorf, Case No. 12,89 1. 

The inventor delayed 12 years after the final 
rejection of his application on appeal to the 
•commissioner before amending his specification. 
Held no abandonment— McMillin v. Barclay, 
Case No. 8,902. 

Delay of 10 years to amend an application or 
reverse the decision of the patent office is not 
^excused bv the fact that the rejection of the 
.application was wrongful.— Bevin v. East Hamp- 
ton Bell Co., Case No. 1,379. 

Where the claim becomes too broad through 
41 rejection of part it should be amended before 
■appeal.— Arnold v. Pettee, Case No. 561b. 

A claim for an invention too broadly specified 
may be amended to conform to the opinions of 
the patent office, and the court on appeal, as to 
what is patentable.— Collins v. White, Case No. 
3,019. 

A patent with corrected specifications relates 
back to the issue of the first patent— Stanley v. 
Whipple, Case No. 13,286. 

■§ 80. Renewal of application. 

One who has withdrawn a rejected applica- 
tion may renew it in a reasonable time on re- 
turning the fee.— Ex parte Simpson, Case No. 
12,S78. 

An. application withdrawn and instantly re- 
filed in the same words is a continuing applica- 
tion, and not affected by the issuance of a for- 
eign patent within six months before such re- 
filing.— Matthews v. Wade, Case No. 9,292. 

The reasonable time within which a rejected 
Application may be renewed is to be computed 
from the date of the withdrawal of the applica- 
tion, and not from the date of perfecting the in- 
vention. Under Act March 3, 1839, § 7, the 
renewal must not be delayed more than two 
years.— Ex parte Simpson, Case No. 12,878. 

The proviso in Act 1870, § 35, providing for 
renewal of rejected applications, does not re- 
store a right once lost by laches.— Marsh v. 
Sayles, Case No. 9,119. 

The withdrawal of an application, and receiv- 
ing back the $20 fee, is an abandonment of the 
-claim; and a new application will not relate 
back, so as to avoid the effect of a prior public 
use _i£owry v. Barber, Case No. 9,892. 

Delay of 18 years in renewing a rejected ap- 
plication is an abandonment where another has 
in the meantime secured a patent for the same 
thing.— Marsh v. Sayles, Case No. 9,119. 

Invention held not abandoned by eight years' 
■delay in making a new application after an im- 
proper rejection, where the patentee pressed his 
claim in the meantime as his means afforded.— 
Goodyear Dental Vulcanite Co. v. Root, Case 
No. 5,597: Same v. Smith, Id. 5,598; Same v. 
Willis, Id. 5,603. 

A delay of 12 years after withdrawal of ap- 
plication, in the absence of good excuse, held 
an abandonment— Ex parte Dedericks, Case No. 
3,734. 



•Eight years' delay to file a new application 
after the original application was withdrawn, 
and the balance of the fee refunded, held an 
abandonment.— United States Rifle, etc., Co. v. 
Whitney Arms Co., Case No. 16,793. 

Failure to prosecute an application for two 
years and eight months after it had been re- 
jected is not an abandonment of the applica- 
tion.— Clark v. Scott, Case No. 2,833. 

Twenty years between the date of the original 
application and the final grant of the patent, 
where the application was rejected and repeat- 
edly renewed, will not invalidate the patent- 
Howard v. Christy, Case No. 6,754. 

A patentee experimented for 11 years after 
discovering the process, and then applied for and 
was refused a patent, and did nothing further 
for nine years, when he made a second appli- 
cation. Held no abandonment— Jones v. Sew- 
all, Case No. 7,495. 

A delay of less than a year in filing a new 
application after final rejection upon appeal 
held not unreasonable.— Blandy v. Griffith, Case 
No. 1,529. 

Two years' delay to file a new application, 
after the rejection and withdrawal of the first 
one, caused by the delay of the patent agent, 
held not an abandonment— Howes v. McNeal, 
Case No. 6,789. 

A new application, made about two years 
after the first application, which was rejected, 
amended specifications being filed, and finally 
rejected upon appeal, held to relate back to the 
prior application.— Blandy v. Griffith, Case No. 
1,529. 

A delay of eight years to make a new appli- 
cation after the first application was rejected, 
during which time the invention had gone into 
public use with the consent of the inventor, who 
had made assignments of interest therein, held 
not to show actual abandonment— Dental Vul- 
canite Co. v. Wetherbee, Case No. 3,810. 

Seven years' delay after withdrawal of appli- 
cation before its renewal, where the invention 
has in the meantime been put into public use 
by another inventor, held an abandonment— 
Wickersham y. Singer, Case No. 17,610. 

After two interferences, decided in favor of 
the patentee, in which the applicant's attorneys 
acted also as attorneys for the patentee, the 
application was withdrawn, and shortly after- 
wards a new one was filed. Held, that it was a 
continuation, and there had been no abandon- 
ment— Weston v. White, Case No. 17,459. 

A delay of five years after the application is 
rejected before a renewal is made, where no 
excuse is given, is an abandonment. — Ex parte 
Raymond, Case No. 11,592a. 

An abandonment cannot be predicated upon 
a delay caused by the commissioner in refusing 
a patent, where the application is renewed for 
the same invention.— Rich v. Lippincott, Case 
No. 11,758. 

A technical withdrawal of the first applica- 
tion is not necessary to interrupt the continuity 
between it and a succeeding one.— Bevin v. 
East Hampton Bell Co., Case No. 1,379. 

An intention, manifested intermediate the 
first and second applications, to abandon the first, 
will sever the connection between the two; and 
a patent granted upon the second application 
will not relate back to the time of filing the first 
application.— Pelton vV. Waters, Case No. 10,- 
913. 

An application cannot be invalidated by any- 
thing short of the* voluntary act of the appli- 
cant. The positive refusal of the office to act 
further upon an application, after rejecting sev- 
eral amendments, and the consequent filing of 
a new application, with which the same model 
is used, is not an abandonment, so as to make 



1651 (§ 80) ' 



PATENTS, iy. 

[Fed. Cas. Digrest.] 



(§ 83) 1652 



the placing of the invention on sale pending * The decision of the commissioner as to pat- 
the first application a prior use.— Singer v. entability is not conclusive.— Burrows v. Weth- 
Braunsdorf, Case No. 12,897. j erill, Case No. 2,208. 



Various applications for a period of 20 years 
field to be one continuous application, and the 
invention not abandoned.— Colgate v. Western 
Union Tel. Co., Case No. 2,995. ; 

Renewal of application not permitted after 10 
years, on affidavit that the applicant had no 
knowledge of its withdrawal by his attorney. — 
3Bk parte O'Hara, Case No. 10,464. j 

A renewed patent must be for the same in- 
vention as that described in the original.— Sloat 
v. Spring, Case No. 12,948a. 

Where a second perfected application is made 
within a reasonable time after the rejection of 
the first application, the two applications will 
be considered as a continuous proceeding. — 
Smith v. Prior, Case No. 13,095. 

The granting of a patent on a second appli- 
cation of narrower claim on rejection of lie first 
application will be considered an abandonment 
of the first application, and the patent granted 
will not relate back.— Pelton v. Waters, Case 
No. 10,913. 

§ 81. Appeals in patent office. 

The commissioner on an appeal cannot rely 
upon references not previously given to the ap- 
plicant, as required by Act 1836, § 7.— In re 
Jewett, Case No. 7,308. 

§ 82. Conclusiveness and effect of deci- 
sions of patent office* 

If the decision of the commissioner is correct, 
the fact that his opinion is erroneous is imma- 
terial.— In re Crooker, Case No. 3,414. 

The action of the patent office in allowing a 
separation of claims for the purpose of filing 
divisional applications is conclusive, and not re- 
viewable in the courts.— Doughty v. West, Case 
No. 4,028. 

The decision of the commissioner upon a ques- 
tion of fact upon which he is authorized to pass 
is unimpeachable, except upon the ground that 
Jt is ultra vires.— McMillin v. Barclay, Case No. 

Decision of commissioner is conclusive as to 
law and facts arising under application, in the 
absence of fraud or excess of authority manifest 
on the face of the papers.— Allen v. B'lunt, Case 
No. -216; Dorsey Harvester Revolving-Rake Co. 
v. Marsh, Id. 4,014. 

The commissioner cannot confirm a patent ob- 
tained by fraud.— Child v. Adams, Case No. 2,- 
673. 

A patent cannot, in a collateral proceeding, be 
impeached for fraud in procuring it.— Gear v. 
Grosvenor, Case No. 5,291; Crompton v. Belk- 
nap Mills, Id. 3,406. 

The commissioner is bound by the decision of 
his predecessor granting a patent while it is un- 
reversed by a competent court. — Ex parte La- 
rowe, Case No. S,093; Ex parte Simpson, Id. 
12,878. 

The grant of a patent is an adjudication that 
every fact necessary to the patentee's right has 
been established by sufficient proof.— Konold v. 
Klein, Case No. 7,925; Gear v. Grosvenor, Id. 
5,291. 

It must be assumed from the granting of the 
patent that there was evidence before the com- 
missioner to show that there was unavoidable 
delay in preparing the application for examina- 
tion. Act 1861.— Mcilillin v. Barclay, Case No. 
8,902. 

The decision of the patent office, in granting 
a patent, that the inventor had made the neces- 
sary preliminary statutory oath, is final.— De 
Florez v. Raynolds, Case No. 3,742. 



The decision of the commissioner as to the- 
proper date in antedating a patent cannot be- 
disturbed by a subsequent commissioner, or by 
the court on appeal from the latter's ruling. — 
In re Cushman, Case No. 3,514. 

A decision of the patent office in an interfer- 
ence case is not conclusive upon the question of 
priority of invention in a subsequent suit to- 
have the interfering patent declared void. — Union 
Paper-Bag Hach. Co. v. Crane, Case No. 14,- 

A decision of the commissioner on the ques- 
tion of abandonment is not final, but may be- 
reviewed in a suit brought on a patent subse- 
quently granted. Act July 8, 1870, § 35.— Unit- 
ed States Rifle, etc., Co. v. Whitney Arms Co., 
Case No. 16,793. 

i The decision of the commissioner of patents- 
is not res judicata on the question of novelty, 
but is entitled to the highest respect— Cook v. 
Ernest, Case No. 3,155. 

The commissioner's decision is not conclusive- 
as to his own jurisdiction. — Cahart v. Austin, 
Case No. 2,288. 

After a patent is granted for a composition 
it cannot be impeached on the ground that the- 
deposit of the ingredients in the patent office- 
has not been made. — Tarr v. Folsom, Case No. 
13,756. 

A bill in equity for relief will not lie on the- 
ground that defendant has surreptitiously pro- 
cured a patent for complainant's invention, for 
which an application for a patent was* pending. 
— Hoeltge v. Hoeller, Case No. 6,574. 

In the case of a joint patent the joint patenta- 
bility is not res judicata, but is open to question 
upon an application for a reissue. — Wilson v- 
Singer, Case No. 17,835. 

See, also, post, § 111. 

§ 83. Appeals from decisions of commis- 
sioner of patents — Time of appeal 
and preliminary proceedings. 

Sis years* delay to appeal from the action of 
the commissioner in rejecting an application, 
during four of which years the applicant re- 
sided in a state in rebellion, held not an aband- 
onment.— Johnsen v. Passman, Case No. 7,365. 

The court may assume that the time for ap- 
peal was enlarged by the commissioner.— Black- 
inton v. Douglass, Case No. 1,470. 

The entertaining by the commissioner of a 
motion to reconsider in an interference case, 
filed after the expiration of the limit of appeal, 
does not suspend the operation of the order lim- 
iting the time to appeal. — Ex parte Ianton, Case- 
No. 8,378. 

Where an appeal in an interference case is 
dismissed after consideration of a protest duly 
filed by the office against entertaining it, be- 
cause taken after expiration of the time limited, 
the appeal fee must be refunded.— Ex parte- 
Linton, Case No. 8,378. 

An appeal will not lie from a decision of the- 
commissioner refusing to declare a new inter- 
ference, and grant a rehearing, after the un- 
successful party has allowed the time for ap- 
peal to expire.— In re Rouse, Case No. 12,086* 

An extension of the time to appeal made by 
the commissioner on the direction of the secre- 
tary of the interior gives the court jurisdiction, 
of the appeal. — Justice v. Jones, Case No. 7,58S. 

Under Act March 2, 1861, in a pending cause* 
it was not necessary to appeal first to the exam- 
iner in chief, and then to the commissioner, be- 
fore appealing to the circuit court. — Snowden v*. 
Pierce, Case No. 13,151. 



1653 (§ 83) 



PATENTS, IY- 
[Fed. Cas. Digest.] 



(§ 85) 1654 



The new oath required by Act 1836, § 7, is 
not a prerequisite of an appeal from the com- 
missioner's decision.— In re Crooker, Case No. 
3,414. 

The right of appeal is lost where the reasons 
are not filed within the time fixed by the com- 
missioner, notwithstanding the pendency of a 
motion for rehearing.— Greenough v. Clark, 
Case No. 5,784. 

§ 84* — Grounds of appeal and matters 
reviewable. 
Appellant may assign, as a reason of appeal, 
the refusal to hear certain evidence offered, and 
the court may order such evidence to be taken 
to determine its relevancy and materiality. — 
In re Fultz, Case No. 5,156. 

The commissioner is the sole judge of the cir- 
cumstances under which he shall furnish in- 
formation and suitable references to the ap- 
plicant, to enable him to correct his application. 
No cause of appeal is furnished by a supposed 
omission of his duty in this particular.— Ex parte 
Munson, Case No. 9,933. 

No appeal lies where the issues tried " were 
the same, in effect, as those tried on a former 
interference.— Bowen v. Herriet, Case No: 1,722. 

The objection that one of two parties, who 
claim as joint inventors, is not shown^ by the 
evidence to have been in fact a joint inventdr 
with the other, is not available to the unsuc- 
cessful party in an interference proceeding. — 
Yearsley v. Brookfield, Case No. 18,131. 

Irrelevant reasons by commissioner no ground 
of reversal.— In re Aiken, Case No. 107. 

An applicant who has obtained the antedat- 
ing of his patent is estopped to claim error in 
such antedating.— In re Cushman, Case No. 
3,514. 

The decision of the commissioner that he will 
not review or revise the action of his prede- 
cessor in rejecting an application is no ground 
of appeal.— In re Janney, Case No. 7,209. 

An objection to the sufficiency of notice of 
taking depositions cannot be insisted upon, on 
appeal to the judge, if not made before the com- 
missioner.— Smith v. Elickenger, Case No. 13,- 
047. 

No reply to the commissioner's grounds of re- 
fusing patent will be allowed to be filed on ap- 
peal.— In re Aiken, Case No. 108. 

"Where the applicant is put upon inquiry by 
the ruling of the board of appeal that his claim 
is not properly limited, the court, upon appeal, 
will not relieve him from the effect of a failure 
to amend his specifications.— Ex parte Thomas, 
Case No. 13,885. 

The review of the commissioner's decision 
must be confined to points involved in reasons 
of appeal.— In re Aiken, Case No. 107: Arnold 
v. Bishop, Id. 553; Burlew v. O'Neil, Id. 2,167. 

On appeal from the decision of the commis- 
sioner of patents the court will not review his 
action in intimating that a patent was an ap- 
posite reference, without stating grounds to sup- 
port his possession.— In re Chambers, Case No. 
2,581. 

The questions of practicability and useful- 
ness are not subject to appeal in cases of inter- 
ference.— Hatthews v. Wade, Case No. 9,292. 

The granting of an extension of time for the 
taking of testimony in an interference case is 
within the discretion of the commissioner, and 
no appeal lies from his refusal, except in the 
case of a plain abuse of discretion.— Hopkins 
v. Lewis, Case No. 6,688. 

The court can only review the conclusions of 
the commissioner, and not the processes by 
which such conclusions may have been attained. 
—Ex parte Spence, Case No. 13,228. 



Objection to incompetency of witness in inter- 
ference case cannot first be made on appeal. — 
Allen v. Alter, Case No. 212. 

Appellant in an interference case cannot rely 
upon the weakness of his adversary's case.— Ap- 
pleton v. Chambers, Case No. 497a. 

The interference coming up for review is^ only 
such as respects patentable matters.— Bain v. 
Morse, Case No. 754. 

The power to make regulations for the taking 
of testimony in contested cases is expressly con- 
ferred on the commissioner (Act March 3, 1839, 
§ 12), and is not subject to control or revision 
on appeal.— Spear v. Abbott, Case No. 13,222. 

The action of the commissioner under the 
statutory requirement that he shall give the 
applicant such reasons and suggestions as will 
enable him to judge of the expediency of aban- 
doning or modifying his application is not sub- 
ject to review on appeal.— Ex parte Spence, 
Case No. 13,228. 

Failure to renew a rejected and withdrawn 
application within the reasonable time allowed 
will not be relieved against by the court be- 
cause the applicant was misled by contradictory 
decisions and practice of the patent office.— Ex 
parte Simpson, Case No. 12,878. 

Under the act of 1836, the court, on appeal in 
interference, decides not merely the question 
of priority, but which or whether either appli- 
cant is entitled to a patent.— Lovering v. Dutch- 
er, Case No. 8,553; Jones v. Wetherill, Id. 
7,50S; Yearsley v. Brookfield, Id. 18,131. 

A patentee cannot appeal from the decision of 
the commissioner in an interference proceeding, 
awarding priority of invention to a subsequent 
applicant, and granting him a patent.— Drake 
v. Cunningham, Case No. 4,060; Hopkins v. 
Barnum, Id. 6,685; Pomeroy v. Connison, Id. 
11,259; Whipple v. Renton, Id. 17,521. But 
see Babcock v. Degener, Id. 698; Beach v. 
Tucker, Id. 1,153. 

A decision of the commissioner denying a pat- 
ent to either party on interference is appealable. 
—Carter v. Carter, Case No. 2,475. 

The commissioner's decision in interference, 
awarding a patent to each applicant, but limit- 
ing the claim of one to a part only of what he 
describes and shows in his specifications, is re- 
viewable by the judge.— King v. Gedney, Case 
No/ 7,795. 

§ 85. — Reasons of appeal. 

An assignment of a reason of appeal must 
point out the precise matter of alleged error 
with such reasonable certainty as to satisfy an 
intelligent mind.— Blackinton v. Douglass, Case 
No. 1,470. 

That a decision rejecting an application is 
against evidence is too vague and indefinite as a 
reason of appeal. — Blackinton v. Douglass, Case 
No. 1,470. 

The commissioner 7ield to have properly re- 
fused to disturb the decision of his predecessor, 
upon vague and loose affidavits filed long after 
the rejection of the claim.— In re Littlefield, 
Case No. 8,399. 

The judge cannot order reasons of appeal to 
be stricken out, but may overrule them. — Mat- 
thews v. Wade, Case No. 9,292. 

Reasons of appeal which state "that the deci- 
sion is in opposition to a clear apprehension of 
the merits of the case"; "that the decision is 
inconsistent, as opposed in affirmation to prece- 
dents which have governed such cases"; and 
"that the decision is adverse to the opinion of 
skillful and competent men,"— lield too vague 
and indefinite to raise any question for the 
judge to pass upon. — In re Winslow, Case No. 
17,879. 

Where the commissioner's Tefusal to grant a 
patent is based upon want of novelty, the judge 



1655 (§ 85) 



PATENTS, IY., V. 

[Fed. Cas. Digest.] 



(§ 92) 1656 



cannot consider a reason of appeal which is oc- 
cupied mainly in a description of the object and 
importance of the machine, and of the compara- 
tive merits of the applicant's machine and a 
prior machine, which the commissioner has cit- 
ed as an anticipation.— In re Winslow, Case 
No. 17,879. 

Where the reasons of appeal in an interference 
case take no exception to the claim of the ap- 
pellee, upon the ground of forfeiture by laches, 
the court cannot consider such question. — Sturte- 
vant v. Greenough, Case No. 13,579. 

The commissioner is bound to answer the 
reasons of appeal in cases of single applications 
as well as in cases of interference. Act March 
3, 1839, § 11.— In re Henry, Case No. 6,371. 

§ 86. — Hearing and determination. 

The patent office may have present at the hear- 
ing of the appeal one of its officers for the pur- 
pose of explaining the commissioner's decision. — 
Perry v. Cornell, Case No. 11,001. 

The court on appeal has ample power to allow 
an examiner to be interrogated on the subject 
of the invention for which a patent is claimed. — 
In re Seely, Case No. 12,632. 

The court will consider the correspondence be- 
tween the commissioner and applicant, wherein 
facts are stated, acted upon, and not denied. — In 
re Boughton, Case No. 1,696. 

On appeal in an interference case the burden 
is on appellant to prove that he is the prior 
inventor.— Garratt v. Davidson, Case No. 5,247. 

The commissioner is not required to submit 
to an exhibition of experiments at the discretion 
of the applicant.— Ex parte Spence, Case No. 13,- 
22S. 

The court is limited to the papers and evidence 
which were before the commissioner, and has no 
power either to receive proof of experts or to 
send the case back to take such proofs. — Ex 
parte -Sanders, Case No. 12,292. 

When in doubt the commissioner's decision in 
an interference case will be affirmed. — Ex parte 
Allen, Case No. 207b. 

On an application for a reissue and division 
of a patent, under Act March 3, 1837, the di- 
visions for the purposes of an appeal are to be 
considered as a whole, and not as separate cases. 
—Ex parte Selden, Case No. 12,638. 

A reversal because some of the depositions 
considered were taken before a disqualified mag- 
istrate does not require the commissioner to is- 
sue a patent, but he may grant a rehearing and 
order the depositions taken anew.— Nichols v. 
Harris, Case No. 10,244. 

§ 87. Remedy In equity for refusal of 
patent. 

The federal circuit courts have no jurisdiction 
of a bill to compel the commissioner to issue a 
patent. The circuit court of the District of 
Columbia is the only court having jurisdiction 
to administer the remedy provided by Acts July 
4, 1836, § 16, and March 3, 1839, § 10.— Prentiss 
v. Elsworth, Case No. 11,386. 

A bill filed under Rev. "St. § 4915, is an orig- 
inal, and not an appellate, proceeding; and it 
is proper to take the testimony before an ex- 
aminer.— In re Squire, Case No. 13,269. 

In such proceeding the petitioner cannot be 
confined to matters existing of record in the 
patent office, or in the supreme court of the 
District of Columbia. — In re Squire, Case No. 
13,269. 

The practice in such proceeding is governed 
by the equity rules, and the court will receive 
all legal proceedings theretofore had, as well 
as new testimony.— In re Squire, Case No. 13,- 
269. 

The denial of an application for a patent on 
the ground of laches is not an adjudication that 



the applicant was the first inventor, which the 
court will consider on a motion for preliminary 
injunction.— Potter v. Stevens, Case No. 11,33S. 

Form of bill and proceedings in a suit in 
equity for the grant of a patent under Act July 
8, 1870, § 52.— Ex parte Greeley, Case No. 
5,745. 

V. REQUISITES AND VALIDITY OF 
LETTERS PATENT. 

§ 88. Nature of the instrument. 

Patent rights rest exclusively upon statute, 
and statutory provisions must be complied with 
in all essentials. — Latta v. Shawk, Case No. 
8,116. 

A patent wanting in any substantial statutory 
requisite, is a nullity, and confers no right to 
the patentee.— Aloffitt v. Gaar, Case No. 9,690. 

§ 89. Form and contents in general. 

The allegations and suggestions in the appli- 
cation for a patent must at least be substantially 
recited in the patent as granted.— Evans v. 
Chambers, Case No. 4,555. 

The schedule annexed to letters patent is part 
of the patent so far as it is a description ot 
the machine, but no further.— Evans v. Eaton, 
Case No. 4,559. 

The title of the patent ought not to be repug- 
nant to the specification.— Goodyear v. Central 
B. Co., Case No. 5,563. 

A patent will not be void because of an error 
in the Christian name of one of the patentees, 
provided it contains a description of him by 
which he can be identified. — Northwestern Fire 
Extinguisher Co. v. Philadelphia Fire Extin- 
guisher Co., Case No. 10,337. 

a The description of one patentee, whose Chris- 
tian name was wrongly given, as a joint in- 
ventor with another, held suflicient to identity 
him.— Northwestern Fire Extinguisher Co. v. 
Philadelphia Fire Extinguisher Co., Case No. 
10,337. 

§ 90. Execution and issuance. 

A patent signed by the secretary of state and 
countersigned under the seal of the patent office, 
by the chief clerk of that office, as "acting com- 
missioner," during the absence of the commis- 
sioner, is valid.— Smith v. fiercer, Case No. 13,- 
078. 

A signature to the patent, and the certificate 
of copies, by a person calling himself "acting 
commissioner," is sufficient on its face in contro- 
versies between the patentee and third persons, 
as the law recognizes an acting commissioner 
to be lawful.— Woodworth v. Hall, Case No. 18,- 
016. 

§ 91. Validity in general. 

Where an alien falsely represents himself 
as a citizen, the patent issued to him is invalid. — 
Child v. Adams, Case No. 2,673. 

The patent is invalidated by a false sug- 
gestion in any of the several material facts set 
forth in the specification. — Delano v. Scott, Case 
No. 3,753. 

The presumption in favor of the validity of a 
patent does not obtain where the records and 
papers of the patent office show conclusively 
that essential statutory provisions have been 
disregarded.— Whitely v. Swayne, Case No. 17,- 
568. 

See, also, ante, § 66. 

§ 92. Excessive claims "by patentee. 

The patent is void where the inventor claims 
more than -he has actually invented. — Tyler v. 
Deval, Case No. 14,307. 

Such patent is void in toto.— Odiorne v. Wink- 
ley, Case No. 10,432. 



1657 (§ 92) 



PATENTS, V. 

[Fed. Cas. Digest.] 



(§ 94) 1658 



A patent may be valid in part and void in 
part where the patentee has not fraudulently 
claimed more than he was entitled ta.— Good- 
year v. Providence Rubber Co., Case No. 5,5&J; 
Peterson v. Wooden, Id. 11,038. 

Where a patent is for several improvements 
in a machine, and each is summed up in the 
patent as the invention of the patentee, he is 
bound by his summary, and if any one of the 
improvements is found not to be new his_patent 
is void.— Moody v. Fiske, Case No. 9,74o. 

A patent for an "improvement in trucks for 
locomotives" is not rendered invalid by the fact 
that the truck used was old and the invention 
was really an improvement in locomotives. — Lo- 
comotive Engine Safety Truck Co. v. Erie Ry. 
Co., Case No. 8,452. 

A patent for a new article so described that 
it can be made without invention is not* invali- 
dated by an ineffective attempt made to describe 
the best machine for making it.— Magic Ruffle 
Co. v. Douglas, Case No. 8,948. 

The inclusion by accident or mistake of some- 
thing not new does not invalidate the patent 
as to that actually invented by the patentee.— 
Singer v. Walmsley, Case No. 12,900; Stephens 
v. Felt, Id. 13,368a. 

The claim of an old device as new and orig- 
inal, as a part of a combination, is fatal to the 
patent.— Parker v. Stiles, Case No. 10,749; Wi- 
nans v. New York & E. R. Co., Id. 17,863. 

Where the invention is of a combination of 
old elements, but the patent claims the invention 
of the constituent elements, it is void.— Stanley 
v. Hewitt, Case No. 13,285; Same v. Whipple, 
Id. 13,286. 

The patentee can add to the claim of his orig- 
inal patent anything of his invention which is 
warranted by the description contained in the 
specification and the drawings connected with it. 
—Woodward v. Dinsmore, Case No. 18,003. 

A patentee making an improvement in a com- 
bination of machines should include in his patent 
only the improvement— Barrett v. Hall, Case 
No. 1,047. 

A patent for a machine granted to the in- 
ventor of an improvement only is void. — Evans 
v. Eaton, Case No. 4,559; Turner v. Johnson, 
Id. 14,261. CONTRA, see Goodyear v. Math- 
ews, Case No. 5,576. 

A patent which covers the discovery of anoth- 
er that had been in use is too broad, and there- 
fore void.— Watson v. Bladen, Case No. 17,277. 

A claim for the use of a pattern chain, or any 
other device for determining the design to be 
woven, is not invalid as being too- broad. — 
Crompton v. Belknap Mills, Case No. 3,406. 

A patent is not invalid because of a double 
claim, where there is no evidence that it was 
made with an intention to mislead.— Tompkins 
v. Gage, Case No. 14,088. 

Merely describing, in the specification, parts 
of the machine not included in the claim does 
not invalidate the patent.— Kneass v. Schuyl- 
kill Bank, Case No. 7,875. 

Claims too broad upon their face may be re- 
stricted by the words "substantially as de- 
scribed," so as to render the patent valid.— Sey- 
mour v. Osborne, Case No. 12,688. 

The words, "by means substantially as de- 
scribed and for the purposes set forth," con- 
strued.— Gottfried v. Phillip Best Brewing Co., 
Case No. 5,633. 

The failure of a machine, which it is claimed 
will turn any irregular surface or form like the 
model, to turn a square shoulder, is too remote 
a defect to destroy the patent— Blanchard's Gun- 
Stock Turning Factory v. Warner, Case No. 
1.521. 



A claim for the devices described, which arc- 
alleged to produce a specified result, is not ren- 
dered invalid by proof that, under special cir- 
cumstances, and on exceptional occasions, such 
result is not produced. The claim will be con- 
strued as describing the general rule of the op- 
eration of the device.— Wheeler v. Clipper Mow- 
er, etc., Co., Case No. 17,493. 

§ 93, Inventions included in same patent* 

A patent may cover two or more inventions 
relating to the same machine.— Lee v. Blandy, 
Case No. 8,182; McComb v. Brodie, Id. 8,70S. 

An inventor may claim in one patent a com- 
bination covering the entire machine, and also 
a combination of a less number of elements, 
when he is the inventor of both.— Stevens v. 
Pritchard, Case No. 13,407. 

Several inventions, contrived to be used con- 
jointly to a common end, may be covered by 
a single patent, though they are capable of being 
used separately.— Emerson v. Hogg, Case No. 
4,440. 

Two forms of invention related to the same 
subject, where the necessary elements of one 
are substantially used in the other, may be in- 
cluded in one patent.— American Nicholson Pave- 
ment Co. v. Elizabeth, Case No. 311. 

Two combinations, separate in their nature, 
and capable, if desired, of separate use, may 
be claimed in one patent.— Densmore v. Scho- 
field, Case No. 3,809. 

Independent, separable, and separate things, 
provided they relate to the same subject, may 
be separately claimed in the same patent.— Dens- 
more v. Schofield, Case No. 3,809. 

The patentee may embrace two improvements 
of the same machine in one patent. — Morris v. 
Barrett, Case No. 9,827. 

A patentee may claim a combination of me- 
chanical elements which of themselves will not 
produce a new and useful result, when his spec- 
ification shows how the patented combination, ^ 
used with or supplemented by other devices and 
instrumentalities therein described, will produce 
such result.— Wells v. Jacques, Case No. 17,- 
398. 

The patentee cannot embrace both the process 
and the product in the same claim.— Merrill v. 
Yeomans, Case No. 9,472. 

A patent may contain a claim for a combina- 
tion, and the invention or improvement of ono 
or more parts of which the combination consists. 
—Root v. Ball, Case No. 12,035. 

Patents may be united if two or more, in- 
cluded in one set of letters, relate to a like sub- 
ject, or are in their nature or operation con- 
nected together.— Barrett v. Hall, Case No. 
1,047. - 

A single patent may be taken for two ma- 
chines which conduce to the same common pur- 
pose and object, though they are each separately 
capable of a distinct use.— Wyeth v. Stone, Case 
No. 18,107. 

A single patent cannot be taken for two dis- 
tinct machines not conducing to the same com- 
mon purpose or object, but designed for totally 
different and independent objects.— Wyeth v. 
Stone, Case No. 18,107. 

§ 94. Patents for same invention. 

A new product or article of manufacture, and 
the process by which the same is produced, may 
be the proper subjects of separate patents.— Good- 
year v. Providence Rubber Co., Case No. 5,583. 

The inventor may make each improvement the 
subject of a separate patent, or combine them, if 
he chooses.— Hayden v. James, Case No. 6,260. 

One cannot have two patents for the same 
process because for different purposes.— McComb 
v. Brodie, Case No. 8,708. 



1659 (§ 94) 



PATENTS, V., VL (A), 
[Fed. Cas. Digest.] 



(§ 97) 1660 



There must be several patents for several im- 
provements of distinct machines. — Barrett v. 
Hall, Case No. 1,047. 

A patent cannot claim both the combination 
of machines and the machines themselves. — Bar- 
rett v. Hall, Case No. 1,047; Tompkins v. Gage, 
Id. 14.08S. 

§ 95. Correction or amendment* 

The correction of a clerical mistake operates 
back to the date of the original patent.— Wood- 
worth v. Hall, Case No. 18,017; Same v. Stone, 
Id. 

The sanction of the secretary of state to the 
correction of a clerical mistake in letters patent 
may be given by a separate writing. — Woodworth 
v. Hall, Case No. 18,017; Same v. Stone, Id. 

A transcript from the patent office may be cor- 
rected by another duly certified. — Brooks v. Jen- 
kins, Case No. 1,953. 

Under Act 1836, § 13, the commissioner can 
grant an amended patent only where the error 
in the original arose through inadvertency, acci- 
dent, or mistake, and without any fraudulent or 
deceptive intent. On this question his judgment 
is generally regarded as conclusive. — Sloat v. 
Spring, Case No. 12,948a. 

The mistake in a patent may be corrected by 
the commissioner who granted it without a re- 
signing or resealing, but where it is material the 
letters cannot operate except on cases arising 
after the correction is made. — Woodworth v. 
Hall, Case No. 18,016. 

§ 96. Annulment or repeal. 

Method for repeal of patents provided for by 
Act 1793, § 10.— AlcGaw v. Bryan, Case No. 8,- 
793. 

Sections 6 and 10 of Act Feb. 21, 1793, relat- 
ing to the repeal of patents, construed. — Delano 
v. Scott, Case No. 3,753. 

The assignee may file a bill to annul the patent 
issued to another, and to have one granted to 
himself. Act July 4, 1836, § 16; Act March 3, 
1S39, § 10.— Gay v. Cornell, Case No. 5,2S0. 

A bill to set aside a patent to another, on the 
ground that plaintiff was the original inventor, 
is not sufficient where it fails to allege that the 
invention was reduced to practice before the 
granting of the patent. — Ellithorp v. Robertson, 
Case No. 4,40S. 

The federal circuit court may entertain a bill 
for the repeal of an interfering patent.— Ayling 
v. Hull, Case No. G86. 

A suit to limit a patent or to declare that it 
does not extend to certain cases, and pro tanto 
to have it adjudged void, can be maintained only 
by the attorney general on behalf of the United 
States. — Celluloid llfgr. Co. v. Goodyear Dental 
Vulcanite Co., Case No. 2,543. „ 

Where a scire facias is ordered to be issued 
against a patentee under Act Feb. 21, 1793, to 
repeal a patent, the court will not permit the 
United States to be substituted as plaintiffs in 
place of the petitioner. — Wood v. Williams, Case 
No. 17,968. 

A suit to repeal a patent, except in cases stated 
in Act 1836, § 16, and Act 1839, § 10, cannot 
be brought either in a state court or the federal 
circuit court. — Merserole v. Union Paper Collar 
Co., Case No. 9,48S. 

A bill in equity for the surrender of letters 
patent brought in the name of the United States, 
but not appearing to have been brought by a 
district attorney, is bad on demurrer. — United 
States v. Doughty, Case No. 14,986. 

The patent may be repealed where the pat- 
entee was not the original inventor, though he 
believed himself to be such.— Delano v. Scott, 
Case No. 3.753. 

Upon a trial under the general issue in a suit 
to repeal a patent, plaintiff has the burden of 



showing that the patent was obtained surrepti- 
tiously, or upon false suggestion.— Stearns v. 
Barrett, Case No. 13,337. 

Parties in suit to invalidate patent granted by 
the commissioner after an interference are not 
confined to evidence before commissioner, nor is 
such evidence in the case.— Atkinson v. Board- 
man, Case No. 607. 

Error committed in granting a rule to show 
cause why a patent should not be vacated as 
surreptitiously obtained cannot be corrected upon 
a motion to make absolute such rule.— Thomp- 
son v. Haight, Case No. 13.956. 

An affidavit to the effect that a patent has b*<m 
obtained "surreptitiously and upon false sug- 
gestions" is sufficient to warrant a judge in his 
discretion to grant a rule to show cause why the 
patent should not be vacated. He may also re- 
ceive other affidavits and evidence in corrobora- 
tion.— Thompson v. Haight, Case No. 13,956. 

The entitling of an affidavit intended to be used 
as the foundation for a rule to show cause why 
a patent should not be vacated as in a proceed- 
ing already pending in court when in fact no 
proceeding has yet been instituted, is good ground 
for vacating the rule to show cause.— Thompson 
v. Haight, Case No. 13,956. 

Form of decree declaring a patent void and or- 
dering the same canceled, under Act July 8, 1870, 
§ 58.— Sturges v. Van Hagen, Case No. 13,570. 

A circuit court can give a judgment declaring 
a patent void only in the cases provided for in 
section 6, Act 1793. If the patent is defective 
for any other cause, the court can only render 
a general judgment for the defendant— Whitnev 
v. Emmett Case No. 17,585. 

An order, on a rule to show cause why a sci. 
fa. should not issue to repeal a patent, is merely 
a preliminary proceeding, and does not determine 
the question of its validity.— Delano v. Scott 
Case No. 3,753. 

A judgment in favor of a patentee on a scire 
facias issued to obtain a repeal of a patent is 
not conclusive of his right in a subsequent suit 
for infringement— Delano v. Scott, Case No. 3,- 
753. 

The proceedings under Act Feb. 21, 1793, c. 11, 
§ 10, are in the nature of a scire facias at com- 
mon law to repeal a patent; and, upon a judg- 
ment rendered on such a suit, error lies to the 
circuit court. — Stearns v. Barrett Case No. 13,- 
337. 

A decision by the supreme court on the validity 
of a patent will be held binding on the circuit 
court, though the parties are not the same. — 
Richardson v. Lockwood, Case No. 11,786. 

Where the court holds that either one of the 
patents is void, a decree should be entered an- 
nulling it.— Foster v. Lindsay, Case No. 4,976. 

VI. TERM, 

(A) DATE AND DURATION IN GENERAL. 

§97. Bate. 

Date of filing of specifications in foreign coun- 
try, taken as date of patenting there.— American 
Diamond Rock Boring Co. v. Sheldon, Case No. 
297. 

Where the annlication here is made before the 
issue of a foreign patent, it does not bear the 
date of the foreign patent though the latter is 
first issued.— French v. Rogers, Case No. 5,103. 

An English patent takes effect only from the 
date of its enrollment, and not from the date 
of the filing of the provisional specification. — 
Howe v. Morton, Case No. 6,769. 

An English patent dates from the time of its 
publication.— Weston v. White, Case No. 17,458. 



1661 (§ 98) 



PATENTS, VI. (A), (£). 
[Fed, Cas. Digest.] 



(§ 101) 1662 



■§ 98. Terms of patent. 

Letters patent granted prior to Act July 8, 
1870, limiting domestic patents to the term of 
.a foreign patent, are not affected thereby.— Goff 
v. Stafford, Case No. 5,501; Badische Anilin & 
Soda Fabrik v. Hamilton Mfg. Co., Id. 721. 

The words "patented abroad" (Act 1836, §§ 7, 
15) do not apply to the French private patents. — 
Brooks v. Norcross, Case No. 1,957. 

A domestic patent expires at the same time as 
the original term of a foreign patent for the same 
invention. Rev. St. § 48S7.— Henry v. Provi- 
dence Tool Co., Case No. 6,384. 

Under the act of 1839, an inventor could take 
out a patent for the full term, although he had 
obtained and published a foreign patent within 
six months. — Kendrick v. Emmons, Case No. 7,- 
695. 

Under the act of 1836, a domestic patent ob- 
tained for an invention which the patentee has 
already patented abroad must be limited to 14 
years from the date of the foreign patent; " and, 
if issued for 14 years from its date, it is void. — 
Smith v. Ely, Case No. 13,043. 

The effect of Act March 2, 1861, §§ 16, 17, 
.was to give to an American patent a duration 
of 17 years from the date of a foreign patent 
previously, granted to the patentee for the same 
invention.— Weston v. "White, Case No. 17,458. 

An English patent does not exist (Rev. St. 
§§ 4886, 4920, 4923) until the enrollment or 
sealing of the complete specification. — Broots v. 
Norcross, Case No. 1,957. 

(B) EXTENSIONS. 

§ 99. Extensions by special act of con- 
• gress. 

Congress may authorize extension of a patent 
after the original term has expired.— Jordan v. 
Dobson, Case No. 7,519. 

Congress may, by special act, grant an exten- 
sion of a patent which has been once renewed. 
—Bloomer v. Stolley, Case No. 1,559. 

A law extending a patent is binding on the 
courts until repealed, though alleged to have been 
procured by fraud and misrepresentation.— Gib- 
son v. Gifford, Case No. 5.395. 

The patentee will be held to representations 
made by him to congress upon the faith of which 
a patent .was extended by special act. — Union 
Mfg. Co. v. Lounsbury, Case No. 14,368. 

The grant of extension to Blanchard by Act 
Feb. 6, 1S39, of a patent for machine for turn- 
ing irregular forms, held valid, and such act con- 
strued. — Blanchard v. Sprague, Case No.. 1,518; 
Blanchard's Gun-Stock Turning Factory v. War- 
ner, Id. 1.521. 

Act June 30, 1834, granting extension of pat- 
ent to Blanchard, held without force because of 
variance in describing the date of the patent. — 
Blanchard v. Sprague, Case No. 1,517. 

A legislative grant of an exclusive privilege 
in an invention for a limited time does not im- 
ply an irrevocable contract with the people that, 
at the expiration of the period, the invention shall 
become their property. — Evans v. Eaton, Case 
No. 4.559. 

§ 100. Application to patent office for ex- 
tension and proceedings there- 
on. 

An extension of a patent made to the patentee 
on a copy of the original, where a reissue had 
been granted to an assignee, held valid. — Potter 
v. Braunsdorf, Case No. 11,321. 

A notice of an application to extend the 
original patent is a sufficient notice of an ap- 
plication for the extension of a reissue. — Cromp- 
ton v. Belknap Mills, Cases Nos. 3,406, 18,285; 
Clum v. Brewer, Id. 2,909. 



An order extending a patent signed by the 
chief clerk acting as commissioner during a 
vacancy, after the approval of the Act of 1868, 
providing that the senior examiner in chief shall 
act as commissioner, is a nullity. — American 
Wood-Paper Co. v. Glen's Falls Paper Co., 
Case No. 321a. 

An application filed February 15th for ex- 
tension of a patent expiring May 15th, held 
within 90 days, as required by law. — Johnson v. 
Onion, Case No. 7,401. 

An equitable interest in the applicant is suf- 
ficient to sustain an extension. — Gear v. Gros- 
venor, Case No. 5,291. 

A stipulation that the applicant should be 
interested to the extent of one-half the pro- 
ceeds from sales or uses of the patented inven- 
tion is sufficient.— Gear v. Grosvenor, Case No. 
5,291. 

The commissioner of patents has jurisdiction 
of an application for an extension pending at 
the time of the passage of the act (May 27, 
1848) conferring authority upon him to extend 
patents.— Colt v. Young, Case No. 3,032. 

An extension of the term may be granted 
to the administrator of the patentee. — Wood- 
worth v. Hall, Case No. 18,016; Same v. Sher- 
man, Id. 18,019; Same v. Cheever, Id. 

An inventor holding patents in trust for a 
corporation of which he is an officer, for the 
purpose of procuring extensions for the benefit 
of the corporation, will be required to make a 
full surrender of the patents and extensions to 
the corporations. — Consolidated Fruit-Jar Co. v. 
Whitney, Case No. 3,134. 

An averment that the patent was duly ex- 
tended by the commissioner of patents is sup- 
ported by proof that the extension was granted 
by an acting commissioner, without proof that 
he is such de jure. — Dorsey Harvester Revolv- 
ing-Rake Co. v. Marsh, Case No. 4,014. 

The decision of the officer granting an ex- 
tension is not subject to appeal or revision. — 
Dorsey Harvester Revolving-Rake Co. v. 
Marsh, Case No. 4,014. 

The extension of a patent by the commis- 
sioner cannot be collaterally impeached. — Amer- 
ican Wood-Paper Co. v. Glen's Falls Paper 
Co., Case No. 321. 

The proceedings of a board granting the re- 
newal of a patent need not be stated at length. 
—Brooks v. Jenkins, Case No. 1,953. 

The functions of the board are in their nature 
judicial.— Brooks v. Jenkins, Case No. 1,953. 

The decision of the commissioner is conclusive 
as to the regularity of proceedings on exten- 
sion, in the absence of fraud.— Colt v. Young, 
Case No. 3,032; Jordan v. Dobson, Id. 7,519; 
Crompton v. Belknap Mills, Id. 18,285. 

The judgment of the board granting a re- 
newal to an administrator is not conclusive as 
to his right, as such, to a tenewal. — Brooks v. 
Bicknell, Case No. 1,944. 

On a surrender and extension, the new letters 
may be issued with an amended specification. 
— Woodworth v. Edwards, Case No. 18,014. 

§ 101. Construction and operation of ex- 
tension. 

A person building a patented machine be- 
tween the expiration of the term and the grant- 
ing of an extension held not entitled to use the 
machine after a second extension, though the 
act granting the first extension contained a 
proviso allowing the use of machines so con- 
structed.— Blanchard v. Haynes, Case No. 1.- 
512. 

Under the grant of extension to Blanchard 
by Act Feb. 6, 1839, assignees of the old patent 
were given equally exclusive privilege in the 



1663 (§ 101) 



extended term.— Blanchard's Gun-j3tock Turn- 
ing Factory v. Warner, Case No. 1,521. 

After an extension of a patent under Act 
July 4, 1836, § 18, the original patent becomes 
virtually a patent for the term of 21 years. — 
Gibson v. Harris, Case No. 5,396. 

An extension of a prior foreign patent will 
not keep alive a subsequent domestic patent, 
but it will expire at the same time with the orig- 
inal term of the foreign patent. — Reissner v. 
Sharp, Case No. 11,689. 

A patent surrendered and renewed operates 
as from the commencement of the original pat- 
ent, except as to causes of action arising be- 
fore the renewal. — Woodworth v. Hall, Case 
No. 18,016. 

The expiration of a prior English patent will 
not affect the validity of the subsequent ex- 
tension of the patent for the United States. — 
Tilghman v. Mitchell, Case No. 14,042. 

The presumption that a renewal was legally 
made may be rebutted. — Allen v. Blunt, Case 
No. 217. 

Proof of fraud in obtaining extension — when 
sufficient to defeat the patent. — Brooks v. Jenk- 
ins, Case No. 1,953. 

See, also, post, %% 146, 154. 

VII. REISSUES. 

§ 102. Power to reissue. 

The act (July 4, 1836, § 13) authorizing re- 
issues is to be construed liberally, and not lit- 
erally, as restraining and limiting the right. — 
Ex parte Ball, Case No. 810. 

§ 103. Grounds of reissue* 

A reissue is not authorized unless the original 
patent is inoperative- or invalid from a defec- 
tive or insufficient specification, or the claim of 
the patentee exceeds his right. Act 1870, § 
53.— Giant Powder Co. v. California Powder 
Works, Case No. 5,379. 

A reissue may be obtained in order to claim 
a subcombination omitted from the original by 
inadvertence or mistake. — Stevens v. Pritchard, 
Case No. 13.407. 

A reissue will be granted where the specifica- 
tions are defective. — Smith v. Pearce, Case No. 
13,089. 

Claiming for a new article of manufacture, 
if by inadvertence and mistake, may be cured 
by a reissue for a combination and arrange- 
ment of parts. — Middletown Tool Co. v. Judd, 
Case No. 9,536. 

§ 104. Persons entitled to reissue. 

The administrator of a deceased patentee may 
apply for and obtain a renewal in his own 
name.— Brooks v. Bicknell, Case No. 1,944; 
Snme v. Jenkins, Id. 1,953; Carew v. Boston 
Elastic Fabric Co., Id. 2,397. 

The administrator of a deceased patentee is 
the only party having a right to obtain a reis- 
sue, and such right is not affected by the fact 
that he has previously granted exclusive rights 
under the patent for certain territory. — Smith 
v. ilercer, Case No. 13,078. 

Where a patent has, by the death of the pat- 
entee, devolved on his executor, and has been 
assigned by him, the assignee may take out 
the reissue in his own name. — Carew v. Bos- 
ton Elastic Fabric Co., Case No. 2,398. 

A patentee, whose devices are new, is at 
liberty to claim each, by way of reissue, al- 
though he may have represented and claimed 
them originally as acting conjointly. — Gallahue 
v. Butterfield, Case No. 5,198. 

A reissue may be granted to an assignee of 
letters patent upon his application without the 
consent, approbation, or knowledge of the orig- 



PATENTS, VI. (JB), VII. 
[Fed. Cas. Digest.] 



(§ 107) 1664r 



inal patentee.— Swift v. Whisen, Case No. 13,- 
700. 

A reissue granted to an inventor after he 
has assigned his entire interest, by writing duly 
recorded, is not void where the surrender was 
made with consent of the assignee, in the ab- 
sence of fraud or concealment. — Dental Vul- 
canite Co. v. Wetherbee, Case No. 3,810. 

The surrender of the original patent by the- 
patentee at the request of the assignees, and a 
reissue to the patentee, who immediately as- 
signs the same to the assignees of the original 
patent, though irregular, does not vitiate the 
reissue.— Wing v. Warren, Case No. 17,871. 

The prior use of an invention under a de- 
fective patent cannot take away the right to 
a reissue, or authorize its use after the reissue. 
— Hussey v. Bradley, Case No. 6,946. 

§ 105* Time of making application. 

Seven years' delay to obtain a reissue held 
fatal. — Cammeyer v. Newton, Case No. 2,344. 

§ 106. Surrender of original patent. 

A patentee cannot take out a new patent for 
the same invention until his first patent is sur- 
rendered, repealed, or declared void. — Morris- 
v. Huntington, Case No. 9,831. 

The act of congress does not, in terms, re- 
quire that a surrender shall be in writing. — 
Dental Vulcanite Co. v. Wetherbee, Case No- 
3,810. 

The assignee of an undivided part of the 
patent must join with the patentee or his legal 
representatives in a surrender. — Potter v. Hol- 
land, Case No. 11,329. 

The purpose of a surrender and reissue is to 
render effectual the actual invention for which 
the original patent should have been granted, 
as shown, suggested, or substantially indicated 
in the original specification, drawings, or mod- 
el.— Abbe v. Clark, Case No. 5. 

The^ patentee cannot, by a surrender, affect 
the rights of third persons to whom he has 
previously passed his interest in the whole or a 
part of the patent, without their consent. — 
Potter v. Holland, Case No. 11,329; Wood- 
worth v. Stone, Id. 18,021. 

The surrender of a patent for a reissue is a 
conclusive admission that the original patent 
has no validity to support an action for an in- 
fringement. — Sloffitt v. Gaar, Case No. 9,690. 

A surrender and an application for a reissue 
may be withdrawn, by leave of the commission- 
er, for good cause shown, at any time before 
the proceedings are fully completed and duly 
recorded.— Forbes v. Barstow Stove Co., Case 
No. 4.923. 

All rights under the original patent cease 
upon its surrender, except as they are secured 
by a reissue. — Brown v. Hinkley, Case No. 2,- 
012. 

If a reissue is invalid for want of authority 
to make it, the surrender is ineffective. — French 
v. Rogers, Case No. 5,103. 

§ 107. Application for reissue and pro- 
ceedings thereon. 

On application for a reissue the commission- 
er cannot hear evidence to determine the in- 
vention and enlarge the original claim. — Cahart 
v. Austin, Case No. 2,288. 

The applicant for a reissue on interference 
declared must show that the improvement was 
invented before the date of the original pat- 
ent. — Dyson v. Gambrill, Case No. 4,230. 

An oath that the original patent "is not fully 
valid and available" is not such an oath as is 
required by law, and a reissue founded thereon 
is not valid.— Whitely v. Swayne, Case No. 17,- 
568. 



1665 (§ 107) 



The reissue of patents, inoperative or invalid 
. because of defective descriptions or specifica- 
tions, is of course, the commissioner having no 
discretion. Act 1836, c. 357, § 13.— Ex parte 
Dyson, Case No. 4,22S. • 

The commissioner, on the application for- a 
reissue, cannot look beyond the patents as orig- 
inally granted, •with the specifications, dia- 
grams, models, etc., filed or deposited to ascer- 
tain the invention. Act 1836.— Giant Powder 
Co. v. California Powder Works, Case No. 
5,379. 

The commissioner, in deciding upon the ques- 
tion whether the invention claimed in the re- 
issue is the same as that intended to he pat- 
ented under the original application, should 
receive all legal proof offered. — Hussey v. Brad- 
ley, Case No. 6,946. ' 

A pending application for a reissue does not 
supersede the original letters.— Forbes v. Bar 
stow Stove Co., Case No. 4,923. 

§ 108. Identity of invention— In general. 

The reissue must be for the same invention. — 
Cahart v. Austin, Case No. 2,288; Ex parte 
Dyson, Id. 4,228; Sickles v. Evans, Id. 12,839; 
Stevens v. Pritchard, Id. 13,407; Tucker v. 
Tucker Mfg. Co., Id. 14,227. 

New features or devices neither described nor 
indicated in the original specification should not 
be embodied in the new description. — Albright 
v. Celluloid Harness Trimming Co., Case No. 
147; Calkins v. Bertrand, Id. 2,317; Carew v. 
Boston Elastic Fabric Co., Id. 2,397; Doughty 
v. West, Id. 4 02S; Swain Turbine & Mfg. Co. 
v. Ladd, Id. 13,662; Thomas v. Shoe Machinery 
Mfg. Co., Id. 13,911; Vogler v. Semple, Id. 
16,987; Wells v. Gill, Id. 17,395. 

A reissue cannot be sustained by extrinsic 
proof that the patentee was the inventor of all 
that is claimed in it, if such claim was not 
shown or suggested in the original specification, 
drawings, or model. — Sarven v. Hall, Case No. 
12,369. 

Devices shown in the original drawings, but 
not specified, may be claimed in the reissue. — 
Bantz v. Elsas, Case No. 967; Hoffheins v. 
Brandt, Id. 6,575; Lorillard v. McDowell, Id. 
8,510; Morris v. Royer, Id. 9,835. 

In the reissue, under Act July 8, 1870, § 53, 
of a chemical patent, it is necessary to its va- 
lidity that the subject-matter should be found 
described 1 in the original patent. — Tarr v. Webb, 
Case No. 13,757. 

Differences in the claims are consistent with 
the identity of the thing designed to be patented 
in both patents; it being one object of the sur- 
render to correct by changing the description or 
claim, or both. — Cahart v. Austin, Case No. 2,- 
288; Crompton v. Belknap Mills, Id. 3,406; 
Hussey v. McCormick, Id. 6,948; Pearl v. 
Ocean Mills, Id. 10,S76; Stevens v. Pritchard, 
Id. 13,407. 

No more can be embraced in a reissue than 
was invented before or at the time of the orig- 
inal patent, and omitted therefrom by accident 
or mistake, and without fraud or deceptive in- 
tention.— Brown v. Selby, Case No. 2,030; Dra- 
per v. Wattles, Id. 4,073; Dyson v. Gambrill, 
Id. 4,230; French v. Rogers, Id. 5,103; Hoff- 
heins v. Brandt, Id. 6,575; Kirby v. Dodge & 
Stevenson Mfg. Co., Id. 7,838; Knight v. Balti- 
more & O. R. Co., Id. 7,882; Swift v. Whisen, 
Id. 13,700; Carew v. Boston Elastic Fabric Co*., 
Id. 2,397. 

Upon a surrender for reissue, the patentee or. 
his assignee may make the reissue what he 
would have made the original, if he had known 
how. — Wilson v. Singer, Case No. 17,835. 

If the patent does not relate to a machine, 
the only modification that can be made is to 
make the claim and specification correspond.— 

Fed.Cas.Dig.— 53 



PATENTS, TIL (§ 108) 1666 

[Fed. Cas. Digest.] 

Giant Powder Co. v. California Powder Works, 
Case No. 5,379. 

The patentee need not describe and claim, in 
the specification of a reissue, either in words or 
idea, just what he described and claimed in his 
original. — French v. Rogers, Case No. 5,103. 



Reissue need not claim everything embraced 
in original. — Albright v. Celluloid Harness-Trim- 
ming Co., Case No. 147; Carver v. Braintree 
Mfg. Co., Id. 2,485; Chicago Fruit-House Co. 
v. Busch, Id. 2,669; Dorsey Harvester Revolv- 
ing-Rake Co. v. Marsh, Id. 4,014; Gould v. 
Ballard, Id. 5.635; Knight v. Baltimore & O. 
R. Co.. Id. 7,882; Crompton v. Belknap MUIs, 
Id. 18,285. 

It is lawful to reissue a patent with claims 
to combinations of fewer elements than were 
contained in the combination of the claim of the 
original patent— Christman v. Rumsey, Case 
No. 2,704; Herring v. Nelson, Id. 6,424; Par- 
ham v. American Buttonhole, Overseaming & 
Sewing Mach. Co., Id. 10,713. 

The claims of a reissue may be restricted or 
enlarged to cover the real invention. — Dorsey 
Harvester Revolving-Rake Co. v. Marsh, Case 
No. 4,014; Ex parte Ball, Id. 810. 

The. claims in the reissue may be broader 
than those in the original.— Morse & Bain Tel. 
Case, Case No. 9,861. 

Tests to be applied in considering whether a 
reissue is for the same invention as the orig- 
inal. — Aultman v. Holley, Case No. 656. 

Drawings and models filed with the original 
specification are proper subjects for considera- 
tion in determining an alleged discrepancy. — 
Parham v. American Buttonhole, Overseaming 
& Sewing Mach. Co., Case No. 10,713. 

Differences in the description and claims of 
the old and new specifications are not the tests 
of substantial diversity. It is only necessary 
that the identity of the subject-matter of the 
original patent be preserved. — Parham v. Amer- 
ican Buttonhole, Overseaming & Sewing Mach. 
Co., Case No. 10,713. 

In determining whether reissue is for differ- 
ent invention, the two patents must be com- 
pared. — American Diamond Rock Boring Co. v. 
Sheldon, Case No. 296. 

New matter cannot be introduced in a reissue, 
nor can there be an enlargement growing out 
of the subsequent advance of the art. — United 
States & Foreign Salamander Felting Co. v. 
Haven, Case No. 16,788. 

A reissue may include mere matters of me- 
chanical adaptation or mechanical equivalents. 
— Decker v. Grote, Case No. 3,726; Ex parte 
Dietz, Id. 3,902; Sloat v. Spring, Id. 12,948a. 

Where the patent is for a process, reissues for 
a compound are invalid. — Giant Powder Co. v. 
Calif ornia. Powder Works, Case No. 5,379. 

Where the original describes merely a new 
and useful manufacture, the reissue cannot in- 
clude a claim for the process. — Kelleher v. Dar- 
ling, Case No. 7,653. 

A new function developed by combination of 
different elements is beyond the scope of a re- 
issue. — Ex parte Ball, Case No. 810. 

A reissue of a patent for an improvement in 
the manufacture of hard rubber held void as in- 
cluding other vulcanizable gums than India- 
rubber.— Goodyear v. Providence Rubber Co., 
Case No. 5,583. 

A reissue is not invalid because laying the 
greater stress on one of two forms of invention 
included in the original patent.— American Nich- 
olson Pavement Co. v. Elizabeth, Case No. 311. 

The reissue of a patent so as to make the in- 
vention apply to machinery the claim to which 
had been raised in the original application and 



1667 (§ 108) 



PATENTS, YII. 

[Fed, Cas. Digest.] 



(§ 111) 1668 



abandoned is void.— Wicks v. Stevens, Case No. 
17,616. 

Where the original specification described a 
combination of a number of ingredients per- 
forming certain functions less than those claim- 
ed, the reissue may claim such combination. — 
Pearl v. Ocean Mills, Case No. 10,876. 

Reissue may include features disclaimed in 
original patent by mistake of patent office. — 
American Shoe-Tip Co. v. National Shoe-Toe 
Protector Co., Case No. 317; Hayden v. James, 
Id. 6,260; Hussey v. Bradley, Id. 6,946. 

Reissue held for the same invention. — Boom- 
er v. United Power Press Co., Case No. 1,638. 

§ 109. Evidence of identity* 

A reissue is prima facie evidence that the in- 
vention claimed in the original and the reissued 
patent are the same. — Andrews v. Wright, Case 
No. 382; Bantz v. Blsas, Id. 967; Forbes v. 
Barstow Stove Co., Id. 4,923; Hussey v. Mc- 
Oormick, Id. 6,948; Jordan v. Dobson, Id. 
7,519; Poppenhusen v. Falke, Id. 11,279; Sloat 
v. Spring, Id. 12,948a; Stevens v. Pritehard, 
Id. 13,407. 

The action of the commissioner in granting 
a reissue has more than prima facie influence in 
finally deciding the question of identity of in- 
vention. — French v. Rogers, Case No. 5,103. 

A reissue is not conclusive upon the question 
whether it is for the same invention as the orig- 
inal.— Bridge v. Brown, Case No. 1,857; Cahart 
v. Austin, Id. 2,288. 

No presumption arises, from the fact that 
claims made in a reissued patent are not found 
in , the original, that such claims were not in- 
tended to be made in the original. — Eickemeyer 
Hat-B locking Mach. Co. v. Pearce, Case No. 
4,312. 

In determining whether the reissued patent 
is broader than the original, the court is con- 
fined to the records in the patent office. — John- 
son v. Beard, Case No. 7,371. 

The ofl&ce records as to whether or not there 
was an honest mistake are not conclusive, but 
the applicant may introduce any competent tes- 
timony in support of his contention. — Ex parte 
Dyson, Case No. 4,228. 

The patent office has no power to make rules 
restricting the evidence in such cases to that 
furnished by its records. — Ex parte Dyson, Case 
No. 4,228. 

In the absence of fraud, the only mode of im- 
peaching a reissue, on the ground that it is for 
a different invention, is by showing such differ- 
ence on the face of the instrument. — Middle- 
town Tool Co. v. Judd, Case No. 9,536. 

Rule 26 of the patent office, limiting evidence 
on amendment of specification to the records of 
Ike office, refers to rejected applications for 
original patents, and not to cases of reissue un- 
•der section 13, Act 1836. — Ex parte Dyson, Case 
JSo. 4,228. 

To sustain the defense that a reissue patent 
is broader than the original, the latter must be 
introduced in evidence. — Doherty v. Haynes, 
Case No. 3,963. 

Whether a reissue was improperly granted is 
.a matter of construction to be determined by 
the court from inspection and comparison of the 
•original and reissued patents. — La Baw v. 
Hawkins, Case No. 7,960. 

:§ 110. Reissues for parts of original in- 
vention . 

A patent may be reissued in several parts. 
Act March 3, 1837, § 5.— Goodyear v. Provi- 
dence Rubber Co., Case No. 5,583. 

Where the claim of the renewed patent was 
not for distinct improvements, but for addition- 
al parts of the same improvement, the same 



thing was patented in both patents.— Carver v. 
Braintree Mfg. Co., Case No. 2,485. 

The right to reissue in two divisions, one for 
the process and the other for the product illus- 
trated.— Badische Anilin & Soda Fabrik v. 
Hamilton Mfg. Co., Case No. 721. 

An original patent for a process held properly 
reissued in two patents, one for a process and 
the other for the product. — Goodyear v. Wait, 
Case No. 5,587; Tucker v. Burditt, Id. 14,216. 

On a surrender and reissue, the patentee has 
a right to a patent for a division or separation 
of each essential part in combination with the 
other parts of the same invention in which it 
was connected.— Ex parte Selden, Case No. 12,- 
63S; Wheeler v. Clipper Mower, etc., Co., Id. 
17,493; Same v. McCormick, Id. 17,499. 

The patentee, in obtaining separate reissues 
for the several devices contained in a patent 
for a combination, may give the same identical 
description in the specification of each reissue of 
each and all of the devices included in the orig- 
inal.— Wheeler v. McCormick, Case No. 17,499. 

If a patent is reissued in divisional parts, each 
division must be for some distinct and separate 
part of that invention.— Giant Powder Co. v. 
California Powder Works, Case No. 5,379. 

Where an original patent is reissued in divi- 
sions, such divisions are to be treated as but 
one patent with several claims. — Pennsylvania 
Salt Mfg. Co. v. Thomas, Case No. 10,956. 

In the case of separate reissues for the sev- 
eral devices of a combination for which the 
original was issued, where part only are ex- 
tended, the monopoly is not ended as to all the 
devices. — Wheeler v. McCormick, Case No. 17,- 
499. 

§ 111* Conclusiveness and effect of deci- 
sions of patent office. 

The decision of the commissioner of patents 
must be regarded as conclusive in all collateral 
proceedings. — Goodyear v. Providence Rubber 
Co., Case No. 5,583. 

The reissue furnishes prima facie evidence 
that everything necessary to justify the com- 
missioner in granting the reissue had been pro- 
duced before the grant was made. — Hoffheins 
v. Brandt, Case No. 6,575; Jordan v. Dobson, 
Id. 7,519; Christman v. Rumsey, Id. 2,704; 
Judson v. Bradford, Id. 7,564. 

The effect of the commissioner's decision, con- 
sidered. — Milligan & Higgins Glue Co. v. Up- 
ton, Case No. 9,607. 

The decision of the commissioner in granting 
a reissue is final and conclusive, except where 
he has apparently exceeded his authority. — Par- 
ham v. American Buttonhole, Overseaming & 
Sewing Mach. Co.. Case No. 10,713; Potter v. 
Holland, Id. 11,330;. Thomas v. Shoe Machin- 
ery Mfg. Co., Id. 13,911; Wells v. Gill, Id, 17,- 
394; Same v. Jacques, Id. 17,398; Woodworth 
v. Stone, Id. 18,021. 

And his decision may be impeached for fraud. 
— Birdsall v. McDonald, Case No. 1,434; Blake 
v. Stafford, Id. 1,504; Day v. Goodyear, Id. 
3,678; Hussey v. Bradley, Id. 6,946; Miller & 
Peters Mfg. Co. v. Du Brul, Id. 9,597; Potter 
v. Holland, Id. 11,330. 

The commissioner's action in granting a reis- 
sue conclusively determines that the original 
patent was not invalid by reason of insufficient 
specification, or by reason of claiming too much, 
and that the error arose by inadvertence or mis- 
take, without fraudulent intent. — Kerosene 
Lamp Heater Co. v. Littell. Case No. 7,724. 

Matters of fact connected with the surrender 
and reissue are closed by the granting of the re- 
issue. — Metropolitan Washing-Ma eh. Co. v. 
Providence Tool Co., Case No. 9,507. 



1669 (§ 111) 



PATENTS, VII. , VIIL 

[Fed. Cas. Digest.] 



(§ 118) 1670 



A reissue can be impeached for fraud only 
by bill in equity in the name and by the au- 
thority of the United States.— Birdsall v. Mc- 
Donald, Case No. 1,434, 

A renewal to a person as administrator is 
conclusive on the courts, in the trial of the va- 
lidity of such renewal, that such person was ad- 
ministrator.— Goodyear v. Blake, Case No. 5,- 
560. 

% 112. Reissues of reissued patents. 

There may be more than one reissue of the 
same patent. Reissues are favored where the 
patentee is more specific or more modest in his 
■claims. — French v. Bogers, Case No. 5,103. 

A second reissue may be granted under Act 
1S36.— Morse & Bain Tel. Case, Case No. 9,861. 

A second reissue on surrender of the first 
•must be limited to the invention embraced in 
the first reissue.— Giant Powder Co. v. Califor- 
nia Powder Works, Case No. 5,379. 

■§ 113. Validity of reissued patents. 

Knowledge by an applicant for a reissue that 
lie was not the first inventor of an invention 
covered by any of his claims invalidates his pat- 
ent—Singer v. Walmsley, Case No. 12,900. ■ 

An obvious mistake in description made in 
^copying the specifications of a reissue, and 
which can easily be corrected, does not impair 
the patentee's rights.— Kendrick v. Emmons, 
-Case No. 7,695. 

The reissue is void where it was fraudulently 
•extended beyond the claims of the original for 
.a deceptive purpose. — Swift v. Whisen, Case No. 
1 13,700. 

Where new claims in reissue are so inter- 
Tvoven with the elements specified in the orig- 
inal that they cannot be separated the patent 
is entirely void.— Cahart v. Austin, Case No. 
■2,288. 

Patents reissued after the originals have been 
•declared void for want of novelty cannot be sus- 
tained.— Jones v. McMurray, Case No. 7,479. 

The concurrence of a transferee of an interest 
for a given territory is not necessary to the 
Taliditv of a reissue. — Meyer v. Bailey, Case 
;No. 9,516. 

It is no objection to the validity of a reissue 
that its object was to extend the monopoly se- 
cured by the patent beyond the limits assigned 
to it by a judicial decision upon it in its original 
-form.— Poppenhusen v. Falke, Case No. 11,280. 

The presumption of-law is always in favor of 
the validity of the reissue. — Reissner v. Anness, 
•Case No. 11,6SS; American Nicholson Pave- 
ment Co. v. Elizabeth, Id. 311. 

The introduction of a comma into the specifi- 
cation of a reissue in a sentence found in the 
-original specifications, and alleged to be an in- 
terpolation and to introduce a new idea, lield to 
be accidental and a clerical error. — Robertson v. 
Secombe Mfg. Co., Case No. 11,928. 

•§ 114. Construction and operation of re- 
issued" patents. 

Where the reissued patent is of doubtful con- 
struction, reference may be made to the orig- 
inal.— Ely v. Monson & B. Mfg. Co., Case No. 
4,431. 

Although the broad claim of plaintiff's reissue 
covers defendant's device, the court will look 
into the body of the specification of both the 
original and reissued patents, to ascertain wheth- 
er there is any invention to support the claim. — 
Forsyth v. Clapp, Case No. 4,949. 

The reissue of an extended patent will be for 
the full term of the extension, regardless of the 
.grant.— Gibson v. Harris, Case No. 5,396. 

Inadvertence and error in the disclaimer may 
be cured by reissue. — Poppenhusen v. Falke, 
■Case No. 11,279. 



The validity of the reissue is to be determined 
by comparing the terms and import of the orig- 
inal and reissued letters, and a consideration of 
the patent office drawings and model. — Seymour 
v. Marsh, Case No. 12,687. 

A surrender and correction of a patent give 
effect to it in all cases of infringement subse- 
quently accruing, though the patent was orig- 
inally invalid, and will be considered as having 
been made at the time it was originally issued. — 
Bliss v. Brooklyn, Case No. 1,544; Bloomer v. 
Stolley, Id. 1,559. 

On the question of the validity of a reissue, 
the patent-office model, filed with the oi'iginal 
application, is admissible to aid in determining 
what was described therein. — Reissner v. An- 
ness, Case No. 11,68S. 

The recital in a reissue of a prior assignment, 
and the granting of the reissue to the assignee, 
make a prima facie case of title. — Middletown 
Tool Co. v. Judd, Case No. 9,536. 

A reissue to defendant of later date than 
plaintiff's patent but of an original of earlier 
date, will control in a suit for infringement. — 
House v. Young, Case No. 6,738. 

Title of patent presumed to be in one to whom 
reissue is granted as assignee. — American Dia- 
mond Rock Boring Co. v. Sheldon, Case No. 
296. 

Where one paragraph in a reissue leads to a 
construction which would make the reissue void, 
explanation of its meaning may be sought in a 
succeeding one.— Carew v. Boston Elastic Fabric 
Co., Case No. 2,397. 

A reissue granted to an assignee may be ex- 
tended to the patentee. — Crompton v. Belknap 
Mills, Case No. 3,406. 

See, also, post, §§ 146, 154. 

VIII. DISCLAIMERS. 

§ 115. Kiglrfc to disclaim part of claims. 

The patentee may eliminate or withdraw in 
the same writing with the disclaimer the parts 
of the body of the specification on which the 
disclaimed claim, or part of a claim, is founded. 
— Schillinger v. Gunther, Case No. 12,45S. 

§ 116. Patents and claims subject to 
disclaimer. 

There may be a disclaimer of something 
which was introduced into the reissued patent, 
which did not exist in the original patent. — 
Schillinger v. Gunther, Case No. 12;458. 

Act 1839, §§ 7, 9, authorizing a disclaimer, 
do not apply where the patent is for combina- 
tion of parts. — Batten v. Clayton, Case No. 1,- 
105. 

Defect of broad claim covering primitive de- 
vice and improvement cured by disclaimer, in 
case of limited knowledge of primitive device. — 
Aiken v. Dolan, Case No. 110. 

§ 117. Persons entitled to disclaim. 

The owner of a territorial interest may make 
a disclaimer for his interest which is to be taken 
as a part of the original specification for the 
territory owned by him. — Potter v. Holland, 
Case No. 11,329. 

In a joint suit in equity by a patentee and 
his assignee in part, a disclaimer by the pat- 
entee alone will not entitle the parties to the 
benefit of Act 1837, c. 45, §§ 7, 9.— Wyeth v. 
Stone, Case No. 18,107. 

A disclaimer made by an attorney in the pros- 
ecution of an application does not necessarily 
estop the patentee from maintaining that his 
claim embraces the matter referred to. — Mann 
v. Bayliss, Case No. 9,034. 

§ 118. Sufficiency of disclaimer. 

Sufficiency of disclaimer limiting the claim of 
a patent.— Taylor v. Archer, Case No. 13,778. 



1671 (§ 118) PATENTS, VIII., IX. (A), (B). 

[Fed. Cas. Digest.] 

In making a disclaimer of a part of an inven- 
tion claimed, through the mistake of the per- 
son making it, he must state his interest in the 
patent. — Brooks v. Jenkins, Case No. 1.933. 

The sufficiency of a disclaimer, as to whether 
or not the patentee stated in it "the extent of 
his interest" in the patent, as required by Act 
March 3, 1837, § 7, considered.— Foote v. Silsby, 
Case No. 4,916- . 



§ 119* Time of making disclaimer. 

The patentee must, within a reasonable time, 
disclaim all parts not properly claimed. — Brooks 
v. Jenkins, Case No. 1,953; MeCormick v. Sey- 
mour, Id. 8,727; Parker v. Stiles, Id. 10,749. 

A patentee who claims both old and new things 
must disclaim wiiat is old before he is entitled 
to recover. — Hovey v. Stevens, Case No. 6,745. 

The owner of the entire right in the territory 
where the infringements had taken place allowed 
to make a disclaimer after final hearing. — Myers 
v. Frame, Case No. 9,991. 

A disclaimer at the trial, of a tiling actually 
claimed in the patent, is not effectual to sustain 
it. — Parker v. Sears, Case No. 10,748. 

Where a proper disclaimer is entered during 
pendency of a suit, plaintiff may recover in re- 
spect of what is not disclaimed, where there has 
been no unreasonable neglect or delay to enter 
the disclaimer. — Burdett v. Estey, Case No. 2,- 
145; Hall v. Wiles, Id. 5,954; Schillinger v. 
Gunther, Id. 12,458; Tuck v. Bramhill, Id. 14,- 
213. 

The question whether there has been unrea- 
sonable negligence or delay in entering such dis- 
claimer is a question which goes to his right 
of action. Act March 3, 1S37, § 9.— Hall v. 
Wiles, Case Xo. 5,954. 

A disclaimer after suit brought is not suffi- 
cient to entitle plaintiff to a perpetual injunc- 
tion. — Wyeth v. Stone, Case No. 18,107. 

The failure to file a disclaimer until after suit 
brought will not prevent the court increasing the 
amount of the verdict. — Guyon v. Serrell, Case 
No. 5,881. 

§ 120. Effect of disclaimer. 

A disclaimer limited to the application in which 
it is made does not prevent the inventor from 
claiming the same matter in a subsequent appli- 
cation. — Hill v. Dunklee, Case No. G,489. 

A patentee is not entitled to costs where he 
fails to file a disclaimer until after suit brought. 
— Aiken v. Dolan, Case No. 110; Burdett v. Es- 
tey, Id. 2,145; Guyon v. Serrell, Id. 5,S81; My- 
ers v. Frame, Id. 9,991; Reed v. Cutter, Id. 11,- 
645; Schillinger v. Gunther, Id. 12,458; Singer 
v. Walmsley, Id. 12,900; Taylor v. Archer, Id. 
13,778; Tack v. Bramhill, Id. 14,213. 

A disclaimer by plaintiff, subsequent to a ver- 
dict for him in a suit for infringement of a 
patent, does not deprive him of costs. — Peek v. 
Frame, Case No. 10,904. 

A patent is not rendered void as to certain 
valid claims because of unreasonable neglect 
or delay to enter a disclaimer as to invalid claims. 
—Burdett v. Estey, Case No. 2,145. 

The want of a disclaimer is no ground for in- 
validating the patent, where the invalid claim is 
not an essential part, and was introduced with- 
out intent to defraud or mislead. — Hall v. Wiles, 
Case No. 5,954. 



IX. CONSTRUCTION AND OPERATION 
OF LETTERS PATENT. 

(A) IN GENERAL. 

§ 121. General rules of construction. 

Rules for construing patents. — Francis v. Mel- 
lor, Case No. 5,039. 



(§ 126) 1672 



Patents will be liberally construed. — Ames v. 
Howard, Case No. 326; Blanchard v. Sprague, 
Id. 1,518; Davoll v. Brown, Id. 3,662; Imlay 
v. Norwich & W. R. Co., Id. 7,012; Parker v. 
Stiles, Id. 10,749; Ryan v. Goodwin, Id. 12,180. 

Courts will not resort to conjecture in order 
to sustain the patent.— Ames v. Howard, Case- 
No. 326. 



All constructions must be unfavorable to de- 
fendant who denies access to his machine, and 
does not produce any model or drawing, nor the 
produce which it manufactures. — Union Paper- 
Bag Mach. Co. v. Binney, Case No. 14,387. 

The claim made by the patentee must govern 
in the construction of the patent, although he 
might have claimed something differ en t— Kidd 
v. Spence, Case No. 7,755. 

§ 122. What law governs. 

Rules governing the proper reading of a dis- 
puted translation of a foreign patent.— W hi te v. 
Allen, Case No. 17,535. 

§ 123. Accompanying documents and pro- 
ceedings in patent office. 

A patent is to be construed without reference 
to previous correspondence with the patent office 
in relation thereto, or rejected applications there- 
for.— Piper v. Brown, Case No. 11,180. 

An ambiguity in* a patent may be explained 
by the affidavit annexed to the specification. — 
Pettibone v. Derringer, Case No. 11,013. 

In tne construction of a patent the whole in- 
strument embracing the specification and draw- 
ing is to be taken together.— Parker v. Stiles, 
Case No. 10,749; Davoll v. Brown, Id. 3,662. 

§ 124. Effect of patent as estoppel. 

The obtaining of a joint -patent estops the pat- 
entees to claim under prior several patents for 
the same invention.— Barrett v. Hall, Case No. 
1,017. 

A patent, while it remains in full force and 
unrepealed, estops the patentee from taking a 
patent for the same invention, and the time 
of its exclusive right begins to run from that 
period. — Odiorne v. Amesbury Nail Factory, Case 
No. 10,430. 

A patentee is not estopped by w r ords omitted 
from an amended specification. — Allen v. Blunt, 
Case No. 217. 

§ 125. Suits for construction. 

An action will not lie by a junior patentee 
against a senior patentee to determine the scope 
of the latter's patent, and to enjoin him from 
bringing suits for infringement against plaintiff 
and his customers. — Celluloid Mfg. Co. v. Good- 
year Dental Vulcanite Co., Case No. 2,543. 

(B) LIMITATION OF CLAIMS. 

§ 126. Operation and effect of claims in 
general. 

Claims should be liberally construed to cover 
the actual invention. — Goodyear v. Berry, Case 
No. 5,556; Same v. Central R. Co., Id. 5,563; 
Hamilton v. Ives, Id. 5,982. 

That interpretation will be adopted which will 
give the fullest effect to the nature and extent 
of the claim maae by the inventor. — Ryan v. 
Goodwin, Case No. 12,186. 

The proper rule is to construe the claims of 
the patent in connection with the descriptive 
parts of the article, and with reference to what 
is seen to be the real invention. — Coffin v. Ogden, 
Case No. 2,950. 

The common knowledge in the business of life 
must be kept in view in construing the general 
terms of a description. — Tilghrnan v. Mitchell, 
Case No. 14,043. 

Words will be so construed as to enlarge or 
contract the scope of the claim, so as to uphold 
the invention made and described, only when 



1673 (§ 127) 



PATENTS, IX (B). 
[Fed. Cas. XJigrest.] 



(§*131) 1674 



not absolutely inconsistent with the language of 
the claim.— Estabrook v. Dunbar, Case No. 4,- 
535. 

$ 127. Title of patent. 

The patentee is not controlled by the title of 
the patent, but only by the patent, specifications, 
.and drawings.— Bell v. Daniels, Case No. 1,247. 

■§ 128. Specifications, drawings, and mod- 
els, and construction of claim in 
connection therewith. 

The whole specification and the drawings may 
"be referred to, to ascertain the extent of the 
-claim.— Earle v. Sawyer, Case No. 4,247; Foss 
v. Herbert, Id. 4,957; Hamilton f. Ives, Id. 
5,982; Hay-den v. Suffolk Mfg. Co., Id. 6,261; 
Johnson v. Root, Id. 7,411; King v. Gedney, 
Id. 7,795; Kittle v. Merriam, Id. 7,S57; Morris 
-v. Barrett, Id. 9,827; Ransom v. New York, 
Id. 11,573; Sloat v. Spring, Id. 12,948a. 

Drawings annexed to a patent issued under 

the act of 1837 form no part of the specification, 

where no drawings were annexed to the original 

patent.— Wilton v. Railroad Co., Case No. 17,- 

•S56. 

Drawings not referred to in the specification 
of a patent may be treated as part of the speci- 
fication, and used to explain and enlarge it.— 
Washburn v. Gould, Case No. 17,214. 

The original deposited model may be examined 
to resolve doubts raised by inspection of draw- 
ings. — Aiken v. Dolan, Case No. 110. 

A claim which makes proper reference to the 
-specification will not be construed as covering 
-a result, but as covering the means by which it 
is attained.— Sickles v. Evans, Case No. 12,839; 
Rogers v. Sargent, Id. 12,020. 

The words "as specified" do not limit the 
-claims to the particular mode of practicing the 
invention described in the patent. — Lorillard v. 
.McDowell, Case No. 8,510. 

The words "substantially as described and 
-.shown," in the claim of the patent, held to relate 
■only to material features of the combination 
specified, to be ascertained by considering the 
purpose of the machine, and what are the ele- 
ments of the combination which constitute its 
distinctive character, and are effective in pro- 
ducing the peculiar result for which the con- 
trivance is made. — Waterbury Brass Co. v. Mil- 
ler, Case No. 17,254. 

"Substantially as described," used in a claim, 
limits general words to the particular descrip- 
tion found in the specifications. — Knox v. Mur- 
tha, Case No. 7,911. 

The claim will be construed to be co-extensive 
*with the invention as shown by the specifica- 
tion if it can be done without doing violence to 
lits language. — Whipple v. Middlesex Co., Case 
.No. 17,520. 

The patentee will be concluded by the state- 
ment in his claim, uncontrolled by the specifica- 
tions, where it is clear and explicit, leaving no 
room for construction. — Rich v. Close, Case No. 
11,757. 

The words "substantially as described" must 

necessarily be implied, and, ]?eing so implied, they 

involve a reference to the specification. — Wost- 

inghouse v. Gardner, etc., Air-Brake Co.,' Case 

JN T o. 17,450. 

A claim for the "arrangement of," etc., "as 
herein described," requires a reference to the 
-description and drawings to ascertain its true 
■construction.— Knight v. Gavit, Case No. 7,884. 

Claims containing words referring back to the 
specification must be construed in- the light of 
the explanations contained in the specification. — 
Gottfried v. Phillip Best Brewing Co.. Case No. 
5,633; Roberts v. Dickey, Id. 11,S99. 

In a claim, the words "the described," etc., 
•are construed not solely with reference to the 



words in the specification, but with reference 
also to the limitations in the context of the claim. 
—Pearl v. Ocean Mills, Case No. 10,S76. 

Specifications should be liberally^ construed.— 
Goodyear v. Berry, Case No. 5,556; Same v. 
Central R. Co., Id. 5,563; Ames v. Howard, Id. 
326; Hamilton v. Ives, Id. 5,982; Ex parte Till- 
man, Id. 14,050. 

It is immaterial what the claim in the sum- 
mary is, if its foundation has not been made in 
the descriptive part of the specification. — Hug- 
gins v. Hubby, Case No. 6,S39. 

The word "about," in a specification, rejected 
for uncertainty, where to give it effect would 
invalidate the patent.— Davis v. Palmer, Case 
No. 3,645. 

The import of the summary of a specification 
is to be determined by reference to the specifi- 
cation as a whole. — Bryan v. Stevens, Case No. 
2,066a. 

§ 129. State of art. 

The claims are to be construed with reference 
to the state of the art at the time of the inven- 
tion.— Burden v. Corning, Cise No. 2,143; Esta- 
brook v. Dunbar, Id. 4,535; Mann v. Bayliss, 
Id. 9,034; Pitts v. Wemple, Id. 11,194; Smith 
v. Prior, Id. 13,095. 

§ 130. Agreements of patentee with com- 
missioner and proceedings in 
patent office. 

An agreement by the patentee, made with the 
commissioner, that the patent should not extend 
to certain articles, will limit his claim. — Pike 
v. Potter, Case No. 11,162. 

Neither the correspondence between the com- 
missioner of patents and the applicant, nor the 
proceedings in the patent office pending an ap- 
plication, are admissible to enlarge, diminish, or 
vary the language of the claim. — Goodyear Den- 
tal Vulcanite Co. v. Gardiner, Case No. 5,591. 

To determine the patentee's own construction 
of his claim, the patent-office files may be re- 
sorted to, to ascertain what changes were made 
in the original specifications and claims, and the 
significance of. such charges.— Trader v. Mess- 
more, Case No. 14,132. 

Declarations of the patentee, undertaking to 
restrict the invention within a narrower com- 
pass than that stated in his specifications, will 
not affect the construction of the patent in the 
hands of a prior assignee. — Union Paper-Bag 
Mach. Co. v. Pultz & Walkley Co., Case No. 
14,392. 

A proposition to limit the claim made by the 
patentee to the commissioner, but not accepted 
by him, is not binding. — Pike v. Potter, Case 
No. 11,162. 

§ 131. Scope and character of inventions. 

The patent is not limited in its scope to the 
patentee's theory of his invention. — Foss v. Her- 
bert, Case No. 4,957; Stow v. Chicago, Id. 13,- 
512; Wells v. Jacques, Id. 17,398. But see 
Couse v. Johnson, Case No. 3,288. 

A claim for a result produced substantially in 
the manner and for the purpose described will 
be construed to be for the mechanism describ- 
ed, and not for the result itself. — Henderson v. 
Cleveland Co-operative Stove Co., Case No. 
6,351. 

The patentee must be limited within the 
claims of the patent, and the description of the 
particular mechanism, and the application he has 
made, by which the result is produced. — Puller 
v. Yentzer, Case No. 5,151. 

The scope of the patent is fixed by what was 
known at the date of the completed invention, 
and not by what was known at the time when 
the application was made.— Sprague v. Adri- 
ance, Case No. 13,24S. 



1675 (§ 131) 



PATENTS, IS. (B). 
[Fed. Cas. "Oigrest.] 



(§ 134) 167$ 



A patentee is not bound by the qualities im- 
parted to the article in his description, but by 
the qualities of the article as derived from the 
product of the process or compound patented. — 
Goodyear v. New York Gutta Percha, etc., Co., 
Case No. 5,580. 

A description of one mode of practicing the 
invention does not exclude a method, different 
from it only in a single detail, which produces 
the same result and is distinctly within its ob- 
ject.— Lorillard v. McDowell, Case No. 8,510. 

Construction of Claim: "The above-described 
method of increasing the productiveness of oil 
wells by causing an explosion of gunpowder, or 
its equivalent, substantially as above describ- 
ed."— Roberts v. Dickey, Case No. 11,899. 

Where the discoverer discloses only one or 
more of the derivatives or secondary truths of 
the principle discovered, his patent will be lim- 
ited accordingly. — Detmold v. Reeves, Case No. 
3,831. 

The patent to the discoverer will be as broad 
as his mental conception which he embodies in 
some mechanical device or some process of art. 
—Detmold v. Reeves, Case No. 3,831. 

The patentee will not be confined to the form 
of a device, where he states in his application 
that he does not wish to confine himself to the 
form shown. — Cornell v. Downer & Bemis 
Brewing Co., Case No. 3,236. 

A patent will not cover a substance not known 
at the date thereof to possess properties render- 
ing it suitable for the same purposes as the ma- 
terial used therein. — Colgate v. Law Tel. Co., 
Case No. 2,993a. 

A patent for a particular structure intended 
to accomplish a particular end does not import 
an exclusive right to every possible mode of ac- 
complishing the same end.— Blanchard v. Putt- 
man, Case No. 1,514. 

An inventor is entitled to protection in all 
the functions his invention will perform. — In- 
gels v. Mast, Case No. 7,033. 

A patentee who describes particular modes as 
essential to his invention will not be confined 
to them where the device is complete in itself. 
— Union Paper-Bag Mach. Co. v. Nixon, Case 
No. 14,391. 

The inventor, of an improvement cannot en- 
title himself to a patent more broad than his 
invention. — Woodcock v. Parker, Case No. 17,- 
971; Whittemore v. Cutter, Id. 17,601. 

§ 132. Claims for processes. 

A claim for "said manufacture of printing 
type, made substantially as described," held a 
claim for the process, and not for the product. 
— Hudson v. Draper, Case No. 6,834. 

The claim to an invention of a mechanical 
process must fall with the claim to an unsuc- 
cessful machine which the inventor constructed 
to work out such process. — Union Mfg. Co. v. 
Lounsbury, Case No. 14,368. 

A claim for "the above-described new manu- 
facture of * * * by treating them substan- 
tially as hereinafter described/* held to be a 
claim for the process, and not the product. — 
Merrill v. Yeomans, Case No. 9,472. 

A patent for a new and useful process, de- 
scribing it and the apparatus by which it can 
be carried out, covers all apparatus which will 
accomplish the same purpose in substantially 
the same way. — Bridge v. Brown, Case No. 
1,857. 

The patent for a new and improved process 
for the cheaper and better construction of a 
product or manufacture before known in com- 
merce grants nothing but the exclusive right to 
use the particular process. Otherwise where 
the product itself is new. — Goodyear v. Central 
R. Co., Case No. 5,563. 



A claim of a process of manufacture of hats 
from braid, "in sewing the edges together with 
horsehair," held not necessarily limited to the 
use of horsehair. — Noe v. Prentice, Case No. 
10,284a. 

Both a process and the product may be cov- 
ered by one patent. — Welling v. Rubber-CoatedJ 
Harness Trimming Co., Case No. 17,383. 

§ 133. Claims for machines or manu- 
factures in general. 

A claim for an entire machine does not de- 
prive the patentee of his right to claim the 
parts also. — Foss v. Herbert, Case No. 4,957. 

The patentee is entitled to the exclusive use 
of his mechanical organization for all uses to 
which it can be applied, whether he originally 
contemplated those uses or not. — McComb v. 
Brodie, Case No. 8,708; Conover v. Roach, Id. 
3,125. 

The words "in such machine" held to refer to 
the machines improved upon, and not the im- 
proved machines. — Weston v. Nash, Case No. 
17,454. 

Patents for improvements in gold pens held 
could not be extended beyond the particular 
shape, form, or mode of construction claimed. 
— Rapp v. Bard, Case No. 11,577. 

A patent "for an improvement in the art of 
making nails, by means of a machine which 
cuts and heads the nail at one operation," is for 
a machine as described. — Gray v. James, Case 
No. 5,718. 

A claim for a result merely, or for every 
means by which certain advantages in a har- 
vester can be secured, is invalid. — Marsh v. 
Dodge & Stevenson Mfg. Co., Case No. 9,115. 

In the case of a patent for an ornamental 
chain as a new article of manufacture, the pat- 
entee is not limited to the advantage derived 
from the use of the peculiar features of the pat- 
ented chain over what would have been deriv- 
ed from those open to the public. — Mulford v^ 
Pearce, Case No. 9,908. 

A patent for a wire fence cannot be construed 
to include window guards. — New York Wire- 
Railing Co. v. Walker, Case No. 10,218. 

A patent for a horizontally revolving retort 
does not cover an oscillating retort. — Allen v. 
Alter, Case No. 212. 

Cam movements, producing simultaneous 
operations in long use, cover the principle of 
raising an oven shelf by means of closing the 
oven door. — Bridge v. Excelsior Mfg. Co., Case- 
No. 1,859. 

A patentee who has described devices in uni- 
form motjon only cannot claim them when work- 
ing in a differential motion, by which only 
they were made successful; nor can he incor- 
porate such principle in a reissue. — Dyson v. 
Danforth, Case No. 4,229. 

A claim to "the communication of motion* 
* * * produced as follows" held limited to- 
the specific machinery described in the specifica- 
tions.— Stone v. Sprague, Case No. 13,487. 

§ 134, Claims for combinations. 

The words "as herein described" and "as- 
herein set forth" refer to the specifications, and 
may, in their proper construction, embrace ele- 
ments of a combination not specifically named, 
in the claim. — Vance v. Campbell, Case No. 16,- 
837. 

An inventor of one element cannot claim it in- 
combination with every form of another element 
with which he unites it, but only in the particu- 
lar combination described in his specification. — 
Larabee v. Cortlan, Case No. 8,084. 

A claim for "a new and useful improvement,"" 
consisting of a combination of several improve- 
ments distinctly set forth in the specification* 
held good for each distinct improvement. — Pitts- 
v. Whitman, Case No. ll,19Ci. 



1677 (§ 134=) PATENTS, IS. 

[Fed. Cas. 

Use of phrase "any suitable material " in pat- 
ent for combination, shows claim to combina- 
tion, limited to known materials, though not 
named.— Bailey Washing & Wringing Mach. 
Co. v. Lincoln, Case No. 750. 

The absence of the word "combination," or 
of a statement of its elements in a particular 
claim, while combinations are claimed in apt 
and appropriate language in other claims, is 
strong evidence that, in the former, the pat- 
entee did not intend to claim a combination. — 
Burden v. Corning, Case No. 2,143. 

A limit of the claim to a combination of parts 
concedes the parts to he old.— Conover v. Roach, 
Case No. 3,125. 

The description of each separate element must 
be read and construed with reference to the en- 
tire combination and its results.— Hamilton v. 
Ives, Case No. 5,982. 

Construction of a claim of "the combination of 
a lock and latch," where the only invention con- 
sisted in making the latch bolt reversible.— Rus- 
sell & Erwin Mfg. Co. v. Mallory, Case No. 
12,166. 

By claiming particular things in a combina- 
tion as new, the patentee does not relinquish 
his right to the entire combination.— Valentine 
v. Marshal, Case No. 16,812a. 

The claim of an arrangement of a combina- 
tion, when such as to produce a given mechani- 
cal result of the combination, is a claim to the 
means alone, and not to a function or a result, 
irrespective of such means. — Renwick v. Pond, 
Case No. 11,702. 

§ 135. Including mechanical equiva- 
lents. 

A patent for a composition of several ingred- 
ients covers known equivalents of each ingred- 
ient—Matthews v. Skates, Case No. 9,291. 

A claim for a particular means and mode of 
operation described extends to all equivalents.— 
Burden v. Corning, Case No. 2,143; Pitts v. 
Edmonds, Id. 11,191. 

Where a patent is for a peculiar combination 
or arrangement of old devices, and not for a 
new device, the patentee is not entitled to in- 
sist upon mechanical equivalents.— Xuengling v. 
Johnson, Case No. 18,195. 

A specification in a patent of the mechanical 
parts or chemical ingredients includes known 
mechanical or chemical equivalents, but not ex- 
isting equivalents previously unknown to ordi- 
narily skillful machinists or chemists.— Wood- 
ward v. Morrison, Case No. 3S,008. 

§ 136. Claims for compositions of matter. 

The inventor of a new compound, wholly un- 
known before, is not limited to the use always 
of the same precise ingredients in making that 
compound.— Ryan v. Goodwin, Case No. 12,186. 

Where only approximate proportions are nam- 
ed in the specification for the several elements 
of a given composition of matter, tfie right to 
vary these proportions is not unlimited.— Fran- 
cis v. Mellor, Case No. 5,039. 

§ 137. Claims for designs. 

A patent for ornamental designs for figured 
silk buttons 7wld not to cover the process. for 
winding the silk upon the molds.— Booth v. Ga- 
relly, Case No. 1,646. 

* 

X. TITLE, CONVEYANCES, AND CON- 
TRACTS. 

(A) RIGHTS OF PATENTEES IN GEN- 
ERAL. 

* 

§138. Title of inventor before issne of 
patent. 

The invention is the property of the inventor 
until he abandons it to the public, or suffers it 



(B),S.(A). (§141) 1678 

Digest.] 

to be in public use or on sale with his consent 
for more than two years.— Jones v. Sewall, Case 
No. 7,495. 

§ 139. Assignment of invention or rignt 
to patent. 

An assignment made before the patent is 
granted is valid.— Herbert v. Adams, Case No. 
6,394; Rathbone v. Orr, Id. 11,585. 

A contract may be made to convey a future 
invention, as well as a past one, and for any 
improvement or maturing of a past one. — Nes- 
mith v. Calvert, Case No. 10,123. 

An assignment of an invention before the is- 
suing of a patent is valid under Act March 3, 
1837, § 6, though made after an appeal from 
the commissioner's decision rejecting the appli- 
cation.— Gay v. Cornell, Case No. 5,2S0. 

It is not necessary that the assignment should 
be recorded in the patent office before the filing 
of the bill. It is enough if it be recorded at 
any time before the issuing of the patent. — Gay 
v. Cornell, Case No. 5,280. 

The inchoate right of an inventor to the issue 
of original letters patent, and all foreign let- 
ters, renewals, and extensions, may be conveyed 
by an instrument containing apt terms to show 
an intention to convey all the rights springing 
from the invention.— Emmons v. Sladdin, Case 
No. 4,470. 

Semble, a sale of an "invention" does not nec- 
essarily carry inchoate right of inventor to ex- 
clusive privileges under extension of patent. — 
Clum v. Brewer, Case No. 2,909. 

An assignment of all inventions "for the man- 
ufacture of composition brush backs anc! 
handles" does not include an invention for hand 
mirrors, the handles and backs of which are 
made in the same manner as the brush, though 
applications, for patents on both articles were 
pending at time of assignment.— Clark v. Scott, 
Case No. 2,833. 

Assignees of an invention can take only 
such rights as the inventors could have taken. — 
Tatham v. IiOring, Case No. 13,763. CONTRA, 
see Tatham v. Lowber, Case No. 13,764. 

§ 140. Exclusive nature of xignt— Arti- 
cles made or purchased "by others 
"before application for patent. ^ 

Persons purchasing a newly-invented machine 
from another than the inventor, before applica- 
tion for a patent, are protected by 9 Laws (Bior. 
& D.) pp. 1019, 1020, § 7 (5 Stat. 354).— Noe v. 
Prentice, Case No. 10,2S4. 

The benefit of section 7, c. 8S, Act 1839, can- 
not be claimed by a purchaser under a mere 
wrongdoer, but only by a person who is a pur- 
chaser, or who has used the patented invention 
before the patent was issued, by a license or 
grant,, or by the consent of the inventor.— Pier- 
son v. Eagle Screw Co., Case No. 11,156. 

There is no right of action for an infringe- 
ment occurring under the original and void pat- 
ent, and before the reissue of a new patent. — 
MoflStt v. Gaar, Case No. 9,690. 

There can be no infringement of a patent be-' 
fore the date of the application or of the patent, 
—Dixon v. Mover, Case No. 3,931. 

The use after the granting of an extension by- 
special act of January 21, 1808, of a machine 
erected after the expiration of the original term r 
and before the passage of the act, held an_ in- 
fringement. — Evans v. Jordan, Case No. 4,564; 
Same v. Weiss, Id. 4,572. 



§ 141. — Against government. 

Whether the grant of a patent excludes the 
United States from the right to make and use 
the invention for themselves, quaere.— Heaton v, 
Quintard, Case No. 6,311. 

An invention secured by patent cannot be tak- 
en by the government without compensation. — 
Brady v. Atlantic Works, Case No. 1,794. 



1679 (§ 141a) PATENTS, X. (A), (B). 

[Fed. Cas. Digest.] 

§ 141a. Rights and powers of patentee 
as to making, use, or sale of in- 
vention. 

The inventor has the exclusive right under the 
patent to use the machine for all purposes for 
which it is applicable. — Woodman v. Stimpson, 
Case No. 17,979. 

The product and the process being both new 
and patentable, the patentee may prohibit the 
sale or use of the composition, unless when pur- 
chased from persons licensed by him to use the 
process and vend the product.— Goodyear v. 
Central R. Co., Case No. 5,563. 



(B) ASSIGNMENTS AND OTHER TRANS- 
FERS. 

§ 142. Contracts to assign* 

The equitable rights of defendants, arising 
out of an agreement, for valuable consideration, 
to convey an extended patent, made before the 
extension, will be protected as against the own- 
er of the legal title. — Dav v. Candee, Case No. 
3,676; Aiken v. Dolan, Id. 110. 

Where a patent is declared void for defective 
specifications, and a patent with corrected speci- 
fications is issued, a contract to sell the right is 
enforceable.— Stanley v. Whipple, Case No. 13,- 
286. 

An agreement to give an interest in the ex- 
tension of a patent when granted on payment 
of a certain proportion of the expenses of pro- 
curing it, held not to give a vested right in the 
extension without payment, though the owner 
refused to tell the amount when payment was 
offered.— Pitts v. Hall, Case No. 11,193. 

The consideration for a contract to convey an 
extended patent, when granted, being an agree- 
ment to pay therefor, a failure to pay will not 
authorize a revocation of the contract. — Day v. 
Candee, Case No. 3,676. 

The word ^invention," in the contract for the 
assignment of a patent, held not to cover other 
improvements in the same art, although the pat- 
ent to be assigned would be worthless without 
them. — United Nickel Co. v. American Nickel- 
Plating Works, Case No. 14,405. 

§ 143. Assignability of patents. 

A patent may be assigned in whole or in part. 
— Parker v. Haworth, Case No. 10,738. 

The subject-matter of a patent is not sep- 
arable except territorially. — Suydam v. Day, 
Case No. 13,654; Goodyear v. Central R. Co., 
Id. 5,563. 

A patentee cannot divide his right into parts, 
so as to give one person the right to use it for 
one purpose, and another the right to use it for 
another purpose, and restrict the right of the 
purchasers from either. — Washing Mach. Co. v. 
Earle, Case No. 17,219. 

A paper purporting to be an assignment of an 
expired patent is void as an assignment, though 
it may be enforced as a power of attorney. — Bell 
v. McCullough, Case No. 1,256. 

Inchoate right of inventor to exclusive priv- 
ilege under extension of patent is subject of 
sale.— Clum v. Brewer, Case No. 2,909. CON- 
TRA, see Gibson v. Cook, Case No. 5,393. 

And will become operative upon as soon as the 
extension has been granted. — Gear v. Grosve- 
nor, Case No. 5,291. 

See, also, ante, § 139. 

§ 144. Who may assign* 

An administrator of a patentee may assign a 
patent renewed in his own name. — Brooks v. 
Jenkins, Case No. 1,953. 

An assignment of a patent by one of two or 
more administrators is valid. — Winterlnute v. 
Redington, Case No. 17,896. 



(§ 146) 1G8Q 



An assignment of an extension of a patent by 
the patentee's sole executrix, who signed her- 
self as "administratrix." pursuant to a contract 
of the patentee, but without the sanction of the 
probate court or the assent of a legatee, held 
good in equity as against one who. after the as- 
signment was recorded, purchased the patent 
from an administrator c. t. a. — Newell v. West, 
Case No. 10,150. 



§ 145. Requisites and validity of assign- 
ments and grants. 

The assignment of an exclusive territorial 
right must be in writing. — Gibson v. Cook, 
Case No. 5.393. 

A conveyance of an interest in a patent must 
be in writing, and a mere memorandum, in the 
hands of the patentee, is not sufficient. — Bald- 
win v. Sibley, Case No. 805. 

An assignment of an interest in a patent, 
made by a receiver, appointed by a state court, 
of the property of the owner of the patent, con- 
veys no title to the assignee, because the as- 
signment is not a written instrument signed by 
the owner of the patent.— Gordon v. Anthony, 
Case No. 5,605. 

An assignment is rendered invalid by the omis- 
sion to record it within three months as against 
subsequent bona fide purchasers for valuable 
consideration. — Blanchard's Gun-Stock Turning 
Factory v. Warner, Case No. 1,521; Boyd v. 
ilcAlpin, Id. 1,748; Brooks v. Byam, Id. 1,948; 
Gibson v. Cook, Id. 5,393. 

An assignment of a right under a patent is 
valid as between the parties without being re- 
corded. — Blanchard's Gun-Stock Turning Fac- 
tory v. Warner, Case No. 1,521; Boyd v. Mc- 
Alpin, Id. 1,748; Case v. Redfield, Id. 2,494; 
Continental Windmill Co. v. Empire Windmill 
Co., Id. 3,142; Hall v. Speer, Id. 5,947; Perry 
v. Corning, Id. 11,004; Pitts v. Whitman. Id. 
11,190; Turnbull v. Weir Plow Co., Id. 14,244. 

Assignment need not be recorded in the patent 
office as against strangers. — Case v. Redfield, 
Case No. 2,494; Hall v. Speer, Id. 5,947. 

An agreement which operates as a transfer of 
a patent is good as against those who purchase 
with notice, though not recorded. — Ashcroft v. 
Walworth, Case No. 5S0; Boyd v. McAlpin, Id. 
1,748; Continental Windmill Co. v. Empire 
Windmill Co., Id. 3,142. 

An assignment of a patent, though not re- 
corded, vests title in the assignee until due entry 
or claim by the party entitled to take advantage 
of the breach of condition as to recording.— Van 
Hook v. Wood, Case No. 16,854. 

Within the three months an unrecorded prior 
assignment in writing will prevail. — Gibson v. 
Cook, Case No. 5,393. 

One of three instruments executed contem- 
poraneously as part of the same transaction 
was recorded, though none were required to be 
recorded by law. Held, that they were all valid, 
as against a bona fide purchaser under the re- 
corded instrument.— Hamilton v. Kingsbury, 
Case No. 5,985. 

The assignee of a patent right, in part or 
in whole, cannot maintain any suit at law or 
in equity, either as sole or as joint plaintiff 
thereon, at least as against third persons, until 
his patent has been recorded in the proper de- 
partment, according to the requisitions of the 
patent acts. — Wyeth v. Stone, Case No. 18,107. 

Record in patent office of assignment is notice 
to purchasers.— Case v. Redfield, Case No. 2,494. 

See, also, post, § 150. 

§ 146. Construction and operation of as- 
signments and grants — Property 
or interest conveyed. 

An assignment of a patent to an assignee 
in trust gives him the legal title. — Campbell v. 
James, Case No. 2,361. 



1681 (§ 146) 



PATENTS, X. (15), 
[Fed. Cas. Digest.] 



(§ 146) 1682 



A grant of an exclusive right to construct, 
use, and vend a certain number of patented ma- 
chines -within a certain territory, with exclusive 
use of the patent within the territory limited 
to said machines, conveys the entire interest in 
the patent for such territory.— Ritter v. Serrell, 
-Case No. 11,866. 

An assignment of an interest in a patent,, re- 
serving to the grantor the whole and sole power 
of disposal, conveys no legal title, but the as- 
signee is only a cestui que trust, to the extent of 
his interest, in- the profits.— Goodyear v. Day, 
Case No. 5,566. 

An assignment of all the grantor's right, title, 
and interest in and to a certain patent carries 
♦onlv the grantor's existing interest. — Ashcroft 
v. Walworth; Case No. 580. 

An assignment, construed with a contempora- 
neous agreement, lield to vest in a person, as 
"trustee for corporations, the patentee's interest 
in the patent, and to the same person, as trustee 
for the patentee, all interest in claims for past 
infringements.— Dibble v. Augur, Case No. 3,879. 

A sale of the right to use and sell "Singer's 
jmtent sewing machines, as mentioned in the 
patent granted to S., Aug. 12, 1851," held an 
assignment of all the rights which the vendor 
had in the Singer machine under any patent. — 
Burdell v. Denig, Case No. 2,142. 

An assignment of all "right, title, interest 
•claim, or demand whatsoever, in, to, or under" 
4i certain patent, held not to convey claims for 
past infringements.— Dibble v. Augur, Case No. 
5,879. 

The assignee of the territorial right to make, 
-construct, and use the patented article may, 
during the term of its subsequent extension, 
continue to use and repair the patented articles; 
but he is not entitled to make them. — Wood v. 
Michigan S. & N. I. R. Co., Case No. 17,957. 

Assignees and grantees of rights during the 
original term have a right to use the patented 
invention during an extension under Act July 
4, 1S36, § 18, whether such right arose from the 
purchase of a machine or from the grant of a 
limited or unlimited right to use. — Day v. Union 
India-Rubber Co., Case No. 3,691. 

The same rules apply in the case of patented 
processes. — Day v. Union India-Rubber Co., 
Case No. 3,691. 

Act July 4, 1836, applies to patents issued 
"before its passage, and a prior assignee of an 
-original term is entitled to the benefit of an 
-extension where the contract provides that any 
-alteration or renewal shall accrue to the benefit 
-of the parties.— Wilson v. Turner, Case No. 17,- 
S45. 

The right to use a patented process during 
the original term of the patent, under Act 1836, 

-§ IS, re-enacted in Act 1S70, does not authorize 
the use of it after the patent is extended. — Weth- 

-erill v. Passaic Zinc Co., Case No. 17,465. 

A grant of the right to use a patented ma* 
-chine or any number of said machines in a cer- 
tain place held to convey the right to make ma- 
chines, or procure them to be made for such 
use. — Steam Stone Cutter Co. v. Shortsleeves, 
Case No. 13,334. 

A sale, by the owner of two patents, of the 
right to manufacture generally, will be held to 
be a conveyance of the right under both patents, 
^notwithstanding a previous conveyance to anoth- 
er of the right under one specifically. — Day v. 
Stellman, Case No. 3,690. 

Deed construed as a conveyance of a single 
machine, without right to construct others. — 
Baldwin v. Sibley, Case No. 805. " 

A conveyance of all right, title, and interest 
in a patent in a particular territory, as to a 
portion of which the patentee has previously 
jparted with some interest, will be held to operate 



only upon the residuary interest of the patentee, 
though the second assignment is first recorded. — 
Turnbull v. Weir Plow Co., Case No. 14,244. 

Separate transfers of all right, title, and in- 
terest in a patent were made at different times 
to different parties, and the first transferee 
subsequently retransferred to the grantor. Held, 
that such retransfer did not inure to the benefit 
of the second transferee, so as to perfect his 
title. — Perry y. Corning, Case No. 11,004. 

An assignment of a patent for a knitting 
needle, "to be applied exclusively to the knitting 
or construction of harnesses for looms, and fox- 
other purposes," limits its use to harnesses. — 
Aiken v. Dolan, Case No. 110. 

The assignee of territorial rights not restricted 
as to sales within the territory, may, as to sub- 
sequent assignees of other territory, sell withiu 
his own territory without restriction or condi- 
tion.— McKay v. Wooster, Case No. 8,847, 

9 

A person to whom the patentee has passed 
his interest in a .part of the old patent, upon the 
surrender of the same by the patentee, and ob- 
taining a reissued patent, is entitled to the same 
right under the reissued patent that he had 
to the old one —Potter v. Holland, Case No. 11,- 
329. 

He may, however, elect to hold under the old 
patent, and it is not a valid objection .that in 
such event there would be different claims of 
right in the same invention secured to different 
sectional owners. — Potter v. Holland, Case No. 
11,329. 

A reissue does not inure to the benefit of a 
prior assignee. He takes by ratification, not by 
inurement.— Burdell v. Denig, Case No. 2,142. 

A transferee of the patentee's interest for a 
state is entitled to the benefit of a reissue, if he 
ratifies the same, though he did not join in the 
surrender. — Meyer v. Bailey, Case No. 9,516. 

The amendments in a reissue inure to the ben- 
efit of grantees under the original of exclusive 
rights for particular localities.— Smith v. Mercer, 
Case No. 13,078. 

The assignees of a patent have no interest in 
an extension by act of congress unless so ex- 
pressly agreed.— Gibson v. Cook, Case No. 5,393. 

Where the act contains no reservations in 
their favor, they cannot continue to use their 
patented machines.— Gibson v. Gifford, Case No. 
5,395. 

An assignee of a patent or a machine con- 
structed thereunder has no right or interest in 
the renewal of a patent, unless given by the 
statute or by express contract. — Bloomer v. Stol- 
lev, Case No. 1,559; Brooks v. BicknelL Id. 
1,944, 1,945; Case v. Redfield, Id. 2,494; Ham- 
mond v. Mason & Hamlin Organ Co., Id. 6,004; 
Phelps v. "Comstock, Id. 11,075; Woodworth 
v. Sherman, Id. 1S,019; Same v. Cheever, Id. 

The fact that a person was an assignee under 
the original term of letters patent furnishes no 
presumption that he is interested in the extend- 
ed term. — Goodyear v. Hullihen, Case No. 5,573. 

The extent to which assignees of a patent 
may enjoy a renewed patent is to be determined 
solely by the stipulations of the assignment. — 
Van Hook v. Wood, Case No. 16,855. 

The assignment of a patent, or the right to a 
patent pending, held not to include the right 
to s an extended term.— Mowry v. Grand' St. 
& N. R. Co., Case No. 9,893. 

The assignment of all. right, title, and interest 
in letters patent, and "the invention thereby se- 
cured," does not import a conveyance of the 
right to an extended term, and the assignee 
cannot convey such right. — Waterman v. Wal- 
lace, Case No. 17,2&L. 

An assignment of an interest in an invention 
and of letters patent "to the full end of the 



1683 (§ 146) 



PATENTS, X. (B), (0). 
[Fed. Cas. Digest.] 



(§ 150) 168£ 



term for which they are or may be granted" 
will pass a subsequent reissue, but not an in- 
terest in a subsequently extended term. — Chase 
v. Walker, Case No. 2,630; Goodyear v. Cary, 
Id. 5,562; Jenkins v. Nicolson Pavement Co., 
Id. 7,273; Rubles v. Eddy, Id. 12,117; Thayer 
v. Wales, Id. 13.S72. 

Words "to be held to the full end of the 
term for which said letters patent are or may 
be granted," when used in the habendum of 
the deed, considered. — Gear v. Grosvenor, Case 
No. 5,291; Same v. Holmes, Id; 5,292. 

A conveyance by a patentee held to cover the 
right to foreign letters patent and all renewals 
and extensions. — Emmons v. Sladdin, Case No. 
4,470. 

A conveyance of an original patent, and "any 
further patent which he shall or may at any 
time hereafter procure for any improvements," 
conveys an interest in so much of a future ex- 
tension as may be necessary for the use of the 
improvements.— Chase v. Walker, Case No. 2,- 
630. 

§ 147. ; Rights and liabilities o£ as- 
signees and grantees. 

A contract between a patentee and one grant- 
ed an exclusive right that no suit for infringe- 
ment should be instituted without the consent 
of both parties, does not prevent the latter mak- 
ing a bona fide settlement with an infringer, 
binding upon the former.— Burdell v. Denig, 
Case No. 2,142. 

Where an inventor assigns his invention un- 
der a verbal agreement that the assignee shall 
pay the expense of obtaining a patent for a 
half interest therein, and the patent is issued 
to him, the manufacture of the patented arti- 
cle by a person to whom the inventor assigned 
his equitable interest is not an infringement. — 
Whiting v. Graves, Case No. 17,577. 

An American assignee of an alien inventor, 
who obtained letters patent in his own name 
under Act March 3, 1837, § 6, is not required 
to put and continue the invention on sale, un- 
der Act July 4, 1836, § 15.— Tatham v. Lowber, 
Case No. 13,764. 

The court will not enjoin the sale of a sim- 
ilar article under the same patent, in a particu- 
lar district assigned to an individual, though 
manufactured in a different district. — Boyd v. 
Brown, Case No. 1,747. 

The terms "assignee" and "grantee" are not 
used in the patent law of 1836 as synonymous 
terms. — Potter v. Holland, Case No. 11,329. 

A grantee is one who has transferred to him, 
in writing, the exclusive right to make and use, 
and to grant to others to make and use, the 
thing patented within and throughout some 
specified part or portion of the United States. — 
Potter v. Holland, Case No. 11.329. 

An assignee is one who has transferred to 
him, in writing, the whole interest of the pat- 
ent, or any undivided part of the whole in- 
terest, in every portion of the United States. — 
Potter v. Holland, Case No. 11,329. 

The remedy in equity given to inventors by 
Act 1836, § 17, extends to their assignees. — 
Jenkins v. Greenwald, Case No. 7,270. 

Rights of parties determined in the case of 
conflicting assignments of rights in an extended 
patent where one party failed to fulfill his 
agreement. — Gibson v. Barnard, Case No. 5,389. 

Declarations of the patentee, made after he 
had assigned all his interest, impeaching the 
validity of the patent, are inadmissible against 
the assignee. — Many v. Jagger, Case No. 9,- 
055. 

Nor is evidence of such declarations admis- 
sible to contradict the patentee, who has testi- 
fied as a witness for the assignee, where he 



has not been interrogated as to such declara- 
tions. — Many v. Jagger, Case No. 9,055. 

§ 148. — Bona fide purchasers. 

The possession of a third person, where art 
assignment refers to use of the patented device 
by him, is constructive notice to the assignee- 
of his claim.— Prime v. Brandon Mfg. Co., 
Case No. 11,421. 

A bona fide purchaser for valuable considera- 
tion without notice takes a good title as against 
a person holding a contract for an interest made- 
before the grant. — Gibson v. Cook, Case No. 
5,393. 

§ 149. Transfer on insolvency or "bank- 
ruptcy. 

The assignment of a patent to the assignee 
in bankruptcy, though not recorded, is good a* 
against a subsequent assignment by the bank- 
rupt, duly recorded. — Prime v. Brandon Mfg. 
Co., Case No. 11,421. 

An assignment made by the judge of pro- 
bate under the Massachusetts insolvency law 
does not pass the insolvent's interest in letters- 
patent.— Ashcroft v. Walworth, Case No. 580. 

(C) LICENSES AND CONTRACTS. 

§ 150. .What constitntes a license. 

A license denned, and the instrument in 
question held to be merely a license. — Nelson v. 
McMann, Case No. 10,109. 

An assignment which does not convey the 
entire or unqualified monopoly which the pat- 
entee holds in the territory specified, or art 
undivided interest in the entire monopoly, is a 
mere license. — Sanford v. Messer, Case No. 
12,314; Potter v. Holland, Id. 11,329. 

An instrument vesting the grantee with an 
exclusive territorial right of making and using- 
the thing patented, and of granting that right to 
others, is an assignment. Any conveyance short 
of this is a license. — Farrington v. Gregory,. 
Case No. 4,688. 

A transfer of "the sole and exclusive right 
and monopoly of manufacturing" under a pat- 
ent, for a certain royalty, is a transfer of the 
entire interest, and not the establishment of a 
license fee. — La Baw v. Hawkins, Case No„ 
7,961. 

The purchaser of the right to make, use r 
and vend the invention in a particular place- 
buys a portion of the franchise which the pat- 
ent confers. — Goodyear v. Beverly Rubber Co.^ 
Case No. 5,557. 

A contract granting the right of manufactur- 
ing and selling a patented article held a license. 
— Brooks .v. Byam, Case No. 1,94S. 

An employment to invent and perfect ma~ 
chinery for a particular purpose will operate- 
as a license to the employer to use machines- 
invented by the employe, and put in use un- 
der such employment. — Whiting v. Graves, Case- 
No. 17,577; Chabot v. American Button-Hole- 
& Overseaming Co., Id. 2,567. 

The infringing articles were put into defend- 
ant's factory at its expense, under the direction 
of the inventor, and were used under his di- 
rection up to the time of the application for 
a patent. Held, that defendant had a special 
license to use such articles. — Magoun v. New 
England Glass Co., Case No. 8,960. 

An assignment of all right and interest un- 
der a patent in certain territory, where the 
patentee reserved the right to sell machines of 
his own manufacture in such territory, held a 
mere license. — Hussey v. Whitely, Case No. 
6,950. 

A lease of premises and machinery by which 
a patented process is carried on with a right 
to use all patents for such process held only 
a license to use such processes on the leased 



1685 (§ 150) 



PATENTS, X (C). 
[Fed. Cas. Digest.] 



(§ 154^ 168S 



premises.— Wetherill v. Passaic Zinz Co., Case 
No. 17,465. 

An agreement between owners of conflicting 
patents defining their rights, and providing for 
the purchase of outside patents for mutual 
protection, held to give only a license to use 
such purchased patents, and an action thereon 
is properly brought in the name of the purchas- 
er alone.— Aultman v. Holley, Case No. 656. 

An agreement, made on the settlement of a 
dispute as to conflicting claims to the right to 
make a certain patented spike, that hereafter 
each party may make and vend spikes of such 
character as he sees fit, held a license to make 
the patented spike.— Troy Iron & Nail Fac- 
tory v. Erastus Corning, Case No. 14,195. 

License to use held to be inferred from the 
receipt of compensation for a use acquiesced 
in for a long time, though the patentee at the 
time reserved the right to claim an additional 
compensation.— Blanchard v. Sprague, Case No. 
1,516. 

§ 151. Who may make license. 

One of three patentees owning an unequal 
share may make a valid license to use the 
thing patented, patentees being tenants in com- 
mon. — Dunham v. Indianapolis & St. *L. R. Co., 
Case No. 4,151; Clum v. Brewer, Id. 2,909. 

The holder of the legal interest in a patent, 
who is the agent of and principal stockholder 
in a corporation owning the equitable interest, 
has the right to make a contract of license in 
settlement of conflicting claims with an alleged 
infringer.— Troy Iron & Nail Factory v. Eras- 
tus Corning, Case No. 14,195. 

§1152. Requisites and validity o£ licenses. 

A license to make and use a patented machine 
need not be in writing.— Baldwin v. Sibley, 
Case No. 805. 

The condition attached to the sale of patent- 
ed cotton ties, "licensed to use once only," is 
void.— American Cotton-Tie Co. v. Simmons, 
Case No. 293. 

A patentee, while granting to another a right 
to make and sell," may retain to himself the 
exclusive right to make and sell for export or 
use in other countries. — Dorsey Revolving Har- 
vester Rake Co. v. Bradley Mfg. Co., Case 
No. 4,015. 

Where a patented machine, not practically 
useful, is perfected by the inventor while in 
the employ of another, and at the latter's ex- 
pense, he is entitled to a license for its use. — 
Wilkens v. Spafford, Case No. 17,659. 

A license under a patent need not be record- 
ed.— Chambers v. Smith, Case No. 2,582; Far- 
rington v. Gregory, Id. 4,688. 

The question of what amounts to a delivery 
of a license considered. — Hammond v. Hunt, 
Case No. 6,003. 

A license until conditions performed is in- 
operative.— Brooks v. Stolley, Case No. 1,962. 

§ 153. Construction and operation of li- 
censes — General rules. 

The contracts of a patentee to share his in- 
vention with third persons are interpreted and 
enforced in the same manner as other legal 
engagements.— Morse v. O'Reilly, Case No. 9,- 
S58. 

A parol agreement as to the use of an in- 
vention held, as against the licensee, to have 
been merged in the written license prepared by 
Jiim.— Evory v. Candee, Case No. 4,583. 

§ 154. — Scope and extent. 

The right to construct a patented machine is 
distinct from a right to use it.— Bicknell v. 
Todd, Case No. 1,389. 

A license to a person to run "either of his 
two machines, provided he does not run more 



than one of them at a time," held not limited' 
to the machines then in use.— Brooks t. Stolley ,- 
Case No. 1,963. 

A sale of the machines licensed, and^ the pur- 
chase of another, is not a matter within the- 
license.— Brooks v. Stolley, Case No. 1,963. 

A license to a railroad company gives no- 
right to use the patent on lines afterwards built 
or leased. — Emigh v. Chicago, B. & Q. R. Co., 
Case No. 4,448. 

A railroad company running its cars over the- 
road of another under a permission to that 
effect cannot be considered as operating the- 
latter, within the meaning of a license grant- 
ing the right to use a patented invention. — 
Hodge v. Hudson River R. Co., Case No. 6,- 
559. 

Defendant, having the right under a license- 
to use a patented improvement to the capacity 
of his tannery, held to have the right to use the 
improvement in a subsequent addition to the- 
tannery without payment of additional fees, 
where the entire use did not exceed the original 
capacity.— England v. Thompson, Case No. 4,487. 

If a patented machine is torn down, and after- 
wards rebuilt, and m the rebuilding changed* 
so as to lose its identity and become^ substan- 
tially a new construction, its owner will not be 
authorized to use it under a license limited to- 
the original machine.— Gottfried v. Phillip Best 
Brewing Co., Case No. 5,633. 

A patentee who has sold the right to make 
and sell the patented machine within a certain 
territory cannot limit to such territory the use- 
of the machines so made and sold. — Dorsey Re- 
volving Harvester Rake Co. v. Bradley Mfg. 
Co., Case No. 4,015. 

The right to use, resulting from the purchase- 
of a machine, expires with the existence of the 
machine.— Day v. Union India-Rubber Co., Case- 
No. 3,691. 

The licensee, under Act July 4, 1836, § 18, 
may use such patented articles as it has in use 
when the original term expires, -until they are 
worn out. — Hodge v. Hudson River R. Co., Case- 
No. 6,559. 

Under a license to run a patented machine, 
with the restriction that the product should not 
be made for other persons to be carried out of 
a specified territory and resold as an article or 
merchandise, the product cannot be sold out of 
the territory, or sold to persons to be carried out 
and resold as an article of merchandise. — Wilson* 
v. Sherman, Case No. 17,833. 

A license to use a patented brake "on any and 
all cars belonging to" the licensed company cov- 
ers the use of brakes on trucks and running gear 
belonging to the company, although the super- 
structure belongs to another.— Hodge v. Hudson. 
River R. Co., Case No. 6,559. 

The words, "all patents and processes which, 
he has or has in contemplation to obtain," mere- 
ly serve to individuate the patents, and do not 
convey the extended term. — Wetherill v. Pas- 
saic Zinc Co., Case No. 17,465. 

The right to use a machine embodying the pat- 
ented invention granted during the original term* 
is protected during an extension. — Blanchard v. 
Whitney, Case No. 1,519; Day v. Union India- 
Rubber Co., Id. 3,691; Farrington v. Gregory,. 
Id. 4,688; Wetherill v. Passaic Zinc Co.. Id. 
17,465; Woodworth v. Curtis, Id. 18,013; Woos- 
ter v. Sidenberg, Id. 18,039. But see Potter v.. 
Empire Sewing Mach. Co., Case No. 11,326. 

A license to use, an invention "for the whole - 
term of the patent which may be granted," given 
before the patent was issued, does not authorize- 
the use of it under the extended term.— WetherilL 
v. Passaic Zinc Co., Case No. 17.465; Hodge v~. 
Hudson River R. Co., Id. 6,559, 6,560. 



1687 (§ 154) 



PATENTS, X (C). 
[Fed. Cas. Digest.] 



(§ 158) 1688 



Under a license to use the patented machine 
in certain territory, the licensee may build more 
than one machine, but cannot use both at one 
time.— Woodworth v. Curtis, Case No. 18,013. 

The words restricting the grant to such pat- 
ents as the grantor ''holds in his own right" 
apply to such as he was the apparent, but not 
the real, owner of, and a patent of which he 
holds only a part interest will nevertheless pass 
under the conveyance. — Wetherill v. Passaic Zinc 
Co., Case No. 17,465. 

A clause in a license restricting the use of the 
invention within a certain territory, and the sale 
of the product therein, is not repugnant to the 
concluding clause that the licensee "has all the 
rights" which the patentee has in said territory 
under the patent— Woodworth v. Cook, Case 
No. 18,011. 

The mere fact that the agent of the patentee, 
after the transfer of the machine to the unli- 
censed territory, demanded of the purchasers the 
back royalties due upon it for use in the licensed 
territory, conferred no right to use it outside the 
territory named in the license. — Wicke v. Kleink- 
neeht, Case No. 1T,G0S. 

A licensee who, having machines in use dur- 
ing the end of an original term of a patent, takes 
a license for another year under the extended 
patent, waives any rights which he had to use 
such machines when the first term expired. — 
Wooster v. Taylor, Case No. 18,040. 

§155. Rights and liabilities o£ li- 
censees. 

A compromise agreement by two patentees for 
the mutual use of their respective patents will 
not estop either his assignees or licensees from 
denying the validity of the other's patent. — Van 
Hook v. Wood, Case No. 16,855. 

Where the licensees repudiate the license, the 
owner of the patent may elect either to sue upon 
the license or treat the licensees as infringers. — 
Cohn v. National Rubber Co., Case No. 2,968. 

A license to two corporations to use a pat- 
ented device passes, on their consolidation, to 
the new corporation, which is vested with all the 
powers, rights, franchises, etc., of the old cor- 
porations— Lightner v. Boston & A. R. Co., 
Case No. 8,343. 

One having an exclusive license to sell pat- 
ented machines, together with a contract by the 
corporation owning the patents to furnish him 
such machines at a specified price, may enjoin 
such corporation from undertaking a voluntary 
dissolution, and from assigning the patents in 
trust for another association. — Singer Sewing- 
Macb. Co. v. Union Button-Hole & Embroidery 
-Co., Case No. 12,904. 

Apprehension of a denial of the rights of a 
licensee to use a licensed invention, or a revoca- 
tion of the license, will not justify application 
to a court of equity for an injunction. — Florence 
Sewing Mach. Co. v. Singer Mfg. Co., Case No. 
4,884. 

The patentee is estopped to deny the validity 
of a transfer by a licensee where he has made 
settlement with and received royalties from such 
transferee. — Bloomer v. Gilpin, Case No. 1,558. 

Defendants, in consideration of a license to 
manufacture under plaintiff's patents, expressly 
recognized their validity, and agreed not to man- 
ufacture certain articles covered thereby. Held. 
that plaintiff could sue in equity either for breach 
of the agreement or for infringement. — Magic 
Ruffle Co. v. Elm City Co., Case No. 8,949. 

•See, also, post, § 184. 

§ 156. Particular licenses. 

Construction of license of right to use Morse's 
patents ou telegraph lines.— Smith v. Selden, Case 
No. 13,104. 



§ 157. Assignments and sublicenses. 

Quaere, if a license is not such a personal privi- 
lege that the entirety cannot be assigned, not- 
withstanding it was given to one and his as- 
signs.— Brooks v. Byam, Case No. 1,948. 

A purchaser of a patented machine from the 
assignee of a patent, after he has conveyed his 
entire interest to a second assignee, obtains no 
right to use the machine during the original or 
extended term.— Union Paper-Bag Mach. Co. v. 
Nixon, Case No. 14.391; Hawley v. Mitchell, 
Id. 6,250. 

A mere license is not apportionable, so as to 
permit the licensee to grant separate rights.— 
Consolidated Fruit-Jar Co. v. Whitney, Case 
No. 3,132. 

A license merely of use, being propertv, mav 
be conveyed.— Brooks v. StoIIey, Case No. l,9(rf. 

A license to a person, with privilege to em- 
ploy a certain number of persons, and no more, 
in the manufacture of a patented article, cannot 
be assigned in part.— Brooks v. Bj-am, Case No. 
l,9-±o. 

A sale of a machine by a person who has a 
license merely of use does not give an implied 
right to use it.— Brooks v. Stolley, Case No. 
1,963. 

A license of the "exclusive right to use and 
sell" in a certain territory, reserving the "right 
to manufacture." construed, and held assignable. 
—Hamilton v. Kingsbury, Case No. 5,984. 

A license to run a patented machine may he 
assigned, and the assignee must perform the con- 
ditions of the license.— Wilson v. Stollev, Case 
No. 37,840. 

A grant of the exclusive right to "manufacture 
and sell" in a specified city carries to a pur- 
chaser from the licensee a right to use the ma- 
chine anywhere.— May v. Chaffee, Case No. 9.- 
332. 

A license to make and use a machine gives no 
power to authorize a third person to construct it. 
—Baldwin v. Sibley, Case No. 805. 



Where a machine is licensed for use in a par- 




A license to manufacture and sell carriages 
with the patented invention attached, with a pro- 
viso that the same should not be assigned, but 
exercised solely by the licensees in their own 
manufactory, and that portions of carriages with 
or adapted for the invention should not be sold, 
does not prohibit the licensees from procuring 
the patented fixtures to be made bv others. — 
Wood v. Wells, Case No. 17,967. 

There is no principle of enuity which requires 
the owner of a patent to give notice to a pur- 
chaser of a licensee's right, in order to enable 
him to restrict such purchaser to terms of the 
license.— Chambers v. Smith, Case No. 2,582. 

The sale of a machine, by virtue of a license 
to use and sell, carries with it the right to use, 
by implication, and such machine may he again 
conveyed without words of assignment. — Farring- 
ton v. Gregory, Case No. 4,688. 

A licensee from an assignee has no greater 
rights than his licensor.— Abbett v. Zusi, Case 
No. 7. 

§ 158. Revocation, forfeiture, and aban- 
donment of license. 

Neglect to pay price for license and its aban- 
donment is a forfeiture.— Bell v. McCullough, 
Case No. 1,256. 

Where a licensee gives notes payable at differ- 
ent times under the agreement that the license 
should be void if any of the notes should become 
due and be unpaid, the license is forfeited the 
moment a note becomes due and is unpaid; and 
it is optional with the licensor either to sue on 



1689 (§ 158) PATENTS, 

[Fed. Cas 

the* note or to treat the license as forfeited, and 
enjoin the further use of the patented machine.— 
Woodworth v. Weed, Case No. 1S,022. 

A violation of a patent does not work a for- 
feiture of a license under the patent, except 
where the licensee has assumed such a hostile 
attitude tOAvards the patent as to amount to a 
repudiation of the right conveyed by the license 
—Wood v. Wells, Case" No. 17,967. 

The forfeiture of a license may he enforced 
according to its terms, by reason of the aban- 
donment or neglect of the licensee.— Wilson v. 
Stolley, Case No. 17,840. 

Under a license to use a patented machine in 
a certain place, and not elsewhere, and to have 
the privilege of using additional machines in 
such place, held, that the licensee was entitled, 
as against an assignee of the patent, to use the 
single machine, and to repair and rebuild it, 
but had forfeited his right to the additional ma- 
chines by using infringing machines. — Steam 
Cutter Co. v. Sheldon, Case No. 13,331. 

The licensee does not forfeit his right to the 
single machine by permitting it to be used by 
another person, but is liable for the profits aris- 
ing therefrom, and the damages thereby sus- 
tained by the assignee.— Steam Cutter Co. v. 
Sheldon, Case No. 13,331. 

The failure of a licensee to pay license fees 
weekly, as provided in the license, held not an 
abandonment.— Brooks v. Stolley, Case No. 1,- 
962. 

A confession of judgment for arrears of week- 
ly payments for a license is an admission of 
the arrears, giving the option to revoke the li- 
cense. — Armstrong v. Hanlenbeck, Case No. 
544. 

Failure of licensee to comply with condition 
to advance money for procuring patent, and the 
presentation by him to the inventor of a bill 
for money already advanced, with a view to a 
settlement, held to be an abandonment by the 
licensee of all rights under the contract. — Kittle 
v. Frost, Case No. 7,856. 

Failure to make returns and pay certain roy- 
alties, under contract granting an" exclusive 
right, held not to justify revocation at will, 
though sufficient to justify court of equity in re- 
scinding it.— Burdell v. Denig, Case No. 2,142. 

§ 159. Royalties and license fees. 

The patentee may license the use of his ma- 
chine for a royalty or annuity.— Burr v. Duryee, 
Case No. 2,190. 

An agreement in a license not to make any 
further claim of license fees under other pat- 
ents owned or controlled by the licensee held 
not to apply to past infringement of a patent, 
the control of which, including the right to re- 
cover for infringements subsequently passed to 
the licensor.— Dibble v. Augur, Case No. 3,879. 

A licensee will be compelled to pay the fee as 
a condition of using the patent.— I)ay v. Harts- 
horn, Case No. 3.683. 

* 

A principal is not liable for the claim of a 
patentee under work done by a contractor who 
held a license, even though he has not paid his 
license fees or royalty. — Stow v. Chicago, Case 
No. 13,512. 

In a suit to obtain a reduction of a license fee, 
an injunction was granted restraining defend- 
ant from terminating the license upon condition 
of plaintiff's depositing in court the amount of 
the fees in dispute. The bill was dismissed for 
want of equity and proper parties. Held, that 
the fund would be retained until the final de- 
termination of the controversy by a proper tri- 
bunal. — Florence Sewing Mach. Co. v. Singer 
Mfg. Co., Case No. 4,885. 

Defendant, who uses a patented improvement 
under a license which stipulates for a right to 
continue the use after expiration of the term 



X (C), 51. (§ 161) 1690- 

, DigrestO 

agreed, cannot continue the use after such time- 
without payment of the fee stipulated therefor.— 
England v. Thompson, Case No. 4,487. 

A license to use looms, corresponding to cer- 
tain models, for a specified period, "and for the^ 
additional term of any extension which may be 
hereafter granted of any patent now owned" by 
the licensors "relative to such looms," held to 
mean that the right to continuation of royalty 
was conditioned upon the extension of one or 
more of the patents.— Lowell Mfg. Co. v. Hart- 
ford Carpet Co., Case No. 8,569. 

The grantee from a licensee must pay the 
license fees stipulated in the license from the* 
patentee.— Goodyear v. Congress Rubber Co., 
Case No. 5,565. 

But he will not be enjoined from acting under 
the license because of failure of his grantor to- 
pay license fees accrued before the conveyance, 
nor is he liable therefor.— Goodyear v. Congx*ess- 
Rubber Co., Case No. 5,565. 

The impairment of profits of a licensee by the 
use of the invention by others, though unlawful, 
is a good defense to a suit for license fees, where 
it was stipulated that the fees should cease if 
the licensee's profits were impaired by use by 
others.— Goodyear v. Day, Case No. 5,567. 

Infringement of exclusive right granted by 
patentee to defendant is no defense by way of" 
special plea in bar to a suit by him for license 
fees.— Birdsall v. Perego, Case No. 1,435. 

In a suit to obtain the reduction of a license 
fee, held, that all of the joint owners of the- 
patent and grantors of the license were neces- 
sary parties defendant, and no decree can be 
made without bringing them in. — Florence Sew- 
ing Mach. Co. v. Singer Mfg. Co., Case No. 4,- 
S84. 

It is no defense by way of plea in bar to a 
suit for license fees that plaintiff was not the 
first and original inventor.— Birdsall v. Perego, 
Case No. 1,435. 

In a suit for license fees after revocation of* 
the license, held, that the licensee was estopped 
by the admission in the license from setting up* 
the invalidity of the patent as a defense.— Evory 
v. Candee, Case No. 4,583 v 

XI. REGULATION OF DEALINGS IN- 
PATENT RIGHTS AND PATENT- 
ED ARTICLES. 

§ 160. Power to control and regulate. 

A state has no right to interfere with the en- 
joyment of a patent right, or to annex condi- 
tions to the grant.— Ex parte Robinson, Case- 
No. 11,932. . 

A state law providing that a note "whose con- 
sideration is the right to make, use, or vend a 
patented invention, shall bear upon its face the- 
words "given for a patent right," and that such 
note shall be subject to the same defenses in 
the hands of a third person as in the hands of 
the original owner, impairs the value of patent 
right propertv, and is unconstitutional. — Woollen 
v. Banker, Ci?se No. 18,030. 

A state law requiring the filing of a copy of 
letters patent and a certain affidavit by the own- 
er with the county clerk, as a condition of the 
right to sell the patent right in the county, is- 
unconstitutional and void.— Ex parte Robinson, 
Case No. 11,932. 

§ 161. Marking patented articles. 

Each ar.ticle should be stamped with the day- 
of the month, as well as the year. The word 
"Patented" may be abbreviated.— Hawley v. 
Bagley, Case No. 6,248. 

It is no excuse for failure to mark the pat- 
ented articles "Patented" that such marking* 
would have been so expensive as to make the- 



1691 (g 161) 



PATENTS, XI., XII. (A). 
[Fed. Cas. Digest.] 



(§ 165) 1692 



-articles unprofitable. — Putnam v. Sudhoff, Case 
No. 11,483. 

The manufacturer of an article, which has 
been patented, can affix upon such article the 
word "Patented" or any other word of similar 
import, together with the date of the patent, 
After the patent has expired.— Wilson v. Singer 
Mfg. Co., Case No. 17,836. 

The word "Patent" affixed to an article im- 
ports to all "who see it that the article is then 
patented.— Nichols v. Newell, Case No. 10,245. 

Stamping manufactured articles with the 
name and date of a patent is conclusive on the 
manufacturers that they were made thereun- 
■der, and, where the patent is held to be an in- 
fringement, they will be held liable.— Jones v. 
Vankirk, Case No. 7,500. 

§ 162. Effect of failure to mark. 

The failure to mark patented articles does not 
affect the right to an injunction. It only takes 
away the right to damages. — Goodyear v. Al- 
lyn, Case No. 5,555. 

To prevent the recovery of damages it must 
appear, either from the bill or in the proofs, 
that the patentee has made or vended the 
articles under the patent. — Goodyear v. Allyn, 
Case No. 5,555. 

Failure to stamp the patented article, or to 
give the infringer notice, as required by the act 
of July 8, 1870, § 38, prevents recovery of more 
than nominal damages.— Mc Comb v. Brodie, 
Case No. 8,708. 

§ 163. Penalties for violation of regula- 
tions. 

Flour may be a patentable article, and an ac- 
tion will lie to recover the penalty for marking 
it "Patented" when it is unpatented. Rev. St. 
§ 4901.— Oliphant v. Salem Flouring Mills Co., 
Case No. 10,486. 

The penalty does not attach for placing the 
word "Patent" on an article merely frivolous in 
itself, and which imports no novelty, or the 
exercise of any inventive talent, so that no- one 
could be deceived. — United States v. Morris, 
Case No. 15,814. 

To justify a judgment for the penalty, the 
declaration must allege, and the proofs show, 
that the article so marked was legally the sub- 
ject of a patent. — United States v. Morris, Case 
No. 15,814. 

The penalty of not less than $100 (Act Aug. 
29, 1842, § 5) for the offense of marking the 
word "Patent" on unpatented articles, is a pen- 
alty of $1G0, and no more. — Stimpson v. Pond, 
Case No. 13,455. 

The making of application for a patent will 
not prevent -the penalty for attaching for affix- 
ing the word "Patent" to an unpatented arti- 
cle, at least as to articles made and stamped be- 
fore the application. — Stephens v. Caldwell, 
Case No. 13,367. 

An article upon which the patent has expired 
does not come within the meaning of the statute 
which prohibits the affixing of the word "Pat- 
ented" upon any "unpatented article." — Wilson 
v. Singer Mfg. Co., Case No. 17,830. 

A person who marks as patented an unpat- 
ented article is not liable to the penalty pre- 
scribed by Act Aug. 29, 1842, § 5, unless he 
does so knowing that he has no right to do so, 
and with the intention of deceiving the public. 
— Walker v. Hawxhurst, Case No. 17,071; Nich- 
ols v. Newell, Id. 10,245; Stephens v. Caldwell, 
Id. 13,367. 

If an unpatented article is marked as patent- 
ed, with intent to deceive, the offense is com- 
plete, without showing that the article was sold. 
If the marking was with innocent purpose, there 
is no offense, though the article is sold. — Nich- 
ols v. Newell, Case No. 10,245. 



If the word "Patent" is affixed to articles 
with the intention of procuring a patent, and 
withholding them from observation and sale 
until the same is granted, the act is innocent. 
—Nichols v. Newell, Case No. 10,245. 

Although one who marks an unpatented arti- 
cle as patented may expect to receive a patent, 
the offense is complete if he intended to maitc 
the public believe that the article was then pat- 
ented. — Nichols v. Newell, Case No. 10,245. 

Marking an unpatented article "Newell's Pat- 
ent, 1852." is affixing the word "Patent" within 
the meaning of the act. — Nichols v. Newell, Case 
No. 10,245. 

Suits for the penalty for affixing the word 
"Patented" to unpatented articles must be 
brought in the name of the informer, and not 
in the name of the United States. Act Aug. 
29, 1842, § 5.— United States v. Morris, Case 
No. 15,814. 

In an action by the informer for a penalty for 
marking an unpatented article as patented, the 
United States need not be joined as plaintiff.— 
Oliphant v. Salem Flouring Mills Co., Case No. 
10,486. 

In a qui tarn action under Act 1842, § 6, the 
proof as to the patent must correspond with the 
allegations as to the sale of the article. — Haw- 
ley v. Bagley, Case No. 6,248. 

A count charging defendants with putting the 
word "Patent" on a lamp is sustained by proof 
that they put it on the cap of the lamp. — Nich- 
ols v. Newell, Case No. 10,245. 

In an action for the penalty for marking an 
unpatented article as patented, the question of 
the intention of deceiving the public is for the 
jury. — Walker v. Hawxhurst, Case No. 17,071. 



XII. INFRINGEMENT. 

(A) WHAT CONSTITUTES INFRINGE- 
MENT. 

§ 164. In general. 

The law of infringement explained and illus- 
trated. — Colt v. Massachusetts Arms Co., Case 
No. 3,030. 

It is not necessary that the thing patented 
should be adopted in every particular to consti- 
tute an infringement; a substantial adoption is 
sufficient.— Root v. Ball, Case No. 12,035. 

Where the right consists in certain instru- 
ments by which a thing of a particular structure 
is made, the structure or use of these instru- 
ments is prohibited. — Boyd v. Brown, Case No. 
1,747. 

There is no infringement in using what the 
public had free opportunity to use before the 
patent, whether the character or capacities 
thereof were generally understood or not. — 
Smith v. Higgins, Case No. 13,058; McCormick 
v. Manny, Id. 8,724. 

§ 165. Knowledge or intent. 

One may be an infringer without knowing of 
the existence of the patent. — Matthews v. 
Skates, Case No. 9,291. 

A person who constructs a machine with 
knowledge that another is the first inventor acts 
at his peril, and a subsequent patent will pre- 
vent its use by him. — Evans v. Weiss, Case No. 

4,572. 

The manufacture of certain articles capable 
of being used in making up certain parts of a 
patented combination, and with the intention 
that they should be so used, is not an infringe- 
ment, where they are separate^ useful for nu- 
merous purposes. — Millner v. Schofield, Case No. 
9,609a. 



1693 (§ 166) 



PATENTS, XH. (A). 
[Fed- Cas. Digest.] 



(§ 168) 1694: 



§166. Patents for processes. 

Where the gist of an invention is the discov- 
ery of a principle in science made practically 
useful by the process described, he who adopts 
the principle to a practical extent is guilty of 
infringement— Tilghman v. Werk, Case No. 
14,046. 

There is an infringement of a patent for a 
^process if the two products and the general 
rmode of construction are the same as would ap- 
pear by comparison of the two manufactures, 
though mechanical differences exist — Collender 
•v. Came, Case No. 2,999. 

The inventor of a new means of carrying into 
•effect a patented process is entitled to a patent 
therefor, but he has no right to use the process. 
—Tilghman v. Mitchell, Case No. 14,043. 

Placing red-hot car wheels in a pit with alter- 
nate layers of charcoal, which is ignited thereby 
■for the purpose of annealing, lield equivalent to 
•placing them in a previously heated furnace, 
within the meaning of the patent— Whitney v. 
Mowry, Case No. 17,592. 

■§ 167. Patents for machines or manu- 
factures in general— Identity in 
general. 

Tests for determining the identity or diversity 
of machines on questions of infringement — 
Blanchard v. Beers, Case No. 1,506; Tatham v. 
Le Roy, Id. 13,760; Whittemore v. Cutter, Id. 
17,601. 

On the point of infringement, the inquiry is 
'whether defendant's machine in its construc- 
tion involves some new idea not found in plain- 
tiff's, or whether it is in substance the same, 
,and differs merely in things immaterial or un- 
important — McCormick v. Seymour, Case No. 
S,726. 

There is an infringement if use of the machine 
will produce a result in it which would have 
keen an infringement if originally introduced. — 
American Diamond Rock Boring Co. v. Sulli- 
xan Mach. Co., Case No. 298. t 

Where a party avails himself of the former 
invention without such variation as constitutes 
•discovery, there is an infringement — Carter v. 
Baker, Case No. 2,472. 

To determine infringement the two machines 
must be compared, in the light of their devices, 
.and their process and product, inquiry being di- 
rected to the essential parts. — Cahoon v. Ring, 
Case No. 2,292. 

If two machines, having substantially the 
same mode of operation, do the same work in 
-substantially the same way, and accomplish sub- 
stantially the same result, they are the same, 
though differing in form, shape, or name. — 
Blanchard v. Puttman, Case No. 1,514; Same 
v. Reeves, Id. 1,515; Brooks v. Jenkins, Id. 
1,953; Cahoon v. Ring, Id. 2,292; Conover v. 
Rapp, Id. 3,124; Same v. Roach, Id. 3,125; 
May v. Johnson County, Id. 9,334; Sickels v. 
Borden, Id. 12,832; Sloat v. Spring, Id. 12,- 
*94Sa; Smith v. Fay, Id. 13,045; Union Sugar 
Refinery v. Matthiesson, Id. 14,399. 

The identity or diversity of two machines de- 
pends, not on the employment of the same ele- 
ments or powers of mechanics, but upon produ- 
cing the given effect by substantial^ the same 
mode of operation, or substantially the same 
-combination of powers. — Crompton v. Belknap 
Mills, Case No. 18,285; Odiorne v. Wir-kley, 
Id. 10,432. 

Where two machines produce substantially a 

-similar result by substantially similar means, 

no proof of difference between them lies in the 

fact that one is less effectual in operation, or 

more imperfect in its structure, than the other. 

— Roberts v. Harnden, Case No. 11,903. 

There is no infringement where the two con- 
trivances do not perform the same function, by 
-the same means, and one cannot be used in 



place of the other.— Brown v. Rubber-Step Mfg. 
Co., Case No. 2,028. 

A device is not less equivalent of another be- 
cause, superadded to all the functions of such 
other, it may perform a further office, or be- 
cause, besides all the functions of such other, it 
performs some one of the offices more effective- 
ly or better, so long as it performs them in sub- 
stantially the same way, and uses substantially 
the same means.— Wheeler v. Clipper Mower, 
etc., Co., Case No. 17,493. 

If the patented means were new, and the de- 
fendants have used them, they have infringed, 
although they may have used another device, 
not patented by the plaintiffs, by which the re- 
sult is accomplished in a more perfect and satis- 
factory manner. — Waterbury Brass Co. v. New 
York & B. Brass Co., Case No. 17,256. 

Subsequent discovery of peculiar value of ma- 
terial used by inventor does not give discoverer 
right to use it in. the patented manner.— Bailey 
Washing & Wringing Mach. Co. v. Lincoln, 
Case No. 750. 

§ 168. — Identity of principle or mode 
of operation* 

What constitutes substantial identity in prin- 
ciple.— Parker v. Stiles, Case No. 10,749. 

Changing the position of a machine does not 
alter its principle.— Brooks v. Jenkins, Case No. 
1,953. 

"Principle," as applied to machines, refers to 
mode of operation; and identity of principle may 
exist in structures widely different in appearance 
and dimensions.— Latta v. Shawk, Case No. 8,- 
116. 

The principle of a machine or improvement is 
the peculiar mode, manner, or device by which 
the proposed result or effect is produced— Pitts 
v. Wemple, Case No. 11,194; Parker v. Stiles, 
Id. 10,749. 

The principle in a machine is that which ap- 
plies, modifies, or combines mechanical powers 
to produce a certain result. — Smith v. Pearce, 
Case No. 13,089. 

That is a substantial identity which compre- 
hends the application of the principle of the in- 
vention.— Coleman v. Liesor, Case No. 2,984; 
Latta v. Shawk, Id. 8.116; McComb v. Brodie, 
Id. 8,708; Page v. Ferry, Id. 10,662; Parker 
v. Haworth, Id. 10,738; Smith v. Downing, Id. 
13,036. 

A machine which is not the same in principle 
is not an infringement.— Brooks v. Jenkins, Case 
No. 1,953. 

Where two machines are substantially the 
same, and operate in the same manner to pro- 
duce the same kind of result, they must be, in 
principle, the same. — Gray v. James, Case No. 
5,718. 

A machine which operates, or may operate, 
if the owner is disposed to use it so, in the man- 
ner pointed out by the patent, is an infringe- 
ment. — Holbrook v. Small, Case No. 6,595. 

A machine is not the same if either the devices, 
or the mode of applying them, be substantially 
different from that of the patented machine. — 
Eames v. Cook, Case No. 4,239. 

A difference in the result of the action of two 
devices is evidence of difference in mode of oper- 
ation.— Sloat v. Patton, Case No. 12,947. 

A difference in mode of operation or result 
obtained is evidence that the mechanism is dif- 
ferent— Eames v. Cook, Case No. 4,239. 

* 

Blanchard's patent for a machine for turning 
and cutting irregular forms is infringed by a 
machine using the same combination, but which 
will make only wagon spokes. — Blanchard v. 
Beers, Case No. 1,506. 

Mechanism for marking dial paper by forcing 
points upward from below held equivalent to de- 



1695 (§ 168) 



PATENTS 
[Fed. Cas 

vice for marking it by pressing points downward 
on surface. — Buerk v. Imkaeuser, Case No. 2,106; 
Same v. Valentine, Id. 2,109. 

A claim in a fluting machine, for an arched 
guide in combination with fluting rollers is in- 
fringed by a combination in which the position 
of the arched guide is changed, but without vary- 
ing its mode of operation or the results pro- 
duced.— King v. Maudelbaum, Case No. 7,799. 

A box-cover fastening formed by making a hole 
in the rim of the cover to fit over a protuber- 
ance .on the surface of the box infringes a pat- 
ent for a fastening formed by a protuberance on 
both cover and box. — Parker v. Remhoff. Case 
No. 10,747. 

A patent for a "shoe-last" is infringed by using 
the machine, without alteration, in the making 
of boots. — Mabie v. Haskell, Case No. 8,653. 

A hat-body machine, in which it is claimed 
that the fur is projected by a rotary picker 
downward against a surface, by which it is guided 
upon a former, is an infringement of a patent 
for a like machine, in which the fur is blown 
by such a picker upwards against the upper side 
of a tunnel, through which it is carried on the 
former. — Wells v. Jacques, Case No. 17,398. 

A patent for increasing or decreasing the draft 
of a locomotive boiler by carrying the exhaust 
pipes of the engines to the bottom of the smoke 
pipe, and there controlling the discharge of the 
steam by plugs, is infringed by a locomotive in 
which a like result is accomplished by carrying 
the exhaust pipes to the bottom of the smoke 
box, instead of the smoke pipe. — Winans v. Dan- 
forth, Case No. 17,859. 

A change in the mode of construction with- 
out changing the principle, involving a loss of 
power, but gaining a quicker motion, will not 
prevent the machine being an infringement. — 
Blake v. Eagle Works Mfg. Co., Case No. 1,494. 

§ 169. Identity of form or arrange- 
ment. 

All modes, however changed in form, which 
act on the same principle and effect the same end J 
are within the patent.— Brooks v. Bicknell, Case | 
No. 1,944; Evans v. Eaton, Id. 4,560; McComb j 
v. Brodie, Id. 8,708; Sargent v. Larned, Id. ! 
12,364; Sickels v. Borden, Id. 12,832. 

Where the change of form involves only the 
exercise of mechanical ingenuity, there is an in- 
fringement. — Potter v. Schenck, Case No. 11,337. 

If defendant's machinery embody the patentee's 
ideas, and operate by such adoption, it infringes, 
in spite of an apparent or real difference of ar- 
rangement. — Smith v. Higgins, Cases Nos. 13,- 
057, 13,059. 

Infringement is not avoided by change of form 
or proportion, substitution of one motive power ! 
for another, different position of gearing, or su- 
perior finish, etc. — Smith v. Higgins, Case No. 
13,05S. 

Though the machine is not in its arrangement 
substantially different from that of the patent, 
yet there is no infringement if its action upon the 
material operated upon is essentially different, 
and the result is new. — Tatham v. Le Hoy, Case 
No. 13,762. 

A patent confined to mold boards for plows, 
whose faces are worked upon transverse cir- 
cular lines whose radii are in the exact propor- 
tion of three to one, is infringed by a mold board 
which contains a slight variation only for the 
purpose of evading the patent. — Davis v. Palmer, 
Case No. 3,645. 

Structures are "substantially" the same if of 
the same material, thickness, or form, where 
such condition is important. — Adams v. Edwards, 
Case No. 53. 

A saw having its fleam teeth of the usual tri- 
angular form, with intervals between them, does 
not infringe a patent for a saw having its fleam 



(§ 170) 169$ 



, XII. (A). 
. Digrest.l 

teeth arranged in pairs, with only a perpendicular 
slit between them.— Wheeler v. Simpson, Case- 
No. 17,500; Hoe v. Same, Id. 

A change of form or proportion, producing a 
new effect, is not within the inhibition of the- 
statute as a simple change of form or propor- 
tion. — Davis v. Palmer, Case No. 3,645. 

A patent for a saw, claiming in combination 
clearing teeth hollowed out in front, so as to> 
plane out the wood between the scores cut by 
the fleam teeth, is not infringed by a saw in 
which the wood is rasped out by clearing teeth, 
which are straight and perpendicular in front. — 
Wheeler v. Simpson, Case No. 17,500; Hoe v^ 
Same, Id. 

§ 170. Substitution of equivalents. 

One device is not a well-known substitute for 
another which cannot be used for it .— Crompton 
v. Belknap Mills, Case No. 3,406. 

A mechanical equivalent is limited to the prin- 
ciple of the patent, including merely colorable or 
formal alterations.— McCormick v. Mannv, Case- 
No. 8,724. 

If defendant has taken the same general plan 
and applied it for the same purpose, though vary- 
ing the mode of construction, he has used merely 
mechanical equivalents. — McCormick v. Sey- 
mour, Case No. 8,726. 

The doctrine of mechanical equivalents dis- 
cussed.— Storrs v. Howe, Case No. 13,495. 

A mechanical equivalent is one that may be 
adopted in place of that named, by a person 
skilled in the art, from his knowledge of the art. 
—Burden v. Corning, Case No. 2,143; Johnson- 
v. Root. Id. 7,411; May v. Johnson Countv. 
Id. 9,334; Smith v. Downing, Id. 13,036. 

The true criterion of mechanical equivalence 
is identitv of purpose, and not of form or name. 
—In re Boughton, Case No. 1,696. 

The mere substitution of one known device for 
another, though complex, is an infringement.— 
Foster v. Moore, Case No. 4,978. 

A change which constitutes a mechanical equiv- 
alent, though accomplishing something useful be- 
yond the effect accomplished by the patentee, is 
nevertheless an infringement, as respects what 
is covered by the patent.— Foss v. Herbert, Case 
No. 4,957. 

Where the chief efficacy of a machine arises: 
from the use of equivalents to the patented ma- 
chine, it is an infringement, though it be simpler, 
cheaper, and better. — Odiorne v. Denney, Case 
No. 10,431. 

Infringement is not avoided by mere formal 
alterations, or the substitution for one ingredi- 
ent of a well-known equivalent. — Bailey Wring- 
ing Mach. Co. v. Adams, Case No. 752; Barrett 
v. Hall, Id. 1,047; King v. Louisville Cement 
Co., Id. 7,798; Wintermute v. Redington, Id. 
17,896. 

A change which is the substitution of an 
equivalent and something more is an infringe- 
ment of what is covered by the patent, though 
the additional matter be a patentable improve- 
ment. — Sloat v. Spring, Case No. 12,948a. 

The use of an equivalent is not an infringe- 
ment if such equivalent is expressly disclaimed. 
— Byam v. Farr, Case No. 2,264. 

One who has discovered a result and ma- 
chinery that produces it may invoke the doc- 
trine of equivalents, but a mere improver can- 
not. — Singer v. Walmsley, Case No. 12,900. 

Where all the elements of a machine are old, 
the doctrine of equivalents cannot be invoked 
to suppress all other improvements on the old 
machine. — Union Sugar Kefinery y. Matthiesson, 
Case No, 14,399. 

But such patent is infringed by the substitu- 
tion for one of its elements of an equivalent 



1697 (§ 170) 



well known at the time of the invention.— Union 
Sugar Refinery v. Matthiesson, Case No. 14,- 
399. 

A claim for a paint can having a thin rim of 
soft metal, to be cut through in opening, is 
infringed by making one end wholly of thin tin. 
— Masury v. Anderson, Case No. 9,270. 

A screw and a lever are mechanical equiva- 
lents. So,* also, a spring, a weight, and a pul- 
ley are mechanical equivalents. — Tatham v. Le 
Roy, Case No. 13,760. 

A patent calling for smooth or plain surfaces 
5s infringed by surfaces having slight inequali- 
ties, but which are sufficiently smooth for all 
practical purposes and operate substantially as 
the patented surfaces.— Whipple v. Middlesex 
Co., Case No. 17,520. 

A rod is a known equivalent of an endless 
chain in machinery where it can be used for the 
same purpose and effect— Spain v. Gamble, Case 
No. 13,199. 

Hydraulic pressure, operating through a piston 
rod for moving a jaw in a stone crusher held a 
mechanical equivalent for toggle levers operated 
by a lever and crank rod.— Blake v. Robertson, 
Cases Nos. 1,500, 1,501. 

A knuckle metallic joint in a hydraulic mining 
apparatus held to be a known mechanical sub- 
stitute for one made of India rubber, or other 
flexible material.— Fisher v. Craig, Case No. 
4,817. 

A device for making extract from tan bark 
by the use of exhaust steam held not infringed 
by a device for using steam direct from a boiler. 
—Bridge v. Brown, Case No. 1,858. 

Making the lower roll of a fluting machine ad- 
justable, instead of the upper, and the use of a 
rack and pinion to make it adjustable, instead 
of a screw, does not avoid infringement.— Knox 
v. Loweree, Case No. 7,910. 

A screw rotated in a stationary nut by means 
of a spur wheel gearing with another screw, 
producing longitudinal movement, is the equiva- 
lent of one to which like movement is imparted 
by means of a nut rotated by a pulley.— King 
v. -Louisville Cement" Co., Case No. 7,798. 

A claim in which the lower chords in truss 
bridges were described as of bars "wide and 
thin" held not infringed by a bridge having 
chords of bars round in section.— Keystone 
Bridge Co. v. Phcenix Iron Co., Case No. 7,751. 



PATENTS, 5IL (A). 
[Fed. Cas. Digest.] 



(§ 173) 1698 



Sheets of tin used to preserve the form of 
the material in the process of vulcanizing India 
rubber held not equivalent to tin foil.— Poppen- 
husen v. New York Gutta Percha Comb Co., 
Case No. 11,282. 

An hotel register with advertisements at the 
top and bottom of the pages held an infringement 
of a patent for a register with side margins for 
printed advertisements.— Hawes v. Washburne, 
Case No. 6,242. 

A patent claiming invention of an hotel regis- 
ter with alternate leaves of bibulous paper, for 
advertisements, held infringed by the use of yel- 
low medium paper for such advertisements.— 
Hawes v. Gage, Case* No. 6,237. 

Mere formal differences, such as substituting 
two additional dies, in a method of forming the 
eyes of picks, which perform the same function 
as the side walls of the dies of the patent, do 
xr 0t Sq^o lnfrin sement— Klein v. Park, Case 

§ 171. Omission of parts. 

m A patent for two machines, each of which 
is a new invention, is infringed by the use of 
S? e $£-?A- h machmes -— Wyeth v. Stone, Case 

It is an infringement to use a part of the in- 
ventwn embraced witiiin the patent.— Blake v. 
Smith, Case No. 1,502. 

Fed.Cas.Dig.— 54 



A patent of a machine as an aggregate is 
infringed by a machine which omits immaterial 
parts, or uses fewer of the original old elements, 
or substitutes equivalents.— Rich v. Close, Case 
No. 11,757. 

_ The nominal elimination of a part whose office 
is performed by something else, under a different 
name, will not prevent the machine from being 
an infringement.— Brooks v. Nprcross, Case No. 
l,9o7. 

. A- Patent for a machine composed of new parts 
is infringed by the use of any one of such new 
parts.— Foss v. Herbert, Case No. 4,957. 

A patent for an invention embracing an ele- 
ment of a machine is infringed by the making 
•or use of such element.— Union Sugar Refinery 
v. Matthiesson, Case No. 14,399. 

A patent for a device cannot be avoided by 
dividing the device into two parts, which, when 
combined, produce the same result, in substan- 
tially the same way.— Wheeler v. Clipper Mower, 
etc., Co., Case No. 17,493. 

§ 172. — Addition of parts. 

The inventor of improvements or additions*- 
to a patented machine or manufacture has no* 
right to use the patented machine or manufac- 
ture m connection therewith, nor has the orig- 
inal patentee the right to use the improvements 
or additions where they are duly patented.— 
Carr v. Rice, Case No. 2,440; Chicago Fruit- 
House Co. v. Busch, Id. 2,669; Coleman v.. 
Liesor, Id. 2,984; Colt v. Massachusetts Arms= 
Co., Id. 3,030; Conover v. Rapp, Id. 3,124; Cook 
X'«£ ow £ rd > Id ' 3,160; Crehore v. Norton, Id~ 
3,381; Decker v. Griffith, Id. 3,724; De Florez 
J%J^ y .P old ,?» Id ; 3,742; Gray v. James, Iff. 
o,^lS. o,&9; Westinghouse v. Gardner, etc., 
Air-Brake Co., Id. 17,450; Whipple v. Bald- 
win Mfg. Co., Id. 17,514; Woodworth v. Rog-* 
ers, Id. 18,018. 

Use of patented invention as one of the ele- 
ments of another combination is an infringe- 
ment—Cleveland v. Towle, Case No. 2,888. 

If a machine produce several different effects 
by a particular combination of machinery, and 
these effects are produced in the same way in 
another machine, and a new effect added, the in- 
ventor of the latter cannot entitle himself to 
a patent for the whole machine.— Whittemore 
v. Cutter, Case No. 17,601. 

Although a patented device, without the im- 
provement of another added to it, is of little 
practical value, the latter cannot use it without 
the consent of the patentee.— Turrell v. Spaeth, 
Case No. 14,269. 

Where a second invention is an improvement 
on the first, which it includes, neither owner 
can lawfully use the invention of the other with- 
out his consent— Star Salt Caster Co. v. Cross- 
man, Case No. 13,321. 

The inventor of an improvement on an old 
machine which he had a right to use is entitled- 
to the benefit of the operation of the machine 
with the improvement, to the same degree as the 
original patentee was entitled to the old ma- 
chine.— McCormick v. Seymour, Case No. 8,726- 

§ 173. Identity of result. 

A patent for a machine secures only the means? 
employed, and not the effect produced.— Amer- 
ican Pin Co. v. Oakville Co., Case No. 313. 

Accomplishing the same result by a mechanism 
or combination of a mechanism substantially dif- 
ferent from that of the patent involves no in- 
fringement—Burden v. Corning, Case No. 2,143= 
Clark v. Kennedy Mfg. Co., Id. 2,826; Eames 
v. Cook, Id. 4,239; Morris v. Barrett, Id. 9,827 r 
Singer v. Walmsley, Id. 12,900. ' * 

" Use of substantially the same devices to pro- 
duce the same results and certain additional 
results is an infringement.— New York Rubber 
Co. v. Chaskel, Case No. 10,215. 



1699 t§ 173) 



PATENTS, 

[Fed. Cas. 

The fact that the results of defendant's'mech- 1 
anism are greatly superior to those described 
and claimed by the patentee may be considered 
as tending to prove that defendant's mechanism 
is substantially different from plaintiff's.— Smger 
v. Walmsley, Case No. 12.900. 

A patent for a new product is infringed by 
its manufacture by any process whatever.— 
Badische Anilin & Soda Fabrik v. Hamilton 
Mfg. Co., Case No. 721. 

$ 174. Patents for combinations— Iden- 
tity in general. 

In determining whether a patent for a com- 
bination is anticipated or infringed, the dis- 
tinguishing characteristic is to be^ considered — 
Conover v. Roach, Case No. 3,125. 

A patent for a combination is not infringed 
unless defendant uses, constructs, and operates 
it in substantially the same way as under the 
patent. To change the form and obtain a 
new manner of operating, or to obtain a new 
and useful result, is subject to a patent.— Uor- 
ham v. Mixter, Case No. 5,626. 

A patent for a combination is not infringed 
by any and every combination of the same ele- 
ment which may produce the same result, but 
only bv the particular combination, or one sub- 
stantially the same.— Crompton v. Belknap Mills, 
Case No. 3,406. 

A patent for a combination containing new 
parts may be infringed by the use of such new 
parts.— Lee v. Blandy, Case No. 8,182. 

A subordinate device is not an "element," 
within the rule relating to combination claims.— 
Smith v. Fay, Case No. 13,045. 

§ 175. Transposition of elements. 

A change in location of a part, in combination, 
where no new function is performed, will not 
evade a patent— Adams v. Joliet Mfg. Co., 
Case No. 56; Knox v. Great Western Quick- 
Silver Min. Co., Id. 7,907. 

§ 176. Substitution of equivalents. 

A patent for a combination of old devices is 
infringed by a combination which merely sub- 
stitutes a single device, which at the date of the 
patent was a well-known equivalent. — Sands 
v. Wardwell, Case No. 12,306; Webster v. 
New Brunswick Carpet Co., Id. 17,337; Well- 
ing v. Rubber-Coated Harness Trimming Co., 
Id. 17,382. 

If the mechanical combinations of the mem- 
bers of the two machines be such that the ac- 
tion and mode of operation differ, they are not 
mechanical equivalents.— Blake v. Rawson, 
Case No. 1,499. 

The doctrine of mechanical equivalents does 
not applv where the patent is for a particular 
•combination of old elements.— Crompton v. Bel- 
knap Mills, Case No. 3,406. 

A patent for a combination is not infringed 
t»y a combination which substitutes for one of 
the elements another element substantially dif- 
ferent in construction and operation, but serv- 
ing the same purpose.— Crompton v. Belknap 
Mills, Case No. 3,406. 

A substitute for an ingredient in a patented 
combination does not cease to be an equivalent 
because it does something more and better.— 
Atlantic Giant Powder Co. v. Goodyear, Case 
No. 623; Same v. Mowbray, Id. 624; Kendrick 
v. Emmons, Id. 7,695; Sarven v. Hall, Id. 12.- 
369. 

A combination of a sheath with a fixed knife 
in the same cylinder, and one of a springing 
knife with a sheath in the same or opposite 
cylinder, lield not equivalents.— Bullock Print- 
ing Press Co. v. Jones, Case No. 2,132. 

In a combination of a machine for making 
kettles, a tool carriage moved by a rod connect- 
ed with a cam acted on by a gear wheel actu- 



XII. (A). (§ 178) 1700 

Digest.] 

ated through a crank by the hand of a workman 
is an equivalent of a tool carriage^ moved by a 
screw connected by a gear wheel with the power 
moving the lathe.— Waterbury Brass Co. v. 
Miller, Case No. 17,254. 

§ 177. Omission of elements. 

There is no infringement of a patent for a 
combination unless all the essential parts of 
the combination are substantially imitated, and 
it is not an infringement to use a part of such 
elements.— Bell v. Daniels, Case No. 1,247; Bliss 
v. Haight, Id. 1,548; Brooks v. Bicknell, Id. 
1,946; Same v. Jenkins, Id. 1,953; Carter v. 
Baker, Id. 2,472; Coolidge v. McCone, Id. 3.- 
186; Densmore v. Schofield, Id. 3,809; Dodge 
v. Card, Id. 3,951; Fisher v. Craig, Id. 4.Sli; 
Howe v. Abbott, Id. 6,766; Huggins v. Hubby, 
Id. 6,S39; King v. Louisville Cement Co., Id. 
7,798; Latta v. Shawk, Id. 8,116; McCormick 
v. Manny, Id. 8,724; Pitts v. Wemple, Id. 11,- 
195; Roberts v. Harnden. Id. 11,903; Singer 
v. Walmsley, Id. 12,900; Smith v. Higgins, Id. 
13,058; Same v. Clark, Id. 13,027; Same v. 
Marshall, Id. 13,077. 

Where the patentee did not devise the va- 
rious parts, but the whole combination, it is not 
infringement to use a part of the combination. — 
Case v. Brown, Case No. 2,488. 

A combination of old devices does not prevent 
others from using them separately, or in a new 
combination.— Hailes v. Van Wormer, Case No. 
5,904; Hale v. Stimpson, Id. 5,915; Byam v. 
Eddv, Id. 2,263; Crompton v. Belknap Mills, 
Id. 18,285. 

It is no infringement of a patent for a com- 
bination of machines to use either of the ma- 
chines separately.— Barrett v. Hall, Case No. 
1,047. 

Where a patent is for improvements on known 
machinery and a combination of mechanical 
powers, it is an infringement to adopt any of 
the improvements or any of the parts of the 
combination.— Parker v. Haworth, Case No. 10,- 

73a 

The manufacture of one of the elements of a 
patented combination, not proved to be made for 
use in connection with the other elements, is not 
an infringement of the patent— Saxe v. Ham- 
mond, Case No. 12,411. 

A patent for an invention, embracing a new 
element and a combination of old elements, is 
infringed by the use of the new element or new 
combination.— Union Sugar Refinery v. Mat- 
thiesson, Case No. 14,399. 

Where a structure consisting of several parts 
is patented as a combination, one who manu- 
factures and sells some of the parts, they be- 
ing useless without the residue, with the under- 
standing and intent that such residue shall be 
supplied by another, and the whole go into use 
in its complete form, is liable as an infringer of 
the patent.— Wallace v. Holmes, Case No. 17,- 
100. 

Where the patent is for a specific device and 
not for a combination, infringement is not avoid- 
ed by making the device in three parts instead of 
two.— Mabie v. Haskell, Case No. S,653. 

§ 178. Addition of elements and im- 
provements. 

A patent for a combination is infringed by its 
use with added features.— Pitts v. Wemple, Case 
No. 11.195; Williams v. Boston & A. R. Co., 
Id. 17,716. 

Where a patented combination turns out to be 
useless, a person who adds another element, 
and thereby makes the whole practically useful, 
is entitled to use the whole combination.— Rob- 
ertson v. Hill, Case No. 11,925. 

A patent for a combination of old devices is 

infringed by its use to accomplish something 

I more or better, which could not be effected 



1701 (§ 178) 



PATENTS, XII. (A). 
[Fed. Cas. Digest.] 



(§ 183) 1702 



without its aid.— Sayles v. Chicago & N. W. R. 
Co., Case No. 12,415. 

The addition of a well-known device will not 
give defendant the right to use the patented 
combination where some addition is necessary 
to fit it for use.— Robertson v. Hill, Case No. 
11,925. 

m What is technically a combination, and how 
it may be infringed, though improved.— Foster 
v. Moore, Case No. 4,078. 

Improvement upon one of the independent de- 
vices used in a patented combination of old de- 
vices is no defense to infringement—Converse 
v. Cannon, Case No. 3,144. 

§ 179, Patents for compositions of mat- 
ter. 

An equivalent of a substance is another sub- 
stance having similar properties and producing 
substantially the same effect.— Matthews v. 
Skates, Case No. 9,291. 

The use of chemical equivalents in place of 
one or more of the elements of a patented com- 
pound may infringe the patent for the com- 
pound, although in some respects the substitut- 
<ed equivalents are improvements.— Woodward v. 
Morrison, Case No. 18,008. 

The sale of a substance containing caustic 
alkali, with oil or rosin mechanically distributed 
through, but not in chemical union with, it, in- 
closed in a metallic integument, infringes a pat- 
ent for caustic alkali inclosed in a metallic in- 
tegument—Thompson v. Jewett, Case No. 13,- 
361. 

A paint for preventing the fouling of ships' 
bottoms, similar to the patented paint, but sub- 
stituting arsenite of copper for oxide of copper, 
held not an infringement— Wonson v. Gilman, 
Case No. 17,933. 

t A patent for a concrete pavement laid in sec- 
tions, claiming the interposition between the 
blocks of permanent material, held infringed by 
the temporary interposition of material while 
the pavement was in the process of formation. — 
Schillinger v. Gunther, Case No. 12,456. 

A composition of which plaster of Paris is an 
ingredient, used for the filling of fire-proof safes, 
held not an infringement of a patent for the 
use of plaster of Paris.— Rich v. Lippincott 
Case No. 11,758. 

A patent for vulcanized rubber is not in- 
fringed by the use of a substance which is ren- 
dered plastic and not hardened by heat— Good- 
year Dental Vulcanite Co. v. Flagg, Case No. 
5,590. 

§ 180, Patents for designs. 

Proper tests for determining infringement of 
a patent for a design.— Gorham Mfg. Co. v. 
White, Case No. 5,627. 

To constitute infringement of a design patent, 
the designs must be so similar as to appear to 
ordinary observers, but not necessarily to ex- 
perts, to be the same.— Perry v. Starrett, Case 
No. 11,012. 

Where two designs are substantially similar, 
the fact that different names or trade-marks 
are or may be used in connection with them 
will not sufficiently distinguish them.— Perry v. 
Starrett, Case No. 11,012. 



The degree of superiority of result obtained, 
or efficiency or economy, by the substituted ma- 
terial, mar be such as to amount to a difference 
in kmd.— Goodyear, Dental Vulcanite Co. v. Wil- 
lis, Case No. 5,603. 

§ 182. Experiments. 

An experiment with a patented article for the 

sole purpose of gratifying a philosophical taste 

or curiosity, or for mere amusement, is not an 

iBfopsement—Poppenhusen ?• Falke, Case No. 
11,279. 

But such experiment is an infringement where 
the product is put on the market— Poppenhu- 
sen v. New York Gutta Percha Comb Co., Case 
No. 11,283. 

Experimental making and user of patented 
article is technical infringement.— Albright v. 
Celluloid Harness-Trimming Co., Case No. 147. 

§ 183. Making or repair of patented arti- 
cle. 

The mere unauthorized making of a patented 
machine, although it is neither used nor sold, 
£ a ? infringement— Bloom'er v. Gilpin, Case 
No. 1,558; Carter v. Baker, Id. 2,472. 

The making of a patented machine fit for use, 
and with design to use it for profit, in violation 
of the patent right, is of itself a breach of the 
patent right, for which an action lies.— Whitte- 
more v. Cutter, Case No. 17,600. 

The manufacture and sale of a part of a pat- 
ented invention, designed to be used by the pur- 
chasers for the express use to which it is put 
by the patentee, is an infringement— Richard- 
son v. Noyes, Case- No. 11,792. 

A patent for an invention embracing an entire 
machine is infringed by the making, without 
license, of any part of it— Union Sugar Refinery 
v. Matthiesson, Case No. 14,399. 

The making and selling of the separate ma- 
terials for a patented combination is not an in- 
fringement— Byam v. Farr, Case No. 2,264. 

The sale by defendant of the constituents of 
complainant's patent with the intent and fur- 
ther purpose of enabling the buyer to turn them 
into the patented compound, is an infringement 
— Rumford Chemical Works v. Hecker, Case No. 

The right to use necessarily implies the right 
to repair, or, when destroyed or worn out the 
right to purchase another.— Bicknell v. Todd, 
Case No. 1,3S9. 

The purchaser of a patented machine with 
separately patented parts has no right to manu- 
facture new parts to replace those worn out— 
Aiken v. Manchester Print Works, Case No. 
J— to. 

But the purchaser may repair and improve 
the patented parts.— Aiken v. Manchester Print 
Works, Case No. 113. 

A purchaser from a patentee may repair and 
perfect the machines purchased, but he has no 
right to use machines embracing the patented 
inventions, which are not the identical machines 
purchased.— Union Metallic Cartridge Co. v 
United States Cartridge Co., Case No. 14,369. 



§ 181. Utility of infringing device. 

Superiority of defendant's invention no de- 
fense to infringement— Alden v. Dewey, Case 
No. 153. 

The superior utility of defendant's device is 
not of itself a certain test upon the Question of 
identity.— Pitts v. Wemple, Case No. 11,194. 

The fact that a machine is an improvement 
on a patented machine will not prevent its be- 
ing an infringement if it is substantially the 
same.— Forbes v. Barstow Stove Co., Case No. 
4,923. 



The sale of a patented machine, the valuable 
or novel part of which must be replaced at in- 
tervals of a month or so, carries with it the 
right to replace such part— Farrington v. Board 
of Water Com'rs of Detroit, Case No. 4,687. 

The right to replace such parts as are tem- 
porary depends upon the right to use the ma- 
chine, and is not affected by an extension of the 
patent— Farrington v. Board of Water Com'rs 
of Detroit, Case No. 4,687. 

, A patent for a dental plate held infringed by 
replacing parts by new parts made of the ma- 
terials and in the mode described in the pat- 
ent— Goodyear. Dental Vulcanite Co. v. Pre- 
terre, Case No. 5 t 596. 



1703 (§ 183) 



PATENTS, XII. (A), (13). 
[Fed. Cas. Digest.} 



(§ 189) 1704 



A patented machine, sold to one -who had a | 
license to use it on payment of a royalty hased 
upon the product, was taken to pieces, and the 
parts sold at auction as scrap iron, on the death 
of the licensee. Held, that the purchaser of 
such parts had no right to reconstruct and use 
the machine.— Wortendyke v. White, Case No. 
18,050. 

§ 184. Violation o£ restrictions on manu- 
facture, use, or sale of patented 
article. 

A patent for a combination buckle and band, 
for cotton bales, where the buckles are stamped, 
"Licensed to use once only," is infringed by 
the sale of the buckles with new hoops, for use 
a second time.— American Cotton Tie bupply Oo. 
y. Bullard, Case No. 294. 

Where a patentee assigned to plaintiff all his 
interest in a patented machine except the right 
to manufacture said machine in a certain city, 
and plaintiff afterwards granted a license to 
one G. to use one of the machines within a 
certain portion of such city, and C. sold the 
machine to defendant, who removed it to a por- 
tion of the city outside the district described in 
the license, there is an infringement of the 
patent.— Chambers v. Smith, Case No. 2,oS2. 

On the sale and unconditional delivery of a 
patented article it passes outside of the mo- 
nopoly of the patent.— Goodyear v. Beverly 
Rubber Co., Case No. 5,557. 

On the sale, by the patentee of a process and 
product, of the patented article, the purchaser 
may use the materials of which it is composed 
for the manufacture of any articles not them- 
selves protected by a patent.— Goodyear v. Bev- 
erly Rubber Co., Case No. 5,557. 

And this is the case although the patented 
article was bought of the patentee's licensee, 
who was restricted by the license to a use of 
the patented product different from that to 
which it was devoted by the purchaser.— Good- 
year v. Beverly Rubber Co., Case No. o,557. 

A patented product purchased without con- 
dition or restriction loses the protection of the 
patent laws, and the purchaser may sell the 
same in the territory of one having exclusive 
rights.— Adams v. Burks, Case No. 50; Aiken 
v. Manchester Print Works, Id. 113. 

When a patented article has been lawfully 
made and sold without restriction or condition, 
it is no longer within the monopoly, and the 
purchaser may use it without restriction as to 
time and place.— McKay v. Wooster, Case No. 
8,S47. 

An assignment of the revenues of a railroad, 
and of the use of the rolling stock, to a pre- 
ferred creditor, is not a transfer of corporate 
entity or property, and the assignee is not guilty 
of infringement in using on the cars patented 
appliances licensed to the company.— Emigh v. 
Chamberlain, Case No. 4,447. 

A grant of an exclusive right to make, use, 
pnd vend the patented machine within certain 
territory is infringed by the manufacture by 
others of machines within the territory for use 
without it.— Jenkins v. Greenwald, Case No. 
7,270. 



The use of a patented machine under a li- 
cense, whose conditions are not performed, is 
an infringement, and its use will be enjoined.— 
Brooks v. Stolley, Case No. 1,962. 

The construction of two machines under au- 
thority to use one only is an infringement, 
though both were never in operation at the 
same time.— Bloomer v/ Gilpin, Case No. 1,558. 

A sale of the materials of a patented machine 
on an execution against the owner will not sub- 
ject the sheriff to an action for infringement.— 
Sawin v. Guild, Case No. 12,391. 



The sale or use of the product of a patented 
machine is no violation of the exclusive right 
to use, construct, or sell the machine itself. — 
Goodyear v. Central R. Co., Case No. 5,563. 

§ 185. Contributory infringement. 

One making a machine which may be easily 
adjusted so as to infringe, with intent that it 
shall be so adjusted by a third person, is an 
infringer.— Knight v. Gavit, Case No. 7,SS4. 

The sale of an article for use in a patented 
combination to persons who intend so to use it 
is an infringement, although the manufacture 
and sale would not per se be an infringement- 
— Bowker v. Dows, Case No. 1,734. 

The sale of dials, to be used with an infrin- 
ging time detector, for which defendant has ac- 
counted, is not an infringement.— Buerk v. Im- 
haeuser, Case No. 2,108. 

§ 186. Knowledge or consent of patentee. 

The patentee has no right, either during the 
original term or the extended term of his pat- 
ent, to a patented machine constructed by an- 
other with his consent, or to prevent its use. — 
Black v. Hubbard, Case No. 1,460. 

Where the patentee gave his consent to the 
manufacture of some of the alleged infringe- 
ments by defendants, he can recover no dam- 
ages for these; for those afterwards manu- 
factured he is entitled to manufacturer's profits. 
— Westlake v. Cartter, Case No. 17,451. 

Whether acquiescence can be inferred from 
failure to bring suit against defendant during 
the pendency of other suits against other par- 
ties, considered.— Green v. French, Case No. 
5,757. 

The mere discontinuance of a suit and for- 
bearance to sue any of the parties thereto for 
over a year thereafter held not an acquiescence 
in the infringement.— Thompson v. Jewett, Case 
No. 13,961. 

A license permitting the invention to be man- 
ufactured and used upon certain terms and 
conditions will not be deemed evidence of an 
acquiescence in infringements of the licensor's 
rights.— Jordan v. Dobson, Case No. 7,519. 

§ 187. Injuries from infringement. 

A sale of the infringing article to one em- 
ployed by the patentee to make the purchase 
for the purpose of securing evidence of infringe- 
ment will not support an action for damages. — 
Byam v. Bullard, Case No. 2,262. 

(B) ACTIONS AT LAW. 

§ 188. Grounds of action. 

A person may sue for an infringement of any 
one of the separate and distinct inventions that 
may be covered by his patent.— Cook v. Ernest r 
Case No. 3,155; Moody v. Fiske, Id. 9,745. 

The patentee cannot recover for an infringe- 
ment if he was not in fact the original in- 
ventor as to every part of the world.— Dawson 
v. Follen, Case No. 3,670. 

An action at law may be maintained after 
the patent has expired, where the infringement 
took place during the term of the patent.— 
Howes v. Nute, Case No. 6,790. 

A patentee who claims several distinct im- 
provements must show himself entitled to eaclu 
to sustain the action.— Hein rich v. Luther. 
Case No. 6,327. 



See, also, post, § 212. 

§ 189. Defenses. 

It is no answer to a claim of damages that 
defendant made no profits by his infringement. 
—Goodyear Bental Vulcanite Co. v. Van Ant- 
werp, Case No. 5,600. 

The fact that the invention has become use- 
less by the discovery of another method will 



1705 (§ 189) 



PATENTS, XII. (B), 
[Fed. Cas. Digest.] 



(§ 191) 1706 



not invalidate the patent.— Poppenhusen v. 
New York Gutta Percha Comb Co., Case No. 
11,283. 

It is no justification that respondent con- 
structed and used his machine before complain- 
ant took out his patent, where he copied it from 
-complainant's invention. — Hovey v. Stevens, 
Case No. 6,745. 

Licensees who repudiate the license, and 
stand upon the ground that the patent is inval- 
id, cannot set up the license as a defense to 
infringement.— Cohn v. National Rubber Co., 
Case No. 2,963; Moody v. Taber, Id. 9,747. 

■Licensee held entitled to offer in evidence let- 
ters patent of his licensor as a defense to an 
Action against him for infringing a prior pat- 
ent. — Blanchard v. Puttman, Case No. 1,514. 

In an action by the assignee, defendant can- 
not set up the fact that the assignment was not 
Tecorded, if he had actual or constructive no- 
tice of it when the infringement was commit- 
ted.— Valentine v. Marshal, Case "No. 16,812a. 

The use by defendant of an infringing device 
■estops him from denying the utility of plaintiff's 
invention. — Vance v. Campbell, Case No. 16,- 
S36; Hays v. Sulsor, Id. 6,271. 

Defendant cannot set up in defense that the 
^patent was issued unintentionally, through a 
blunder of a subordinate in the patent office. — 
Doughty v. West, Case No. 4,028. 

Where complainant proved a royalty for the 
oise of similar machines to those of defendant, 
Jtcld, that defendant was not entitled to prove 
that some of his machines infringed several of 
the claims, and others only one of the claims. 
— Kendrick v. Emmons, Case No. 7,696. 

The decision of the patent 'office in favor of 
4in applicant and against a patentee on an in- 
terference declared will not conclude the pat- 
entee so as to prevent him from bringing a suit 
for infringement. — Perry v. Starrett, Case No. 
11,012. 

There is no infringement by the use of pro- 
cesses which the patentee has withheld from 
the public— Page v. Ferry, Case No. 10,662. 

"See, also, post, § 214. 

-§ 190. Persons entitled to sue. 

A suit for an infringement after the making 
•of an assignment must be brought by the as- 
signee.— Herbert v. Adams, Case No. 6,394. 

An assignee of a patent has an exclusive right 
•of action for an infringement only where his as- 
signment gives him a whole interest in the pat- 
ent with or without territorial limitations. — 
Suydam v. Day, Case No. 13,654. 

An action for infringement may be maintained 
%y one to whom the entire property in the in- 
-vention was assigned before the issuing of let- 
ters patent.— Rathbone v. Orr, Case No. 11,585. 

The executor to whom the patent was issued, 
though not the sole executor named in the in- 
ventor's will, may maintain suit thereon.— Good- 
;year v. Providence Rubber Co., Case No. 5,5S3. 

Where the contract is for the purchase of a 
.portion of a patent right, the legal right in the 
ononopoly remains in the patentee, and he alone 
<jan sue for an infringement. — Sanford v. Mess- 
-jer, Case No. 12,314. 

A patentee, in the absence of a legal assign- 
ment and tranrfer of his interest in the inven- 
tion, may maintain a suit for infringement, ir- 
respective of his private agreements with third 
Ipersons.— Park v. Little, Case No. 10,715. 

A joint action lies by the patentee and an 
.assignee of a moiety of the patent right for in- 
fringement. Act Feb. 21, 1793, c. 11.— Whitte- 
znore v. Cutter, Case No. 17,600. 



A patentee may assign his right to recover for 
past infringements.— -Hamilton v. Rollins, Case 
No. 5,988. 

An assignment of a right of action under a 
patent need not be recorded. — Gear v. Fitch, 
Case No. 5,290. 

See, also, post, § 215. 

§ 191. Persons liable. 

The manufacturer, the seller, and the user of 
an infringing article are liable for the infringe- 
ment. — Haselden v. Ogden, Case No. 6,190. 

The purchaser of patented articles from an in- 
fringer is not liable as an infringer. — Blanchard's 
Gun-Stock Turning Factory v. Jacobs, Case No. 
1,520; Anonymous, Id. 477. 

A joint owner, who uses or sells the patented 
device without the authority of his co-owner, as 
respects the latter's rights, is liable for infringe- 
ment.— Pitts v. Hall, Case No. 11,193. 

The sale of the product of a patented machine 
is not an infringement, but, if made by the 
manufacturer, he is liable for damages, and may 
be enjoined. — Boyd v. McAlpin, Case No. 1,748. 

One who manufactures the patented thing 
without right or license, though employed by 
another, is an infringer. — Bryce v. Dorr, Case 
No. 2,070. 

Defendant is liable for an infringement, in the 
use of an infringing tool, by one who worked in 
his factory by the piece, furnishing his own 
tools.— Wooster v. Marks, Case No. 18,038. 

A mere workman employed, by a person who 
is not the patentee, to make parts of a patented 
machine, is not liable to damages. Act Feb. 21, 
1793.— Delano v. Scott, Case No. 3,753. 

Use of an invention as an officer of the govern- 
ment, in the performance of his duties, for its 
benefit, will not prevent the user being liable as 
an infringer. — Campbell v. James, Case No. 2,- 
361. 

A patent for the application or employment of 
armor on a vessel is not infringed by one who 
puts the same on a vessel under contract with 
the government. — Heaton v. Quintard, Case No. 
6.311. 

Principals are responsible for infringements by 
their agent, acting within the scope of his au- 
thority, and the legal implication of their con- 
currence therein will dispense with proof of it. — 
Stevens v. Felt, Case No. 13,397. 

An act of an employe of a corporation, adopted 
by it, will be deemed to have been authorized. — 
Poppenhusen v. New York Gutta Percha Comb 
Co., Case No. 11,283. 

A corporation is liable where the infringing 
machines are procured by it,- and are used by 
persons employed or paid by it. — Ransom v. New 
York, Case No. 11,573. 

The unlawful use of a patented device by city 
officials for city purposes is not an act of non- 
feasance or misfeasance, within a statute reliev- 
ing the city from liability. — Bliss v. Brooklyn, 
Case No. 1,544. 

The board of education and not the city is 
liable for the use of a patented seat in the city's 
public schools, where the seats are purchased 
and owned by the board.— Allen v. Brooklyn, 
Case No. 218; Same v. New York, Id. 232. 

A contractor who does work for a county is 
liable for infringement of a patent in such work, 
though he was ignorant of the patent. — Jacobs 
v. Hamilton County, Case No. 7,161. 

Authority to contractor for street pavement to 
use a patented process will relieve the city from 
liability for infringement, notwithstanding a res- 
ervation to the contrary.— Bigelow v. Louisville, 
Case No. 1,400. 

The general agent of a transportation company, 
which , had contracted with connecting lines for 



1707 (§ 191) 



PATENTS, XII. (B). 
' [Fed. Cas. Digest.] 



(§ 194) 1708 



through transportation, held not liable for in- 
fringement by use of an infringing device on the 
cars of the railroad companies set apart for car- 
riage of the transportation company's freight. — 
Lightner v. Kimball, Case No. 8,345. 

Under a contract between a railroad company 
and a manufacturer to build certain cars with a 
patented device, the chairman of the railroad 
company, who signed the contract? for the com- 
pany, is not liable to the patentee, where the 
device was used without license. — Lightner v. 
Brooks, Case No. 8,344. 

A patentee who grants territorially exclusive 
monopolies may himself be treated as a trespasser 
if he interferes. — Burr v. Duryee, Case No. 2,190. 

Carrier of articles made in infringement of 
patents where he refuses to disclose shippers is 
liable for infringement. — American Cotton-Tie 
Supply Co. v. McCready, Case No. 295. 

The keeper of an hotel, who keeps an infringing 
hotel register, Is liable as the user of the inven- 
tion. — Hawes v. Cook, Case No. 6,236; Same v. 
Gage, Id. 6,237; Same v. Washburne, Id. 6,242. 

Damages may be recovered for the use, with- 
out license, of plaintiff's patented improvement, 
by an American citizen on an American vessel 
on the high seas. — Gardiner v. Howe, Case No. 
5,219. 

The use by a foreign vessel, in its structure or 
'equipment, of an improvement for which a pat- 
ent has been obtained in the United States, while 
temporarily within its jurisdiction for purposes 
of commerce, is not an infringement. — Brown v. 
Duchesne, Case No. 2,004. 

A person manufacturing a patented article un- 
der a license from the inventor, who held the 
patent in trust for a corporation, proceeds at his 
peril after actual notice of the claim of the cor- 
poration. — Consolidated Fruit-Jar Co. v. Whit- 
ney, Case No. 3,134. 

See, also, post, § 216. 

§ 192. Limitations and laches. 

Prior to Act July 8, 1870, there was no stat- 
ute limiting the time within which an action at 
law must be prosecuted for the infringement of 
a patent. — Wood v. Cleveland Rolling-Mill Co., 
Case No. 17,941; Same v. Union Iron-Works 
Co., Id.; Collins v. Peebles, Id. 3,017. 

The limitation of actions for infringement of 
patents under Act 1870, § 55, commences to run 
from the expiration of the original term, though 
the patent has been renewed. — Sayles v. Du- 
buque & S. C. R. Co., Case No. 12,417. 

State statutes cannot be pleaded in bar of suit 
for infringement of a patent. — Anthonv v. Car- 
roll, Case No. 487: Collins v. Peebles, Id. 3,017; 
Parker v. Hawk, Id. 10,737; Read v. Miller, Id. 
11,610; Sayles v. Dubuque & S. C. R. Co., 
Id. 12,417. CONTRA, see Rich v. Ricketts, 
Case No. 11,762; Parker v. Hallock, Id. 10,735. 

In the case of an extension of a patent, the 
statute of limitations applies to the entire period 
made by the original and extension as one in- 
tegral term. Rev. St. § 4927.— Sayles v. Rich- 
mond, F. & P. R. Co., Case No. 12,424. 

An action for infringement of a patent before 
June 22, 1S74, comes within the limitation of 
Act July 8, 1870. § 55, under Rev. St. § 5599, 
and is not within the operation of the state 
statute of limitations. — Sayles v. Oregon Cent. 
Ry. Co., Case No. 12,423; Same v. Richmond, 
F. & P. R. Co., Id. 12,424. 

See, also, post, § 219. 

§ 193. Parties and process. 

A person having only an exclusive right to 
manufacture a certain class of articles under 
a patent cannot sue in his own name for an in- 
fringement of such right.— Suydam v. Day, Case 
No. 13,654. 



The assignee of an exclusive right to use, but 
not to make, the thing patented within a speci- 
fied territory, may sue an infringer in his own 
name.— Chambers v. Smith, Case No. 2,582. 

The assignees of several undivided parts of a 
patent may all join with the holders of the title 
in an action for the recovery of damages.— Stein 
v. Goddard, Case No. 13,353. 

A suit at law for the infringement of a patent 
for turning irregular forms, by the turning of 
shoe lasts, is properly brought in the name of 
the patentee, rather than one who has an as- 
signment of the right to use the patent for that 
purpose.— Blanchard v. Eldridge, Case No. 1,510. 

t 

The assignee of a patent right, in part, can, in 
law, sustain a suit for a violation of the patent, 
without uniting the patentee. — Brooks v. Bick- 
nell, Case No. 1,944. CONTRA, see Valentine 
v. Marshal, Case No. 16,812a. 

Where the contract is for the purchase of a 
portion: of a patent right, the legal right remains- 
in the patentee; and in such case the licensee- 
need not be joined in the action. — Sanford v. 
Messer, Case No. 12,314; Goodyear v. McBur- 
ney, Id. 5,574. 

Mere licensees have no interest capable of af- 
fording the foundation of a suit in their names. 
— Grover & Baker Sewing Maeh. Co. v. Sloat^ 
Case No. 5,846. 

A trustee of the legal title may sue for in- 
fringement in his own name.— Knight v. Gavit. 
Case No. 7,884. 

A junior patentee cannot, by making the- 
elder patentee a defendant, compel him to as- 
sert his right as against him.— Celluloid Mfg. 
Co. v. Goodyear Dental Vulcanite Co., Case- 
No. 2,543. 

A patentee may sue any one of several al- 
leged infringers, and omit the others, in his 
discretion. — Celluloid Mfg. Co. v. Goodyear 
Dental Vulcanite Co., Case No. 2,543. 



See, also, post, § 220. 

§ 194. Pleading— Declaration. 

See, also, post, §§ 221-226. 

Plaintiff must allege all the facts to show* 
title.— Gray v. James, Case No. 5,719. 

The declaration need not state that the pro- 
ceedings preliminary to the issuing of the pat- 
ent were observed.— Cutting v. Mvers, Case- 
No. 3,520; Wilder v. McCormick, Id. 17,650. 

The description of the machine as stated in 

the specification need not be set out where- 

. the declaration describes plaintiff's improve- 

j ment in the words of the patent — Gray v„ 

| James, Case No. 5,719. 

A declaration which avers the patent and 
specification to be "in language of the import 
and to the effect following," and then sets- 
them forth in hsec verba, is sufficient, and is 
not open to the objection that the patent is not 
set forth according to its legal tenor and effect. 
— Wilder v. McCormick, Case No. 17,650. 

A declaration which fails to set forth the- 
attestation of the president, and that the pat- 
ent was delivered, is bad on general demurrer. 
— Cutting v. Myers, Case No. 3,520. 

It is no cause of demurrer that neither the 
patent nor the declaration states in what the 
improvement consists. — Cutting v. Myers, Case- 
No. 3,520. 

In the case- of a renewed patent, plaintiff" 
cannot recover for a violation under the old pat- 
ent without a distinct and independent count- 
— Eastman v. Bodfish, Case No. 4,255. 

An averment that the patent was renewed 
on the application of the administrator of the- 
patentee, and that he assigned his right to- 
the plaintiff, and that the assignment is duly 



1709 (§ 194) 



PATENTS, Xn. (B). 
£Fed. Cas. Digest.] 



(§ 196) mO- 



recorded, is a sufficient averment of title as 
against a general demurrer. — Yan Hook v. 
Wood, Case No. 16,854. 

The omission to allege, in a declaration by 
an assignee, the due recording of the assign- 
ment, held cured by the verdict. — Dobson v. 
Campbell, Case No. 3,945. 

An averment in the declaration that a pat- 
ent under the seal of the United States in 
due form of law was issued is a sufficient dec- 
laration to show the validity of the patent. — 
Van Hook v. Wood, Case No. 16,854. 

Sufficiency of averment of extension of pat- 
ent as against a general demurrer.— Van Hook 
v. Wood, Case No. 16,S54. 

An averment that disclaimers were duly and 
legally executed in writing, and accepted by 
the commissioner, is sufficient to enable plain- 
tiff to give evidence of their execution, as re- 
quired by statute.— Van Hook v. Wood, Case 
No. 16,S54. 

The failure of the declaration to lay the act 
complained of to be "against the form of the 
statute" is no ground of nonsuit.— Tryon v. 
White, Case No. 14,208. 

It is not necessary in the declaration to aver 
at what specific time the invention patented 
was made. It need only be before the applica- 
tion for the patent.— Wilder v. McCormick, 
Case No. 17,650. 

A declaration in a suit for infringement is 
not demurrable because ambiguous in setting 
out a claim which may be construed to include 
one or both of two inventions, if there is noth- 
ing in the pleadings to show that the patentee 
is not entitled to claim both.— Noe v. Prentice, 
Case No. 10,284a. 

A declaration averring that defendant "put 
on sale and offered for sale, and sold or con- 
tracted to sell," the patented articles, is bad on 
demurrer.— Noe v. Prentice, Case No. 10,284a. 

One who holds the original right patented, 
and also an improvement, must assert his en- 
tire right in an action for infringement.— Case 
v. Redfield, Case No. 2,494. , . 

In an infringement suit, it is sufficient for 
plaintiff to aver that title, is vested in him, 
without tracing it by the assignments. — 
Meerse v. Allen, Case No. 9,393a. 

An averment that defendant has made the 
thing "in imitation of the patent" is a suffi- 
cient allegation of infringement.— Parker v. 
Haworth, Case No. 10,73S. 

A suit in equity for infringement of a pat- 
ent was sta*yed until plaintiffs could establish 
their rights by action at law. In the action 
at law, the complaint referred to .the equity 
suit and the stay order. Held, that this refer- 
ence was not irrelevant or redundant matter. 
—Knox v. Great Western Quick-Silver Min. 
Co., Case No. 7,906. 

A declaration for the infringement ofa pat- 
ent, commencing in case, and concluding by 
demanding actual damages in gross in compen- 
sation of the wrong, is good.— Wilder v. Mc- 
Cormick, Case No. 17,650. 

A declaration must tender an issue on the 
noveltv and utility of the discovery patented. 
—Wilder v. McCormick, Case No. 17,650. 

To show violation of patent, declaration need 
only aver that defendant has constructed, 
used, and sold to others the things patented. — 
Case v. Rfcdfield, Case No. 2,494. 

The declaration is sufficient if the breach as- 
signed is as broad as the right set forth.— 
Cutting v. Myers, Case No. 3,520. 

, § 195. Plea, answer, and replication. 

The issue of fraud can only be raised by dis- 
tinct and special allegations in the plea or*an- 
swer.— Blake v. Stafford, Case No. 1,504. 



As to sufficiency of such allegations in gen- 
eral.— Blake v. Stafford, Case No. 1,504. 

A plea by a single defendant, alleging that 
the sales of the infringing articles were made 
by himself and another, held bad in^ not alleg- 
ing that such other person was living, and 
within the jurisdiction of the court.— Goodyear 
v. Toby, Case No. 5,585. 

Special pleas with the general issue, setting 
up a license from the patentee paramount to 
plaintiff's right, are proper in an action at law. 
—Day v. New England Car Co., Case No. 3,- 
687. 

A plea merely that the thing claimed to have 
been invented was in use and for sale before 
the application for the patent is demurrable.— 
Root v. Ball, Case No. 12,035. 

In an action for infringement, the objection 
that another is interested with plaintiff must 
be taken by plea in abatement. — Carlock v. 
Tappan, Case No. 2,412. 

A plea setting forth that the alleged selling, 
if any such was made by defendant, was made 
solely as agent, etc., of a person not named, 
licld bad.— Morse v. Davis, Case No. 9,855. 

The answer at law, and the answer and no- 
tice on which, in chancery, an issue is asked 
to be formed and tried at law, must set out the 
names of the persons who used the patented 
article, and the places where so used.— Orr v. 
Merrill, Case No. 10,591. 

The defense of unreasonable delay to file a 
disclaimer cannot be made unless set up in the 
answer.— Burdell v. Denig, Case No. 2,142. 

, The option to file the general issue and give 
notice does not take away the right to plead 
specially.— Phillips v. Combstock, Case No. 11,- 
099. 

i 

i The charge of infringement is admitted where 
no answer is made thereto. — Parker v. Bamker, 
Case No. 10,725. 

Replication in an action so brought, where de- 
fendant sets up a release from the patentee.— 
Goodyear v. McBumey, Case No. 5,574. 

Defendant cannot plead the general issue with, 
notice of special matter of defense, and also, in 
a special plea, set up the same matter in bar. 
—Read v. Miller, Case No. 11,610. 

§ 196. Notice of special matter. 

A notice of special matter may be filed or 
served in term time, but must be filed 30 days 
before trial.— Brunswick v. Holzalb, Case No. 
2,057. 

The 30 days* notice of special matter of de- 
fense need not specify the particular portion of 
the patent to which it is designed to apply. — 
Westlake v. Cartter, Case No. 17,451. 

The 30 days' notice of special matter of de- 
fense must-be given 30 days prior to the begin- 
ning of the term of trial.— Westlake v. Cartter, 
Case No. 17/451; Phillips v. Combstock, Id. 
11,099. 

The notice of special matter (Act 1836, § 15) 
must give the name of the person who had 
knowledge of the prior use and the place of such 
use. It is not sufficient to name the party using 
the thing.— Judson v. Cope, Case No. 7,565. 

Notice that a prior machine was used at "Cin- 
cinnati," "Covington," "Pittsburg," "Wayne 
County, Ind.," is not sufficiently specific to au- 
thorize introduction of proofs.— Latta v. Shawk r 
Case No. S,116. 

The defense of want of novelty is not availa- 
ble at law without a notice, and in equity it 
must be set up in the pleadings.— Pitts v. Ed- 
monds, Case No. 11,191. 

Where prior use relied on in defense is by the- 
inventor or under his license, notice is not nec- 
essary as to the persons or places. — American 



1711 (§ 196) 



Hide & Leather Splitting & Dressing Mach. Co. 
v. American Tool & Mach. Co., Case No. 302. 

Patents may be given in evidence to show the 
&tate of the art without notice, but printed pub- 
lications cannot.— Westlake v. Cartter, Case No. 
17,451. 

A special plea setting forth matters of which 
notice might have been given under Act July 4, 
1S36, § 15, will be stricken out on motion. — 
Wilder v. Gayler, Case No. 17,649. 

Defendant may give evidence of the use of a 
anachine by other persons and in other places 
than those mentioned in the notice of special 
matter, where the general issue is pleaded. — 
Evans v. Eaton, Case No. 4,559; Same v. 
Kremer, Id. 4,56e>. 

Under the general issue without notice, de- 
fendant cannot set up that the specification does 
not show the whole truth relative to the discov- 
ery, or that it contains more than is necessary 
for the purpose of deceiving the public.— Kneass 
v. Schuylkill Bank, Case No.- 7,875. 

Defendant, on the general issue, without no- 
tice, may introduce the act of congress, and 
may set up that the invention is not patentable, 
that the specification is ambiguous, that tie 
patent is broader than the invention, and a 
license to use the machine.— Kneass v. Schuvl- 
kill Bank, Case No. 7,875. 

A reference to a dictionary, without specify- 
ing the place, held not sufficient notice of spe- 
cial matter— Foote v. Silsby, Case No. 4,916. 

Nor is the book admissible under a notice 
stating that the patentee's invention was pre- 
viously known to the author.— Foote v. Silsby, 
Case No. 4,916. 

In such case, it is not competent to prove by 
experts that they could easily find in such dic- 
tionary the parts relating to the subject-matter, 
without specific reference.— Foote v. Silsby, 
Case No. 4,916. 

Under a notice that the thing patented was 
known and used by A., B., C, and others prior 
to plaintiff's discovery, defendant must prove its 
use by others than those named.— Treadwell v. 
Bladen, Case No. 14,154. 

Under notice confined to a prior use in the 
United States, evidence of a prior use in Eng- 
land is not admissible.— Dixon v. Mover, Case 
No. 3,931. * ' 

Evidence of want of novelty, of which no no- 
tice was given in the answer, is inadmissible 
except to show the state of the art.— -La Baw v. 
Hawkins, Case No. 7,960. - 

m Prior knowledge of a person, of which notice 
is given, cannot be proved by another person, 
not mentioned in such notice.— Many v. Jagger, 
Case No. 9,055. 

Q 

% 197. Profert and oyer. 

Oyer of a patent referred to in the declaration 
is not demandable as of right.— Singer v. Wil- 
son, Case No. 12,901. 

An averment that the patent and specification 
are "ready in court to be produced" is equivalent 
to a profert in its most formal terms.— Wilder 
v. McCormick, Case No. 17,650. 

The profert of letters patent makes them a 
part of the declaration, and it is no ground 
of arrest of judgment that the patent is not de- 
scribed in the declaration.— Pitts v. Whitman, 
Case No. 11,196. 

§ 198. Issues, proof, and variance. 

Where the general issue is pleaded, there is 
no limitation of the period in which defendant 
may show that the patentee is not the original 
inventor.— Evans v. Eaton, Case No. 4,559. 

Upon the plea of not guilty, plaintiff must 
prove that the article made, used, or sold by 



PATENTS, XH. (B). 
[Fed. Cas. Digrest.] 



(§ 199) 1712 



defendant substantiallv resembled his inven- 
tion.— Dixon v. Moyer, Case No. 3,931. 

The defense that the subject of the inven- 
tion is not of a patentable character is ad- 
missible under the general issue.— Guidet v. 
Barber, Case No. 5,857. 

Plaintiff is restricted to proof of a violation 
during the time specified in his declaration — 
Eastman v. Bodfish, Case No. 4,255. 

Where the declaration professes to set forth 
the specification in a patent as part of the 
grant the slightest variance is fatal.— Tryon 
v. White, Case No. 14,203. 

Testimony of what might have been done 
with prior machines is inadmissible upon the 
issue of novelty.— Judson v. Cope, Case No. 7,- 
565. 

Proof of two-thirds ownership in a patent 
will not sustain an action for infringement 
where plaintiff claimed sole ownership.— Knight 
v. Gavit, Case No. 7,884. 

See, also, post, § 227. 

§199. Evidence — In general. 

See, also, ante, §§ 23, 30, 34, 41-43, 53, 57, 59, 
109; posr, §§ 228-231. ' 

The burden of proof of infringement is up- 
on plaintiff.— Parker v. Stiles, Case No. 10,749. 

In an action at law by an assignee for in- 
fringement of a patent, in which defendant 
claimed by assignment from a trustee of the 
patentee, held, that plaintiff might show that 
the instrument creating the trust was procured 
by fraud from the patentee, and that the bur- 
den was on defendant to show that he was an 
innocent purchaser.— Day v. New England Car- 
Spring Co., Case No. 3,688. 

The patent and certified copies of the record 
and drawings deposited, with the references 
thereon, are prima facie evidence of the par- 
ticulars of the invention patented.— Winans v. 
New York & E. R. Co., Case No. 17,863; Same 
v. Schenectady & T. K. Co., Id. 17,865. 

The file wrapper and contents of the applica- 
tion for the patent are not admissible evidence 
for the purpose of limiting the construction of 
the patent.— Westlake v. Cartter, Case No. 17,- 
451. 

The validity of plaintiffs patent is admitted 
by defendant's patent referring to the former, 
and disclaiming those parts of the invention 
found therein.— Waterbury Brass Co. v. New 
York & B. Brass Co., Case No. 17,256. 

Copies of assignments of a patent, duly cer- 
tified, are prima facie evidence of the genuine- 
ness of the originals on file.— Parker v. Ha- 
worth, Case No. 10,738. 

A disclaimer must be properly proved, before 
it can be admitted in evidence, either as an 
original paper or by a certified copy.— Foote v. 
Silsby, Case No. 4,916. 

The indorsement on a patent of a disclaimer 
held inadmissible for defendant, without proof 
that it was made by the patentee.— Foote v. 
Silsby, Case No. 4,916. 

Minutes of a hose company, of which pat- 
entees of a hose were members, and at whose 
instigation and expense the hose was asserted 
to have been invented, are admissible for de- 
fendant to prove that plaintiffs were not the 
inventors.— Pennock v. Dialogue, Case No. 10,- 
941. 

But entries made at other times, acknowledg- 
ing plaintiffs to be the inventors, are inad- 
missible against defendant. — Pennock v. Dia- 
logue, Case No. 10,941. 

The letters of the applicant on file, certified 
under the seal of the office, are admissible.— 
Pettibone y. Derringer, Case No. 11,043. 



1713 (§ 199) 



PATENTS, XH. (B). 
£Fed. Cos. Disest.l 



(§ 205) 1714 



The prior oath of an inventor as to originality 
may be opposed to the oath of a witness as to 
want of originality.— Alden v. Dewey, Case No. . 
153, 

.§ 200. Opinions of experts. 

The opinions of experts are admissible to de- 
termine questions of mechanical difference! — Mor- 
ris v. Barrett, Case No. 9,827. 

The testimony of experts is admissible only 

* to show the operation of devices, not the object 

of a patent, or whether it has been infringed. — 

Waterbury Brass Co. v. New York & B. Brass 

Co., Case No. 17,256. 

The jury are not bound by the opinions of 
mechanical experts upon a question of identity 
of improvement Qr construction. — Spaulding v. 
Tucker, Case No. 13,220. 

One to be competent as an expert must under- 
stand the science involved.— Allen v. Hunter, Case 
No. 225; Same v. Blunt, Id. 216. 

% 201. Damages— In general. 
See, also, ante, § 162; post, § 253. 

Damages are given for the use of the infringing 
article only subsequent to the issuance of the 
patent.— Brodie v. Ophir Silver Min. Co., Case 
No. 1.919. 

The damages should have reference to the scope 
* of the invention, and the extent to which it en- 
ters into the infringing machine.— Hayden v. Suf- 
iolk Mfg. Co., Case No. 6,261. 

The jury must find that the invention is use- 
ful and of some value before they can award 
•damages for infringement. — Knight v. Baltimore 
& O. R. Co., Case No. 7,882. 

In order to find actual damages, the jury must 
find, in the evidence, the facts or data from 
which such actual damages are to be deduced. 
—Goodyear v. Bishop, Case No. 5,559. 

-§ 202. Actual damages. 

Plaintiffs are entitled to actual damages.— Buck 
v. Hermance, Case No. 2,082; Grant & Town- 
send v. " , Case No. 5,701; McCormick v. 

Seymour, Id. 8,727; Eansom v. New York, Id. 
11,573; Smith v. Higgins, Id. 13,057; Wilbur 
v. Beecher, Id. 17,634. 

Actual damages sustained, directly* resulting 
from the infringement, can be recovered. — Carter 
v. Baker, Case No. 2,472. 

The damages must be confined to the direct 
and immediate consequences of the infringe- 
ment, and should not embrace those which are 
remote and conjectural. — Smith v. Prior, Case 
No. 13,095. 

§ 203. Nominal damages. 

If there be a mere making and no user proved, 
nominal damages are to be given to the plaintiff. 
— Whittemore v. Cutter, Cases Nos. 17,600, 17.- 
«601. 

Only nominal damages should be given where 
the manufacturer employed by another acted 
without knowledge of the patent.— Bryce v. -Dorr, 
Case No. 2.070. 

Where plaintiff does not prove actual damages, 
nominal .damages only are recoverable. — Poppen- 
husen v. New York Gutta Percha Comb Co., 
Case No. 11,2S3; Smith v. Higgins, Id. 13,058; 
Spaulding v. Tucker, Id. 13,220. 

§ 204. — Measure of damages in gen- 
eral. 

There is no distinction in the rule of damages 
between infringement of an entire machine and 
infringement of an improvement thereon, and in 
the latter case damages are not limited in pro- 
portion to the value of the improvement. — Burdell 
v. Denig, Case No. 2,142; Gould's Mfg. Co. v. 
Cowing, Id. 5,642, 5,643; Graham v. Mason, Id. 
5,672; McCormick v. Seymour, Id. $,726. 

If a user of the patented machine be proved, 
ihe measure of damages is the value of the 



use during the time of the user. Neither the 
price nor the expense of making the machine 
is a proper measure of damages. — Whittemore 
v. Cutter, Case No. 17,601. 

The rule of damages at law is not defend- 
ant's profits, but plaintiff's loss. — McComb v. 
Brodie, Case No. 8,708; Cowing v. Rumsey, Id. 
3,296. CONTRA, see Coleman v. Liesor, Case 
No. 2,984; Conover v. Rapp, Id. 3,124; Pitts v. 
Hall, Id. 11,192, 11,193; McCormick v. Sey- 
mour, Id. 8,726; Rice v. Heald, Id. 11,752. 

Plaintiff is entitled either to the damages sus- 
tained by him or the profits made by defend- 
ant during the time he used the patented de- 
vice.— Page v. Ferry, Case No. 10,662. 

Damages not estimated solely by the profits 
which defendant actually realized, for he may 
have conducted his business unskillfully. — 
Campbell v. Barclay, Case No. 2,353. 

The true question is, what advantage might 
defendant, by skill, have obtained by using the 
patented device, instead of the old device.— 
Campbell v. Barclay, Case No. 2,353; Serrell 
v. Collins, Id. 12,672. 

Method of measuring damages where there 
is no fixed and uniform license fee. — Goodyear 
v. Bishop, Case No. 5,559. 

Where plaintiff exercises his monopoly by 
selling licenses, the amount of damages will 
be controlled by such license fees. — Emerson 
v. Simm, Case No. 4,443; Goodyear v. Bishop, 
Id. 5,559; Goodyear Dental Vulcanite Co. v. 
Van Antwerp, Id. 5,600; Livingston v. Jones, 
Id. 8,414; McCormick v. Seymour, Id. 8,727; 
Sickels v. Borden, Id. 12,832. 

In a case of infringing articles made and 
sold, an established royalty is the proper meas- 
ure of damages. — Star Salt Caster Co. v. Cross- 
man, Case No. 13,320. 

A license fee, where there is only a single 
license, will not fix the measure of compensa- 
tion. — Judson v. Bradford, Case No. 7,564. 

.Where the amount of the license fees varies 
greatly, it cannot be considered in estimating 
damages.— Black v. Munson, Case No. 1,463. 

The fact that defendant acted in good faith, 
and might have used an unpatented machine 
with equal advantage, cannot control com- 
plainant's damages as fixed by license fees. — 
Emerson v. Simm, Case No. 4,443. 

If the patentee has accepted small patent 
fees in order to introduce his invention to pub- 
lic notice, this fact should be taken into consid- 
eration in fixing a patent fee as a measure of 
damages.— Sickels v. Borden, Case No. 12,832. 

The price for which territorial rights were 
sold is no criterion by which to determine the 
damages. — Campbell v. Barclay, Case No. 2,- 
353. 

§ 205. — Estimating damages and ele- 
ments of compensation. 

In arriving at profits as the basis of damages, 
the jury must take into account the interest on 
capital, the risk of bad debts, and expenses of 
selling.— Wilbur v. Beecher, Case No. 17,634; 
McCormick v. Seymour, Id. 8,726. 

In computing damages for infringement of a 
patent for washboards, the increased facilities 
in making them, due to inventions since the pat- 
ent, are to be excluded.— Wayne v. Holmes, 
Case No. 17,303. 

The actual damages sustained include all nec- 
essary and proper expenses in protecting the vio- 
lated rights. — Washburn v. Gould, Case No. 17,- 
214. 

Expenses of commencing and closing out the 
business are not properly chargeable to the pat- 
ent. — Goodyear v. Bishop, Case No. 5,559. 

The amount which plaintiff might have ob- 
tained from advertisers in his patented adver- 



1715 (§ 205) 



PATENTS 
[Fed. Cas 



, XII. (B). 
Digest.] 



(§ 208) 1716- 



tising hotel register, as well as the profits he 
might have made upon selling the book, must 
be considered in estimating damages.— Hawes 
v. Gage, Case Xo. 6,237; Same v. Washburne, 
Id. 6,242. 

Where no rights are sold by the patentee, the 
measure of damages is the profits he could 
have made, excluding the mere profits of me- 
chanical construction. — McCormick v. Seymour, 
Case Xo. 8,72T. 

Where no licenses are granted, and the patent 
is for a mere improvement, the damages are 
what the patentee would have made by the sale i 
of his improvement, excluding the profits of ' 
manufacture and the value of the use of the 
old machine.— JleCorniick v. Seymour, Case No. 
8,727. 

The price of the machine, the nature, actual 
state, and extent of the use of plaintiff's inven- 
tion, and the particular losses to which he may 
have been subjected by the piracy, are all prop- 
er to be considered by the jury in estimating 
damages.— Earle v. Sawyer, Case Xo. 4,247. 

Interest by way of damages may be given by 
the jury.— Tatham v. Le Roy, Case Xo. 13,760. 

Interest should be allowed on the actual dam- 
ages from the commencement of suit. — McCor- 
mick v. Seymour, Case Xo. 8,726; Pitts v. Hall, 
Id. 11,192. 

Interest on the amount of the license fee will 
be given from the time of infringement— Mc- 
Cormick v. Seymour, Case Xo. 8,727. 

Xecessary expenditures for counsel fees and 
other charges, though not taxable costs, cannot 
be allowed as part of plaintiff's damages. — 
Blanchard's Gun-Stock Turning Factory v. 
AVarner, Case No. 1.521; Stimpson v. Railroads, 
The, Id. 13,456; Whittemore v. Cutter, Id. 17,- 
600. CONTRA, see Allen v. Blunt, Case Xo. 
217; Knight v. Gavit, Id. 7,884; Pierson v. 
Eagle Screw Co., Id. 11,156; Boston Mfg. Co. 
v. Fiske, Id. 1,681. 

Damages may be given because of publica- 
tions by defendant while violating the patent, 
disparaging plaintiff's improvement.— McCormick 
v. Seymour, Case Xo. 8,726. 

§ 206. Increase of actual damages. 

The court may allow treble what is found by 
the jury as damages.— Allen v. Blunt, Case Xo. 
217. 

The jury must find the actual damages sus- 
tained by the plaintiff, which the court will tre- 
ble.— Gray v. James, Case Xo. 5,718; Whitte- 
more v. Cutter, Id. 17,601. 

The power to increase actual damages should 
be exercised only to remunerate parties in cases 
of wanton and persistent infringement. — Brodie 
v. Ophir Silver Min. Co., Case Xo. 1,919; Guy- 
on v. Serrell, Id. 5,881. 

The damages cannot be increased by the fact 
that defendants used on their infringing prepa- 
ration labels counterfeiting those of the paten- 
tee.— Stephens v. Felt, Case No. 13,368a. 

The difficulty of furnishing proof of damages, 
either by showing profits made by defendants or 
the value of infringing articles sold, does not 
authorize any presumption whereby the recov- 
ery may be enhanced beyond the damages ac- 
tually shown by the testimonv. — Rollhaus v. 
McPherson, Case Xo. 12,026. 

The damages will be trebled where the sum 
awarded by the verdict is inadequate to recom- 
pense an inventor for a long and expensive liti- 
gation, but not in the case of a mere assignee 
of the patent who has purchased on speculation. 
— Schwarzel v. Holenshade, Case No. 12,506. 

Damages in the sum of $5,000, awarded by a 
verdict, increased by the court to $7,500, where 
the conduct of defendant was peculiarly aggra- 
vated.— Peek v. Frame, Case No. 10,903. 



The provision as to trebling the verdict does- 
not apply to mere collection suits brought uport 
expired patents.— Bell v. McCullough, Case Xo. 
1,256. 

§ 207. — - Exemplary damages. 

In an action for a violation of a patent right, 
the plaintiff can recover for actual damages- 
only, and not for a vindictive recompense. — 
AVhittemore v. Cutter, Case No. 17,601; Hall v. 
Wiles, Id. 5,954; Pitts v. Hall, Id. 11,192. 

Where defendant did not know of plaintiff's 
right at the time of the infringement, compen- 
satory damages only will be given. — Parker v. 
Corbin, Case No. 10,731. 

Exemplary damages will not be awarded 
where defendant purchased the infringing ma- 
chine in the open market, not knowing it was 
patented, and abandoned all the patented appli- 
ances on notice.— Emerson v. Simm, Case Xo. 

Where the infringement is characterized by 
a disposition to affect the interest of the pat- 
entee, counsel fees and vindictive damages may 
be assessed— Parker v. Corbin, Case No. 10,731. 

§208. Trial. 

It is the province of the court to determine 
what constitutes novelty and utility, and of the 
jury to determine from the evidence adduced 
whether the invention is new and useful. — Park- 
er v. Stiles, Case No. 10,749. 

It is a question for the jury whether the pro- 
duction of the article involved inventive genius. 
— Haselden v. Ogden, Case Xo. 6,190; Poppen- 
husen v. Falke, Id. 11,280. 

It is the province of the court to construe the- 
patent and specification to ascertain the intent, 
and of the jury to decide whether the description 
is sufficient. — Batten v Clayton, Case Xo. 1.105; 
Carver v. Braintree llfg. Co., Id. 2,485; Clark 
Patent Steam & Fire Regulator Co. v. Cope- 
land, Id. 2,866; Conover v. Roach, Id. 3,125; 
Davis v. Palmer, Id. 3,645; Davoll v. Brown. 
Id. 3,662; Emerson v. Hogg, Id. 4,440; Page 
v. Ferry, Id. 10,662; Parker v. Hulme, Id. 10,- 
740; Reutgen v. Kanowrs, Id. 11,710; Teese v. 
Phelps, Id. 13,819. 

When the effect and operation of mechanical 
contrivances enter into the question of the ex- 
tent of a patented combination, it is a mixed 
question of law and fact, and, therefore, a prop- 
er one for the jury. — Foote v. Silsby, Case Xo. 
4,916. 

The construction of the claims of a patent is 
for the court, except in the case of technical 
terms which need explanation by evidence. — 
Ransom v. New York, Case No. 11,573. 

The question of identity is for the jury, under 
instructions as to what, in law, constitutes sub- 
stantial identity. — Smith v. Higgins, Case Xo. 
13,058. 

Upon the issue of infringement, the jury is 
limited to the question as to whether the two 
things involve substantially the same mechanical 
principles. — Judson v. Cope, Case Xo. 7,565. 

The meaning of technical words of art in com- 
merce and manufactures, used in a patent, as 
well as the surrounding circumstances, which 
may materially affect their meaning, are to be 
interpreted by the jury.— Washburn v. Gould, 
Case Xo. 17,214; Brooks v. Jenkins, Id. 1,953. 

Whether a patent is old, or whether the orig- 
inal and renewed patent are not for the same 
invention, are for the jury.— Carver v. Braintree* 
Mfg. Co., Case Xo. 2,485. 

Qusere, whether the usefulness of an inven- 
tion is a question of fact or of law. — Langdon 
v. De Groot, Case Xo. 8,059. 

The question whether the claim of a reissue is 
vague and uncertain or too broad is one of law,. 



1717 (§ 208) 



PATENTS, XII. (B), (C). 
[Fed. Cas. Digest.] 



(§ 212) 171 & 



to be determined by the state of the art— Blake 
v. Stafford, Case No. 1,504. 

The* question of abandonment, whether in re- 
gard to the time prior to two years before the 
application for the patent or to the time in- 
cluded in such two years, is a question of fact. 
—Russell & Erwin Mfg. Co. v. Mallory, Case 
No. 12,160. 

The question whether plaintiff was the first 
inventor of the thins for which he obtained 
a patent is one for the jury. — Reutgen v. Ka- 
nowrs, Case No. 11,710. 

Whether an invention is patentable is a mix- 
ed jiuestion of law and fact, and will not, in 
ordinary cases, be disposed of on demurrer. — 
Teese v. Phelps, Case No. 13,818. 

The question whether a design patent is 
abandoned to the use of the public by putting 
the manufactured article onto the market, two 
or three months before the application, hdd to 
be a question of fact.— Booth v. Garelly, Case 
No. 1,646. 

Continuity of successive applications is a 
question of fact.— Bevin v. East Hampton Bell 
Co., Case No. 1,379. 

The question as to, whether the "continuity" 
of the application is destroyed by the filing of 
a new application is, in an action at law, one 
of fact for the jury.— Howe v. Newton, Case 
No. 6,771. 

It seems that if, by plaintiff's own showing, 
the invention is useless and an imposition on 
the public, the court should direct a verdict. — 
Langdon v. De Groot, Case No. 8,059. 

See, also, post, §§ 260, 262. 

§209. Verdict and judgment. 

Where several prior inventions are offered in 
evidence to defeat a patent, the jury should 
agree on each separately, and, in order to find 
a verdict for the defendants on any one of 
them, they must agree on that one. — Waterman 
v. Thomson, Case No. 17,260. 

In an action against two defendants, plain- 
tiff may recover damages against one, although 
the other be acquitted.— Reutgen v. Kanowrs, 
Case No. 11,710. 

A verdict making an allowance for attor- 
ney's fees and other charges under the court's 
direction will not be set aside where the misdi- 
rection was not assigned as a reason for new 
trial, 'and the same result might have been 
reached by trebling the damages. — Stimpson v. 
Railroads, The, Case No. 13,456. 

A verdict of $2,000, held, should not be set 
aside because of the absence of specific proof 
of profits and damages, where there was evi- 
dence that defendants' sales were highly prof- 
itable, and that they had made and sold large 
quantities.— Stephens v. Felt, Case No. 13,368. 

The verdict of a jury in a patent case is of 
the same force as a verdict in any other action 
at law, and a verdict on .conflicting evidence 
will not be set aside.— Blanchard's Gun-Stock 
Turning Factory v. Jacobs, Case No. 1,520. 

Verdicts in suits at law, obtained without 
contest, without collusion, are entitled to the 
same weight as verdicts obtained on full trial. 
—Potter v. Fuller, Case No. 11,327. 

A decision that no infringement had been 
committed held necessarily binding in a subse- 
quent suit on a reissue patent for infringement 
by use of the same device.— Gammeyer v. New- 
ton, Case No. 2,344. 

A decree for damages for the amount of the 
established license fee gives defendant no right 
to use the invention for the life of the patent. — 
JDmerson v. Simm, Case No. 4,443; Hayden v. 
Suffolk Mfg. Co., Id. 6,261. 

The recovery of profits and damages from 
the manufacturers of an infringing machine 



bars a recovery from a user for its use. — Bootb 
v. Seevers, Case No. 1,648a. 

See, also, post, § 264. 

§210. Review. 

A judge of the circuit court, sitting at cham- 
bers, has power to allow a writ of error un- 
der Act July 4, 1836, § 17— Foote v. Silsby,. 
Case No. 4,917. 

§211. Costs. 

The provision in the judiciary act of 1789* 
that plaintiff shall not have costs if he recover 
less than $500 applies to actions for infringe- 
ment of patents. — Kneass v. Schuylkill Bank,. 
Case No. 7,876. 

See, also, ante, § 120; post, § 265. 

(C) SUITS IN EQUITY. 

§ 212. Nature and grounds of suit. 

Where the use of a patented machine is not 
unlawful, the patentee will be denied relief in- 
equity .— Blanchard v. Sprague, Case No. 1.516. 

"Where there are no profits, and the limit 
of the injury is necessarily the value of the* 
license fee, a bill in equity will not lie for an 
account, as the patentee has an adequate rem- 
edy at law. — Vaughan v. Central Pac. R. Co. r 
Case No. 16,897. 

"Where a patent is for an improvement in the- 
mode of operating brakes for railroad cars, an 
action of law furnishes a full, complete, and 
adequate remedy, and a suit for an account 
cannot be maintained. — Vaughan v. Central 
Pac. R. Co., Case No. 16,897. 

The general rule that a bill in equity will not 
be maintained where a party has a remedy by 
an action at law is not applicable to patent 
cases where the bill prays for a discovery and 
account of profits. — Vaughan v. East Tennessee- 
V. & G. It. Co., Case No. 16,898; Goodyear v. 
Hullihen, Id. 5,573. 

A bill to recover profits, if it be not a bill 
for discovery, cannot be entertained as a bill 
for an account, in order to confer equitable ju- 
risdiction.— Sayles v. Richmond, F. & P. R. Co.,. 
Case No. 12,424. 

A bill in equity may be maintained by a pat- 
entee against an infringer for a discovery and' 
an accounting of profits, irrespective of any- 
right to or demand for an injunction, and al- 
though the patent has expired. — Blank v. Man- 
ufacturing Co., Case No. 1,532; Bloomer v. 
Gilpin. Id. 1,558; Gordon v. Anthony, Id. 5,- 
605; Howes v. Nute, Id. 6,790; Imlay v. Nor- 
wich & W. R. Co., Id. 7,012; Jordan v. Dob- 
son, Id. 7,519; Nevins v. Johnson, Id. 10,136; 
Sayles v. Dubuque & S. C. R. Co., Id. 12,417; 
Sickles v. Gloucester Mfg. Co., Id. 12,841; 
Stevens v. Kansas Pac. Ry. Co., Id. 13,401; 
Vaughan v. East Tennessee V. & G. R. Co., Id- 
16,898. CONTRA, see Jenkins v. Greenwald* 
Case No. 7,270; Draper v. Hudson, Id. 4,069. 

After the expiration of a patent, a federal 
court will not entertain jurisdiction of a suit 
for infringement under its general equity ju- 
risdiction, where the bill is not for an account 
or a discovery.— Sayles v. Richmond, F. & P* 
R. Co., Case No. 12,424. 

Where, owing to many transfers, it is doubt- 
ful whether action, at law for infringement can 
be maintained, equity will afford relief.— Bick- 
nell v. Todd, Case No. 1,3S9. 

Where the patentee sues in equity for an in- 
fringement, he need not first establish his legal 
right in a court at law and by a verdict of a 
jury.— Sanders v. Logan, Case No. 12,295. 

Equity will entertain jurisdiction of a suit 
for infringement of a patent to prevent a mul-. 
tiplicity of suits.— Motte v. Bennett, Case No. 
9,884. 



f 



1719 (§ 212) 



PATENTS, 
[Fed. Cas. 



XII. (C). 

Digest.] 



(§ 215) 1720 



A person offering to take a license from, the 
patentee is not thereby estopped to deny that 
the patentee is the original inventor. — Evans 
v. Eaton, Case No. 4,559. 

A third person cannot take advantage of the 
fact that the patent was obtained by fraud, but 
the patent must be respected and enforced until 
reversed or annulled by some proceedings di- 
rectly for that purpose. — Grompton v. Belknap 
Mills, Case No. 18,285. 

Proof of fraud in obtaining an extension will 
not avail respondents, shown to have consented 
to the acts complained of. — Goodyear v. Provi- 
dence Rubber Co., Case No. 5,583. 

Irregular proceedings in the granting of a 
reissue are no defense to a wrongdoer unless 
they were contrary to law, and the patent was 
granted to the wrong person.— Dental Vulcanite 
■Co. v. Wetherbee, Case No. 3,S10. 

The defense that an invention is wanting in 
novelty or originality goes to the validity of 
the patent.— Coleman v. Liesor, Case No. 2,984. 



Equity has jurisdiction in case of infringe- 
ment on the ground of want of adequate rem- 
edy at law.— McMillin v. Barclay, Case No. 

^8,902. 

Where there is no question of fiduciary prop- 
erty in a patent, the infringer cannot be treat- 
ed as a trustee de son tort, and the court can- 
not upon that ground entertain equitable juris- 
diction.— Sayles v. Richmond, P. & P. R. Co., 
Case No. 12,424. 

Jurisdiction being acquired, on the ground of 
infringement, the court may settle other mat- 
ters between the parties in the case, which do 
not afford original ground of jurisdiction.— 
Brooks v. Stolley, Case No. 1,962. 

A complainant having two suits against the 
«ame defendant for infringement of the same 
letters patent will not be compelled to elect 
which he will prosecute.— Turrell v. Spaeth, 
•Case No. 14,268. 

An allegation, in relation to an action at law, 
•should not be set up as any portion of the 
foundation of a proceeding in equity, unless 
there was a bona fide trial and complete judg- 
ment—Doughty v. West, Case No. 4,029. 

See, also, ante, § 188. " 

§ 213. Statutory provisions. 

The repeal by Act July 8, 18T0. § 111, of Act 
July 4, 1836. did not have the effect to prevent 
the maintaining of suits on patents previously 
granted for causes of action subsequently ac- 
cruing.— Union Paper-Bag Mach. Co. v. New- 
ell, Case No. 14,390. 

$214. Defenses. 

The discontinuance of proceedings for in- 
fringement of a patent does not estop complain- 
ant from bringing a second suit. — Thompson v. 
Jewett, Case No. 13,961. 

Where the claims are definitely distinguish- 
-ed; the fact that some of them are void for 
want of novelty will not prevent a suit for in- 
fringement upon the valid claims. — Rumford 
Chemical Works v. Lauer, Case No. 12,135. 

Defendants who have used the invention are 
estopped to deny its utility.— Coleman v. Lies- 
or, Case No. 2,984. 

The express recognition by agreement of the 
validity of a patent, in consideration of a li- 
cense, will estop the licensee, in a subsequent 
suit for infringement, to set up its invalidity. — 
Magic Ruffle Co. v. Elm City Co., Case No. 8,- 
949. 

An admission that a third person had a right 
to grant a license will estop the owners from 
prosecuting those who relied thereon. — Gear v. 
Grosvenor, Case No. 5,291. 



Where both parties assert rights under dif- 
ferent patents with identical claims, defendant 
cannot set up that the claim in plaintiff's pat- 
ent does not claim patentable subject-matter.— 
Russell & Erwin Mfg. Co. v. Mallory, Case No. 
12,166. 

An infringer cannot defend upon the ground 
that the extension of the patent was obtained 
by means of fraud and perjury.— Whitney v. 
Mowry, Case No. 17,594. 

An unreasonable neglect or delay to enter 
a disclaimer at the patent office, where the dis- 
claimer has been filed, either before or after 
suit brought, is a good defense to a suit for 
infringement.— Reed v. Cutter, Case No. 11,645. 

A statement of the date of invention, made 
to the patent office by the patentee after an 
assignment by him, will not estop the assignees 
to show that the invention was in fact made 
at an earlier date.— Union Paper-Bag Mach. Co. 
v. Crane, Case No. 14,388. 

A license to practice the invention is a com- 
plete defense to a suit for infringement, though 
defendant has not fulfilled his contract— Tilgh- 
man v. Hartell, Cases Nos. 14,039, 14,040. 

A license under a patent to another is no 
defense.— Stuart v. Shantz, Case No. 13,556. 

Where a license is revoked, and the licensee 
is sued as an infringer, he is at liberty to avail 
himself of any defense ordinarily open to any 
defendant charged with infringement.— Wood- 
worth v. Cook, Case No. 18,011; Wooster v. 
Singer Mfg. Co., Id. 18,039a. 

The fact that defendant has refrained from 
the use of the thing patented, and has promised 
not to further infringe, is no ground for a 
denial of the remedy in equity.— Jenkins v. 
Greenwald, Case No. 7,270. 

It is no justification of the infringement of a 
reissued patent that the infringer had used the 
invention with impunity before the patent was 
amended.— Howe v. Williams, Case No. 6,778. 

Where two or more patents are included in 
one suit, a defense addressed solely to one pat- 
ent has no application to the others.— Kelleher 
v. Darling, Case No. 7,653. 

It is no defense that the particular form 
which defendant has infringed is unnecessary 
to the operation of the apparatus.— Blaisdell v. 
Puffer, Case No. 1,490. 

Defendant cannot avail himself of the de- 
fense that he has not marked or labeled the 
infringing machines as patented.— Herring v. 
Gage, Case No. 3,422. 



Passive conduct with knowledge of an ap- 
propriation by defendant, which the inventor 
is powerless to prevent, does not estop him 
from subsequently asserting his right on ob- 
taining a patent.— McMillin v. Barclay, Case 
No. 8,902. 

Defendants will be concluded by the state- 
ment of their process in their printed labels 
prepared before the suit was brought— Jones 
v. Merrill, Case No. 7,481. 

A consent by defendant to a judgment on 
making a settlement by taking a license under 
the patent held an admission of the validity of 
the patent— Goodyear v. Day, Case No. 5,o66. 

Use of the invention by the infringer before 
the renewal is no justification of an infringe- 
ment thereafter.— Goodyear v. Day, Case No. 
5,566. 

See, also, ante, § 189. 

§215. Persons entitled to sue. 

An assignee of an exclusive territorial right 
to make, use, and sell the patented article may 
maintain a suit in equity.— Ogle v. Bge, Case 
No. 10,462; Bicknell v. Todd, Id. 1,389; Perrv 
v. Corning, Id. 11,004. 



1721 (§ 215) 



PATENTS 
[Fed. Cas 

An exclusive licensee may maintain a suit 
for infringement even against the patentee.— 
Star Salt Caster Co. v. Crossman, Case ISo. 
13,321. 

The licensee of a territorial exclusive right to 
use, rent, and vend a patented article cannot 
maintain a suit against persons using thearti- 
cle in violation of the license.— Hill v. Whit- 
comb, Case No. 6,502. 

The owner of a patent right may sue on the 
patent in a federal court in Pennsylvania, 
though he derived his right from a foreign ad- 
ministrator, who has never taken out letters in 
Pennsylvania.— Smith v. Mercer, Case No. 13,- 
078. 

The equitable title of an assignee to a subse- 
quent extended term granted to the patentee 
is sufficient to enable him to maintain a suit 
for infringement— Ruggles v. Eddy, Case No. 
12,117. 
See, also, ante, § 190. 

§216. Persons liable. 

One who purchases patented articles from a 
licensee, with knowledge of his having repudi- 
ated his contract with the patentee, is liable on 
a sale of such articles.— Moody v. Taber, Case 
No. 9,747. 

The sale of infringing machines by defend- 
ants as agents of the maker will be enjoined. 
—Potter v. Puller, Case No. 11,327. 

A mere licensor under letters patent, who did 
not derive any profit from an infringing .ma- 
chine constructed thereunder by his licensee, is 
not liable.— Hussey v. Bradley, Case No. 6,946. 

A person who used a driven well for house- 
hold or other purposes .on his property held lia- 
ble to an injunction and accounting. Other- 
wise as to one who boarded with his mother, 
and contributed to the expenses of the family. 
—Green v. Gardner, Case No. 5,758a. 

The managing directors of a manufacturing 
corporation, under whose direction it manu- 
factures and sells infringing articles, and its 
selling agents, are responsible for such infringe- 
ment, and will be restrained by injunction. — 
Goodyear v. Phelps, Case No. 5,581. 

A clerk of defendant who purchases his rights 
pending the motion for an injunction does not 
stand before the court as an independent in- 
fringer.— Parkhurst v. Kinsman, Case No. 10,- 
760. 

After a decision by the commissioner of pat- 
ents in an interference case the defeated appli- 
cant entered into partnership with the patentee 
for the manufacture of the patented article, 
and advertised it as secured by patent. Held, 
on dissolution of the partnership, where the 
defeated applicant continued to manufacture 
the patented article, preliminary injunction 
should be granted.— Pentlarge v. Beeston, Case 
No. 10,963. 

See, also, ante, § 191. 

§ 217. Joinder of causes of action. 

Where an infringing machine contains all the 
improvements embraced in four patents for im- 
provements in such machine, the bill for in- 
fringement may be founded upon all the pat- 
ents.— Nourse v. Allen, Case No. 10,367. 

A bill for the infringement of two patents 
owned by plaintiff by one article manufactured 
by defendant is not bad for multifariousness.— 
Gillespie v. Cummings, Case No. 5,434. 

Where there is privity or connection between 
the different defendants, they are jointly liable 
on a bill for infringing a patent.— Wells v. 
Jacques, Case No. 17,398. 

The fact that the assignment of one of the 
patents embraces other territory than that in 
question does not make the bill bad.— GiUespie 
v. Cummings, Case No. 5,434. 



, XII. (C). ' (§ 2'20) 1722: 

, Digest.] 

Bill for infringement of 33 claims, in 4 sev- 
eral patents, held demurrable for multifarious- 
ness.— Hayes v. Bickelhoupt, Case No. 6,261b. 

§218. Jurisdiction. 

The circuit court, sitting as a court of equitjv 
has a full concurrent jurisdiction with the court" 
sitting as a court of law of all actions for the* 
infringement of a patent.— Ferry v. Comings 
Case No. 11,004. 

Upon the death of the patentee the personal: 
representative at his domicile may sue for in- 
fringement in any federal court having juris- 
diction, without taking out letters in the state 
in which the suit is brought.— Hodge v. North 
Missouri R. R., Case No. 6,561. 

The suit may be brought in any district in 
which defendant is found, regardless of the- 
place where the infringement was committed- 
—Thompson v. Mendelsohn, Case No. 13,968. 

See, also, post, § 245. 

§219. Limitations and laches. 

Prior to Act July 8, 1870, there was no stat- 
ute limiting the time within which a suit in- 
equity must be prosecuted for the infringement 
of a patent.— Wood v. Cleveland Rolling-Mill- 
Co., Case No. 17,941; Same v. Union Iron- 
Works Co., Id. 

A suit against the most conspicuous and ex- 
tensive infringer, brought within a reasonable- 
time, and prosecuted with reasonable diligence, 
is sufficient to prevent the defense of laches as? 
to other infringers. — Colgate v. Gold & Stock. 
Tel. Co., Case No. 2,991. 

State statutes of limitation cannot be plead- 
ed in bar of suit for infringement. — Anthony v.- 
Carroll, Case No. 487. 

Quaere, whether state statutes of limitation- 
are applicable to suits for infringement. — Ste- 
vens v. Kansas Pac. Ry. Co., Case No. 13,401., 

See, also, ante, § 192; post, § 241. 

§ 220. Parties and process. 

The party who is immediately injuredby the* 
infringement, and who is equitably entitled to* 
the fruits of the recovery, may be joined with- 
the owner 1 of the legal title.— Goodyear v. 
Allyn, Case No. 5,555; Same v. Central R. Co.,, 
Id. 5,563. 

All parties having title to a patent are nec- 
essary parties to a suit for infringement. If 
their title is disputed, they should be made- 
defendants. — Edgarton v. Breck, Case No. 4,- 
279. 

In a suit upon a patent granted to the per- 
sonal representative of the inventor the heir or- 
equitable owner is a necessary party.— North- 
western Fire Extinguisher Co. v. Philadelphia 
Fire Extinguisher Co., Case No. 10,337. 

A grant of a right to construct and use 50^ 
machines within certain localities, reserving to 
the grantor the right to construct but not use 
others therein, is of an exclusive right, and 
suits are to be brought in the name of the 
I assignees.— Washburn v. Gould, Case No. 17,— 
214. 

A mere licensee under a patent cannot sue in 
equity for the infringement of his rights under 
the patent, without joining with him, as plain-- 
tiff, the owner of the legal title.— Nelson v. 
McMann, Case No. 10,109; Potter v. Holland,, 
Id. 11,329; Same v. Wilson, Id. 11,342. CON- 
TRA, see Brammer v. Jones, Case No. 1,806. 

And he need not be joined in the suit by the- 
owner of the patent. — Potter v. Holland, Case- 
No. 11,329; Same v. Wilson, Id. 11,342; Good- 
year v. Day, Id. 5,566; Hussey v. Whitely, Id. 
6,950. CONTRA, see Hammond v. Hunt, Case- 
No. 6,003. 

The legal owner is a necessary party to a suit 
for infringement, where his license of the ex- 



1723 (§ 220) 



PATENTS, XII. (C). 
[Fed. Cas. Digest.] 



(§ 221) 1724 



elusive use to another provided that he was to 
have half the damages recovered for violations. 
—North v. Kershaw, Case No. 10,311. 

The owner of the legal title is properly joined 
as plaintiff with one holding an exclusive right 
to make and vend the patented article for use 
in foreign countries in a suit to restrain de- 
fendant from making the patented article, and 
selling to persons who buy for export— Dorsey 
Revolving Haivester Rake Co. v. Bradley Mfg. 
Co., Case No. 4,015. 

Nonjoinder of parties in a bill for an infringe- 
ment of a patent constitutes no defense after 
the cause has been set down for final hearing. 
—Forbes v. Barstow Stove Co., Case No. 4,923. 

In a suit by an assignee to recover damages 
and profits accruing both before and since the 
assignment, the assignor need not be made a 
party.— Henry v. Francestown Soap-Stone Stove 
Co., Case No. 6,3S2. 

Trustees of a license to use a patent may sue 
to restrain infringement within their territory 
without joining the cestuis que trustent. — Brvan 
v. Stevens, Case No. 2,066a. 

The next of kin of a patentee cannot be unit- 
ed as parties plaintiff with the personal repre- 
sentative in a bill to enjoin infringement. — 
Hodge v. North Missouri R. R., Case No. 6,561. 

An officer of a corporation owning an infrin- 
ging patent who, in its behalf, executes a license 
to defendant to use, for a fixed rental, the corpo- 
ration's infringing machines, is a proper party 
-defendant to an injunction suit.— Nichols v. 
Pearce, Case No. 10,246. 

The owner of infringing machines and a les- 
see from him may be joined as defendants in a 
suit for infringement— Wells v. Jacques, Case 
No. 17,398. 

In a suit for infringement of a patent issued 
to an executor in trust for the devisees of the 
inventor, both the executor and the devisees 
should be joined as plaintiffs.— Stimpson v. Rog- 
ers, Case No. 13,457. 

Suits for infringements lield properly brought 
in the name of a trustee of the patentee, join- 
ing the patentee as owner of the equitable inter- 
est.— Dibble v. Augur, Case No. 3,879. 

A person interested in a patent, though not 
within the particular district in which the suit 
to restrain infringement is brought mav be 
made a party to the bill.— Buck v. Cobb, Case 
No. 2,079. 

In suits founded on a patent issued to a part- 
nership, both partners are necessary parties. — 
Ambler v. Chouteau, Case No. 272. 

It is a fatal defect in the bill that all the 
owners of the patent have not been made par- 
ties ; but those only are deemed owners to 
whom the patent was issued, or to whom in- 
terests in it have been transferred by assign- 
ment in writing, duly authenticated— Jordan v. 
Dobson, Case No. 7,519. 

The remedy of parties joined as complain- 
ants who have no title to the patent is not a 
dismissal of the bill, but merely of their names 
as parties.— Edgarton v. Breck, Case No. 4,279. 

An amendment in a suit by a patentee by add- 
ing an exclusive licensee as plaintiff not allowed. 
—Goodyear v. Bourn, Case No. 5,561. 

See, also, ante, § 193. 

§221. Pleading— Original bill. 

See, also, ante, §§ 194-197; post, § 244. 

A bill founded on the infringement of a pat- 
ent, containing the usual prayer for an answer 
on oath and a prayer for an account of profits, 
but not alleging that a discovery was necessary, 
and having no special interrogatories annexed, 
-lield sufficient to give the court jurisdiction as a 
bill for a discovery and account, notwithstand- 



ing an admission of counsel that a discovery was 
not necessary.— Perry v. Corning, Case No. 11,- 

Where a bill for infringement prays for a 
discovery and an account of profits, and alleges 
that plaintiff has no adequate remedy except in 
equity, it is not demurrable on the ground that 
plaintiff has an adequate remedy at law— Perry 
v. Corning, Case No. 11,004. 

Where the original patent was reissued in 
divisions, the bill need not aver that each divi- 
sion was for a distinct invention. — Thompson v. 
Jewett, Case No. 13,961. 

A general allegation of profits accrued will 
not sustain a bill for an account, and where, 
from the nature of the invention alleged, it is 
apparent that there cannot possibly be any prof- 
its of a character to justify charging defendant 
as trustee, a demurrer will be sustained.— 
Vaughan v. Central Pac. R. Co., Case No. 16,- 
897. 

Plaintiff must allege in his bill that he, or the 
one under whom he claims, is the original and 
first inventor of what is claimed in the patent. — 
Tucker v. Tucker Mfg. Co., Case No. 14.227; 
Sullivan v. Redfield, Id. 13,597. 

A simple averment that the title to the patent 
in suit is vested in plaintiff is sufficient. Plain- 
tiff need not set forth a deduction of title.— 
Nourse v. Allen, Case No. 10,367. 

Plaintiff who relies upon a verdict and judg- 
ment at law establishing his title must aver it 
in his bill for an injunction.— Parker v. Brant, 
Case No. 10,727. 

Statement of locality or place of business of 
the corporation complainant held not necessary. 
—National Hay-Rake Co; v. Harbert, Case No. 
10,044. 

Plaintiff, claiming title through a territorial 
assignment, need not aver in his bill the record- 
ing of the instrument in the patent office. The 
defense that defendant is a bona fide purchaser 
for value without notice must be- made in the 
answer.— Perry v. Corning, Case No. 11,004. 

Sufficiency of averment of the issue of letters 
patent.— Noe v. Prentice, Case No. 10,2S4a. 

The particulars of the infringement need not 
be stated in a bill in equity, a general allegation 
of infringement being sufficient. — Haven v. 
Brown, Case No. 6,228; Thatcher Heating Co. 
v. Carbon Stove Co., Id. 13,S64; Turrell v. 
Cammerrer, Id. 14,266. 

The allegation that respondents are using, 
etc., is sufficient where it appears that they are 
acting in concert as stockholders, managers* etc., 
of a corporation.— Poppenhusen v. Falke, Case 
No. 11,279. 

In a bill in equity, after alleging the infringe- 
ment of a valid patent, it is surplusage, and not 
multifariousness, to aver the infringement of a 
void reissue thereof.— Roemer v. Logowitz, Case 

Where suit is brought for the infringement of 
several patents for different improvements, not 
necessarily embodied in the construction and op- 
eration of any one machine, the bill must con- 
tain an explicit averment that the infringing 
machines contain all the improvements embraced 
in the several patents, or it will be bad for mul- 
tifariousness.— Nellis v. McLanahan. Case No. 
10,099. 

It is no ground of demurrer to a bill for in- 
fringement of two patents by the use of the 
devices in one apparatus that the bill does not 
allege that the devices were used conjointly, or 
connected together.— Horman Patent Mfg. Co. v. 
Brooklyn City R. Co., Case No. 6,703. 

A bill by an inventor, alleging a fraudulent 
sale of his patent rights, which does not clearly 
show whether the relief prayed for is that the 
sale be canceled and the patent restored, or that 



1725 (§ 221) 



PATENTS, XII. (C). 
£Fed. Cas. Digest.] 



(§ 226) 1726 



the sale be confirmed and the buyer forced to] -elude defendant, though he subsequently amends 
.account for the profits, is bad on demurrer.— his answer and denies both.— Livingston v. 
Ambler v. Chouteau, Case No. 272. Jones, Case No. 8,413. 



The bill need not aver that the patentee had 
marked the articles made or vended under tile 
patent as required by Act March 2,^1861, § 13. 
— Goodyear v. Allyn, Case No. 5,555. 

On a bill in equity the right to damages fol- 
lows the decree under the general prayer for 
relief. Complainant need not pray for damages 
■eo nomine.— Emerson v. Simm, Case No. 4,443. 

The bill must be sworn to.— Sullivan v. Red- 
field, Case No. 13,597. 

The bill may be properly verified by the equi- 
table owner of the patent— Goodyear v. Allyn, 
Case No. 5,555. 

The affidavit annexed to the bill that the pat- 
entee was the original and first inventor of the 
thing patented can be made by the assignee of 
the patent, as well as by the patentee himself. — 
Thompson v. Jewett, Case No. 13,961. 

$ 222. Cross bill. 

In a suit for infringement, defendant cannot, 
by a cross bill which sets up no color of title in 
himself, demand a discovery from the plaintiff m 
the original suit as to the source of validity of 
his title.— Young v. Colt, Case No. 18,155. 

-§ 223. Plea and answer. 

Where the defense is that the patentee is not 
the first inventor, the answer in equity must 
allege the names and places of residence of those 
relied on to prove the fact.— Graham v. Mason, 
Case No. 5,671. 

A plea to an answer setting up a license, that 
defendant has abandoned the license, must state 
the acts showing the abandonment.— Brooks v. 
Stolley, Case No. 1,963. 

Want of novelty, as a defense, must be special- 
ly alleged.— Guidet v. Barber, Case No. 5,857. 

The objection that the answer, raising the de- 
fense for want of novelty, fails to specify time, 
place, etc., if not taken when the testimony is 
introduced, is waived, and defendant will be al- 
lowed to amend to conform to his proofs. — 
Brown v. Hall, Case No. 2,008. 

The defense of the insufficiency of the specifi- 
cation to enable the invention to be practiced, 
to be available, must be set up in the answer.— 
Jennings v. Pierce, Case No. 7,2S3; Goodyear 
v. Providence Rubber Co., Id. 5,583. 

The claim that a reissue was obtained under 
false representations must be distinctly alleged, 
and as distinctly proved.— Doughty v. West, Case 
No. 4,029. 

The defense that a reissue is invalid, on the 
ground that the patent does not contain a suffi- 
cient specification of the proportions of the in- 
gredients to meet the requirements of' the law, 
cannot be considered unless set up in the an- 
swer.— Wonson v. Peterson, Case No. 17,934. 

A defense in a suit in equity that the patentee 

■ has, since he obtained his patent, abandoned or 

dedicated it to the public use, must be set up in 

the answer.— Williams v. Boston & A. R. Co., 

Case No. 17,716; Wyeth v. Stone, Id. 18,107. 

A defense that the invention involved simply 
substitution of one material for another, not set 
up in the answer, is not available — Comstock v. 
Sandusky Seat Co., Case No. 3,082. 

The failure to deny the use of a machine as 
alleged and described in the bill is an admission 
of such use.— Ely v. Monson & B. Mfg. Co., 
Case No. 4,431. 

Defendants will be estopped by averments in 
their answer from setting up facts to the con- 
trary by affidavits.— Morse Fountain Pen Co. v. 
Esterbrook Steel Pen Mfg. Co., Case No. 9,862. 

The admission of the originality and value of 
complainant's patent, in the answer, will con- 



An answer to a bill for infringement which is 
indistinct and evasive as to the use of the pat- 
ented invention will be considered as an admis- 
sion.— Jordan v. Wallace, Case No. 7,523. 

Effect of admission in the answer that defend- 
ant had made "large profits" by the use of the 
alleged infringing machinery.— Troy Iron & Nail 
Factory v. Corning, Case No. 14,196. 

§224. Replication. 

As no special replication to an answer is al- 
lowed, the question whether the licensee has 
abandoned his license can only be brought up 
by amendment to the bill. Equity Rule 45.— 
Brooks v. Stolley, Case No. 1,963. 

A replication to the answer, merely traversing 
the license, would not lay a foundation for evi- 
dence of abandonment. — Brooks v. Stolley, Case 
No. 1,963. 

§225. — Amended and supplemental 
pleadings. 

Leave to amend an answer by denying the 
novelty and utility of the invention will not be 
granted where, in a prior suit on the same pat- 
ent, defendant acknowledged in writing the 
novelty and utility of the invention, and a final 
decree was entered against him by consent. — 
Pentlarge v. Beeston, Case No. 10,964. 

Amendment setting up a new defense not al- 
lowed after interlocutory decree, and account 
proceeded with, where reasonable diligence not 
shown.— India Rubber Comb Co. v. Phelps, Case 
No. 7,025. 

Amendments to an answer sought to be made 
a year after plaintiff's proofs were closed by 
setting up two years' prior public use, and an- 
ticipation by a prior patent, not allowed, where 
the excuse was mistake of counsel as to the law 
governing the case, and no knowledge as to such 
prior patent.— Webster Loom Co. v. Higgins, 
Case No. 17,341. 

Where defendants admit the infringement, set- 
ting forth the number of articles made and sold, 
and rest their defense on a claim of ownership 
of the patent, they will not be granted leave to 
amend to contest the infringement, after a re- 
hearing has been denied and an accounting had. 
—Buggies v. Eddy, Case No. 12,118. 

Defendants allowed to strike out an admis- 
sion in their- answer of the making of certain 
articles as to which an injunction was sought.—" 
Aforehead v. Jones, Case No. 9,791. 

A surrender and reissue puts an end to a suit 
pending on the original patent, - and plaintiff 
must proceed by a new bill. He cannot file 
a supplemental bill.— Fry v. Quinlan, Case No. 
5,140. 

§ 226. Notice of special matter. 

No notice is required by Act July 4, 1836, § 
15, of the names and places of residence of the 
witnesses by whom it is intended to prove a 
prior knowledge and use of the thing patented. 
—Wilton v. Railroads, Case No. 17,857. 

If the notice of special matter sufficiently in- 
dicates the sources of defendant's proofs, so 
that complainant can identify and resort to 
them, it is sufficient under the statute.— Smith 
v. Frazer, Case No. 13,048. 

Defendant must give notice of the place 
where and the parties by whom the thing re- 
lied on under the defense of prior use has been 
used.— Hays v. Sulsor, Case No. 6,271. 

A reference to a county in which, it is al- 
leged, the prior use took place, is not sufficient. 
—Hays v. Sulsor, Case No. 6,271. 

Where defendant, in his special notice, gave 
the names of certain mining establishments in 
a specified county, as the places of an alleged 



1727 (§ 226) 



PATENTS, XII. (C). 
[Fed. Cas. Digest.;] 



(§ 230) 1728 



prior use, Jield, that this was sufficient.— Smitlf 
v. Frazer, Case No. 13,048. 

Defendant must give notice of his defense 
of want of novelty. — Coleman v. Liesor, Case 
No. 2,984; Collender v. Griffith, Id. 3,000. 

The absence of proper notice of the defense 
of want of novelty in the answer will render 
evidence thereof inadmissible, though the an- 
swer is subsequently amended by setting up 
such defense in due form.— Roberts v. Buck, 
Case No. 11,897. 

The absence of notice in the answer of evi- 
dence of want of novelty is waived where the 
testimony of witnesses is received without ob- 
jection.— Roemer v. Simon, Case No. 11,997. 

The testimony of a witness to prove prior 
knowledge stricken out, at the hearing, on mo- 
tion, on the ground that his -place of residence 
was not given in the answer. — Decker v. Grote, 
Case No. 3,726. 

Copies of drawings of foreign patents are not 
admissible without a notice in the answer, as 
required by the statute.— Earl v. Dexter, Case 
No. 4,242. 

A notice in a special plea, stricken out before 
the trial, is not sufficient to admit a public 
work in evidence to show want of novelty. — 
Foote v. Silsby, Case No. 4,916. 

Testimony of prior use and printed publica- 
tions, of which no notice was given in the an- 
swer, can be considered only to show the state 
of the art.— Geier v. Goetinger, Case No. 5,299. 

If it should appear that such testimony clear- 
ly established the invalidity of the patent, the 
court might grant the respondent leave to 
amend.— Geier v. Goetinger, Case No. 5,299. 

Complainant cannot acquiesce in the taking 
of testimony, and afterwards object to it for 
want of notice.— Lock v. Pennsylvania It. Co., 
Case No. 8,438. 

Want of notice of the names of witnesses to 
prove want of novelty is waived where their 
evidence is taken without objection.— Crouch 
v. Speer, Case No. 3,438. 

§ 227. Issues and proof. 

The issue tendered by respondent must be 
clear and unconditional.— Graham v. Mason, 
Case No. 5,671. 

Proof showing the prior state of the art can- 
not be considered for purposes of anticipation 
when that issue is not raised by the pleadings. 
— Middletown Tool Co. v. Judd, Case No. 9,- 
536. 

Machines not set up in the answer cannot be 
introduced in evidence or considered upon final 
hearing.— Howe v. Williams, Case No. 6,778. 

Prior patent not pleaded is admissible to 
show state of art, but not want of noveltv.— 
American Saddle Co. v. Hogg, Case No. 31*5. 

Testimony as to prior knowledge and use 
by persons not named in the answer is incom- 
petent.— Coleman v. Liesor, Case No. 2,984: 
Collender v. Griffith, Id. 3,000. 

An allegation of infringement by making and 
using the patented invention is sustained by 
proof of using alone.— Locomotive Engine Safe- 
ty Truck Co. v. Erie Ry. Co., Case No. 8,452. 



See, also, ante, § 198. 

§ 228. Evidence— Presumptions and "bur- 
den of proof. 

See, also, ante, §§ 23, 30, 34, 41-43, 53, 57, 59, 
199, 200; post, § 248. 

Both parties, when claiming under patents, 
are entitled to the benefit of the presumption 
that the patent is prima facie for a new and 
useful invention.— Blanchard t. Puttman, Case 
No. 1,514. | 



The burden of showing in defense that the 
patentee was a joint inventor is on defendant. 
— Ashcroft v. Cutter, Case No. 578. 

The party claiming that the patent should 
be limited m duration has the burden of proof. 
—American Diamond Rock Boring Co. v. Shel- 
don, Case No. 297. 

No notice will be taken of defenses set up in 
an answer, where the burden is upon the re- 
spondent, unless some proof is introduced in 
their support.— Cook v. Howard, Case No. 3,- 
160. 

After defendant shows failure of the patentee 
to mark the articles, plaintiff has the burden 
of showing that defendant continued to make 
and vend the articles after notice of infringe- 
ment.— Goodyear v. Allyn, Case No. 5,555. 

In the case of a patent for an improvement, 
the burden is upon the plaintiff to show the- 
profit resulting from such improvement.— Star 
bait Caster Co. v. Crossman, Case No. 13,320. 

Defendant, shown to have in his possession 
a number of each of the parts constituting the 
elements of complainant's patented combina- 
tion, may be compelled to show his subsequent 

u 5 e «2£ such Parts.— Turrell v. Spaeth, Case No. 
14,2b * . 

§229. Admissibility in general. 

Complainant may show that his invention 
was made and reduced to practice at a date 
much earlier than that of the date of the ap- 
plication.— Kelleher v* Darling, Case No. 7,- 

OOo. 

Rejected specifications and drawings are ad- 
missible after the invention is perfected to as- 
certain the date of the invention, the design 
of the inventor, and the principle, intended 
functions, and mode of operation of the mech- 
anism.— Northwestern Fire Extinguisher Co. v. 
Philadelphia Fire Extinguisher Co., Case No. 
JLU,ooT. 

Where a prior adjudication in favor of the 
patent is relied upon, defendant may show 
that the title was not fairly in controversy, or 
that some material fact was then unknown or 
apposite argument overlooked. — Parker v. 
Brant, Case No. 10,727. 

Copies from the records of the patent office- 
of assignments are evidence.— Brooks v. Jen- 
kins, Case No. 1,953. 

The model filed in compliance with the law 
is admissible as evidence of the scope of the 
invention and of the defects in the patent— 
Ex parte Ball, Case No. 811. 

As to the admissibility in evidence of the 
certified copy of a drawing filed after the orig- 
inal records in the patent office were destrov- 
ed by fire, see Emerson v. Hogg, Case No. 4,- 
440. 

Evidence of plaintiff's declarations held ad- 
missible to prove that he asserted a right as 
the discoverer, and described the invention. — • 
Evans v. Hettick, Case No. 4,562. 

Parol evidence is not admissible to show at 
what time a patent was applied for, as the pat- 
ent office contains written evidence of such 
fact.— Wayne v. Winter, Case No. 17,304. 



The commissioner's certificate that the an- 
nexed "is a true copy," annexed to various as- 
signments of a patent, attached so as to con- 
stitute one document, applies to all of such, 
assignments.— Goodyear v. Blake, Case No. 5,- 
560. 

§ 230. Weiglrfc and sufficiency. 

A patent will be sustained on testimony of 
patentee that he was sole inventor, corroborat- 
ed by the circumstances, as against testimony 
of another claiming to be joint inventor.— Ash* 
croft v. Cutter, Case No. 578. 



1729 (§ 230) PATENTS. XII. (C). 

[Fed. Casj; Digest.] 

The defense of invention by and patent to 
a third person may be met by producing the 
application of and the patent to such third per- 
son, with his accompanying or contemporane- 
ous declarations,— Hitchcock v. Shoninger Me- 
lodeon Co., Case No. 6,537. 

Persons alleging invalidity of patent afterit 
has been repeatedly sustained in other circuits 
must show indisputable grounds. — Blake v. 
Robertson, Case No. 1,501. 



(§ 232) 1730- 



/ 



It is not enough for defendant to make oath 
that he manufactures under a patent granted 
to himself; he must support his right by the 
affidavits of third persons.— Lombard v. Still- 
well, Case No. 8,472. 

A patent will not be invalidated on the testi- 
mony of a single witness of the public use of 
an alleged prior machine some 20 years before. 
—Blake v. Eagle Works Mfg. Co., Case. No. 1,- 
494; Same v. Rawson, Id. 1,499. 

A verbal admission of infringement and a 
promise to desist is a strong circumstance 
against defendant.— Morse Fountain Pen Co. 
v. Esterbrook Steel Pen Mfg. Co., Case No. 
9,S62. 

The purchase by plaintiff from defendant, in, 
the usual course of defendant's business, of 
the infringing article, will sustain a decree for 
an injunction and an accounting as to other 
sales.— De Florez v. Raynolds, Case No. 3,742. 

The fact that defendant has obtained a pat- 
out for his process, while not controlling, is 
entitled to weight.— Jones v. Merrill, Case No. 
7,481. 

Plaintiff cannot strengthen his case on the 
question of infringement by rebutting affida- 
vits.— Union Paper-Bag Mach. Co. v. Binney, 
Case No. 14,387. 

Where defendants offered no testimony, held 
the infringement was sufficiently proved by tes- 
timony of their admissions that they had sold 
certain articles which were substantially the 
same as the articles described in plaintiff's pat- 
ent. — Thatcher Heating Co. v. Drummond, 
Case No. 13,865. 

The affidavit of the manufacturer of an arti- 
cle, stating its composition from his personal 
knowledge, will prevail over the affidavits of 
dealers, stating their opinions.— Gutta-Percha 
& Rubber Mfg. Co. v. Goodyear Rubber Co., 
Case No. 5,879. 

Where the evidence is the same as upon a 
prior case, the decision there will be followed. 
— Bailey Wringing Mach. Co. v. Adams, Case 
No. 752. 

Copies of the specifications and drawings are 
not alone sufficient evidence to prove a patent. 
— Brooks v. Norcross, Case No. 1,957. 

Complainant will be given the benefit of 
rights adjudicated against a defendant in an- 
other suit in which defendant herein contribut- 
ed to the defense.— Birdsall v. Hagerstown Ag- 
ricultural Implement Mfg. Co., Case No. 1,433. 

Original model may be proved by specifica- 
tions and drawings where certified model is 
broken, and parts lost— Aultman v. Holley, 
■Case No. 056. 

Proof of mere finding of infringing machines 
in defendant's possession will support a finding 
for plaintiff -where the answer does not ex- 
plicitly deny infringement. — Gear v. Fitch, 
Case No. 5,290. 

5 231. — Opinions of experts. 

The opinions of experts, or persons skilled in 
the structure of machines, is evidence. — Brooks 
t. Jenkins, Case No. 1,953. 

Testimony of "experts are entitled to more 
weight than opinion of commissioner. — Ex par- 
te Arthur, Case No. 563a. 
Fed.Cas.Dig.— 55 



As bearing on the art, the testimony of per- 
sons skilled in the business that no such im- 
provement as that covered by the patent had 
previously come to their knowledge is inad- 
missible. — Hitchcock v. Shoninger Melodeon 
Co., Case No. 6,537. 

Proofs furnished by practical operation and 
experiment are entitled to greater weight than 
the opinion of an expert—Hudson v. Draper, 
Case No. 6,834. 



The opinion of an expert that two machines 
are essentially different in mechanical struc- 
ture and mode of operation, when the particu- 
lars of difference are not pointed out, will not 
control where the machines appear to be prac- 
tically identical.— United States Annunciator & 
Bell Telegraph Mfg. Co. v. Sanderson, Case 
No. 16,790. 

Experts will not be allowed to testify, where 
the court is convinced, upon an inspection of 
the machine and the patent, that there is no 
infringement.— Ely v. Monson & B. Mfg. Co., 
Case No. 4,431. 

§232. Preliminary injunctions, -when 
granted— In general. 

The same rule obtains in patent cases as in 
other equitable cases as to the granting of a 
preliminary writ. — Irwin v. Dane, Case No. 
7,081. 

The rules laid down under which preliminary 
injunctions are granted.— Doughty v. West, 
Case No. 4,029. 

The court should grant the preliminary writ 
without evasion if of opinion that plaintiff is 
entitled to it by law.— Blanchard v. Reeves, 
Case No. 1,515. 

An injunction will be denied except in clear 
cases, or where the answer or affidavit is equiv- 
ocal and evasive. — Parker v. Sears, Case No. 
10,748. 

Defendant may be enjoined from infringing 
some of the claims of a patent pending a deci- 
sion as to the validity of others.— Colt v. Young, 
Case No. 3,032. 

A preliminary injunction will be refused 
where the court is/ in doubt as to the validity 
of the patent or of the infringement.— Am.erican 
Middlings Purifier Co. v. Atlantic Milling Co., 
Case No. 305; American Nicholson Pavement 
Co. v. Elizabeth, Id. 312; Beane v. Orr. Id. 
1,176; Dodge v. Card, Id. 3,951; Ogle v. Ege, 
Id. 10,462; Fales v. Wentworth, Id. 4,623; 
Crowell v; Harlow, Id. 3,444; Goodyear v. 
Hills, Id. 5,571a; Jones v. Field, Id. 7,461; 
Same v. Hodges, Id. 7,469; Mowry v. Grand 
Street & N. K. Co., Id. 9,893; Ogle v. Ege, Id. 
10,462; Sickels v. Youngs, Id. 12,83S; TVmans 
v. Eaton, Id. 17,861. 

Denied where its purpose is to compel a city 
to award a contract to complainants. — Ameri- 
can Nicholson Pavement Co. v. Elizabeth, Case 
No. 312. 

'Denied where the patentee, before making his 
application, had sold a large quantity of the 
manufactured article in packages marked as 
imported. — Booth v. Garelly, Case No. 1,646. 

Denied to inventor who falsely described his 
invention as< patented before applying for pat- 
ent. — Anonymous, Case No. 451. 

Not granted where there are conflicting state- 
ments of fact.— Cooper v. Mattheys, Case No. 
3,200. 

The grant of a patent, without notice to a 
prior patentee of the application, is no bar to 
a preliminary injunction in favor of the latter. 
—Wilson v. Barnum, Case No. 17,787. 

r 

Preliminary injunction denied where the va- 
lidity of the patent, six months old* was put jn 
issue, and defendant alleged a license granted, 



1731 (§ 232) 



PATENTS, XII. (C). 

[Fed. Cas. Digest.] 



(§ 234) 173*2 



by complainant before tbe patent issued. — Mc- 
Guire v. Eames, Case No. 8,814. 

Not granted where defendant shows a belief 
that he has a just defense, and is not a willful 
pirate of the plaintiff's invention. — Goodyear v. 
Dunbar, Case No. 5,570. 

Infringement enjoined independent of other 
relief. — American Cotton-Tie Supply Co. v. Mc- 
Cready, Case No. 295. 

§ 233. Establishing riglit of patentee 

hy trial at law or exclusive use. 

A preliminary injunction will not be granted 
unless the patentee's right has been established 
by a suit at law, or his possession and exercise 
of the right have been exclusive, undisturbed, 
and long-continued. — Brooks v. Bicknell, Case 
No. 1,946; Burleigh Rock-Drill Co. v. Lobdell, 
Id. 2,166; Grover & Baker Sewing Mach. Co. 
v. Williams, Id. 5,847; Gutta-Percha & Rub- 
ber Mfg. Co. v. Goodyear Rubber Co., Id. 
5,879; Hockholzer v. Eager, Id. 6,556; Hovey 
v. Stevens, Id. 6,745; Mitchell v. Barclay, Id. 
9,659; Mo wry v. Grand Street & N. R. Co., 
Id. 9,893; Muscan Hair Mfg. Co. v. American 
Hair Mfg. Co., Id. 9,970; Pentlarge v. Pent- 
large, Id. 10,965a; Potter v. Whitney, Id. 11,- 
341; Serrell v. Collins, Id. 12,671; Stevens v. 
Felt, Id. 13,397; Thomas v. Weeks, Id. 13,914; 
Toppan v. National Bank-Note Co., Id. 14,100. 

Where the patent is of long standing, and 
the inventor has exclusive possession under 
it, and the infringement is clear, the writ will 
be granted without a trial at law. — Brown v. 
Hinkley, Case No. 2,012; Buck v. Cobb, Id. 
2,079; Chase v. Wesson, Id. 2,631; Gibson v. 
Betts, Id. 5,390; Same v. Van Dresar, Id. 5,- 
402; Green v. French, Id. 5,757; Goodyear v. 
Central R. Co., Id. 5,563; Howe v. Williams, 
Id. 6,778; Miller v. Androscoggin Pulp Co., 
Id. 9,559; Motte v. Bennett, Id. 9,884; Orr v. 
Badger, Id. 10,587; Same v. Littlefield, Id. 10,- 
590; Potter v. Muller, Id. 11,334; Sickels v. 
Mitchell, Id. 12,835; Washburn v. Gould, Id. 
17,214; Weston v. White, Id. 17,459; Wood- 
worth v. Hall, Id. 18,016. 

The injunction will be denied, where the pat- 
ent has not been judicially established or acqui- 
esced in by the public, unless plaintiff's right is 
free from doubt, and the violation of right by 
defendant is equally clear.— North v. Kershaw, 
Case No. 10,311. 

Where the patent is only recently granted, 
very strong evidence of acquiescence on the part 
of the community is required to justify a pre- 
liminarv injunction. — Mannie v. Everett, Case 
No. 9,039. 

The public acquiescence in an inventor's claim 
of right for two years before his application is 
entitled to weight in considering his right to a 
preliminary injunction. — Sargent v. Larned, Case 
No. 12,364. 

The alleged public acquiescence in a patent 
must be attended with circumstances indicating 
that such acquiescence would not have occurred 
if any fair doubt had existed as to the validity 
of the patent.— Guidet v. Palmer, Case No. 5,- 
S59. 

Four years' use of a pavement laid by the pat- 
entee under a contract with the city 7wld insuffi- 
cient to raise a presumption in favor of the va- 
lidity of the patent.— Guidet v. Palmer, Case No. 
5,859. 

Public acquiescence in a patent will not be 
construed as acquiescence in a reissue, where 
both patents do not claim the same thing. — 
Grover & Baker Sewing Mach. Co. v. Williams, 
Case No. 5,847. 

Granted where complainants had enjoyed an 1 * 
uninterrupted use of their invention for 11 years, 
and established their patent in an action at 
law, and obtained an extension, notwithstand- 



ing vigilant opposition.— Cook v. Ernest, Case 
No. 3,155. 

Granted where complainant's possession had" 
been acquiesced in for a long time by the pub- 
lic, and for some time by defendant. — Morse v. 
O'Reilly, Case No. 9,859. 

The exclusive possession for eight years xinder 
a patent for a useful machine, affecting an ex- 
tensive business, held sufficient prima facie evi- 
dence to entitle a patentee to an injunction. — 
Foster v. Moore, Case No. 4,978. 

Previous use by plaintiff is not absolutely es- 
sential.— American Middlings Purifier Co. v. 
Christian, Case No. 307. See, also, Mitchell v. 
Barclay, Case No. 9,659. 

What is a sufficient public acquiescence in tbe 
exclusive right of a patentee to make a prima 
facie title without a judgment at law, see Sar- 
gent v. Seagrave, Case No. 12,365. 

§ 234. Irreparable or comparative 

injury to parties. 

The writ will be refused where there does not 
appear to be danger of irreparable injury to 
plaintiff. — Dorsey Revolving Harvester Rake Co. 
v. Bradley Mfg. Co., Case No. 4,015; Earth 
Closet Co. v. Fenner, Id. 4,249. 

An unconditional injunction will be granted* 
irrespective of the hardship to defendants, and 
the security to plaintiff, if there be no substan- 
tial doubt of plaintiff's right.— Ely v. Monson & 
B. Mfg. Co., Case No. 4,431; Hodge v. Hud- 
son River R. Co., Id. 6,560; Hussey v. Whitely, 
Id. 6,950; Morris v. Lowell Mfg. Co., Id. 9,833r 
Potter v. Fuller, Id. 11,327. But see Potter v. 
Whitney, Case No. 11,341. 

A preliminary injunction will not be granted 
where there is more probability of incalculable 
mischief from the granting than from the with- 
holding.— Day v. Candee, Case No. 3,676; Hock- 
holzer v. Eager, Id. 6,556; Irwin v. Dane, Id. 
7,081; North v. Kershaw, Id. 10,311; Sargent 
v. Seagrave, Id. 12,365. 

Refused where complainant's right is in doubt, 
and defendants are amply able to answer in 
damages, and would suffer great injury by sus- 
pension of their work. — Essex Hosiery Mfg. Co. 
v. Dorr Mfg. Co., Case No. 4,533. 

Unless the balance of inconvenience be clear- 
ly on the side of the complainant, or if the case 
be at all doubtful, an injunction will not be 
granted against a mere user. — Howe v. New- 
ton, Case No. 6,771. 

The standing of complainants in the market, 
and their relation to the trade, may be properly 
considered on the motion. — Irwin v. Dane, Case 
No. 7,081. 

The state of the litigation, where the plain- 
tiff's title is denied, the nature of the improve- 
ment, the character and extent of the infringe- 
ment, and the comparative inconvenience which 
will be occasioned to the respective parties, by 
allowing or denying the injunction, must all be 
considered. — Forbush v. Bradford, Case No. 4,- 
930. 

It seems, will be denied where cessation of 
alleged infringement would be injurious to the 
public. — Blake v. Greenwood Cemetery, Case 
No. 1,497. 

The object of the writ is to prevent irrepara- 
ble mischief, not to give complainant the means 
of coercing a compromise on his own terms. — 
Parker v. Sears, Case No. 10,748. 

On a motion for preliminary injunction, the 
court will not look further than to ascertain 
whether, upon established principles of equity, 
its interference is required to prevent irrepara- 
ble injury pending the litigation. — Sickels v. 
Youngs, Case No. 12,838. 

The fact that plaintiff grants licenses at a 
fixed sum, and that defendant is a mere user, 



1733 (§ 234) 



PATENTS, XII. (C). 

[Fed. Cas. Digrest.] 



(§ 240) 1734 



is not alone sufficient reason to refuse the writ. 
—Howe v. Newton, Case No. 6,771. 

Notwithstanding complainant's right to an in- 
junction is clear, defendant will be allowed to 
continue the use of the patented invention, 
where plaintiff exercises his monopoly by selling 
licenses, and defendant is willing to pay a rea- 
sonable license fee.— Hodge v. Hudson River R. 
Co., Case No. 6,560; Baldwin v. Bernard, Id. 

Whether defendant is fully responsible for any 
profits or damages which may be decreed against 
him is material.— Morris v. Lowell Mfg. Co., 
Case No. 9,833. 

That defendant does not make or vend the 
patented machine, but only uses it, is also ma- 
terial-Morris v. Lowell Mfg. Co., Case No. 9,- 
833. 

An injunction will not issue where defendant 
was manufacturing under the patent on the un- 
derstanding that the question between him and 
the plaintiff was one of compensation, and he 
was willing to pay a reasonable sum for the 
use of the invention.— Smith v. Sharp's Rifle 
Mfg. Co., Case No. 13,106. 

Denied where the bill charges that defendants 
have violated their contract or license, and there- 
by become infringers, especially where there is 
a substantial controversy as to the equities. — 
Smith v. Cummings, Case No. 13,034. 

Not granted where injury to defendant would 
be irreparable and profits to patentee are by 
licensing.— Batten v. Silliman, Case No. 1,106. 

"Where complainant can be compensated in 
damages, an injunction will not be granted dur- 
ing the last few weeks of a patent.— Parker v. 
Sears, Case No. 10,748. 

Not granted where defendant licensee failed to 
pay his royalties, if it appear that complainant 
sold licenses for less than the agreed price, to 
defendant's injury. — Crowell v. Parmenter, Case 
No. 3,446. 

The fact that only 20 days remain of the life 
of the patent is no ground for withholding in- 
junctions, where the patent had only just been 
finally sustained, and had been much litigated. — 
Rumford Chemical Works v. Vice, Case No. 12,- 
136. 

§ 235. — Defendant acting tinder claim 
and color of right. 

The writ will not be granted as against a party 
who has been in possession of the invention for 
a long time under color and claim of right. — 
Hall v. Speer, Case No. 5,947: Cooper v. Mat- 
theys, Id. 3,200. 

The grant of a subsequent patent will not pre- 
vent the granting of an injunction where the 
infringement is clear.— Morse Fountain Pen Co. 
v. Esterbrook Steel Pen Mfg. Co., Case No. 9,- 
862. 

Denied where defendant's machine was pat- 
ented to him after the granting of a preliminary 
injunction against him in a prior suit-^Onder- 
donk v. Fanning, Case No. 10,510a. 

Where, on a motion for a preliminary injunc- 
tion, both parties claim to act under patents reg- 
ularly issued, they stand on the same footing, 
and the court will not decide as to the validity 
of the patent.— Congress Rubber Co. v. American 
Elastic Cloth Co., Case No. 3,099a. 

The writ will not be granted where defendant 
is acting under letters patent which cover his 

Process or machine. — Goodyear v. Dunbar, Case 
Jo. 5,570; Congress Rubber Co. v. American 
Elastic Cloth Co., Id. 3,099a; Sargent v. Car- 
ter, Id. 12,362. 

An injunction will not issue where defendant 
is manufacturing under letters patent, unless 
the court can see from an inspection alone that 
he is infringing. — Sargent Mfg. Co. v. Wood- 
ruff, Case No. 12,368. 



A decision in favor of the applicant on an in- 
terference declared between an application and 
a patent is sufficient ground for refusing injunc- 
tion to senior patentee.— Asbestos Felting Co. v. 
United States & F. S. Felting Co., Case No. 570. 

Where m the patent was not attacked for want 
of novelty, and the infringement was clear, but 
it appeared that defendant had publicly used his 
apparatus for three years without objection, the- 
application was denied, with leave to renew the* 
motion on defendant's giving security and keep- 
ing an account.— Sykes v. Manhattan Elevator 
& Grain Drying Co., Case No. 13,710. 

Where the patent has been sustained in av 
trial at law, and an injunction has been ob- 
tained against the use of a particular apparatus, 
the use of a like apparatus by a different party 
will be enjoined, though such apparatus is pat- 
ented, and has been adopted by defendant in 
good faith.— Sickels v. Tileston, Case No. 12,- 
837. 

The court cannot ignore the rights of defend- 
ant claiming under an adverse patent because 
of irregularity in its issue, and assume it to be 
a nulhty.— Mitchell v. Barclay, Case No. 9,659. 

§ 236. — Threatened infringement. 

Where the plaintiff's rights have been clearly 
established, and an infringement is threatened, 
or there is good cause to believe that a past 
infringement will be continued, an injunction 
will issue.— Poppenhusen v. New York Gutta 
Percha Comb Co., Case No. 11,281. 

# A bill in equity quia timet will lie for an in- 
junction upon well-grounded proof of an appre- 
hended intention of defendant to violate a patent* 
— Woodworth v. Stone, Case No. 18,021. 

§ 237. Effectiveness of relief . 

r It is not a sufficient reason against the award- 
mg . of an injunction that it does not furnish 
plaintiff effectual relief, or that it mav be avoid- 
ed by defendant— Thompson v. Mendelsohn, 
Case No. 13,968. 

§ 238. — Discontinuance of infringe- 
ment. 

The discontinuance of infringements or a ces- 
sation to use the infringing article is no bar to 
animunction.— Goodyear v. Berry, Case No, 
5,5o6; Potter v. Crowell, Id. 11,323; Rumford 
Chemical Works : v.. Vice, Id. 12,136; Sickels v. 
Mitchell, Id. 12,835. 

Where a licensee has violated the restrictions- 
of his license under a misapprehension of his 
rights, and has discontinued such violation, a 

provisional injunction will not be granted 

Wilson v. Sherman, Case No. 17,833. * 

§ 239. — Acquiescence and misleading 
conduct of patentees. 

_ Acquiescence by the patentee in the alleged 
infringement is strong ground for refusing a 
preliminary injunction. — Sloat v. Plymton, 
Case No. 12,948. 

Preliminary injunction not refused where de- 
fendant has not been misled by plaintiff's con- 
duct in allowing his suit to rest until a recov- 
ery m other suits by him, and then discontinu- 
ing, and bringing a new action. — Atlantic 
Giant Powder Co. v. Rand, Case No. 626. 

Preliminary injunction denied where defend- 
ants were misled in continuing the infringe- 
ment by plaintiffs' answer to their inquiry as 
to whether plaintiffs regarded their process as 
an infringement.— Jones v. Merrill, Case No. 
7,481. 

Preliminary injunction denied, except in a 
clear case where defendant claims to have act- 
ed under a patent, with plaintiff's knowledge, 
for a long time, and has made large invest- 
ments.— North v. Kershaw, Case No. 10,311. 

§240. Xaches. 

Preliminary injunction denied where defend- 
ant claimed openly to have manufactured un- 



1735 (§ 240) 



PATENTS, XII. (G), 
[Fed. Cas. Digest.] 



(§ 243) 1736 



der a patent of prior date, where complainants 
delayed for many years to enforce their rights, 
though their inventions antedated the patent 
under which defendants manufactured.— Whit- 
ney v. Rollstone Mach. Works, Case No. 17,- 
596. 

Advantage cannot be taken of complainants 
delay in applying for an injunction where his 
suspicions of infringement were allayed by di- 
rect misrepresentations of defendant. — Worten- 
dyke v. White, Case No. 18,050. 

The loss of a patent required to be recorded 
(Act 1793) is no excuse for delay in applying 
for an injunction.— Cooper v. Mattheys, Case 
No. 3,200. 

Preliminary injunction denied where the pat- 
entee had knowledge of the alleged infringe- 
ment for nearly two years before making ap- 
plication.— Sperry y. Ribbans, Case No. 13,238; 
Spring v. Domestic Sewing Mach. Co., Id. 13,- 
258. 

A delay of three months in filing a bill after 
the infringement was ascertained is no ground 
of denial.— Union Paper-Bag Mach. Co. v. Bin- 
ney, Case No. 14,387. 

A delay of 18 months after knowledge of in- 
fringement is good ground for refusing an in- 
junction.— Hockholzer v. Eager, Case No. 6,- 
556. 

Denied where suit had been pending many 
months and was nearly ready for hearing, and 
no newly-discovered ground for writ was shown. 
—Andrews v. Spear, Case No. 380. 

The burden of showing complainant's previ- 
ous knowledge of the infringement, where the 
motion is resisted on the ground of laches, is 
upon defendant.— Wortendyke v. White, Case 
No. 18,050. 

Effect of laches in general. — American Mid- 
dlings Purifier Co.^v. Christian, Case No. 307; 
Anonymous, Id. 451. 

£241. Discretion of court. 

The granting of the injunction •rests in the 
sound discretion of the court.— Orr v. Badger, 
Case No. 10,587; Potter v. Whitney; Id. 11,- 
341; Tucker v. Carpenter, Id. 14,217. 

$ 242. Security instead o£ injunction. 

Where defendant's machine, though infrin- 
ging, contains valuable improvements not cov- 
ered by plaintiffs patent, an order for an ac- 
count and security may be substituted for an 
injunction— Stainthorp v. Humiston, Case No. 

13,280; -Howe v. Morton, Id. 6,769. 

v 

Denied, on defendant's giving security, where 
"he was constructing a single machine only, 
and the validity of the patent and public ac- 
quiescence were denied.— Morris v. Shelbourne, 
Case No. 9,836. 

In a suit for infringement against a person 
who had bought his infringing machine from 
one against whom complainant had obtained 
a decree for profits and damages, held that in- 
junction would not issue on defendant's giv- 
ing security to pay any decree rendered against 
him.— Gilbert & Barker Mfg. Co. v. Bussing, 
•Case No. 5,416. 

Denied on defendants' giving bond where 
they were merely selling agents on commis- 
sion of manufacturers of the alleged infringing 
articles, against whom a suit was pending in 
another circuit by complainants. — Irwin v. 
McRoberts, Case No. 7,085. 

Granted where the patent has been declared 
valid, and an infringement is probable, unless 
a bond is given to pay the decree, to keep an 
account, etc.— American Middlings Purifier Co. 
v. Christian, Case No. 307. 

Bond not required of defendant unless in- 
junction should issue if not given.— American 



Middlings Purifier Co. v. Atlantic Milling Co., 
Case No. 305. 

Denied where defendant, setting up a license, 
offers to pay into court the amount of com- 
plainant's fixed license fees to abide a final 
decision. — Blake v. Greenwood Cemetery, Case 
No. 1,497. 

Where complainant's right will be fully pro- 
tected, defendant will only be required to give 
a bond and file accounts, though patent has 
been repeatedly sustained. — Blake v. Robert- 
son, Case No. 1,500. 

Where complainant has established a right to 
an injunction, defendant cannot defeat it by 
tendering security for damages. — Consolidated 
Fruit-Jar Co. v. Whitney, Case No. 3,132. 

Will be withheld on the giving of an ample 
bond, where defendant is an extensive manu- 
facturer with a large capital invested, and com- 
plainant is not a manufacturer. — Dorsey Har- 
vester Revolving-Rake Co. v. Marsh, Case No. 
4,014. 

A patent having but six months to run, de- 
fendants were allowed to give bond to account, 
in lieu of a preliminary injunction. — Howe v. 
Morton, Case No. -6,769. 

Where an injunction restraining the use of 
a patent hotel enunciator woukLcompel defend- 
ant to close his hotel business, an injunction 
was denied on defendant giving bonds. — United 
States Annunciator & Bell Telegraph Mfg. Co. 
v. Sanderson, Case No. 16,790. 

Where defendant gave bond and continued to 
manufacture the alleged infringing article, held, 
that complainant, though not within the dis- 
trict at the time, should be enjoined from 
bringing suits against his vendees. — Birdsell v. 
Hagerstown Agricultural Implement Mfg. Co., 
Case No. 1,437. 

§ 243. Against whom preliminary in- 
junction will issue. 

Injunction will lie against agent selling in- 
fringing article for manufacturer. — Buck v. 
Cobb, Case No. 2,079. 

Not granted where defendant, at the time of 
filing the bill, had parted with all interest in 
the infringing machine. — Brammer v. Jones, 
Case No. 1,806. 

An inventor may enjoin the use of his inven- 
tion by a submarine cable company in operat- 
ing a cable under an exclusive legislative grant. 
—Colgate v. International Ocean Tel. Co., Case 
No. 2,993. 

Denied where the infringement was commit- 
ted, by a corporation of another state in which 
the interested defendant was only one of sev- 
eral directors.— Jones v. Osgood, Case No. 7,- 
487. 

Injunction will not lie against equitable own- 
er of patent on. application of legal owner. — 
Clum v. Brewer, Case No. 2,909. 

An injunction will not be issued against a re- 
spondent's using a machine, unless it is proved 
that he has used it himself, or employed others 
to use it for him, or at least has profited by the 
use of it.— Woodworth v. Hall, Case No. 18,- 
016. 

The purchasers from defendant of the al- 
leged infringing machine, whose use by him 
has been enjoined, will be restrained from 
iising the machine where the injunction re- 
mains in full force.— Woodworth v. Edwards. 
Case No. 18,014. 

The obtaining of an interlocutory decree in a 
suit against infringing manufacturers is not a 
sufficient reason for withholding an injunction 
against purchasers from such, manufacturers. — 
Tucker v. Burditt, Case No. 14,216. 

Not granted where complainant's assignor 
had never done anything with the patent in 



1737 .(§ 244,) 



PATENTS, XH.(C). 

l[Fed.Cas. Digrest.Q 



({§ 246) 1738 



the state, and defendants bought their ma-; 
chines in good faith.— Gear v. Holmes, Case 
No. 5,292. 

§ 244. Application for preliminary in- 
junction and proceedings there- 
on—Pleadings and affidavits. 
An answer containing a positive denial can- 
not be treated merely as an affidavit. — Parker 
v. Sears, Case No. 10,748. 

Where a plaintiff moves for an injunction, 
and it is denied on defects pointed out, it is too 
late for him to wait until after the defendant 
has closed his proofs for final .hearing, before 
renewing his motion, on papers designed to 
cure such defects.— Wooster v. Howe Mach. 
Co., Case No. 18,037. 

An answer to an injunction bill, though filed 
without a rule, will be treated as an answer, 
on a motion to grant or continue an injunction. 
—Brooks v. Bicknell, Case No. 1,944. 

A general allegation by affidavit, on informa- 
*tion and fteliet, that the thing patented exist- 
ed before, without disclosing the particulars of 
the information leading to the belief, is insuf- 
ficient. — Young v. lappnian, Case No. 18,160. 

The bill need not contain a special prayer 
for an interlocutory injunction.— Goodyear v. 
Mullee, Case No. 5,579. 

Not granted on a theory not affirmatively 
supported by affidavits. — American Diamond 
Rock Boring Co. v. Sullivan Mach. Co., Case 
No. 29S. 

A separate affidavit by plaintiff of iis belief 
that the patentees "were the iirst and original 
inventors dispensed Tvith "where the bill 'con- 
tains such an averment. — Young v. OOippman, 
Case No. 18,160. 

An inventor himself suing for infringement 
must make oath that he is the true inventor, 
and this, together with the patent, is adequate 
proof on which to claim an injunction. — Ste- 
vens v. Felt Case No. 13,397. 

• Affidavits may be Tead on both sides as to 
facts unconnected with the title. — Brooks v. 
Bicknell, Case No. 1,944. 

An injunction granted on an 'original bill, be- 
fore the surrender of a patent, cannot be main- 
tained upon the new patent, unless a suppJe- 
metal bill be filed, founded thereon.— Wood- 
worth v. Stone, Case No. 18,021. 

§245. Jurisdiction. 

Act Feb. 15, 1819, does not alter the princi- 
ples on which injunctions are granted, but 
merely extends the jurisdiction of the court to 
parties not before falling within it.— Sullivan 
v. Redfield, Case No. 13,597. 

Where it may be necessary to proceed direct- 
ly against the machine itself, as in extreme 
cases of contumacy, or of fraudulent contri- 
vance to evade an injunction, the proceedings 
must be instituted in the district in which the 
machine is located. — Wilson v. Sherman, Case 
No. 17,833. 

An injunction will not issue where it does not 
appear from the record that defendant has .ever 
made or sold the infringing articles in the dis- 
trict—Wilson Packing Co. v. Clapp, Case No. 
17;S50; Goodyear <v. Chaffee, Id. 5,564. 

For the purpose of restraining the unlawful 
use of a patented .machine out of the jurisdic- 
tion, it is only necessary that the court should 
have jurisdiction of the person of defendant. — 
Wilson v. Sherman, Case No. 17,833. 

§246. Effeetof prior decisions. 

A decree of another federal court sustaining 
a patent is generally controlling on the applica- 
tion.— American Middlings Purifier Co. v. Chris- 
tian, Case No. 307; American Nicholson Pave- 
ment Co. v. Elizabeth, Id. 312; Goodyear v. 
Honsinger, Id. 5,572. 



A prior decision is controlling in the absence 
of new evidence.— JBlaisdell v. Dows, Case No- 
1,489. 

A verdict in another' circuit as to the validity 
of the patent will be followed on a motion for 
preliminary injunction.— Van Hook v. Wood,. 
Case No. 16,855; Poppenhusen v. New York 
Gutta Percha Comb Co., Id. 11,281. 

Adjudication of validity by other courts is 
ground of granting only where infringement is 
palpable.— American Shoe-Tip Co. v. National 
Shoe-Toe Protector Co., Case No. 317. 

Facts found by a jury in a suit at law be- 
tween the parties will be considered as con- 
clusively established on the motion. — Poppen- 
husen v. New York Gutta Percha. Comb Co. r 
Case No. 11,281. 

Although, on an issue awarded in the cause,, 
the jury has found infringement, the court will 
not, on a motion for preliminary injunction,, 
adopt its verdict, but will examine the whole 
case, and exercise its own judgment thereon. — 
Sickels v. Youngs, Case No. 12,838"; Many v. 
Sizer, Id. 9,057. 

A decision on & preliminary application is 
not of controlling Tight .in another ' circuit. — 
Cornell v. Littlejohn, Case No. 3,238; Sargent 
Hfg. Co. v. Woodruff, Id. 12,368. 

Neither the verdict at law nor finding of the 
jury in a feigned issue is ever conclusive upon 
the judge sitting in equity, upon a -motion for 
an injunction.— Day v. Hartshorn, Case No. 3,- 
683. 

The case is the .same on bill of * exceptions 
and writ of -error sued out— JDay v. Hartshorn, 
Case No. 3,683. 

On motion for a provisional injunction, the 
verdict in another suit in which 'plaintiff testi- 
fied may be admitted in evidence in the discre- 
tion of the court. — Buck v. Hermance, Case No. 
2,081. 

The question of priority will not be consid- 
ered on the application, where priority has been; 
declared in an interference proceeding and 
acquiesced in for a long time. — American Shoe- 
Tip Co. v. National Shoe-Toe Protector Co., 
Case No. 317. 

Where a judgment sustaining a patent is 
acquiesced in or affirmed by the supreme court, 
questions as to the originality of the invention 
or validity of the patent will not be considered 
de novo.— Wells v. Gill, Case No. 17,394. 

Facts showing the invalidity of the patent set 
up in defendant's uncorroborated affidavit are 
no ground of denying the writ, where iefendant 
had remained silent in regard thereto in a 
preliminary suit in which he took an active 
interest.— Robinson v. Randolph, Case No. 3JL- 
962. 

Where the validity of the patent has been 
fully sustained in prior cases, the court will 
not hear evidence except on the question of in- 
fringement—Robertson v. Hill, Case No. 11,- 
925. 

A decision between other parties upon the 
points in issue is entitled to great weight, 
though not conclusive. — Potter v. -Fuller, Case 
No. 11,327; Same v. Muller, Id. 11,334; Same 
v. Whitney, Id. 11,341. 

The considerations which will induce the 
court to renew the discussion, must be such 
as would have induced the court to set aside 
a verdict. — Parker v. Brant, Case No. 10,727. 

An adjudication in favor of a patent at final 
hearing on full proofs is controlling unless co- 
gent evidence is presented in addition to that 
found insufficient upon such hearing.— Jones v_ 
Merrill, Case No. 7,481. 

The presumption of the validity of the patent 
is diminished in force where.il appears that 



1739 (§ 246) 



PATENTS, XII. (C). 

[Fed. Cas. Digest.] 



(§ 248) 1740 



the judgment was obtained, without resist- 
ance, in an action in which several patents 
were in issue. — Grover & Baker Sewing Mach. 
Co. v. Williams, Case No. 5,847. 

Abandonment of defense will not detract 
from the force or effect of a verdict or judg- 
ment at law where plaintiff made a plain case. 
—Goodyear v. Central R. Co., Case No. 5,563. 

The considerations stated which apply to a 
ease where, after a patent has been sustained 
on final hearing, a new defendant, in a new 
suit, seeks to attack the patent for want of 
novelty.— Colgate v. Gold & Stock Tel. Co., 
Case No. 2,991. 

A verdict for plaintiff in suits against other 
parties is a controlling consideration, if the in- 
fringing machines are substantially similar. — 
Burr v. Prentiss, Case No. 2,194. 

A decision between the same parties in an- 
other circuit is not controlling where the al- 
leged infringing articles are not shown to be 
the same.— Blake v. Boisselier, Case No. 1,493a. 

A patentee who establishes his title under 
the original letters patent is entitled to a tem- 
porary injunction under an extension of such 
letters patent without a further trial of his 
right. — Clum v. Brewer, Case No. 2,909. 

The writ will be granted, notwithstanding 
pendency of another suit between the same 
parties upon the same patent in another state, 
where the validity of plaintiffs patent has been 
■determined in prior suits. — Pennsylvania Salt 
Mfg. Co. v. Myers, Case No. 10,955. 

For the purposes of a preliminary injunction, 
-defendant's machine will be regarded as identi- 
cal with that of defendant in a prior case, 
where identity is not denied. — Conover v. Mers, 
Case No. 3,123. 

Denied, after decision by supreme court in 
favor of defendant, though after a reissue the 
same machine was held to be an infringement 
in another circuit, and plaintiff alleged infringe- 
ment by a similar machine with slight altera- 
tions. — Wells v. Jacques, Case No. 17,399. 

Denied, where verdicts at law have been 
obtained on such inconsistent and contradictory 
claims as to leave complainant's title so doubt- 
ful that the court cannot tell what is an in- 
fringement. — Parker v. Sears, Case No. 10,748. 

Granted where plaintiff's rights have been es- 
tablished in a prior case against another, 
though defendant be perfectly responsible and 
willing to give security. — Conover v. Mers, Case 
No. 3,123. 

A priorSdecree sustaining a patent, if entered 
by default, will not warrant a preliminary in- 
junction in a subsequent suit. — Mannie v. Ever- 
ett, Case No. 9,039. 

The recovery of judgment against other par- 
ties is ground of granting an injunction, though 
it was rendered by agreement, and the patent 
has since been reissued. — Orr v. Littlefield, Case 
No. 10,590. 

Defendants will be restrained from using an 
article which has been decided to be an in- 
fringement of plaintiff's patent in suits against 
parties supplied with the same by defendants, 
who assumed and conducted their defense. — 
United States & Foreign Salamander Felting 
Co. v. Asbestos Felting Co., Cases Nos. 16,787, 
16.787a. 

See, also, post, § 261. 

§ 247. Time of granting. 

The irregularity in the service of the sub- 
poena to answer is no ground for withholding 
an injunction against defendant, who had no- 
tice of the motion, and appeared to oppose it. — 
Thayer v. Wales, Case No. 13,871. 

Where a motion for a new trial or an ap- 
peal taken by defendant cannot be considered 



as intended merely for delay, the court will 
await the final result before awarding an in- 
junction.— Morris v. Lowell Mfg. Co., Case No. 
9,833. 

An injunction will be refused until after the 
determination of a motion for new trial on a 
verdict for plaintiff in a trial at law.— Day v. 
Hartshorn, Case No. 3,683. 

Neither the question of novelty nor that of 
infringement justifies a preliminary Injunction 
until full hearing has been had.— Burr v. Smith, 
Case No. 2,196. 

The pendency of a suit in another circuit is 
no ground of postponing the writ where the ■ 
patent has been declared valid.— Atlantic Giant 
Powder Co. v. Goodyear, Case No. 623. 

§ 248. — Hearing, evidence, and decree. 

Allegations in the affidavits in answer to the 
motion may be rebutted by proper testimony. — 
Goodyear v. Mullee, Case No. 5,579. 

On motion for an injunction, the affidavit of* 
a single witness is not sufficient to outweigh 
the oath of a patentee and the general pre- 
sumption arising from the grant of the letters 
after a great lapse of time.— Woodworth v. 
Sherman, Case No. 18,019; Same v. Cheever, 
Id. 

On application for a provisional injunction, 
expert demonstration of the patents may be 
made.— Barrett v. Hall, Case No. 1,047. 

The court, or a judge out of court, may per- 
mit plaintiff, on motion for preliminary in- 
junction, where defendant sets up a license, to 
put in rebuttal evidence. — Day v. New England 
Car Co., Case No. 3,686. 

The order to permit such rebutting proof, 
when made by the court, is regular, although 
not made until the proofs are received. — Day v. 
New England Car Co., Case No. 3,686. 

Defendant cannot reply to such rebutting 
proofs by further proofs on his part— Day v. 
New England Car Co., Case No. 3,686. 

On preliminary hearing the court may con- 
sider matters of ordinary knowledge outside the 
affidavits— Adams & W. Mfg. Co. v. St. Louis 
Wire-Goods Co., Case No. 72. 

The application may be granted or refused 
unconditionally, or terms may be imposed on 
either of the parties, as conditions. — Forbush 
v. Bradford, Case No. 4,930. 

The court will not decide the question of in- 
fringement summarily, where it admits of 
doubt," or the" facts are in dispute. Otherwise 
where the solution depends only upon the con- 
struction of the patent. — Goodyear v. Central 
R. Co.. Case No. 5,563. 

In the case of a simple mechanism, a bare 
inspection is sufficient on the question of in- 
fringement. — Morse Fountain Pen Co. v. Ester- 
brook Steel Pen Mfg. Co., Case No. 9,862. 

The case should be such as to leave little, if 
any, doubt in the minds of the court as to the 
validity of the patent, especially if it rests upon 
complainant's own showing. — Sullivan v. Red- 
field, Case No. 13,597. 

The effect of quiet enjoyment, acquiescence, 
recoveries without collusion, and strong evi- 
dence as to novelty, in inducing the granting 
of an injunction, considered. — Potter v. Hol- 
land, Case No. 11,330. • 

Where the rights of the plaintiff and the 
violation of them by defendant are clear, con- 
siderations of public or private convenience 
should have little weight. — Sickels v. Tileston, 
Case No. 12,837. 

On denying an application, defendant was 
required to be ready to try a pending action at 
law at the next term. — Serrell v. Collins, Case 
No. 12,671. 



1741 (§ 248) 



PATENTS, XIL (C). 
[Fed. Cas. Digest.] 



(§ 250) 3:742 



Terms imposed and an affidavit required on 
granting an injunction to restrain defendant 
from making and vending the patented ma- 
chine. — Rogers v. Abbot, Case No. 12,004. 

Though preliminary injunction denied, defend- 
ant required to keep an account. — Allen v. 
Sprague, Case No. 238; American Middlings 
Purifier Co. v. Atlantic Milling Co., Id. 305. 

Defendants will not be compelled to give bond 
nor to file periodic accounts until complainant's 
rights and the validity of the patent are estab- 
lished at law.— Bryan v. Stevens, Case No. 2,- 
•066a. 

Where a license had been forfeited the licens- 
or applies for an injunction, an order was made 
granting it, unless the licensee should, within 
60 days, pay the amount of the note and other 
unpaid notes, with costs.— Woodworth v. Weed, 
Case No. 18,022. 

The patent never having been the subject of 
litigation, complainant was ordered to file an in- 
junction bond before the issue of the writ. — 
Shelly v. Brannan, Case No-. 12,751. 

Where the question of the right to the injunc- 
tion depends only on the interpretation of a 
license, the question will be settled on motion 
for the injunction. — Hodge v. Hudson River R. 
•Co., Case No. 6,560. 

On a motion for an injunction the court is not 
bound to decide doubtful and difficult questions 
of law or disputed questions of fact.— Parker v. 
Sears, Case No. 10,748. . 

On the withdrawal of opposition to a motion 
for a preliminary injunction, plaintiff is not en- 
titled to a decision on the merits. — American 
Middlings Purifier Co. v. Vail, Case No. 308. 

Form of an order for a preliminary injunction 
on a patent, in a case where the plaintiff exer- 
cises his rights by granting licenses. — Colgate v. 
Gold & Stock Tel. Co., Case No. 2,991. 

* 

-§ 249. Dissolving, vacating, and modify- 
ing preliminary injunctions. 

The dissolving of an injunction rests in the 
sound discretion of the court, and on the justice 
•and equity of each particular case. — Tucker v. 
Carpenter, Case No. 14,217. 

The injunction ought not to be suspended un- 
til the final decree, unless there be shown some 
special grounds of peculiar hardship to the de- 
fendant—Potter v. Mack, Case No. 11,331. 

Assignment by complainant after preliminary 
injunction granted is no ground on which to dis- 
solve it — Thompson v. Barry, Case No. 13,942. 

Defenses that cannot be availed of by defend- 
ant in the taking of proofs for final hearing can- 
not be availed of on motion to dissolve the in- 
junction.— Union Paper-Bag Mach. Co. v. New- 
ell, Case No. 14,389. 

An injunction will not be dissolved merely on 
an answer denying the validity of the patent, 
"but, if requested, plaintiff will be required to 
bring a suit at law to test the title. — Orr v. Mer- 
rill, Case No. 10,591. 

The sending of circulars to parties engaged in 
the trade, notifying them of a preliminary in- 
junction, is improper. — Wilson Packing Co. v. 
•Clapp, Case No. 17,850. 

An injunction will not be dissolved as a mat- 
ter of course on the coming in of the answer 
denying the equity of the bill, if the complain- 
ant has adduced auxiliary evidence of his right. 
—Orr v. Littlefield, Case No. 10,590. 

•A motion to dissolve the injunction will not be 
heard on the same evidence on which- it was 
granted, or new evidence improperly neglected 
to be offered before. — Woodworth v. Rogers, 
Case No. 18,018; National School Furniture 
Co. v. Paton, Id. 10,050. 

Where, on a motion to dissolve an injunction, 
the evidence seems to preponderate in plaintiff's 



favor, the court will continue the injunction un- 
til the right can be tried at law or by issue out 
of chancery.— Woodworth v. Rogers, Case No. 
18,018. 

The injunction will be dissolved on the an- 
swer denying the validity of the patent support- 
ed by evidence, unless plaintiff file counter evi- 
dence sustaining its validity. — Woodworth v. 
Rogers, Case No. 18,018. 

An injunction will not be dissolved on account 
of doubts as to the validity of a new patent is- 
sued to correct clerical mistakes in the original 
patent.— Woodworth v. Hall, Case No. 18,017; 
Same v. Stone, Id. 

Where the respondents deny the validity of 
the patent of the plaintiffs, the court will dis- 
solve the injunction at the next term, if the suit 
at law is not by that time brought against them 
to try its validity.— Woodworth v. Edwards, 
Case No. 18,014. 

On a motion to dissolve an injunction, defend- 
ant's proofs must overcome the equity in the bill 
and the evidence in its support. — Sparkman v. 
Higgins, Case No. 13,208. 

An injunction dissolved upon an answer deny- 
ing the equity of the bill may be reinstated on 
application, where testimony subsequently tak- 
en shows the right of complainant to relief. — 
Tucker v. Carpenter, Case No. 14,217. 

An application to modify an injunction so as 
to permit furnishing the alleged infringing arti- 
cle to prior purchasers will be denied where de- 
fendant fails to show want of notice" of a suit 
to annul the license under which he operated, 
before making the contracts in question.— Con- 
solidated Fruit-Jar Co. v. Whitney, Case No. 3,- 
132. 

§ 250. Permanent injunction. 

A court of equity may in a proper case grant 
a permanent injunction upon a final hearing, 
though there has been no trial at law.— Buch- 
anan v. Howland,* Case No. 2,074; Sickles v. 
Gloucester Mfg. Co., Id. 12,841. 

The fact that after suit brought defendant 
stopped using the infringing* device, where he 
did not disclaim the right to it, is not a reason 
why a decree for an injunction should not be 
granted.— Bullock Printing Press Co. v. Jones, 
Case No. 2,132. 

Where a patent covers but a small part of a 
machine which is claimed to infringe, which 
part is not materially useful, injunction is riot 
the proper remedy.— Lowell Mfg. Co. v. Hartford 
Carpet Co., Case No. 8,569. 

An injunction will not be granted where the 
patentee exercises his monopoly by renting li- 
censes generally.— Livingston v. Jones, Case No. 
8,414; Sanders v. Logan, Id. 12,295. 

The fact that defendant, who has sold an in- 
fringing article, sold it *on behalf of its owner, 
and had no interest in it, or in its sale, is no 
ground of refusing an injunction against him. — 
Maltby v. Bobo, Case No. 8,998. 

Injunction will not be granted where the pat- 
ent is recent, the specification obscure, and 
proof of infringement meager and unsatisfac- 
tory, but the court will retain the bill and re- 
quire complainant to bring an action at law. — 
Muscan Hair Mfg. Co. V. American Hair Mfg. 
Co., Case No. 9,970. • 

A perpetual injunction is made part of the de- 
cree which finds the infringement. — Potter v. 
Mack, Case No. 11,331. 

An injunction will, as a matter of course, fol- 
low a decree in favor of complainant on the 
merits, unless defendant show that it should in 
equity be withheld until after the account has 
been taken. — Rumford Chemical Works v. Heck- 
er, Case No. 12,134. 

Permitting infringement for several years does 
not waive or impair the patentee's rights, but it 



1743 (§ 250) 



deeply affects liis claim to an injunction. — Ste- 
vens v. Felt, Case No. 13,397. 

An injunction will not be granted after the 
expiration of the term for which the patent is- 
sued.— Vaughan v. Central Pac. R. Co., Case 
Xo. 16,897. 

Where reference is made to a master to take 
an account, an injunction was withheld until 
the coming in of his report.— Yale & G. Mfg. Co. 
v. North, Case No. 18,123. 

The injunction may issue by the court having 
'jurisdiction of the person, although the machine 
may be used beyond its jurisdiction. — Boyd v. 
McAlpin, Case No. 1,74S. 

Injunction withheld on final hearing where in- 
fringing hose couplings were necessary for the 
daily use of defendant city in the prevention of 
fires, but accounting decreed. — Bliss v. Brook- 
lyn, Case Nc. 1,544. 

§251. Violation of injunction — Wliat 
constitutes. 

A sale of a patent while the suit is pending 
in relation to it, and before an injunction is 
issued, is not a contempt of court. — United States 
v. Day, Case No. 14,934. 

Defendant, enjoined from infringing a patent 
by manufacturing or selling, is guilty of a con- 
tempt in selling as agent for another. — Potter v. 
Muller, Case No. 11,333. 

A lease of a machine by defendant to one of 
the joint "complainants or an assignee from him 
is not a violation of an injunction obtained by 
complainants prohibiting defendant from using 
such machme.— Smith v. Patton, Case No. 13,- 
088. 

An injunction prohibiting defendant's using the 
patented article, or conferring the right to use 
It to others, except as to articles then in use by 
it, is violated by the furnishing of the article un- 
der a prior contract. — Colgate v. Gold & Stock 
Tel. Co., Case No. 2,992; Same v. Western Un- 
ion Tel. Co., Id. 2,994. 

Injunction against infringement of patents 
lield to be violated by fitting up machinery for 
another, and keeping it in running order, in a 
factory known to be manufacturing the infrin- 
ging articles.— Goodyear v. Mullee, Case No. 5,- 
577. 

A party enjoined against the use of a patent 
is guilty of contempt if he afterwards use an- 
other patent, similar in principle, with knowl- 
edge that the author of such patent had previ- 
ously been enjoined. — Woodworth v. Rogers, 
Case No. 18,018. 

An injunction against selling a patented **hose 
pipe provided with internal radial plates" is vio- 
lated by the sale of new pipes with radial plates 
taken out of worn-out pipes. — Craig v. Fisher, 
Case No. 3,332. 

An order requiring defendant to file a monthly 
account of all "iron safes hereafter manufactur- 
ed or sold by him" is sufficiently complied with 
by giving the inside dimensions of the safes, 
without stating the prices or the names of the 
purchasers.— Wilder v. Gayler, Case No. 17,648. 

Defendant must take the judgment of the 
court as to the portions of the enjoined machine 
which he is entitled to use. Advice of counsel 
is no justification. — Hamilton v. Simons, Case 
No. 5,991. 

Where an injunction has issued after the pat- 
ent has been sustained on an issue out of chan- 
cery, defendant cannot excuse himself from a 
violation by an allegation of paramount right 
under a purchase of prior patents covering 
plaintiff's device. — Valentine v. Revnolds, Case 
No. 16,813. 

It is no excuse for the violation of the injunc- 
tion that the patent is invalid, or the writ im- 



PATENTS, XII. (C). 
[Fed. Cas. Digest.] 



(§ 252) 1744 



providently granted.— Phillips v. Detroit, Case 
No. 11,101. 

§ 252. Procedure and punishment. 

An attachment for contempt for violating an 
injunction will not be issued unless the violation 
is plain and clearly proven.— Birdsell v. Hagers- 
town Agricultural Implement Mfg. Co., Case No. 
1,436. 

It seems that, to attach one for breach of an 
injunction against the infringement of a pat- 
ent, he must be a party to the suit, and have 
had notice of the application for the injunction. 
— Sickels v. Borden, Case No. 12,S33. 

Plaintiff, who sets on foot a stratagem to lead 
defendant to violate an injunction, to entrap 
him, must pay the costs of a motion for an at- 
tachment.— Sparkman v. Higgins, Case No. 13,- 
209. 

Where the president of defendant corporation 
was served with the injunction, and devised 
and practiced the transgressing process, an at- 
tachment will be awarded against him— Weth- 
erill v. New Jersey Zinc Co., Case No. 17,463. 

An issue as to whether an article sold by de- 
fendant, not appearing to have existed before 
the making of the decree, is an infringement 
of the patent, cannot be disposed of on motion 
for an attachment on affidavits, but must be 
determined in a suit brought for the purpose. — 
Liddle v. Cory, Case No. 8,338. 

A bond acknowledging the validity of a pat- 
ent reciting an infringement held no evidence 
of breach of injunction subsequently granted. — 
Byam v. Eddy, Case No. 2,263. 

Evidence is inadmissible to vary the construc- 
tion given by the court to a patent on a motion 
for attachment for contempt for violating the 
injunction.— Burdett v. Estey, Case No. 2,146. 

On a motion for an attachment for the viola- 
tion of an injunction to restrain the infringe- 
ment of letters patent, affidavits to show that 
the patentee was not the first and original in- 
ventor of the thing patented are immaterial and 
irrelevant— Whipple v. Hutchinson, Case No, 
17,517. 

It is a matter of discretion whether the court 
on motion for attachment for contempt in vio- 
lating an injunction will require expert testi- 
mony as to the infringement.— Burdett v. Este\\ 
Case No. 2,146. 

The question of identity of the machines en 
motion for commitment for contempt for vio- 
lating an injunction is one of fact. — Birdsell v. 
Hagerstown Agricultural Implement Mfg. Co., 
Case No. 1,436. 

In determining such question, in the absence 
of models, the testimony of experts is control- 
ling.— Birdsell v. Hagerstown Agricultural Im- 
plement Mfg. Co., Case No. 1,436. 

Where the violation is willful, the summary 
method of correction is imperative, and will not 
be arrested by the fact that the things used by 
defendant are in some respect different from 
those interdicted. — Wetherill v. New Jersey Zinc 
Co., Case No. 17,463. 

The question of violation of an injunction was 
retained until final hearing on defendant's show- 
ing that alleged articles were not within the 
claim of the patent as construed by the court. — 
Welling v. Rubber-Coated Harness Trimmin 
Co., Case No. 17,383. 

Where the injunction has been violated, and 
the defendant is protected from the consequen- 
ces only by a defect in the service of the writ. 
no costs will be allowed to him on a denial of a 
motion for an attachment for such violation.— 
Whipple v. Hutchinson, Case No. 17,517. 

Persons acting in an official capacity, and de- 
riving no personal benefit from the infringement, 
not required to pay the patentee the amount of 






1745 (§ 252) 



PATENTS, XII. (0). 

[Fed. Can. Digest.] 



(§ 255) 174<> 



Ms royalty for violating a preliminary injunc- 
tion.— Phillips y. Detroit, Case No. 11,101. 

Fees and disbursements on application for an 
attachment for contempt in violating the injunc- 
tion, and on a reference to take testimony, al- 
lowed as part of the fine, though the extent of 
the violation was not shown.— Doubleday v. 
Sherman, Case No. 4,020. 

The punishment limited to a fine of the amount 
of such fees and disbursements and the taxed 
costs, and commitment until payment.— Double- 
day v. Sherman, Case No. 4,020. 

Circumstances stated which govern the 
amount of the fine to be imposed for a contempt 
of court in violating an injunction.— Schillinger 
v. Gunther, Case No. 12,456. 

After imprisonment for 50 days, defendant, 
without means of paying fine, was released on 
his own recognizance. 1 — Goodyear v. Mullee, Case 
No. 5,578. 

Where the violation was not willful, defend- 
ant was directed to fcay to plaintiff the profits 
and damages on account of the violation and 
the costs of the contempt proceedings. — Heady 
Roofing Co. v. Taylor, Case No. 11,613. 

The decision on motion for attachment was 
made without prejudice to the raising of the 
same question of infringement on the accounting 
under the interlocutory decree.— Burdett v. Es- 
tey, Gase No. 2,146. 

§253. Damages. 

Under Act July S, 1870, complainant may re- 
cover, in addition to the profits of the respond- 
ent, damages sustained. — Carew v. Boston Elas- 
tic Fabric Go., Case No. 2,397. 

In an equity suit brought before the passage 
of Act July 8, 1S70, §§ 55, 111, both profits and 
damages cannot be recovered.— Williams v. 
Leonard, Cafee No. 17,726. 

Profits are the net gains of the infringer from 
the invention; damages are the losses sustained 
by the owner.— La BaW v. Hawkins, Case No. 
7,961. 

Damages for an alleged reduction in prices or 
loss of sales caused by the infringement must 
be based upon evidence furnishing a sound and 
safe basis of calculation.— Ingersoll V. Musgrove, 
Case No. 7,040. 

The owner tif a. patent is entitled to recover 
the damages from a reduction of prices caused 
by the competition of the infringer, although 
he is accountable to a copartner for a part of 
them.— Sargent v. Yale Lock ^Ifg. Co., Case No. 
12,366. 

Reduction of prices, and consequent loss of 
profits, caused by the competition of the in- 
fringer, is a proper ground for awarding dam- 
ages.— Sargent v. Yale Lock Mfg. Co., Case No. 
12,366. 

No part of the expenses ot the litigation should 
be assessed as damages.— Holbrook v. Small, 
Case No. 6,596; Bancroft v. Acton, Id. S33. 

A patentee who has conveyed the % exclusive 
right to the patent within the jurisdiction of the 
court, with the reservation of his rights in suit, 
is entitled to damages only to the time of the 
conveyance, and not to an injunction.— Boomer 
v. United Power Press Co., Case No. 1,638. 

The use of plaintiff's patent restored the sala- 
ble character of the article defendant made, and 
saved defendant from loss. Bcld> that the 
money value of such advantage could be recov- 
ered as compensation, though there were no 
profits. — Sargent v. Yale Lock Mfg. Co., Case 
No. 12,367. 

The amount paid by defendant for a license 
to use a patented device, which he afterwards 
substituted for plaintiff's, device, held to be the 
proper measure of the value of the invention to 



defendant.— Sargent v. Yale Lock Mfg. Co.; Case- 
No. 12,367. 

A royalty paid in consideration for the whole- 
monopoly of a patent is not a safe criterion of 
damages, unless it is shown that plaintiffs lost 
the sale of the same number of machines made- 
and sold by defendants.— La Baw v. Hawkins,. 
Case No. 7,961. 

Damages cannot be trebled in a suit in equity. 
— Motte v. Bennett, Case No. 9,884; Holbrook 
v. Small, Id. 6,596. 

A court of equity cannot inflict exemplary or 
punitive damages 'where defendant has acted? 
wantonly or vesatiously. — Sanders v. Logan,. 
Case No. 12,295. 

Where the patentee exercises his monopoly by 
granting licenses indiscriminately, the measure- 
of his damages is the price or value of the li- 
cense; and an account of profits is not required, 
and the jurisdiction of equity need not be in- 
voked.^Sanders v. Logan, Case No. 12,295. 

See, also, ante, §§ 162, 201-207. 

§ 254. Profits— Nature of profits and: 
right in general. 

The infringer is in equity a trustee of the pat- 
entee of the gains derived by him from the in- 
fringement.— Wetherill v. New Jersey Zinc Co. r 
Case No. 17,464; Wetherill v. Same, Id.; Jen- 
kins v. Greenwald, Id. 7,270. 

The profits recoverable for infringements are- 
not regarded as unliquidated damages, and they 
are subject to assignment.— Jenkins v. Green- 
wald, Case No. 7,270. 

Plaintiff can recover the profits realized by 
the wrongdoer from the 'infringement. — Garter v_ 
Baker, Case No. 2,472. 

Defendant must account for the profits on re- 
pairs sold upon infringing mechanisms previous- 
ly made and sold by him. — Graham v. Mason,. 
Case No. 5,672. 

The fact that defendant could have made the- 
profits realized by the infringement oy doing the- 
work in another way is immaterial. — American 
Nicholson Pav. Co. v. Elizabeth, Case No. 309. 

The rule that gains and profits are thfe proi>er 
measure of damage in equity ^ suits is inap- 
plicable where the injury sustained is greater 
than such amount.— Brady v. Atlantic "Works,. 
Case No. 1,795. 

Amount of defendant's profits, he not being- 
a willful infringer, held adequate compensation. 
— Buerk v. Imhaeuser, Case No. 2,107. 

A contract by the owner of a territorial right,, 
giving an agent power to sell without limit, 
will prevent his recovery of damages on the- 
principle of profits, regardless of his declaration 
of intention to make a close monopoly. — Burdell 
v. Denig, Case No. 2,142. 

The question of profits is not affected by the- 
fact that defendant made the infringing con- 
trivance cheaper than he could make the con- 
trivance in the exact form and shape described 
in the patent. — Graham v. Mason, Case No. 
5,672. 

§ 255. — Amount and estimation of* 
.profits* 
On accounting for infringement, defendant 
must account for the entire profits realized. — 
Child v. Boston & F. Iron Works, Case. No. 
2,674. 

The infringer's entire profit is the measure of 
damages only where the patentee exercises a 
complete monopoly and the invention is such, 
as to supersede all other machines or manu- 
factures of the same genus. — Livingston v.. 
Jones, Case No. 8,414. 

The profits recoverable from an infringer are- 
those derived from the use of the invention 
over what would have been derived from the 



1747 (§ 255) 



PATENTS, XII. (C). 

[Fed. Cas. Digest.] 



(§ 257) 1748 



use of other machines then open to the public. 
—Knox v. Great Western Quick-Silver Min. 
Co., Case No. 7,907; Bell v. Daniels, Id. 1,247; 
Black v. Thorne, Id. 1,466; Turrill v. Illinois 
Cent. R. Co., Id. 14,272. 

The saving to defendant made directly by 
using the patented device, and not that which 
he might have made if he had used any or all 
of various other devices, held the proper meas- 
ure of damages.— Herring v. Gage. Case No. 
6,422. 

Upon an accounting, complainant may re- 
cover the entire profits acaruing from the in- 
fringement, irrespective of the established roy- 
filty.—Knox v. Great Western Quick-Silver 
Min. Co., Case No. 7,907; Wooster v. Taylor, 
Id. 1S,041; American Nicholson Pa v. Co. v. 
Elizabeth, Id. 309. 

Only the actual profits from the making, us- 
ing, or selling of the invention by defendant 
.are to be considered in estimating damages. — 
Parker v. Perkins, Case No. 10,745; Piper v. 
Brown, Id. 11,181. 

The actual profits are those which are made 
"by the use of the patented device, and not those 
-made upon the machine as a whole. — Bradv v. 
Atlantic Works, Case No. 1.795; Webster v. 
lS T ew Brunswick Carpet Co., Id. 17,338; Ingels 
t. Mast, Id. 7,034. But see Livingston v. 
Jones, Case No. 8,414. 

The whole profits may be awarded against 
defendants, though made while they were us- 
ing the patented invention in conjunction with 
a person not a defendant. — Herring v. Gage, 
Case No. 6,422. 

Where the patented articles were not stamped 
with the word "Patented," held, that complain- 
ant was entitled to profits only from the date 
-of the decree. — Putnam v. Sudhoff, Case No. 
11,483. 

Where the infringed patent is for an art, a 
fair measure of the infringer's actual profits 
is the saving in cost of production by the use 
of the appropriated invention over the cost of 
production by the use of cognate means, used 
and available. — Wetherill v. New Jersey Zinc 
-Co., Case No. 17,464. 

The net profit derived from using infringing 
machinery in making articles which are sold 
Is determined by deducting from the value of 
the articles all the elements of cost in their 
production.— Troy Iron & Nail Factory v. Corn- 
ing, Case No. 14,196. 

Consideration of the expenses and charges 
proper to be allowed to defendant in ascertain- 
ing such net profits. — Troy Iron & Nail Factory 
v. Corning, Case No. 14,196. 

In estimating the profits realized from in- 
fringement, compensation is not allowed the 
infringer for his time and labor. — Piper v. 
Brown. Case No. 11,181; Williams v. Leonard, 
Id. 17,726. 

Expenses of defendants for advertising the 
infringing machine are to be deducted in esti- 
mating their profits. — La Baw v. Hawkins, 
Case No. 7,961. 

The value of the use of real and personal es- 
tate belonging to the infringer, such as shops, 
fixtures, and machinery, including repairs, em- 
ployed in making the infringing machines, is 
to be allowed as part of their cost. — Steam 
Stone Cutter Co. v. Windsor Mfg. Co., Case 
No. 13,335. 

The amount paid for insurance and for local 
taxes on such property is not to be allowed as 
part of the cost— Steam Stone Cutter Co. v. 
Windsor Mfg. Co., Case No. 13,335. 

Salaries paid in good faith for services actu- 
ally rendered by stockholders of defendant 
-corporation employed in making the infringing 
machine are to be allowed as part of the cost. — 



Steam Stone Cutter Co. v. Windsor Mfg. Co., 
Case No. 13,335. 

Nothing is to be deducted for liabilities on 

guaranties and warranty of title incurred by 

the infringer. — Steam Stone Cutter Co. v. 
Windsor Mfg. Co., Case No. 13,335. 

The amount paid by defendant in satisfac- 
tion of complainant's rights against purchasers 
from defendant is not a legitimate charge 
against the manufacture, and cannot be de- 
ducted in accounting for profits. — Graham v. 
Mason, Case No. 5,672. 

The general expenses of conducting defend- 
ant's entire business, held, should be divided in 
the proportion that the amount of sales of 
the infringing device bore to the sales in the 
entire business.— Hitchcock v. Tremaine, Case 
No. 6,539. 

The gain or saving arising from the use of 
the infringing machine cannot be applied to 
make up losses sustained by defendant on other 
branches of his business. — Conover v. Mers, 
Case No. 3,122. 

The portion of the price of an infringing 
machine due to a patented improvement of the 
infringer, as well as the cost of making such 
improvement, is not to be allowed. — Steam 
Stone Cutter Co. v. Windsor Mfg. Co., Case 
No. 13,335. 

Royalties paid or due by defendant under an 
infringing patent, which contains improve- 
ments over complainant's patent, should be de- 
ducted from the amount of profits. — La Baw v. 
Hawkins, Case No. 7,961. 

Plaintiff is entitled to any profit arising from 
the making and selling of any of the infringing 
machines, though other infringing machines 
were disposed of without profit, or are still on 
hand, and cannot be disposed of.— Steam Stone 
Cutter Co. v. Windsor Mfg. Co., Case No. 13,- 
335. 

Interest on the cost of a device, and the cost 
of power, are to be allowed as deductions from 
profits only when it is shown they have been 
paid or incurred as debts.— Herring v. Gage, 
Case No. 6,422. 

Where defendants have not all been jointly 
concerned in the infringement for the whole 
time covered by the account their several lia- 
bility must be apportioned in making up the 
decree.— Tatham v. Lowber, Case No. 13,765. 

§ 256. — Interest. 

Interest on profits will not be allowed.— Bradv 
v. Atlantic Works, Case No. 1,795; Holbrook 
v. Small, Id. 6,596. 

Interest on the profits decreed will be allowed 
from the time of the entry of the interlocutorv 
decree.— Steam Stone Cutter Co. v. Windsor 
Mfg. Co., Cases Nos. 13,335, 13,336. 

Interest will be allowed on the profits to the 
date of the master's report.— Tatham v. Low- 
ber, Case No. 13,765. 

Complainants are entitled to interest upon 
profits only from date of final decree.— Ameri- 
can Nicholson Pavement Co. v. Elizabeth, Case 
No. 309; Webster v. New Brunswick Carpet 
Co., Id. 17,338. 

§ 257. — Particular instances. 

Computation of profits in the use of an in- 
vention in producing fat acids and glycerin 
from fatty bodies.— Tilghman v. Mitchell, Case 
No. 14,041. 

Price of coal saved by use of improvement 
for utilizing waste heat held proper measure of 
damages.— Bell v. Phillips, Case No. 1,262. 

The entire profits of infringing car wheels 
were allowed where such wheels could not have 
been made without infringing the patented 
process, though other equally valuable wheels 



1749 (§ 257) 



PATENTS, SII. (0). 
[Fed. Cas. Digrest.] 



(§ 260) 1750 



could have been made at less cost by other pro- 
cesses.— Whitney y. Mowry, Case No. 17,594. 

The infringer of a patented process of re- 
ducing zinc ores for the production of white 
oxide cannot be charged with the value of an 
increased residuum, obtained by using the pro- 
cess, available for renewed treatment, which 
residuum fluctuates with the varying richness 
of the ore, and results from its inherent natural 
properties, and is not imparted to it by the direct 
operation of any contemplated function of the 
process. — Wetherill v. New Jersey Zinc Co., 
Case No. 17,464. 

Where, in the case of an infringement of a 
patented process, the infringer used a furnace 
specially adapted thereto, and there were no 
■data from which its contributory value could 
be estimated, the court treated the furnace and 
process as co-equal, and allowed one-half the 
profit.— Wetherill v. New Jersey Zinc Co., Case 
No. 17,464. 

Profits resulting from an increased price ob- 
tained by defendant for unpreserved fish, from 
their ability to withdraw fresh fish from the 
market by the use of complainant's patented 
process of preserving fish, are not recoverable 
in a suit for infringement.— Piper v. Brown, 
■Case No. 11,181. 

■§ 258. Burden of proof. 

The plaintiff is entitled only to the profits 
accruing from the use of his. patent, the burden 
of proving which is upon him. — Black v. Mun- 
son, Case No. 1,463. 

The infringer is liable for the whole profits 
unless he show affirmatively the extent to 
which instrumentalities and improvements not 
covered by patents contributed. — American 
"Nicholson Pav. Co. v. Elizabeth, Case No. 309. 

Plaintiff is entitled only to nominal damages, 
where he fails to show the proportion contrib- 
uted to the machine in question by his improve- 
ment.— Burdell v. Denig, Case No. 2,142. 

• 

In taking an account where profits and dam- 
-ages are estimated upon the extent of use of 
the patented machine in manufacturing an ar- 
ticle, complainant must show affirmatively the 
amount actually produced. Profits and dam- 
ages cannot be given upon the estimated ca- 
pacity of the machine. — Webster v. New Bruns- 
wick Carpet Co., Case No. 17,338. _ 

Where no profits are proved to have been 
made by defendant, complainant cannot recov- 
er as damages the profits which it would have 
made on the articles sold by defendant. — St. 
Louis Stamping Co. v. Quinby, Case No. 12,- 
240a. 

The patentee must give evidence tending to 
Apportion the defendant's profits and the pat- 
entee's damages between the patented and un- 
patented features of the article sold, or' show 
that its entire marketable value was due to the 
patented feature. — Garretson v. Clark, Cases 
Nos. 5,248, 5,250; Gould's Mfg. Co. v. Cow- 
ing, Id. 5,642, 5,643. 

Where plaintiff fails to give such evidence, 
he will not be allowed, after a finding of nom- 
inal damages, to put in other evidence. — Gar- 
retson v. Clark, Case No. 5,248. 

Where plaintiff fails to show the profits aris- 
ing from the use or sale of the improvement, 
nominal damages only can be recovered. — 
Gould's Mfg. Co. v. Cowing, Cases Nos. 5,642, 
5,643. 

Nominal damages only can be recovered 
where plaintiff, not being entitled to damages 
-on the principle of profits, fails to prove a 
license price.— Burdell v. Denig, Case No. 2,- 
142. 

-§ 259. Reference to master. 

On bill for infringement where title not dis- 
puted, the circuit court under Act July 4, 1836, 



§ 17, will refer to master to take account of 
profits.— Allen v. Blunt, Case No. 215. 

On a reference to take an account, defend- 
ant cannot be examined as a witness in his 
own favor, if objection be made by plaintiff,,, 
though he was first called and examined as a 
party by "plaintiff.— Foote v. Silsby, Case No. 
4,920. 

The accounting should cover all infringe- 
ments down to the date on which the account- 
ing is had.— Knox v. Great Western Quick-Sil- 
ver Min. Co., Case No. 7,907; Tatham v. Low- 
ber, Id. 13,765. 

On a reference to ascertain the damages 
caused by an infringement, the master cannot 
go into the general question of infringement, 
nor consider the general scope and extent of 
the patent.— Turrill v. Illinois Cent. It. Co., 
Case No. 14,272. 

Upon an accounting before a master, the ex- 
tent of the monopoly and the infringement 
must first be ascertained to establish the basis 
of profits or damages.— Buggies v. Eddy, Case 
No. 12,116. 

On a reference to a master to ascertain dam- 
ages and profits, where the bill is taken pro 
confesso, the master can report only nominal 
damages where complainants fail to make sat- 
isfactory proof.— Fisk v. West Bradley & Cary 
Mfg. Co., Case No. 4,830a. 

Where a patent for concrete pavement claim- 
ed the separation of the pavement in sections, 
and, on an account of profits for infringement, 
there was no proof of a license fee or the value 
of the patented improvement, held, that the 
master should have reported no profits. — Schil- 
linger v. Gunther, Case No. 12,457. 

Where an infringement commenced by one 
railroad company is continued by another with 
which it is consolidated, the extent of the in- 
fringement by each must be ascertained by 
the master.— Turrill v. Illinois Cent. B. Co., 
Case No. 14,272. 

Report of master set aside on the ground that 
what he had reported as an established license 
fee was not shown to have been such. — Green- 
leaf v. Yale Lock Mfg. Co., Case No. 5,783. 

It is not proper, upon a motion to confirm or 
reject the master's report, to consider open any 
question which was foreclosed by the decree 
by which the case was referred to the master. 
—Whitney v. Mowry, Case No. 17,594. 

In the case of the infringement of a patent 
for a process of annealing cast-iron car wheels, 
the case was referred back to the master to 
report whether the infringing wheels could 
have had any market value without the in- 
fringing proce'ss, and, if so, the amount of 
value derived from the use of the patented pro- 
cess. — Whitney v. Mowry, Case No. 17,593. 

Where an interlocutory decree in an equity 
suit inadvertently provides for the recovery of 
both profits and damages, it is no ground of ex- 
ception to the report of a commissioner that 
damages could not be recovered in such suit, 
but in such case the court will resettle the in- 
terlocutory decree.— Williams v. Leonard, Case 
No. 17,726. 

A finding of the master, based in part upon 
unreported evidence and *his own examination 
of the infringing device, made by consent and 
in the presence of the parties, will not be set 
aside.— Piper v. Brown, Case No. 11,181. 

§260. Hearing. 

The provision that "notice of the day set for 
the hearing of the case shall be published, as 
now required by law, for at least sixty days," 
Jield to be satisfied by a publication for three 
successive weeks commencing sixty days be- 
fore the hearing. — Gear v. Grosvenor, Case No. 
5,291. 



1751 (§ 260) 



PATENTS, XII. (C). 

[Fed. Cas. Digrest.] 



(§ 262) 1752 



It is not the province of the master or the 
court to suggest the proper line of proof to 
adopt.— Garretson v. Clark, Case No. 5,250. 

The court may inspect a model exhibited in 
9 evidence, and from such inspection decide the 
question of patentability.— Everett v. Thatch- 
er, Case No. 4,578. 

Plaintiff was allowed to produce evidence in 
rebuttal at the hearing on payment of costs to 
defendant of procuring its evidence. — Stain- 
thorp v. Humiston, Case No. 13,281. 

Plaintiff, in a suit for infringement of pat- 
ent, cannot, at the hearing, for the first time, 
as a matter of right, introduce evidence to Te- 
but proof that he was not a citizen of the Unit- 
ed States. — Stainthorp v. Humiston, Case No. 
13,283. 

Evidence is inadmissible at the hearing 
which was not offered before the master. — Pot- 
ter v. Wilson. Case No. 11.342; Grover & Bak- 
er Sewing Mach. Co. v. Sloat, Id. 5,816. 

An objection to evidence is waived where not 
distinctly made when taken. — Barker v. Stowe, 
Case No. 994. 

Defendant may show the condition of the 
model at the time it was filed in the patent of- 
fice, and at the date of the original patent. — 
Johnson v. Beard, Case No. 7,371. 

Where no infringement is found, the court 
will not pass upon the validity of the patent. — 
Saxe v. Hammond, Case No. 12,411. 

Where the question of priority of invention 
was put in issue, evidence of other alleged 
anticipations is merely cumulative. — Blandy v. 
Griffith, Case No. 1,530. 

The construction of the patent is for the 
court.— Cahoon v. King, Case No. 2,292. 

Whether a disclaimer has been made within 
a reasonable time is a mixed question of law 
and fact. — Brooks v. Jenkins, Case No. 1,953. 

It is a question of law whether the thing in- 
vented is sufficiently described. — Brooks v. 
Jenkins, Case No. 1,953. 

To prevent multiplicity, suit between patentee 
and user of infringing machine suspended to 
await result of pending suit between patentee 
and principal infringer.— Barnum v. Goodrich, 
Case No. 1,036. 

See, also, ante, §§ 208, 248. 

§ 261. Effect of prior decisions in gen- 
eral. 

The court, upon final hearing, may pass upon 
a patent without reference to the fact whether 
or not it has been before a jury. — Doughty v. 
West, Case No. 4,029. 

A decree o£ a circuit court taken pro con- 
fesso will not preclude full inquiry and inves- 
tigation by another court. — Everett v. Thatch- 
er, Case No. 4,578. 

A decision of a court of equity upon final 
hearing in relation to the validity of letters 
patent furnishes an authority for the action of 
courts of co-ordinate jurisdiction. — American 
Wood-Paper Co. v. Fibre Disintegrating Co., 
Case No. 320. 

The decision of a co-ordinate court on an in- 
terlocutory decree will be followed, in the ab- 
sence of new or additional or contradictory ev- 
idence, which impels the court in a second 
hearing to a different result. — Rumford Chem- 
ical Works v. Hecker, Case No. 12,133. 

In such case a full decree will be rendered, 
which will also reveal the distinct ground on 
which the court refused to look into the ques- 
tion. — Rumford Chemical Works v. Hecker, 
Case No. 12,133. 

The decision of another circuit on the same 
points and the same state of proofs is entitled 



to great consideration.— Hitchcock v. Shoning- 
er Melodeon Co., Case No. G,53T. 

A clear case of infringement by a patented 
article is necessary before the court will con- 
sider it as covered by a decree in another suit 
in which its structure had not been under con- 
sideration.— Buerk v. Imhaeuser, Case No. 2,- 
108. 

A decision that a certain patent does not de- 
stroy the novelty of another is not necessarily 
a decision that the use of an arrangement in 
the latter is not an infringement of the former. 
— Bachelder v. Moulton, Case No. TOG. 

Notwithstanding prior decisions upon the va- 
lidity of the patent, Jield, that the case should 
be tried anew upon additional facts proved. — 
Blake v. Rawson, Case No. 1,499. 

Where the aspect of the case is substantially 
changed by new evidence, a district judge sit- 
ting alone in the circuit court may review or 
set aside the action of the court, when presid- 
ed over by the circuit justice. — Hussey v. 
Whitely, Case No. 6,950. 

An adjudication upon the original patent will 
not conclude defendant, where the infringe- 
ment of a reissue lies between the limits of th& 
original and reissued patents. — Poppenhusen v. 
Falke, Case No. 11,279. 

See, also, ante, § 246. 

§ 262. Submission of issues to jury. 

An issue* at law will be directed where the 
testimony is conflicting. — Brooks v. Bicknell, 
Cases Nos. 1,944, 1,946$ Parker v. Hatfield^ 
Id. 10,736. 

Where, on a bill for infringement, the evi- 
dence is uncertain and unsatisfactory, an is- 
sue will be awarded on the questions whether 
the patentee was the first inventor, and wheth- 
er the invention was known and used by others 
two years before the application. — Sides v. Pa- 
cific -Mail S. S. Co., Case No. 12,842. 

A feigned issue will not be awarded unless the- 
court have doubts as to the identity of the two 
machines. — Yan Hook v. Pendleton, Case No. 
16,851. 

A feigned issue will be awarded in a suit for 
an injunction founded on a verdict, in an action 
at law, on newly-discovered evidence tending to 
show a want of novelty, and defendants will be 
allowed to amend their answer on payment of 
costs by inserting the new matter. — Foote v. 
Silsby, Case No. 4,918. 

The court will not send the case to a jury 
where, after a hearing on full proofs, it is well 
satisfied of the originality of the invention, the- 
regularity of the patent, and of the fact of in- 
fringement. — Goodyear v. Day, Case No. 5,569. 

It is discretionary with the court to order is- 
sues for a jury. — Ayling v. Hull, Case No. 6S6r 
Brooks v. Norcross, Id. 1,957. 

■ 

Original letters patent are not admissible on 
trial of feigned issues presenting no issue of 
fraud or mistake, where the bill of complaint 
was founded exclusively upon the reissued let- 
ters. — Cahoon v. Ring, Case No. 2,292. 

Letters patent offered in evidence in the trial 
of feigned issues to show want of originality in 
the complainants' invention must be construed 
by the court; and, if having no tendency to sup- 
port the issue, should be rejected. — Cahoon v. 
Ring, Case No. 2,292. 

" [Evidence of new experiments upon the ma- 
chines in question, on the trial of feigned issues. 
in a patent suit, cannot be offered by the com- 
plainant in rebuttal. — Cahoon v. King, Case No, 
2,292. 

Further time to take testimony given where^ 
feigned issues out of equity hare been ordered 



1753 (§ 263) 



PATENTS, XII. (C> 

[Fed. Cas. Dis.est.] 



(§ 265) 1754 



before the time for taking testimony had ex- 
pired.— Cahoon v. Ring, Case No. 2,292. 

See, also, ante, § 208. 

§ 263. Rehearing. . . 

Motion for rehearing in suit for mfnngement. 
■of patent cannot be made after term at which 
final decree entered.— Barker v. Stowe, Case No. 
$95. 

The reissue, after the first hearing, of a pat- 
ent prior to plaintiff's, which, was in evidence, 
is no ground for granting a rehearing.— Hitch- 
■cock t. Tremaine, Case No. 6,540. 

The want of proper expert testimony is no 
jground for granting, a rehearing, where nosuffi- 
cient excuse is shown for not applying, prior to 
the first hearing, for opportunity to introduce the 
same.— 'Hitchcock, v. Tremaine, Case- No. b,oiU. 

A rehearing will he ordered where it appears 
-doubtful whether a decree adverse to the pat- 
ent could be sustained under the allegations in 
the answer, with leave to amend such answer.— 
•Schneider v. Thill, Case No. 12,470b. 

An attorney was employed, by the assignee of a 
bankrupt patentee when a suit for infringement 
• was on the trial list, and the patent was de- 
-clared invalid. Eeld, that a rehearing would 
not be granted because of want of preparation, 
-where the validity of the patent could be tested; 
in other pending suits.— Nutter v. Rodgers, Case 
2s T o. 10,383. 

Rehearing on the ground of newly-discovered 
anticipating devices will be denied, in the ab- 
sence of clear proof of anticipation.— Kerosene 
Xamp Co. v. IiitteU, Case No. 7,723. 

Inexperience and lack of legal knowledge of 
-counsel and ignorance of defendant in not set- 
ting up foreign patents, to show want of nov- 
•elty, held not sufiicient ground for opening in- 
terlocutory decree.— De Florez v. Raynolds, Case 
No. 3,743. 

A prior decision in another court is no ground 
for opening an interlocutory decree; where the 
-question has since been passed* upon: at law in 
this court.— Ingersoll v. Benham, t Case No. (,036. 

The case will be opened to permit introduction 
of newly-discovered evidence to show a change 
in the model when the reissue; was granted-— 
Johnson' v. Beard, Case No. 7,371. 

After the neglect of an order to file testimony, 
4ind the overruling of a demurrer as. bad, the 
case will not be opened for further hearing as 
to a temporary injunction, previously granted,, 
unless respondent show by affidavit that the 
-course pursued was not fordelay, and indemnity 
5s also filed.— Woodworth v. Edward's, Case No: 
1S,014. 

•§.26.4. Dlecxee and review. 

A decree for an accounting will be granted, 
though it appear that no profits, resulted from 
-the infringement, where it does not appear 
whether or not complainant suffered damage 
therefrom.— Bullock Printing Press Co. v. Jones, 
•Case No. 2,132. 

Where infringement is admitted, if the patent 
Is valid, an interlocutory decree should be en- 
tered for complainant, and the cause sent to a 
master to ascertain damages;— Carew* v. Boston 
Elastic Fabric Co., Case No. 2,397. 

A decree will be entered for complainant where 
the facts averred, showing the validity and in- 
fringement of the patent, are admitted 1 by de- 
fendant, who also admits the want of any valid 

defense.— Franz & Pope Knitting Mach. Co 1 , v. 

I^amb Knitting Mach. Mfg. Co., Case No. 5,- 

061a. 



The title to the infringing machine passes to 

the purchaser where a decree is given for the 

profits on the manufacture and sale— Spanlding 

v. Page, Case No. 13,219; Steam Stone Cutter 

*€o. v. Windsor Mfg. Co., Id. 13,335; Gilbert & 



Barker Mfg. Co. v. Bussing, Id. 5,416; Perrigo 
v. Spaulding, Id. 10,994. 

A recovery of profits for the use of the in- 
fringing, machine does not vest the title thereto 
in the defendant.— Spaulding v. Page, Case No, 
13,219. 

Where the court awards' as damages the li- 
cense fee which the patentee has fixed for the 
perpetual use of a machine, which defendant 
pays, he> is entitled to the use of the infringing, 
machine.— Siekels v. Borden, Case No. 12,832; 
Spaulding v. Page, Id. 13,219. 

A decree for a perpetual injunction in a pat- 
ent case will not be openedV to let in a defense 
after a delay of 11 months from the payment 
of an execution issued- for costs.— Doubleday v. . 
Sherman, Case No. 4,019. 

The limitation of two years in section 2057 
does not apply to a proceeding to review a de- 
cree in equity.— Wilt v. Stickney, Case No. 17,- 
854. 

A motion to set aside a decree pro confesso, 
and for leave to< answer, denied on plaintiff's 
stipulating to limit recovery to' a certain amount, 
being less than expense to defendant of trying 
issue.— Andrews v. Denslow, Case No. 372. 

Where a writ of J error is pending, the court 
in another circuit will consider the errors al- 
leged tor have been committed at the trial, and 
will disregard the judgment where there was 
radical error.— Wells v. Gill, Case No. 17,394. 

A decree in a patent case, making the injunc- 
tion prayed for perpetual, with a reference to a 
master for an account of profits, is not a final 
decree.— Reeves v. Keystone Bridge Co., Case 
No. 11,661. 

And no appeal lies from a decree in a patent 
case which provides for a reference to a master 
to state an account until the coming in of the 
master's report.— Potter v. Mack, Case No. 11,- 
331. 

See, also, ante, §§ 209, 210j 248. 

§265. Costs. 

Plaintiff is not entitled to costs in a suit for 
infringement of a patent, where he recovers^ a 
verdict for infringement of valid claims; while 
other claims are rejected as void for want of 
'novelty.— Peek v. Frame, Case No. 10,904. 

Where, in a suit in equity for infringement ol 
a patent, defendant was held to have infringed 
one claim, and another claim wasi held to* be 
invalid, no costs were allowed to 1 either party. — > 
JYale & G. Mfg; Co. v. North, Case No. 1B,123. 

i Costs- ref used r defendant in a bill for infringe- 
iment on its dismissal, as he received benefit 1 
>from the settlement of the question.— Smith v. 
[Woodruff, Case No. 13;i28a ♦ 

. The plaintiff in a patent suit is entitled to 
icosta (Act 1836, § 14), on a verdict in his- favor, 
whether the recovery is nominal or compensa- 
tory, and regardless of the action of the court 
in respect to increasing damages.— Merchant v. 
Lewis, Case No. 9,437. 

i Where: the patent is sustained, and infringe- 
ment found, but only nominal damages, are given 
on a reference, plaintiff is entitled to costs, ex- 
cept of the reference, report, exceptions, and> 
hearing thereon.— Garretson v. Clark, Cases Nos. 
5,248, 5,250. 

, Where a case is referred to a master, to as- 
certain complainant's damages and defendant's 
profits; and complainant's exceptions to the mas- 
ter's report are overruled, defendant will be al- 
i lowed costs subsequent to the interlocutory de- 
icree, to be set off against complainant's costs 
t up to such time*.— Fisk v. West Bradley &. Cary 
Mfg. Co.. Case No. 4,830a 

Where the suit is -brought in the name of the 
holder of the legal title for the benefit of f an> ex- 
clusive licensee, it will not be discontinued with- 



1755 (§ 265) 



PATENTS, XIL (Q, XIII. 
[Fed. Cas. Digest.] 



(§ 266) 1756 



out the latter' s consent, but the court may com- 
pel him to give security for costs. — Goodyear v. 
Bishop, Case No. 5,558. 

Copies of patents, either that of the plaintiff 
or others, procured by the defendant, cannot be 
taxed as costs to the plaintiff.— Woodruff v. Bar- 
ney, Case No. 17,986. 

In a suit for infringement of a patent, models 
cannot be classed as "exemplifications," under 
Act Feb. 26, 1853 —Parker v. Bigler, Case No. 
10,726. 

In a suit for the infringement of a patent, 
copies of plaintiff's models and papers, which he 
is not obliged to produce, when obtained by de- 
fendant, are proper items of costs.— Hathaway 
. v. Roach, Case No. 6,213. 

Models of the invention described in the plain- 
tiff's patent, and procured by the defendant in 
good faith, may be included in the taxation of 
costs, but not other models. — Woodruff v. Bar- 
ney. Case No. 17,986; Hussey v. Bradley, Id. 
6,946a. 

The expenses for printing pleadings, testimony, 
and briefs, and of making drawings used on the 
final hearing, and of reporting arguments of 
counsel for the court, are not proper items of 
taxation, unless so stipulated. — Hussey v. Brad- 
ley, Case No. 6,946a. 

Where, in taking an account of profits in a 
patent suit, plaintiff greatly exaggerated his 
claim, and introduced a large amount of irrele- 
vant testimony, and recovered only a small sum, 
held, that each party should bear his own costs, 
and the compensation of the master should be 
paid equally by both. — Troy Iron & Nail Fac- 
tory v. Erastus Corning, Case No. 14,198. 

See, also, ante, §§ 120, 211. 

xnr. decisions on the validity, 

CONSTRUCTION, AND IN- 
FRINGEMENT OF PARTICU- 
LAR PATENTS. 

§266. Original patents. 

Alizarine: No. 95,465, and reissue No. 4,321, 
for artificial alizarine, produced from anthracene, 
held valid and infringed by article produced un- 
der patent No. 153,536. — Badische Anilin & So- 
da Fabrik v. Cochrane, Case No. 719; Same v. 
Cummins, Id. 720; Same v. Hamilton Mfg. Co., 
Id. 721; Same v. Higgin, Id. 722. 

Amalgamating Pan: Patent to Belknap for 
improvements construed, and held not infringed. 
— Goolidge v. McCone, Case No. 3,186. 

Armor: Heaton's patent of April 14, 1863, 
for improved defensive armor for ships and oth- 
er batteries held void for want of novelty. — 
Webb v. Quintard, Case No. 17,324. 

Bag Tie: No. 135,899, for improvement in 
ties for grain bags, held valid and infringed. — 
Foote v. Frost, Case No. 4,910. 

Baling Press: No. 60,196, for an improve- 
ment, held valid and infringed. — King v. Louis- 
ville Cement Co., Case No. 7,798. 

Bark Mill: Montgomery's and Harris* pat- 
ent for an improvement in a mill for breaking 
and grinding bark held valid and infringed. — 
Wilbur v. Beecher, Case No. 17,634. 

Barrel: No. 136,763, for improvement in head 
linings, held invalid for want of novelty. — Reed 
v. Reed, Case No. 11,650. 

Base Ball: No. 127,098, for double leather 
covering, held invalid for want of invention. — 
Mahn v. Harwood, Case No. 8,966. 

Bed: No. 97,375, for bedsprings, held invalid 
for want of novelty. — Woven Wire Mattress Co. 
v. Whittlesey. Case No. 18,058. 

Bed: No. 191,244, for an improvement in 
spring-bed bottoms, held valid and infringed. — 
Ladd v. Tucker Mfg. Co., Case No. 7,974. 



Beverage : A composition of certain ma- 
terials in certain proportions for use as a table 
beverage, called "Birch Beer," held patentable. 
—Rogers v. Ennis, Case No. 12,010. 

Beverage: Nos. 193,038 and 198,467, for im- 
provement, consisting in a compound called 
"Birch Beer," held valid.— Rogers v. Ennis, Case 
No. 12,010. 

Beverage: No. 193,476, .for an improvement 
in syrups and mineral waters, held valid. — 
Bowker v. Dows, Case No. 1,734. 

Billiard Table Cushion: No. 60,657 (reissued 
No. 3,323), for improvement, construed, and 
held valid and infringed— Decker v. Griffith, 
Cases Nos. 3,724, 3,725; Same v. Grote, Id. 
3,726. 

Blind Slat: No. 199,948, for improvement in 
connecting, held infringed. — Whitman v. James, 
Case No. 17,579a. 

Blower: Patent to Roots of July 27, 1869, 
for improvement in a rotary blower case, held 
valid and infringed.— Roots v. Hyndman, Case 
No. 12,040. 

B oiler and Pipe Covering : Letters pa ten t 
No. 55,598, granted June 19, 1866, to John 
Ashcroff, for "covering a steam boiler pipe or 
the heater with felt or other nonconducting 
material," is valid.— Chalmers Spence Pat. Non- 
conductor Co. v. Cramp, Case No. 2,573a. 

Boiler and Pipe Covering: Nos. 108,055, 114,- 
711, and reissue No. 4,134, for improvement in 
compositions for covering, held infringed. — Unit- 
ed States & Foreign Salamander Felting Co. v. 
Merrimack Mfg. Co., Case No. 16,789. 

Boiler Furnace : No. 20,616, for improve- 
ment for burning wet fuel, held valid.— Bantz v. 
Elsas, Case No. 967. 

Bolt: No. 48,555, for improvement in door 
bolt, held valid.— Stanley Works v. Sargent, 
Case No. 13,289. 

Bonnet: No. 15,570, for improvement in ma- 
chine for pressing, held not infringed.— Double- 
day v. Bracheo, Case No. 4,018. 

Such patent construed, and held to be in- 
fringed.— Doubleday v. Sherman, Case No. 4,- 
021. 

Bonnet: No. 19,932, for an improvement in 
bonnet frames, construed and limited. — Kidd v. 
Spence, Case No. 7,755. 

Boot and Shoe: Priority in arrangement of 
vibrating knives awarded to Richards. — Eames 
v. Richards, Case No. 4,240. 

Boot and Shoe: A patent for cutting the 
soles of shoes by means of a cutting die mount- 
ed on a shaft held infringed.— Maynadier v. 
Tenney, Case No. 9,350. 

Boot and Shoe: Priority of invention of an 
improvement in pegging machines awarded to 
Greenough. — Sturtevant v. Greenough, Case 
No. 13,579. 

Boot and Shoe: Nos. 28,181, 39,546, 42,555, 
for improvements in machines for burnishing 
the edges of soles and heels of boots and shoes, 
held not infringed. — Sweetser v. Helms, Case 
No. 13,689. 

Boot and Shoe: No. 49,572, for an improved 
mode of cutting soles, held invalid. — Walker v. 
Rawson, Case No. 17,083. 

Boot and Shoe: No. 122,030 (reissued Nos. 
6,098, 6,099), for improvements in the manu- 
facture of moccasin boot and shoe pacs, held 
valid in part and infringed. — Kelleher v. Darl- 
ing, Case No. 7,653. 

Boot and Shoe: No. 127,090, for forming 
heel stiffeners, construed, and held not infringed. 
— Mofiitt v. Rogers, Case No. 9,691. 

Boot and Shoe: No. 127,964, for improve- 
ment in manufacture of soles and heels, held 
invalid.— Adamson y. Dedrick, Case No. 74. * 







1757 (§ 266) 



PATENTS, XIII. 

[Fed. Cas. Digest.] 



(§ 266) 175S 



Boot Tree: No. 14,951, for improvement, lield 
valid and infringed. — Eames v. Cook, Case No. 
4,239. 

Boot Tree: No. 170,462, for improved boot 
tree* held valid and infringed.— Cos v. Raras- 
dell, Case No. 3,305. 

Boring Machine: No. 170,980, for improve- 
ment in machine for boring holes in boot trees, 
held valid and infringed.— Cos v. Ramsdell, Case 
No. 3,305. 

Bottle Stopper: No. 23,263 (reissued No. 1,- 
606), for "improved bottle-stopper fastener/' 
held valid, but not infringed.— Putnam v. Hick- 
ey, Case No. 11,480. 

Bottle Stopper: No. 48,300, for improve- 
ment, held not infringed.— Hicks v. Moller, Case 
No. 6,461. 

Bottles: A U-shaped movable wire fastener, 
extending over the top of the stopper, and con- 
nected with another wire surrounding the neck 
of the bottle, held not anticipated by a U-shaped 
movable fastener made of sheet metal, extend- 
ing over the stopper, and connected with a 
sheet-metal strap around the neck of the bottle. 
—Putnam v. Weatherbee, Case No. 11,485. 

Brace: No. 35,856 (reissue No. 4,187), and 
No. 73,279, for improvements in bit stocks and 
braces, held valid, and inf ringed.— Miller's Falls 
Co. v. Ives, Case No. 9,599. 

Brake: No. 8,552, for improvement in rail- 
road car brakes, held valid. — Emigh v. Chicago, 
B. & Q. R. Co., Case No. 4,448. 

Brake: No. 9,109, for improvement in rail- 
road car brakes, held valid and infringed. — 
Sayles v. Chicago & N. W. R. Co., Cases Nos. 
12,414, 12,415. 

Brick Machine: Invention of improvement 
in, held patentable— In re "Wagner, Case No. 
17,038. 

Brick Press: No. 2,768, for improvement, 
construed.— Hall v. Wiles, Case No. 5,954. 

Bridge: Sprague's invention held patentable. 
—Ex parte Sprague, Case No. 13,247. 

Bridge: Linville's patent of 1862, and Lin- 
ville's and Piper's patent of 1865, relating to 
the lower chord bars of truss bridges, held not 
infringed.— Keystone Bridge Co. v. Phoenix 
Iron Co., Case No. 7,751. 

Bridge: No. 2,707, for an improvement in 
bridges, construed and held valid. — King v. 
Hammond, Case No. 7,797. 

Bridge: No. 101,529, for an improvement in 
dies for making chord-bar heads, held void for 
want of novelty.— Smith v. American Bridge 
Co., Case No. 13,002. 

Bronzing Iron: No. 40,964 (reissue No. 2,- 
355), for coloring iron in imitation of bronze, 
held valid and infringed.— Tucker v. Tucker 
Mfg. Co., Case No. 14,227. 

Brush: No. 98,787, for improvement, Jield 
valid and infringed.— Murphy v. Eastham, Case 
No. 9,949; Same v. Kissling, Id. 9,950. 

Brush: No. 160,933, for improvement, held 
infringed.— Megraw v. Carroll, Case No. 9,393b. 

Buckle: Patent May 26, 1863, is void for 
want of novelty.— Chase v. Sabin, Case No. 2,- 
627. 

Bung: No. 87,163, for improved method of 
rendering wooden bungs impervious to liquids 
and gases, Jield valid.— Geier v. Goetinger, 
Case No. 5,299. 

Burring Machine: No. 4,023 (reissue No. 1,- 
137), for improvement, held valid and infringed. 
— Parkhurst v. Kinsman, Case No. 10,757. 

Bustle: The invention of Matthew Chambers 
for a framework for a skirt or bustle was not 
anticipated by the patent of Alexander Doug- 
lass, No. 17,082, nor by the English patent of 



Ozman, No. 20,513 "of 1856.— In re Chambers, 
Case No. 2,581. 

Button: No. 56,261, for improvement, held 
valid and infringed.— Piatt v. United States 
Patent Button, Rivet, Needle & Machine Mfg. 
Co., Case No. 11,222. 

Button: No. 110,070, for improvement in at- 
taching shanks, construed, and held not in- 
fringed.— Potter v. Thayer, Case No. 11,340. 

Camera: Southworth's patent of April 10„ 
1855, reissued September 25, 1860, for plate- 
holders, held valid. — "Wing v. Richardson, Case 
No. 17,869. CONTRA, see Wing v. Schoon- 
maker, Case No. 17,870. 

Camera: No. 12,700 (reissue No. 1,049), for- 
plate holder for cameras, held valid and in- 
fringed.— Ormsbee v. Wood, Case No. 10,579. 

Camera: No. 16,700 (reissued No. 2,311),. 
for improvement in solar cameras, held, valid 
and infringed. — Woodward v. Dinsmore, Case 
No. 18,003. 

Candle: No. 12,492, for improvement in ma- 
chines for making, held valid. — Stainthorp v. 
Humiston, Case No. 13,279. But see Thayer 
v. Wales, Case No. 13,871. 

Canned Beef: Nos. 43,516 (reissued No. 6,- 
451), 149,276 (reissued No. 6,37.0), 161,848 (re- 
issued No. 7,923j, for canned meats, held in- 
valid for want of novelty. — Wilson Packing Co.. 
v. Clapp, Case No. 17,851. 

Canned Corn: Nos. 34,928, 35,274, 35,346,. 
and 36,326, for improvement in process of pre- 
serving green corn, held valid and ipfringed.— 
Jones v. Merrill, Case No. 7,481; Same v.. 
Sewall, Id. 7,495. 

Cannon: No. 13,927, for improvement in 
manufacture, held void for want of novelty.— - 
Treadwell v. Parrott, Case No. 14,158. 

Capstan: No. 63,917, for improvement in ap- 
plying steam power to capstans, held valid and 
infringed. — McMillin v. Barclay, Case No. 8,- 
902. 

Carburetter: No. 93,268, for improved appa- 
ratus for earburetting air, held valid and in- 
fringed.— Gilbert & Barker Mfg. Co. v. Tirrell, 
Case No. 5,417. CONTRA, see Gilbert & 
Barker Mfg. Co. v. Walworth Mfg. Co., Case 
No. 5,418. 

Carding Machine: Patent to Goulding, with 
reissue and extension, for improvement in ma-v 
chinery for the manufacture of fibrous ma- 
terials, held valid. — Jordan v. Dobson, Case No v 
7,519. 

Carpet Lining: No. 52,835 (reissued No. 4,- 
296), and No. 60,476 (reissued No. 4,066), for 
improvement, Jield to be infringed. — Pales v. 
Wentworth, Case No. 4,623. 

Cartridge: No. 1,948, for machine for mak^ 
ing cartridge cases, held infringed. — Union Me- 
tallic Cartridge Co. v. United States Cartridge 
Co., Case No. 14,369. 

Car Wheel: Whitney's patent for an im- 
provement in the process of manufacturing 
cast-iron railroad wheels held valid and infrin- 
ged. — Whitney v. Mowry, Cases Nos. 17,592, 
17,593, 17,594. 

Car Wheel: No. 640, for improvement in 
mode of making cast-iron car wheels, con- 
strued.— Many v. Jagger, Case No. 9,055; Same 
v. Sizer, Id. 9,056, 9,057. 

Car Wheel: No. 110,779, for improvement 
in casting car wheels, construed. — Needham v, 
Washburn, Case No. 10,082. 

Caster: Blake's patent for improvement in, 
held valid. — Blake v. Smith, Case No. 1,502;. 
Same v. Sperry, Id. 1,503. 

Chain: No. 43,987, for an improved machine 
for stretching chains, held valid and infringed^ 
—Hall v. Bird, Case No. 5,926. 



1759 (§ 266) PATENTS, Sin. 

[Feci. Cas. Digest.] 

Chain Link: No. 193,543, for an improve- 
ment in ornamental chain links, construed, and 
held valid and infringed. — Simmons v. Blackin- 
ton, Case No. 12,866. 

Chair Seat: Reissue No. 7,203, for improve- 
ments in chair seats, held invalid. — Gardner v. 
Herz, Case No. 5,229. 

Chewing Gum: No. 111,798, for improve- 
ment, held void.— Adams v. Loft, Case No. 61. 

Circular Saw: No. 10,965, for clamps for 
-circular saws, held valid and infringed. — Myers 
v. Duker, Case No. 9,9S9; Same v. Frame, Id. 
3,991. 

Circular Saw: No. 33,270 (reissued No. 1,456), 
lor improvement, held valid and infringed. — 
Spaulding v. Tucker, Case No. 13,220. 

Circular Saw Frame: No. 7,027, for improve- 
ment in hanging circular saws, held valid and 
infringed. — Lee v. Blandy, Case No. 8,182. 

Clapboard: No. 10,903 (reissued No. 3,268), 
"for an improved clapboard joint, held invalid for 
want of novelty.— Everett v. Thatcher, Case No. 
4,578. 

Clock: No. 84,517, for improved pallet of 
clock escapement, held invalid for want of nov- 
elty . — Terry Clock Co. v. New Haven Clock Co., 
Case No. 13,841. 

Cloth: Nos. 10,986. 106,101, and 124,180, and 
reissues Nos. 5,004, 5,186, for improvements in 
■cloth-cutting machines construed, and held not 
infringed. — Warth v. Browning, Case No. 17,- 
209a. 

Coal Car; Winan's patent held invalid.^-Wi- 
nans v. Eaton, Case No. 17,861. 



Coffin: Patent to Fish ; for a metal air-tight 
-coffin, held valid and infringed. — Forbes v. Bar- 
^tow Stove Co., Case No. 4,923. 

Coffin Handle: Patent to Strong of December 
14, 1869, for improvement in, held void for want 
of novelty.— Strong Mfg. Co. v. Meridan Bri- 
tannia Co., Case No. 13,546. 

Collar: No. 45,998 (reissued No. 2,034), for 
improvement in turn-down enameled paper col- 
lars, held valid and infringed. — Hoffman v. 
Aronson, Case No. 6,576; Same v. Stiefel, Id. 
^6,578. 

Collar: No. 132,547, for a method of cutting 
-collars from sheets of paper, etc., held void for 
Tvant of novelty. — Snow v. Taylor, Case No. 13,- 
148. 

Column: No. 35,582, for an improvement in 
the construction of columns, shafts, braces, etc., 
-construed, held valid, and infringed— Reeves v. 
Keystone Bridge Co., Case No. 11,660. 



Composition Covered Ring: No. 57,941 for 
improvement, construed, and held valid, and in- 
fringed. — Welling v. Rubber-Coated Harness 
Trimming Co., Case No. 17,382. 

Cornsheller: No. 132,128, for improvement, 
held valid. — Adams v. Joliet Mfg. Co., Case No. 
56. 

Corset: No. 137,893, for an improvement in 
■corsets, held void because of prior publication 
abroad. — Cohn v. United States Corset Co., Case 
Xo. 2,969. 

Corset: No. 143,356, for corset clasp and 
■cloth attachment, held invalid for want of nov- 
elty.— Seligman v. Day, Case No. 12,643. 

Corset Skirt-Supporter: Nos. 22,532, 39,910, 

39,911, 45,296 (reissued No. 4,831), 54,323, and 

reissue No. 2,654, for improvements, held valid 

and infringed. — Foy v. Hunter, Cases Nos. 5,- 

«017, 5,018, 5,019. 

Corset Spring: No. 173,124 (reissued No. 7,- 
729), for improvement, held valid and infringed. 
— Judson v. Bradford, Case No. 7,564. 

Cotton-Bale Tie: No. 19,490, for improve- 
.ment in metallic cotton ties, held valid.— Cook v. 



(§ 266) 1760 



Ernest, Case No. 3,155. See, also, McComb v. 
Beard, Case No. 8,7Q6; Same v. Brodie, Id. 
8,708. 

Cotton-Bale Tie: No. 59,144, for improve- 
ment,/^^ valid and infringed. — Johnson v.Fass- 
man, Case No. 7,365. But see Johnson v. Beard, 
Case No. 7,371, 

Cotton Cleaner: Hayden's improvement held 
patentable. — Ex parte Hayden, Case No. 6,256. 

Cotton Cleaner: Nos, 18,742 and 29,971, for 
improvements, held valid and infringed.— Hay- 
den v. Suffolk Mfg. Co., Case No. 6,261. 

Cotton Press: Brooks' patent for improv- 
ment held void v f or want of novelty.— Wicks v. 
Stevens, Case No. 17,616. 

Coupling Bumper: Bishop's invention of slid- 
ing block with V-shaped chamber, for guiding 
link, held not patentable. — In re Bishop, Case 
No. 1,439. 

Cultivator: No. 4,459, for improvement, held 
valid and infringed. — Tracy v. Torrey, Case No. 
14,127. 

Cultivator: No. 19,412 (reissued No. 1,515), 
for improvement, held valid and infringed. — Den- 
nis v. Eddy, Case No. 3,794. 



Cultivator: No. 22,859 (reissued No. 2,380), 
for improvement in cultivators, held void for 
want of novelty. — Sayles v. Hapgood, Case No. 
12,42a 

Cultivator: No. 55,630, for improvement, held 
valid and infringed.— Dennis v. Eddy, Case No. 
3,795. 

Dam: No. 80,492, for improved portable and 
adjustable still-water dam, construed, and held 
not infringed. — Cammeyer v. Newton, Case No. 
2,345. 

Dental Plate: A dental plate made of cel- 
luloid held not an infringement of a patent for 
a vulcanite plate. — Goodyear Dental Vulcanite 
Co. v. Davis, Case No. 5,589. CONTRA, see 
Goodyear Dental Vulcanite Co. v. Preterre, Case 
No. 5,596. 

Dental Plate: No. 43,009 (reissued No. 1,904), 
for improvement in artificial gums and palates, 
held valid and infringed. — Goodyear Dental Vul- 
canite Co. v. Gardiner, Case No. 5,591; Same 
v. Root, Id. 5,597; Same v. Smith, Id. 5,598, 

Die: No. 68,446, for an improved die for 
swaging mattocks, hoes, etc., held not anticipat- 
ed, and valid. — Konold v. Klein, Case No. 7,- 
925. 

Distilling Tub: No. 81,115 (reissued No. 3,- 
612), for improvement in tubs for distilling es- 
sential oils, construed and limited, and held not 
infringed. — Van Alarter v. Miller, Case No. 16,- 
863. 

Door: No. 9,765, for an improved door fas- 
tening, construed, and verdict returned for de- 
fendant on the questions of novelty and in- 
fringement. — Kittle v. Merriam, Case No. 7,857. 

Door Knob: No. 2,197, for a porcelain knob, 
held invalid.— Hotchkiss v. Greenwood, Case No. 
6,718. 

Door Mat: No. 19,347, for cellular India-rub- 
ber door mat, construed, and held not infringed. 
— Brown v. Rubber-Step Mfg. Co., Case No. 
2,028. 

Dough: Invention of Treadwell for machine 
for making rolled dough held patentable. — Tread- 
well v. Fox, Case No. 14,156. 

Dry Dock: Application for patent for pump- 
ing apparatus refused for want of invention.— 
In re Everson, Case No. 4,580. 

Dust Deflector: No. 13,676, for an improved 
dust deflector for railroad car windows, con- 
strued, and held infringed.— Cook v* Howard, 
Case No. 3,160. 



1761 (§ 266) 



Egg Beater: No. 23,694, for improvement, con- 
strued, and held not infringed.— Monroe v. Dover 
Stamping Co., Case No. 9,714. 

Ejector: No. 92,718, for improvement, held 
not infringed.— Scaife v. Fulton, Case No. 12,- 
426. 

Elastic: No. 9,653 (reissued Nos. 2,843, 2,844, 
and 3,014), for improvement in corded elastic 
fabrics, held void for want of novelty.— Smith 
v. Elliott, Case No. 13,041; Same v. Nichols, 
Id. 13,084. But see Smith v. Glendale Elastic 
Fabrics Co., Case No. 13,050. 

Elastic Packing: Patent No. 3,579, granted 
August 3, 1869, for "improvement in the manu- 
facture of elastic packing," includes only soft 
vulcanized rubber, and not hard rubber.— Clarke 
v. Johnson, Case No. 2,855. 

Elastic Packing: No. 54,554 (reissued No. 3,- 
579), for improvement, lield valid and infringed. 
—Jenkins v. Johnson, Case No. 7,271. 

Elevator: Patent to Tufts, of December 11, 
1866, for improvement in elevator guides, held 
invalid for want of novelty.— Tufts v. Boston 
Mach. Co., Case No. 14,231. 

Elevator: No. 25,061, for improvements in 
hoisting apparatus, construed, strictly, and held 
not infringed.— Tufts v. Boston Mach. Co., Case 
No. 14,231. 

Elevator: No. 32,441, for improvements in the 
mode of suspending and operating elevators, held 
invalid for want of novelty.— Tufts v. Boston 
Mach. Co., Case No. 14,231. 

Elevator: No. 60,442, for improvements in the 
mode of adjusting the length and tension of the 
ropes, held invalid for want of novelty.— Tufts 
v. Boston Mach. Co., Case No. 14,231. 

Embroidering Machine: Nos. 83,909, 83,910, 
for improvement, held to he infringed.— Comely 
v. Henderickx, Case No. 3,240. 

Envelope: Manner of folding and pasting 
sides, held not patentable.— Arnold v. Pettee, 
Case No. 561b. 

Ether: No. 4,848, for an improvement in sur- 
gical operations by the use of ether, held invalid. 
—Morton v. New York Eye Infirmary, Case No. 
9,S65. 

Faucet: Jenkins patent of June 27, 1865, for 
a self-closing faucet, held valid.— Zane v. Peck, 
Case No. 18,200. 

Ferrotype and Ferrotype Plate: Reissue No. 
<5,982, for improvement, held valid.— Hedden v. 
Eaton, Case No. 6,318. 

Firearm: Cutting away obstructing portion 
of hinge of breach piece, quaere, whether pat- 
entable.— Berdan Fire-Arms Mfg. Co. v. Rem- 
ington, Case No. 1,336. 

Firearm: Improvement in priming tubes, held 
to involve patentable invention. — In re Halsey^ 
Oase No. 5,963. 

Firearm: No. 12,648, for improvement in re- 
peating firearms, held valid and infringed. — 
White v. Allen, Case No. 17,535. 

Firearm: No. 12,649, for improvement in re- 
peating firearms, held infringed. — White v. Bok- 
er, Case No. 17,637/ 

Firearm: No. 16,797 (reissued No. 3,798), for 
improvement in breach-loading firearms, held 
valid and infringed. — Renwick v. Cooper, Case 
No. 11,701; Same v. Pond, Id. 11,702. 

Firearm. No. 22,094 (reissued No. 3,946), for 
improvement, construed, and held valid and in- 
fringed.— Roberts v. Schuyler, Case No. 11,915. 

Fire Engine: No.l,9S0,for improvement, con- 
strued in a charge to the jury.— Ransom v. New 
York, Case No. 11,573. 

Fireplace: No. 14,447, for improvement, held 
not infringed.— Dodge v. Card, Case No. 3,951. 
Fed.Cas.Dig— 56 



PATENTS, XIIL (§ 266) 1762 

pPed. Cas. Dierestt] 

Fish: No. 31,736, for improvement in the 
method of preserving, held void for . want of 
novelty. — Piper v. Moon, Case No. 11,182. 

Flour: Construction of patent granted to Oli- 
ver Evans for an improvement in the art of 
manufacturing flour. — Evans v. Eaton, Case No. 
4,559; Same v. Hettick, Case No. 4,562. 



Flouring Machine: The third claim in letters 
patent of February 27, 1849, for an improvement 
on a machine for separating flour from bran, is 
bad for uncertainty, and the fourth claim is bad 
as one to the legal result.— Carr v. Rice, Case 
No. 2,439; *■ 

Fruit Jar: No. 102,913, to John L. Mason, 
held invalid, the right to a patent having been 
lost by delay.— Consolidated Fruit Jar Co. v. 
Wright, Case No. 3,135. 

Furnace: No. 12,678, No. 18,874, and reissue 
No. 446, for improvement in furnaces for burn- 
ing wet fuel, etc., construed, and held valid. — 
Black v. Thorne, Case No. 1,465. 

Furnace: No. 45,803, for improved method 
of desulphurizing and oxydizing metallic ores, 
held to interfere with No. 41,897, for improve- 
ment in stoves.— Gold & Silver Ore Separating 
Co. v. United States Disintegrating Ore Co., 
Case No. 5,508. 

Furnace: No. 71,244, for improvement in hot- 
air furnaces, held valid.— Thatcher Heating Co. 
v, Carbon Stove Co., Case No. 13,864. 

Furnace: No. 92,822 (reissued No. 7,254), for 
an improvement in hot-air furnaces, held valid, 
and infringed.— Flint v. Roberts, Case No. 4,S75. 

Gas-Burner: Walsh's invention of an im- 
provement held patentable.— In re Walsh, Case 
No. 17,112. 

Gas-Burner: First claim in patent granted 
June 14, 1870, for improvement in gas-burners* 
includes combination in patent granted July 26, 
1870, to a prior inventor.— Clough v. Gilbert & 
B. Mfg. Co., Case No. 2,906. 

Gas Meter: No. 12,535, for benzole vapor 
apparatus, held valid and infringed.— Munson 
v. Gilbert & B. Mfg. Co., Case No. 9,934. 

Ginning Machine: Patent to Whipple for im- 
provement held valid and infringed.— Whipple 
v. Middlesex Co., Case No. 17,520. 

Glass Cutter: No. 91,150, for improved tool 
for cutting glass, held valid, and infringed. — 
Monce v. Adams, Case No. 9,705. CONTRA, 
see Monce v. Woodworth, Case No. 9,706. 

Glove-Fastening: No. 155,077, for improve- 
ment^ construed, and held not infringed. — Field 
v. De Comean, Case No. 4,765. 

Glycerine: No. 11,766, for a process for pro- 
ducing fat acids and glycerine, held valid and 
infringed. — Tilghman v. Mitchell, Cases Nos. 14,- 
041, 14,042, 14,043. 

Grain Drill: No. 90,268 (reissued No. 3,976), 
for improvement, held valid and infringed. — 
Ingels v. Mast, Case No. 7,033. 

Grain Separator: Patent of December 20, 
1859, held valid. — Booth v. Parks, Case No. 
1,648. 

Gutta-Percha: No. 339, known as the "Grease 
Patent," held valid and infringed.— Poppenhusen 
v. Falke,* Case No. 11,2S0: Same v. New York 
Gutta-Percha Comb Co., Id. 11,283. 

Gutta-Percha: No. 10,741 (reissued No. 797), 
known as the "Tin-Foil Patent," held valid and 
infringed.— Poppenhusen v. Falke, Case No. 11,- 
280; "Same v. New York Gutta-Percha Corah 
Co., Id. 11,283. 

Hair Net: No. 124,340, for improvement in 
ladies' hair nets, construed, and held void for 
want of novelty. — Dalton v. Jennings, Case No. 
3,548. 



1763 (§ 266) 



Hand Stamp: No. 18,249 (reissued No. 4,- 
675) for improvement, held valid and infringed. 
—Robertson v. Garrett Case No. 11.924; Same 
v. Secombe Mfg. Co,, Case No. 11,928. 

Harness-Saddle Pad: No. 86,112, for improve- 
ment, held valid.— American Saddle Co. v. Hogg, 
Case No. 315. 

Harvester: McCormick patent for the ar- 
rangement of the raker's seat construed, and 
held valid. — McCormick v. Seymour, Cases Nos. 
8,725, 8,726. 

Harvester: No. 15.044 (reissued No. 4,281), 
for improvement, held invalid.— Mann v. Bayliss, 
Case No. 9,034. 

Harvester: No. 74,342, for improvement, held 
valid and infringed. — Graham v. Gammon, Case 
No. 5,6G8. 



Harvester Rake: No. 14,350 (reissued No. 2,- 
982, and extended March 4, 1870), for improve- 
ment, held valid and infringed. — Dorsey Har- 
vester Revolving-Rake Co. v. Marsh, Case No. 
4,014. 

Hat: Patent to Kendall and Trested, for 
compound for coating textile fabrics, held not 
infringed.— Baldwin v. Schultz, Case No. 804. 

Hat: Patent to Noe of July 20, 1843, for 
sewing edges of braid together with horse-hair, 
held valid.— Noe v. Prentice, Cases Nos. 10,2S4, 
10,284a. 

Hat: No. 4,472 to Wells, and reissues to Burr 
and others, for improvement in making and 
hardening bats of wool or fur for hat bodies, 
construed, and held valid, but not infringed. — 
Burr v. Cowperthwait, Case No. 2,188; Same 
v. Duryee, Id. 2,190. 

Such patent held infringed. — Burr v. Prentiss, 
Case No. 2,194. 

Hat: No. 30,379, for improvement in curling 
hat brims, construed, and held to be infringed. 
— Doubleday v. Sherman, Case No. 4,022. 

Hat: No. 33,978, for improvement in manu- 
facture, held infringed. — Baldwin v. Bernard, 
Case No. 797. But, see Baldwin v. Schultz, 
Case No. 804. 

Hat: No. 34,043, for improvement in men's 
hats, held valid and infringed. — Mallory v. 
White, Case No. 8,993. 

Hat: No. 46,553 (reissued No. 3,217), for im- 
provement in machines for stretching hat bodies, 
construed, and held valid and infringed. — Eicke- 
meyer Hat-Blocking Macb. Co. v. Pearce, Case 
No. 4,312. 

Hat Body: Application for patent for ma- 
chine for making, rejected because of prior pub- 
lic use or sale. — Cowperwaithe v. Gill, Case No. 
3,298. 

Hayrake : No. 21,712, for improvement in, 
construed and held valid and infringed. — Brown 
v. Whittemore, Case No. 2,033. 

Headlight: No. 35,122 (reissued No. 2,133), 
for improvement in locomotive lamps, held valid 
in part and infringed. — Williams v. Boston & 
A. R. Co., Case No. 17.716; Same v. Rome, W. 
& O. R. Co., Id. 17,735. 

Hoop Skirt: Nos. 34,026 (reissued No. 1,518) 
and 37,124, for improvements in machinery for 
fastening clasps or spangles to the hoops and 
tapes of hoop skirts, held valid and infringed. 
—Wilcox v. Komp, Case No. 17,641. 

Hoop Skirt: No. 74,672, for improvement in 
springs, construed, held valid and infringed. — 
Young v. Lippman, Case No. 18,160. 

Horse Rake: No. 21,712 (reissued No. 2,994), 
for improvement, held to be infringed. — Edgar- 
ton v. Breck, Case No. 4,279. 



PATENTS, XIII. (§ 266) 1764 

[Fed. Cas. Digest.] 

Hotel Register: No. 63,889, for an advertis- 
ing hotel register, held valid and infringed. — 
Hawes v. Antisdel, Case No. 6,234; Same v. 
Cook, Id. 6,236. 

Hydraulic Mining: No. 110,222 (reissued No. 
5,193), for an improvement in hydraulic mining 
apparatus, held valid and infringed.— Fisher v. 
Craig, Case No. 4,817. 

Hydraulic Power: Patent to Parker of Octo- 
ber 19, 1829, for improvement, held valid and 
infringed.— Parker v. Hatfield, Case No. 10.736; 
Same v. Stiles, Id. 10,749. 

Hydrometer: Adams' improvement, held pat- 
entable.— Ex parte Adams, Case No. 38a. 

India Rubber: No. 16, to Chaffee, covers both 
the process and the machinery used in carrying 
it on.— Day v. Union India-Rubber Co., Case 
No. 3,691. 



Horseshoe: No. 17,665, for improved machine 
for making, construed. — Burden v. Corning, Case 
No. 2,143. 



India Rubber: No. 3,633 (reissued No. 156, 
and No. 1,085), for improvement in manufac- 
ture of India rubber fabrics, held valid and in- 
fringed.— Goodyear v. Beverly Rubber Co., Case 
No. 5,557; Same v. Providence Rubber Co., 
Id. 5,583. 

India Rubber: No. 8,075 (reissued No. 556 
and No. 557), for improvement in manufacture 
and product, held valid and infringed.— Good- 
year v. Berry, Case No. 5,556; Same v. Blake, 
Id. 5,560; Same v. Evans, Id. 5,571; Same v. 
Mullee, Id. 5,577, 5,579; Same v. New York 
Gutta Percha, etc., Co., Id. 5,580; Same v. 
Rust, Id. 5,584; Same v. Wait, Id. 5,587. 

Insulator: No. 65,019, for an improvement in 
insulating submarine cables, construed, and held 
valid.— Colgate v. Western Union Tel. Co., Case 
No. 2,995. 

Iron Molding: No. 142,661, for an improve- 
ment for black-washing molds; No. 53,S83, for 
improved molding and casting apparatus; and 
No. 37,037, for improved flasks for cast-iron 
pipes,— held not infringed.— Smith v. Marshall. 
Case No. 13,077. 

Isinglass: No. 134,690, for improvement in 
manufacture, held invalid, the invention having 
been in public use for more than two years. — 
Manning v. Cflpe Ann Isinglass & Glue Co., 
Case No. 9,041. 

Jail: No. 110,483, for an invention relating 
to the construction of jails, construed in a 
charge, and found infringed by the jury.— May 
v. Johnson County, Case No. 9,334. 

Journal: No. 1,252, for improvement in boxes 
or bearings for journals or axles, construed in a 
charge to a jury.— Roberts v. Ward, Case No. 
U,91S. 

Kettle: No. 8,589, for machine for making 
kettles and articles of like character from disks 
of metal, held valid. — Waterbury Brass Co. v. 
New York & B. Brass Co., Case No. 17,256. 

Kindling Wood: No. 93,775, for improve- 
ment, held void.— Alcott v. Young, Case No. 
149. 

Knitting Machine: No. 99,426 and reissue 
No. 7,368, for improvements, held valid.— Franz 
& Pope Knitting Mach. Co. v. Bickford, Case 
No. 5,061. 

Knitting Needle: No. 6,025, for improvement,. 
held valid.— Aiken v. Dolan, Case No. 110. 

Lamp: No. 13,286, for improvement relating 
to the attachment for securing the globe, held 
invalid. — Dennis v. Cross, Case No. 3,792. 

Lamp: No. 20,159 (reissued No. 648), for im- 
provement in lamps, held valid and infringed. 
— Jones v. Vankirk, Case No. 7,500. 

Lamp: No. 30,381 (reissue No. 6,844), for 
improvement, held invalid. — Miller v. Bridge- 
port Brass Co., Case No. 9,563. 

Lamp: No. 49,984, for improvement, con- 
' strued as a combination of a burner and chim- 



1765 (§ 266) 



PATENTS, XIII. 

[Fed, Cas. Digest.] 



(§ 266) 176$ 



ney, and held infringed by a sale of the burner 
alone.— Wallace v. Holmes, Case No. 17,100. 

Lamp: No. 50,591, for hinged top, held valid. 
—Adams v. Illinois Mfg. Co., Case No. 54. 

Lamp: Nos. 65,230, 73,012, 86,549, 89,770, 
and 99,443, for improvement in lamps and lan- 
terns, held valid and infringed.— Irwin v. Dane, 
Case No. 7,082. 

Last: No. 36,495, for an improvement in shoe- 
lasts, construed to be for a specific device, not 
a combination, and held infringed. — Mabie v. 
Haskell, Case No. 8,653. 

Lathe: Blanchard's patent for a machine for 
turning irregular forms construed, and held to be 
infringed.— Blanchard v. Eldridge, Case No. 1,- 
509; Same v. Reeves, Id. 1,515. 

Lathe: No. 10,204, for machine for turning 
and cutting irregular forms, held valid and in- 
fringed.— Gear v. Grosvenor, Case No. 5,291. 

Lathe: No. 23,957, for improvement in lathes 
for turning irregular forms; held invalid for 
want of novelty.— Spring v. Packard, Case No. 
13,260. 

Lathe: No. 53,003, for improvement, con- 
strued, and held valid and infringed.— American 
Whip Co. v. Lombard, Case No. 319. 

Lead Pencil: No. 36,854 (reissued No. 3,803), 
for combination of the lead and an India-rub- 
ber eraser in the same sheath, construed, lim- 
ited, and held not infringed. — Reckendorfer v. 
Faber, Case No. 11,625. 

Leather: Woodman's patent of March 29, 
1864, for an improved machine for ornamenting 
leather, held valid and infringed. — Woodman v. 
Stimpson, Case No. 17,979; Woodman Pebbling 
Mach. Co. v. Guild, Id. 17,981. 

Leather Dressing: No. 83,925, for improved 
bronze dressing, held valid and infringed. — Ca- 
hill v. Beckford, Case No. 2,290; Same v. 
Brown, Id. 2,291. 

Level: The invention of Thomas A. Chand- 
ler for a level (patent No. 17,023) possesses 
patentable novelty, and is prior to the invention 
for which the patent No. 7,263 was granted to 
William G. Ladd, and to the invention for 
which Samuel Reed applied for a patent. — 
Chandler v. Ladd, Case No. 2,593. 

Level: No. 39,906, for improvement, held 
void, as containing too broad a claim. — Stan- 
ley Rule & Level Co. v. Davis, Case No. 13,288. 

Lock: Sherwood's patent for double-faced 
door locks held valid.— Livingston v. Jones, Case 
No. 8,413. 

Lock: No. 16,676, for improved keeper for 
right and left hand door locks, held valid and 
infringed by Patterson's patent.— Adams v. 
Jones, Case No. 57. 

Lock: No. 32,331 (reissued No. 4,170), for 
improvement in locks, held valid and infringed. 
—Yale & G. Mfg. Co. v. North, Case No. 18.123. 

Lock: No. 35,030, for improvement, con- 
strued, and held not infringed. — Miller v. Smith, 
Case No. 9,589. 

Lock and Latch: Claims of reissued patent 
granted to Charles A. Miller, January 27, 1S63, 
for improvement in locks and latches, so con- 
strued as to relieve the objection that they claim 
results or effects. — Coffin v. Ogden, Case No. 
2,950. 

Lock and Latch: No. 72,946, for improve- 
ments in reversible locks and latches, held valid 
and infringed.— Russell & Erwin Mfg. Co. v. 
Mallory, Case No. 12,166; Same v. P. & F. 
Corbin Mfg. Co., Id. 12,167. 

Locomotive: No. 34,377, for "improvement in 
trucks for locomotives," construed, and held 
valid and infringed— Locomotive Engine Safety 
Truck Co. v. Erie Ry. Co., Case No. 8,452; 
Same v. Pennsylvania R. Co., Id. 8,453. 



Loom: No. 6,936, for improvement in looms 
for weaving figured fabrics, held not infringed* 
— Crompton v. Bellknap Mills, Case No. 1S,2S5.. 

'Loom: No. 130,961, for improvement, hel$ 
infringed.— Webster v. New Brunswick Carpet 
Co., Case No. 17,337. Such patent held in- 
valid.— Webster Loom Co. v. Higgins, Case No- 
17,342. 

Lubricating Machinery: No. 36,603, for im- 
provements in machinery for oiling or lubri- 
cating wool or other fibrous materials, held 
valid and infringed.— Harwood v. Mill River 
Woolen Mfg. Co., Case No. 6,187. 

Lubricating Oil Can: Device for opening and 
closing spout held patentable.— Ex parte Ar- 
thur, Case No. 563a. 

Lubricator: No. 79,279, for improvement, 
held valid.— Pelton v. Waters, Case No. 10,913. 

Machine for Splitting Wood: No. 12,857, con- 
strued, and held* infringed.— Conover v. Dohr- 
man, Case No. 3,120; Same v. Rapp, Id. 3,124; 
Same v. Roach, Id. 3,125. But see Johnson 
v. Onion, Case No. 7,401. 

Matches: Phillips' patent of 1836, for im- 
provement, held valid.— Bryan v. Stevens, Case 
No. 2,066a. 

Matches: No. 68, for improvements in the 
mode of manufacturing friction matches, con- 
strued broadly, and held infringed. — Ryan v. 
Goodwin, Case No. 12,186. 

Meat: No. 12,530, for improvement in process- 
es for curing, held valid.— Pike v. Potter, Case 
No. 11,162. 

Metal: 1 No. 35,842 (reissued No. 1,651), for 
an apparatus for recovering gold and silver 
from waste solutions, held invalid.— Shaw &> 
Wilcox Co. v. Lovejoy, Case No. 12,727. 

Metallic Packing: No. 5,767, for an "im- 
proved composition for 'metallic packing in 
steam engines," construed in a charge to a 
jury.— Matthews v. Skates, Case No. 9,291. 

Metal Tool: Application for patent for cast- 
ing tools with iron bodies and steel edges de- 
nied.— Collins v. White, Case No. 3,019. 

Millstone: Hoyt's invention of improvement 
by uniting segments by molten metal held pat- 
entable.— Ex parte Hoyt, Case No. 6,804. 

Mirror: Claim of patent granted July 27, 
1869, for an "improved hand mirror," covers 
a mirror having two wires running from the 
body into the handle and concealed by cement, 
of which the handle and back are composed- 
Such patent held valid. — Clark v. Scott, Case No. 
2,833. 

Mirror : No. 92,942, for improvement, held 
not infringed.— Florence Mfg. Co. v. Boston 
Diatite Co., Case No. 4,882. 

Mortising Machine: No. 10,422, for an im- 
provement, construed, and held valid and in- 
fringed.— Smith v. Fay, Case No. 13,045. 

Moulding: No. 74,068, for an improvement 
in machine for forming sheet metal mouldings, 
held valid and infringed. — Fischer v. Wilson, 
Case No. 4,812. 

Nickel Plating: Nos. 93,157, 102,748, and 
113,612, for improvements in the electro-depo- 
sition of nickel, held valid and infringed. — 
United Nickel Co. v. Anthes, Case No. 14,406; 
Same v. Harris, Id. 14,407; Same v. Keith, 
Id. 14,408; Same v. Manhattan Brass Co., Id. 
14.410. 

NGnexplGsive Lamp: No. 57,245, to Beschke, 
held not infringed by Houchin's patent.— Ash- 
croft v. Hollings, Case No. 579; 

Nut Making Machine: Patent No. 13,118 is 
entitled to priority over patent No. 8,427.— Car- 
ter v. Carter, Case No. 2,475. 

Nut: No. 8,427 (reissue No. 666), and No. 
13,118 and No. 8,322 (reissued No. 313), for im- 



1767 (§ 266) 



PATENTS, XIII. (g 266) 176S 

[Fed. Cas. Digest.] 

provement in the manufacture of nuts, heldx Phosphoric Acid: No. 14,722 (reissued No. 2,- 
valid and infringed by machines described in 979), for an improvement in preparing: phos- 
<r«u:„v.~i.r«>« « n + ft «+ rt <F Vrtiran^oT 17 1Sfi3 nrtd nhnrin n^id n.s s\. substitute for other solid acids 



Chisholm's patent of November 17, 1S63, and 
Paton's patent of November 29, 1864.— Wood 
v. Cleveland Rolling-Mill Co., Case No. 17,941; 
Same v. Union Iron-Works Co., Id. 

Oil: No. 90,284, for improved manufacture of 
heavy hydrocarbon oils, construed.— Merrill v. 
Yeomans* Case No. 9,472. 

Oil Well: No. 59,936 (reissued No. 6,258), 
for improvement in method of increasing ca- 
pacity, lieJd valid and infringed.— Roberts v. 
Dlckev, Case No. 11,899; Same v. Roter, Id. 
11.912. 

Paint Can: No. 24,748, for improvement, con- 
strued, and Jield valid and infringed.— Masury 
v. Anderson, Case No. 9,270; Same v. Tiemann, 
Id. 9,271. 

Paper: Ames' patent construed and held in- 
fringed.— Ames v. Howard, Case No. 326. 

Paper: No. 1,336, for a machine for making 
paper, found valid, and infringed, by the ver- 
dict of a jury.— Knight v. Gavit, Case No. 7,8S4. 

Paper: No. 94,843, for an improved paper- 
pulp engine, held valid and infringed.— Rose v. 
Sibley Mach. Co., Case No. 12,051. 

Paper: No. 134,105, for machine for uniting 
paper and cloth, held void for want of novelty. 
—Snow v. Tapley, Case No. 13,147. 

Paper Bag: Notch in mouth to facilitate 
opening held not patentable.— In re Arkell, Case 
No. 531. 

Paper Bag: No. 24,734, for improvement in 
machinery for making paper bags, held valid 
and infringed.— Union Paper-Bag Mach. Co. v. 
Pultz & Walkley Co., Cases Nos. 14,392, 14,393. 

Paper Bag: No. 48,036, for improvement, 
held valid and infringed.— Arkell v. J. M. Hurd 
Paper-Bag Co., Case No. 532. 

Paper Bag: No. 49,951, for machine for 
making, construed, and held valid and infringed. 
—Union Paper-Bag Mach. Co. v. Newell, Case 
No. 14,390. 

Parer: No. 10,078, for improvement in apple- 
paring machine, construed.— Sargent v. Carter, 
Case No. 12,362. 

Paste: No. 52,779 for improved paste for 
bookbinders, construed, and held infringed.— 
Woodward v. Morrison, Case No. 18,00S. 

Patent Roller: Hutchinson's improvement held 
patentable.— Hutchinson v. Meyer, Case No. 6,- 
957. 

Pavement: Smith's invention of an improve- 
ment in iron pavements held patentable.— Ex 
parte Smith, Case No. 12,966. 

Pavement: Tillman's invention held no in- 
fringement of Kirk's invention.— Ex parte Till- 
man, Case No. 14,050. 

Pavement: No. 11,941 held infringed by 
Brocklebank's and Trainer's patent for improve- 
ment. — American Nicholson Pavement Co. v. 
Elizabeth, Case No. 311. 

Pavement: No. 11.&41 (reissues Nos. 1,583 and 
2,748), for improved wooden pavements, con- 
strued, and held not infringed.— Nicholson Pave- 
ment Co. v. Hatch, Case No. 10,251. 

Pavement: No. 121,544, for improvement in 
wooden pavements, held void for want of nov- 
elty—Phillips v. Detroit, Case No. 11,100. 

Pegging Machine: Nos. 9,947, 23,361, and 
36,292 (reissues Nos. 3,533 and 3,517), for im- 
proved machine for pegging boots and shoes, con- 
strued, and held valid and infringed— Gallahue 
v. Butterfield, Case No. 5,198. 

Petroleum: No. 49,502, for improved process 
for purifying, held valid and infringed.— Na- 
tional Filtering Oil Co. v. Arctic Oil Co., Case 
No. 10,042. 



phoric acid as a substitute for other solid acids, 
held void as to certain claims, and valid and 
infringed as to others. — Rumford Chemical 
Works v. Hecker, Case No. 12,133; Same v. 
Lauer, Id. 12,135. 

Photograph: No. 179,316. for improvement in 
making colored photographs on glass, held valid 
and infringed.— Irish v. Knapp, Case No. 7,003. 

Photographic Shield: No. 21,S29 held valid. 
— Gordon v. Anthony, Case No. 5,605. 

Pin: Slocum's patent for "a machine for 
sticking pins into paper" and Howe's improve- 
ment defined, and held not infringed by Cros- 
by's patented machine. — American Pin Co. v. 
Oakville Co., Case No. 313. 

Pipe: No. 1,980, for machine for making lead 
pipe by pressure, held valid and infringed. — Tat- 
ham v. Le Roy, 'Case No. 13.760. But see Tat- 
ham v. Ire Roy, Case No. 13,762. 

Pitching Barrels: No. 42,580, for improved 
method of pitching inside of barrels, held valid 
and infringed.— Gottfried v. Bartholomae, Case 
No. 5,632; Same v. Phillip Best Brewing Co., 
Id. 5,633. 

Planing Machine: Woodworth's patents held 
valid and infringed. — Brooks v. Jenkins, Case 
No. 1.953; Gibson v. Betts, Id. 5,390; Same v. 
Gifford, Id 5,395; Same v. Harris, Id. 5.396; 
Same v. Van Dresar. Id. 5,402; Olcott v. 
Hawkins, Id. 10,480; Pitts v. Edmonds, Id. 11.- 
191; Sloat v. Patton, Id. 12,947; Smith v. Mer- 
cer, Id. 13,078; Van Hook v. Pentleton, Id. 
16,851; Same v. Scudder, Id. 16.853; Same v. 
Wood, Id. 16,855; Wilson v. Curtius, Id. 17,S00; 
Same v. Rousseau, Id. 17,832; Bloomer v. Mc- 
Quewan, Id. 18,242. 

Planing Machine: No. 32,904, for improve- 
ment, held valid and infringed.— Stover v. Hal- 
sted, Case No. 13,509. 

Planing Machine: No. 138,462, for improve- 
ment, held invalid, as having been anticipated. 
—Woodbury Patent Planing Mach. Co. v. Keith, 
Case No. 17,970. 

Plastering Hair: No. 152,560, for a method 
of putting up plastering hair in convenient pack- 
ages for sale and transportation, held void for 
want of invention.— King y. Frostel, Case No. 
7,794. 

Plow: Patent to Davis for improvement in 
moldboards construed, and held valid.— Davis 
v. Palmer, Case No. 3,645. 

Plow: Prouty's patent for an improvement 
construed, and held not infringed.— Prouty v. 
Draper, Case No. 11,446. 

Power: Parker's patent of October 19, 1843, 
for an improvement in the application of t hy- 
draulic power, construed in a charge to a jury. 
— Wmtermute v. Redington, Case No. 17,896. 

Preserving Jar: No. 97,920, for improvement, 
held valid.— Watson v. Cunningham, Case No. 
17,280. 

Printer's Galley: No. 60,151 (reissued No. 6.- 
326), for improvement, held valid and infringed. 
—Hoe v. Tuthill, Case No. 6,573. 

Printing Press: Priority awarded for a device 
for stopping the impression without stopping the 
machine.— Ruggles v. Young, Case No. 12.122. 

Printing Press: Award of -priority to No. 22,- 
611 for improvement.— Babcock v. Degener, 
Case No. 698. 

Printing Press: Patent No. 98,087 is valid.— 
Child v. Boston & F. Iron Works, Case No. 2.- 
675. 

Puddler's Ball: A patent for a machine for 
rolling puddler's balls held to be for a process. — 
Burden v. Corning, Case No. 2,144. 



1769 (§ 266) 



PATENTS, XIII. 

(Fed. Cas. Digest.] 



(§'266) 1770 



Puddling Furnace: No. 153,110, for improve- 
ment, held valid and infringed.— Pennock v. 
Beale, Case No. 10,940. 

Pump: Patent awarded to Boardman for im- 
provements.— Atkinson v. Boardman, Case No. 
COS. 

Pump: No. 73,93S. for improved apparatus 
for cleaning privies, held valid and infringed.— 
Odorless Excavating Apparatus Co. v. Mc- 
Cauley, Case No. 10,436. 

Pump: Holly's patent, No. 87,413 (reissue 
No. 5,132), for a device for supplying city with 
water, held valid and infringed.— Holly v. Union 
City, Case No. 6,624. 

Pump: No. 141,587, for improvement in 
pump valves, held valid and infringed.— Odor- 
less Excavating Apparatus Co. v. McCauley, 
Case No. 10,436. 

Pump: No. 155,670,. for improvement in 
Runips for emptying cesspools, held valid and 
infringed.— Odorless Excavating Apparatus Co. 
v. McCauley, Case No. 10,436. 

Pump Tube: No. 45J547 held void for want 
of novelty.— Shoup v. Henrici, Case No. 12,- 
814. 

Rail: Nos. 9,703, 9,704, for invention of 
splice plate, held valid.— O'Reilly v. Smith, Case 
No. 10,566. 

Rail: No. 15,687, for improvement in anvil 
or swage block for welding railroad bars, held 
valid and infringed.— Turrill v. Illinois Cent. R. 
Co., Cases Nos. 14,270, 14,271. 

Railroad Car: No. 389 for improvement in 
mode of supporting bodies of cars, and connect- 
ing them with truck, construed, and held in- 
fringed.— Imlay v. Norwich & W. R. Co., Case 
No. 7,012. 

-Railroad Car: Winan's patent of October 1, 
1834, construed, held valid and infringed.— Win- 
ans v. New York & H. R. Co., Case No. 17,- 
S64; Same v. Schenectady & T. R. Co., Id. 17,- 
865. 

Railway-Track Broom: No. 180,717, for im- 
provement, held valid.— Isaacs v. Abrams, Case 
No. 7,095. 

Reed Organ: No. 87,241, for improvement, 
held valid and infringed.— Burdett v. Estey, 
Cases Nos. 2,145, 2,146. 

Refrigerator: No. 13,803 (reissued No. 455), 
for improvement, held invalid for want of nov- 
elty.— Roberts v. Buck, Case No. 11.897; Same 
v. Ryer, Id. 11,913. CONTRA, see Roberts v. 
Harnden, Case No. 11,903. 

Register: No. 76,646, for a conductor's regis- 
ter of fares and tickets, construed, and held not 
infringed.— Railway Register Mfg. Co. v. High- 
land St. Ry. Co., Case No. 11,535. 

Revolver: No. 30,990, for an improvement, 
held valid, on proof of priority of invention over 
No. 2S,9ol (reissued as No. 1,268).— Smith v. 
Allen, Case No. 12,999. 

Rocking-Chair: No. 1,531, for improvement, 
held invalid.— Bean v. Smallwood, Case No. 1,- 
173. 

Rubber: Ayling's patent for improved treat- 
ment of caoutchouc held valid.— Ayling v. Hull, 
Case No. 686. 

Rubbing Machine: Nos. 75,217 and 75,21S, 
for an apparatus for exercise, held infringed by 
Wood's patent for an improved apparatus for 
treating diseases by mechanical movement- 
Taylor v. Wood, Case No. 13,808. 

' Rubbing Machine: No. 77,933, for an oscillat- 
ing rubbing machine for medical uses, lield in- 
fringed by Wood's patent for an. improved ap- 
paratus for treating diseases by mechanical 
movement.— Taylor v. Wood,- Case No. 13,808. 

Ruffle: No. 28,244, for improvement in man- 
ufacture, construed.— Magic Ruffle Co. v. Doug- 



las, Case No. 8,948; Same v. Sim City Co., Id. 
8,949. 

Ruled Paper: No. 158,249 held invalid.— Cone 
v. Morgan Envelope Co.," 1 Case No. 3,096. 

Saddle: The Dixon patent for improvement, 
held invalid.— Dixon v. Moyer, Case No. 3,931. 

Safe: No. 3,117, for application of plaster of 
Paris, held valid.— Adams v. Edwards, Case No. 
53. 

m Sand Cutting: No. 108,408, for improvement 
in. cutting and engraving stone, metal, glass, 
etc., held valid and infringed.— Tilghman v. 
Morse, Case -No. 14,044. 

Sawmill: No. 51,310, for improvement, held: 
Z a J^ and i^MSed.— ^Hamilton v. Ives, Case No. 
5,982; Same v. Rollins, Id. 5,98S. 

Screw Auger: No. 56,869, for improved ma- 
chine for swaging the heads of screw' augers, 
held valid and infringed.— Jennings v. Pierce, 
Case No. 7,283. 

Screw Peg: No. 85,374, for a self-clinching 
metallic screw peg for fastening soles of shoes, 
held valid, but not infringed.— Estabrook v. Dun- 
bar, Case No. 4,535. 

. Seat: Nos. 134,486, 163,537; for improvement 
in show and portable seats and circus seats,. 
held not infringed.— Price v. Kelley, Case No^ 
11,413. 

Seed Drill; Nos. 30,6S5, 31,819, for improve- 
ments, construed, and held not infringed.— Moore 
v. Thomas, Case No. 9,776. 

Seed Planter; Patent No. 12,231 held not in- 
fringement—Case v. Brown, Case No. 2,4S8. 

Seed Planter: No. 26,410, for improvement,, 
construed and limited, and held not infringed.— 
Trader v. Messmore, Case No. 14,132. 

Seed Planter: Nos. 88,971, 91,144, for ma- 
chines for sowing seed, held valid and infringed. 
— Holbrook v. Small, Case No. 6,595. 

Sewing Machine: Anti-friction surfaces for 
thread held not patentable.— Ex parte Berry, 
Case No. 1,353. 

Sewing Machine: Gibbs* automatic or self- 
feeder held not equivalent to Johnson's hand- 
feeder.— Gibbs v. Johnson, Case No. 5,384. 

Sewing Machine: Priority awarded to John- 
sou over Gibbs for chain stitch.— Gibbs v. John- 
son, Case No. 5,384. 

Sewing Machine: Munson's claim for tuck- 
ing gauge held anticipated by patent No. 11,- 
615.— Ex parte Munson, Case No. 9,933. 

Sewing Machine: Patent to Robertson for im- 
provement construed, and held valid and infrin- 
ged.— Dibble v. Augur, Case No. 3,879. 

Sewing Machine: No. 2,135, for improvement, 
construed, and held infringed.— Potter v. Brauns- 
dorf, Case No. 11,321. 

Sewing Machine: No. 4,750, to Howe, for im- 
provement, held valid and infringed.— Howe v. 
Morton, Case No. 6,769; Same v. Underwood, 
Id. 6,775; Same v. Williams, Id. 6,778. 

Sewing Machine: No. 7,776 (reissued Nos., 
34o, 346), for improvement, construed, held valid 
and infringed.— Potter v. Davis Sewing-Mach. 
Co., Case No. 11,324; Same v. Holland, Id. U,- 
330; Same v. Muller, Id. 11,334; Same v. 
Schenck, Id. 11&3T; Same v. Whitney, Id. 11,- 
341; Same v. Wilson, Id. 11,342. 

Sewing Machine: No. 10,597 (reissued No. 
d55), for improvement, held valid and infringed., 
—Johnson v. Root, Cases Nos. 7,410, 7,411. 

Sewing Machine: No. 10,974 held not .in- 
fringed.— Singer v. Wooster, Case.No. 12,901a_ 

Sewing Machine: No. 16,030, for an improve- 
ment, construed, and held valid and infringed. — 
Singer v. Braunsdorf, Case No. 12,897. 



1771 (§ 266) 



PATENTS, XIII. 
[Fed. Cas. Digest.] 



(§ 266) 1772 



Sewing Machine: No. 26,205, relating to 
braiding attachments, construed, and held not 
infringed.— Dibble v. Sibley, Case No. 3,883. 

Sewing Machine: Nos. 28,633 and 40,084 (re- 
issued No. 3,218), for improved tucker, con- 
strued, and lield not infringed.— Fuller v. Yent- 
zer, Case No. 5,151. 

Sewing Machine: No. 29,785, for improve- 
ment, held valid and infringed.— Haskell v. Shoe 
Mach. Mfg. Co., Case No. 6,194. 

Sewing Machine: No. 37,033, for improve- 
ment in machines for filling and crimping, 'held 
valid and infringed.— Elm City Co. v. Wooster, 
Case No. 4,415. 

Sewing Machine: No. 53,927, for an improve- 
ment for stitching the sweat cloths to hats, con- 
strued, and held valid.— Sanford v. Merrimack 
Hat Co., Case No. 12,313. 

Sewing Silk: No. 173,125, for an improved 
method of putting up sewing silk, field void be- 
cause of anticipation.— Knowlton v. Holland, 
Case No. 7,904. 

Shade Roller: No. 11,638, for improvement in 
spring rollers, field valid and infringed.— Bray 
v. Hartshorn, Case No. 1,820. 

Shears: No. 1,092, for improvement in tailors' 
shears, field valid and infringed.— Heinrich v. 
Luther, Case No. 6,327. 

Sheep-Shears: No.42,572 (reissued No.5,701), 
for improvement, lidd valid and infringed.— 
Earle v. Harlow, Case No. 4,246. 

Shingle Machine: No. 11,858, for improve- 
ment, construed, and field valid, but not in- 
fringed.— Evarts v. Ford, Case No. 4,574. 

Shingle Mill: Patent to Earle of December 
28, 1822, for improvement, field valid and in- 
fringed.— Earle v. Sawyer, Case No. 4,247. 

Shirt Cuffs: No. 56,737, for improvement in 
paper cuffs, field void in part and valid in part 
and infringed.— Union Paper-Collar Co. v. Van 
Deusen, Case No. 14,395. 

Sieve: No. 106,597, field not infringed.— Ad- 
ams & W. Mfg. Co. v. St. Louis Wire-Goods 
Co., Case No. 72. 

Sizing Machine: No. 41,214, for machine for 
surface sizing fibrous materials, construed, and 
held not infringed.— Fuzzard Wadding Mfg. Co. 
v. Dickinson, Case No. 5,165. 

Skirt: Doughty & Draper patent for woven 
skeleton skirts field valid.— Draper v. Moran, 
Kelly & Co., Case No. 4,070. 

Skirt: No. 25,701 (reissued No. 870), for im- 
provement in skeleton skirts, construed, and 
held not to be infringed.— Doughty v. West, Case 
No. 4,029. But see Doughty v. West, Case No. 
4,028. 

Skirt Hoop: No. 20,681, for improvement, 
construed, and field valid and infringed.— Dough- 
ty v. Day, Case No. 4,026. 

Skirt Protector: No. 155,534 field valid against 
the defense of anticipation, and infringed.— Mac- 
Donald v. Blackmer, Cases Nos. 8,757, 8,758; 
Same v. Shepard, Id. 8,767; Same v. Sidenberg, 
Id. 8,768. 

Soap: No. 118,440, for improvement, field 
valid and infringed.— Eastman v. Hinckel, Case 
No. 4,256. 

Soda-Water Apparatus: No. 40,811, for im- 
provement, field valid.— Blaisdell v. Tufts, Case 
No. 1,491. 

Speaking-Tube Whistle: No. 103,406, for im- 
provement, field infringed.— Woolcocks v. Many, 
Case No. 18,024. 

Speeder for Roving Cotton: No. 3,089, for im- 
provement in. held valid and infringed.— Davoll 
v. Brown, Case No. 3,662. 



Spelling Block: No. 59,603, for improvement 
in cubical blocks, held not infringed.— Hill v. 
Houghton, Case No. 6,493. 

Spike: Burden's patent for improvements in 
machinery for making hook or brad-headed 
spikes, held valid.— Troy Iron & Nail Factory 
v. Erastus Corning, Case No. 14,195. 

Stamp: No. 91,108, for an improved govern- 
ment revenue stamp, held valid, but not in- 
fringed.— Fletcher v. Selden, Case No. 4,S66. 

Stamper: No. 114,068, for improvement in 
machines for punching and stamping sheet 
metal, held null and void, and ordered to be can- 
celed.— Sturges v. Van Hagen, Case No. 13,570. 

Steamboat Staging: No. 31,147, for improve- 
ment, held to be infringed.— Converse v. Can- 
non, Case No. 3,144. 

Steam Engine: No. 13,145, for improvements, 
in packing for pistons or stufting boxes, limited, 
and field infringed.— Tuck v. Bramhill, Case No. 
14,213. 

Steam Engine: No. 21,059, for a bed plate, 
construed, held valid and infringed. — Blandy v. 
GriflSth, Case No. 1,529. See, also, In re Blan- 
dy, Case No. 1,528. 

Steam Gauge Cock: No. 13,563, for improve- 
ment, held valid and infringed.— Dalton v. Nel- 
son, Case No. 3,549. 

Steam Joint: No. 17,855, for rendering joints 
steam-tight, held valid and infringed.— Poillon v. 
Schmidt, Case No. 11,241. 

Steam Regulator: Patents and reissue pat- 
ent to Corliss, for improvements, construed, and 
held valid and infringed.— Corliss v. Wheeler & 
Wilson Mfg. Co., Case No. 3,233. 

Stone Crusher: Blake's patent for an improved 
machine held not infringed by Hamilton's ma- 
chine.— Blake v. Rawson, Case No. 1,499; Same 
v. Robertson, Id. 1,501. 

But field infringed by machine constructed un- 
der Smith's patent.— Blake v. Robertson, Case 
No. 1,500. 

Stone Crusher: No. 68,248, for an improved 
machine for crushing and washing stone and 
sand, held vo ; d for want of novelty and in- 
vention.— Smith v. Frazer, Case No. 13,048. 

Stove: Barston's improvement held not an- 
ticipated.— Ex parte Barstow, Case No. 1,063. 

Stove: - Wilson's patent of October 10, 1834, 
for improvement, held invalid. — Wilson v. Janes, 
Case No. 17,811. 

Stove: Patent for raising oven shelf by clos- 
ing oven door held not to cover all methods of 
raising the shelf by closing the door.— Bridge v. 
Excelsior Mfg. Co., Case No. 1,859. 

Stove: No. 1,157, to Buck for improvement, 
construed, and held valid and infringed.— Buck 
v. Gill, Case No. 2,080; Same v. Hermance, Id. 
2,0S2. 

Stove: No. 2,636, for an improvement in reg- 
ulating the draft of stoves, construed in a charge 
to a jury.— Foote v. Silsby, Case No. 4,919. 

Stove: No. 80,235, for an improved guard 
plate, held valid and infringed. — Stuart v. 
Shantz, Case No. 13,556. 

Sugar: No. 37,548, for improvement in meth- 
od of purifying and cleansing, construed in a 
charge to a jury.— Union Sugar Refinery v. Mat- 
thiesson, Case No. 14,399. 

Suspender: Patent to Flagg, September 14, 
1869, for an improvement in suspender ends, 
held valid and infringed.— Fisk v. Church, Case 
No. 4,826. 

Suspender: Greeley's invention of an improve- 
ment, held to have been anticipated.— Ex parte 
Greeley, Case No. 5,745. 

Switch: Littlefield's claim for an automatic 
| railroad switch operated by an eccentric held to 



1773 (§ 266) PATENTS, XIII. 

[Fed. Cas. Digest.] 

be entirely destitute of novelty and invention. 
—In re Littlefield, Case No. 8,399. 

Syringe: No. 28,196, for improvement in 
<mema syringes, held invalid. — Richardson v. 
Lockwood, Oases Nos. 11,786, 11,787. 

Telegraph: Patents to Morse, Nos. 1,647 (re- 
issues Nos. 79 and 117), and 4,453 (reissue No. 
118), and 6,420, held to cover both the result 
and the process, and to be valid and infringed. 
—Morse v. O'Reilly, Case No. 9,859; Same & 
Bain Tel. Case, Id. 9,861. 

Telegraph: The Morse patents of June 20, 
1840, and April 11, 1846, and their reissues, for 
■electro-magnetic telegraphs, construed, and held 
not infringed by the House patent of .Tune 13, 
1S4S.— Smith v. Downing, Case No. 13,036. 

Telegraph: No. 42,S42 (reissued, No. 3,335), 
for improvement in electro-magnetic telegraph,' 
held void for want of novelty.— Day v. Bank- 
ers' & Brokers' Tel. Co., Case No. 3,672. 

Telegraphy: Morse's claim (patent No. 6,420) 
for a new system construed, and held not to in- 
terfere with Bain's claim (patent No. 6,328).— 
Bain v. Morse, Case No. 754. 

Thistle Digger: Boughton's invention held 
not anticipated by Hilton's invention.— In re 
Boughton, Case No. 1,696. 

Thread: No. 26,415, for improvement in ma- 
chines for winding thread on spools, held valid. 
— Willimantic Linen Co. v. Clark Thread Co., 
Case No. 17,763. 

Threshing Machine: No. 542, for improve* 
ment, held valid and infringed.— Pitts v. Wem- 
ple, Case No. 11,194; Same v. Whitman, Id. 
11,196. 

Tin Can: No. 71,680, for improvement in ma- 
chine for manufacture, held void for -want of 
novelty. — Barry v. Gugenheim, Case No. 1,061. 

Tobacco : No. 140,020, for improvement in plug 
and bunch tobacco, held valid.— Eppinger v. 
Richey, Case No. 4,505. 

Topsail Yard: No. 11,125, for "extra yards 
for topsails," held valid and infringed. — Howes 
v. Nute, Case No. 6,790. 

Torpedo: No. 47,458, for improvement in ex- 
plosive-torpedoes in artesian wells, held valid. — 
Roberts v. Reed Torpedo Co., Case No. 11,910. 

Towboat: Patent to John L. Sullivan for im- 
provement held invalid for want of invention.— 
Sullivan v. Redfield, Case No. 13,597. 

Traveling Bag: Nos. 56,801 and 83,212, for 
improvements, held valid and infringed.— Roe- 
mer v. Logowitz, Case No. 11,996; Same v. 
Simon, Id. 11,997. 

Trunk : Vogler's patent for a removable 
lunged tray held infringed by Plunder's patent. 
— Vogler v. Semple, Case No. 16,987. 

Truss: Patent to Hull, held valid and in- 
fringed.— Hull's Truss, Case No. 6,860. 

Truss: No. 70,324, for a truss and supporter, 
held invalid for want of novelty.— Elastic Truss 
'Co. v. Page, Case No. 4,325. 

Tubing: No. 46,507, for improved flexible tub- 
ing for illuminating gas, held valid and infringed. 
—Taylor v. Archer, Case No. 13,778. 

Type: No. 55,299, for improvement in the 
•construction and manufacture of printing type, 
held not infringed. — Hudson v. Draper, Case No. 
6,834. 

Umbrella Case : No. 149,480, for improved 

machine for fixing metallic rings to umbrella 

■cases, held valid.— Odiorne v. Denney, Case No. 
10,431. 

Umbrella Rib: No. 39,210, for improvement 
in tempering, defined and held valid and in- 
fringed.— American Mfg. Co. v. Lane, Case No. 
304. 



(§ 266) 1774 



Valve: Patent to Jenkins, for improvement, 
held valid and infringed. — Jenkins v. Johnson, 
Case No. 7,271. 

Valve: No. 2,631 held not infringed.— Sick- 
els v. Youngs, Case No. 12,83S. But see Sickels 
v. Gloucester Mfg. Co., Case No. 12,841. 

Valve: No. 4,199, for an improvement in cut- 
off valves, held valid and infringed. — Sickels v. 
Borden, Case No. 12,832; Same v. Falls Co., 
Id. 12,834; Same v. Rodman, Id. 12,S36; Same 
v. Tileston, Id. 12,837. CONTRA, see Sickels 
v. Mitchell, Case No. 12,835. 

Valve: No. 7,755 (reissued No. 255), for im- 
proved valves for governors, held valid and in- 
fringed.— Judson v. Moore, Case No. 7,569. 

Valve: No. 102,187, for an improvement in 
stop valves for petroleum packages, construed, 
and held not infringed.— Meissner v. Devoe Mfg. 
Co., Case No. 9,397. 



o 



Vulcanizing Rubber: "Tin foil" and "oil" pat- 
ents, for improved methods, held valid.— Coppen- 
busen v. Folke, Case No. 3,215a. 

Vulcanizing Rubber: The description under 
letters patent No. 11,608 as a process for work- 
ing over vulcanized rubber is in substance the 
same as the description in the reissue No. 3,531. 
— Carew v. Boston Elastic Fabric Co., Case No. 
2,397. 

Wagon Gearing: No. 16,648 (reissued No. 6,- 
660), for improvement, hela valid and infringed. 
— Halsey v. Garlick, Case No. 5,965. 

Wagon Reach? No. 69,789, for improvement, 
held invalid for want of novelty.— Flood v. Hicks, 
Case No. 4,877. 

Watch: -No. 61,207 (reissued No. 4,334), for 
improvement in stem-setting watches, held valid 
and infringed.— Jurgensen v. Magnin, Case No. 
7,586. 

Watchmen's Time Detector: No. 40,04S and 
reissue No. 3,S69, for improvement in, held 
valid and -inf ringed.— Buerk v. Valentine, Case 
No. 2,109. 

Watchmen's Time Detector: No. 48,048. for 
improvement in, held valid and infringed.— Buerk 
v. Imhaeuser, Case No. 2,106. 

Water-Cooling Pitcher: Hebbard's invention, 
held patentable.— In re Hebbard, Case No. 6.314. 

Water Wheel: Patent to Parker of October 
19, 1829, for a percussion and reaction water 
wheel, construed, and held valid and infringed. 
—Parker v. Haworth, Case No. 10,73S. 

Water Wheel: No. 2,708, for improvement, 
held valid, but not infringed.— Rich v. Close, 
Case No. 11,757. 

Weather Strip: Leach's invention of strips 
with flanged ' edges, for tacking against door .or 
window frame, held to possess patentable nov- 
elty.— Ex parte Leach, Case No. 8,155. 

Weaver's Temple: Priority of invention of im- 
provement awarded to Jillson. — Jillson v. Win- 
sor, Case No. 7,321. 

Well: Tillotson's patent for an improved filter 
well, held invalid for want of novelty.— Tillot- 
son v. Munson, Case No. 14,051. 

Well: No. 42,126, for improved method of 
putting down and operating bored wells, held 
not infringed.— Haselden y. Ogden, Case No. 6,- 
190. 

Well: No. 49,129 (reissued No. 6,337) and No. 
130,871, for improvement in well tubes or drills, 
held valid and infringed. — Rouse v. Fletcher, 
Case No. 12,087. 

Well: No. 73,425 (reissue No. 4,372), held 
valid.— Andrews v. Carman, Case No. 371; Same 
v. Wright, Id. 382. 

Well Tube: No. 65,648, for improved well 
tube, held invalid. Case No. 3,338 reversed. — 
Craig y. Smith, Case No. 3,339. 



1775 (§ 266) PATENTS, XIIL 

[Fed. Cas. Digest.} 

Wheel: No. 17,520 (reissued No. 4,116), and 
No. 61,900 (reissued No. 5,366), for improved 
carriage wheels, construed in relation to each 
other, and validity determined. — Sarven v. Hall, 
Cases Nos. 12,369, 12,370. 

Whip: No. 60,606, for improvement, held valid 
and infringed. — Strong v. Noble, Case No. 13,- 
543. 

White Oxide of Zinc: Burrow's invention, of 
furnace for producing, held to have been antici- 
pated by AYetherill's. — Burrows v. Lehigh Zinc 
Co., Case No. 2,207. 

White Oxide of Zinc: No. 8,756, for improve- 
ment in manufacture, held invalid. — Jones v. 
Osgood, Case No. 7,4S7. 

White Oxide of Zinc: No. 13,806, for process 
for making, held infringed.— Wetherill v. New 
Jersey Zinc Co., Case No. 17,463. 

Wire Fence: No. 6,106, for an improvement, 
held not infringed.— New York Wire-Railing Co. 
v. Walker, Case No. 10,218. 

Wood-Bending Machine: Blanchard's patent 
of December 18, 1849, reissued November 15, 
1859; and Morris* patent of March 11, 1856, 
reissued May 27, 1862,— construed, and held to 
be for different machines. — Blanchard v. Putt- 
man, Case No. 1,514. 

Wood-Bending Machine: No. 14,405 (reissue 
No. 1,312), for improvement, construed, and held 
valid.— Morris v. Barrett, Case No. 9,827; Same 
v. Royer, Id. 9,835. 

Wood Pulp: No. 17,387 defined, and" held valid 
and infringed. — American Wood-Paper Co. v. 
Fibre Disintegrating Co., Case No. 320; Same 
v. Glen's Falls Paper Co., Id. 321; Buchanan 
v. Howland, Id. 2,074. 

Wood Pulp: No. 21,161, for improvement in 
reducing wood to paper pulp, held valid and in- 
fringed.— Miller v. Androscoggin Pulp Co., Case 
No. 9,559. 

Wood Pulp: Nos. 25,418 and 38,901 defined 
and construed. — American Wood-Paper Co. v. 
Fibre Disintegrating Co., Case No. 320. 

Wringer Roll: No. 101,994 (reissued No. 5,- 
081), for an improvement in rubber rolls for 
wringers, held valid, but not infringed.— Forsyth 
v. Clapp, Case No. 4,949. 

Yarn Coloring: No. 7,446 (reissue No. 217), 
for an improvement in apparatus for parri-color- 
ing yarn, held not infringed.— Smith v. Higgins, 
Case No. 13,060. 

§ 267. Reissue patents. 

Adjustible Fastener: Reissue No. 4,870, for 
fish-plate fastening, held invalid, as being for 
a different invention than that described in the 
original patent. — Johnson v. Flushing* & N. S. 
R. Co., Case No. 7,3S4. 

Auger: Reissue No. 5,624, for an improve- 
ment in machinery for manufacturing curved 
or gauge-lip augers, construed, and held valid. — 
Bruff v. Ives, Case No. 2,050. 

Billiard Table Cushion: Reissue No. 2,511, 
for improvement in, held to be for the process 
of making the cushion, and not for the cushion. 
— Collender v. Bailey, Case No. 2,998. 

Such patent held to be infringed.— Collender 
v. Came, Case No. 2,999. 

Boiler: Reissue No. 3,618 (original No. 93,- 
244), for feed-water heater and filter, held valid 
and infringed.— Stilwell & Bierce Mfg. Co. v. 
Cincinnati Gaslight & Coke Co., Case No. 13,- 
453. 

Boiler: Reissue No. 4,467, for improvement 
in boilers for ranges, stoves, etc., Jield invalid. — 
Scaife v. Magens, Case No. 12,426a, 

Bottle Machine: Reissue No. 5,903 held in* 
valid for want of novelty. — Boston Elastic Fab- 
rics Co. v. East Hampton Rubber-Thread Co., 
Case No. 1,675. 



(§ 267) 1776 



Brace: Reissue No. 6,350 (original No. 62,- 
232), for improvement in stocks or braces for 
bits and other tools, held valid and infringed.— 
Miller's Falls Co. v. Backus, Case No. 9,598. 

Bracelet: Reissue No. 4,192, for improve- 
ment in plated metal bracelets, held valid.— 
Barclay v. Thayer, Case No. 97S. 

Buckle: Reissue No. 7,129 (original No. 61,- 
628), for improvement, held valid and infringed. 
— Schuessler v. Davis, Case No. 12,4S5. 

Bung Bushing: Reissues Nos. 5.026, 5.027, 
held to be infringed. — Cornell v. Littlejohn, Case 
No. 3,238. 

Bung: Reissue No. 5,937 (original No. 14S,- 
747), held not infringed. — Pentlarge v. Pent- 
large, Case No. 10,965a. 

Carriage Body and Seat: - Reissue No. 4.780, 
for improvement, held valid. — Comstock v. San- 
dusky Seat Co., Case No. 3,082. 

Caustic Alkali: Reissues Nos. 2,569, 2,570. 
2,571, for improvements in the manufacture 
and improved process of putting up, held valid. 
—Pennsylvania Salt Mfg. Co. v. Gugenheim. 
Case No. 10,954; Same v. Thomas, Id. 10,950. 

Centrifugal Machine. Reissue No. 2,845 (orig- 
inal No. 63,770), for improvement in centrif- 
ugal machines for draining sugar and other 
substances, held valid and infringed. — Weston 
v. Nash, Case No. 17,454. 

Chain: Reissue No. 5,774 (original No. 147,- 
045), for improvement in chains and chain link^ 
for necklaces, etc., held valid and infringed. — 
Mulford v. Pearce, Case No. 9,907. 

Cheese Press: Reissue No. 5,256, for im- 
provement in, held valid. — Boomer v. United 
Power Press Co., Case No. 1,638. 

Chime Toy: Reissue No. 150,933, held valid. 
—Abbe v. Clark, Case No. 5. 

Cigar Mold: Reissue No. 6,662 (original No. 
155,806), for improvement, held valid and in- 
fringed. — Miller & Peters Mfg. Co. v, Du Brul, 
Case No. 9,597. 

Circular Saw: Reissue No. 8,070, for im- 
provement, held void as being for an invention 
different from the original patent. — Curtis v. 
Branch, Case No. 3,499. 

Clothes Wringer: Reissue No. 2,S29 (original 
No. 21,029), for improvement, construed as- 
limited by prior patents, and held not infringed. 
— Metropolitan Washing-Mach. Co. v. Provi- 
dence Tool Co., Case No. 9,507. 

Clothes Wringer: Reissue No. 5,223 (original 
No. 61,680), for improvement, construed, limit- 
ed, and held not infringed. — Metropolitan Wring- 
ing-Mach. Co. v. Young, Case No. 9,508. 

Coal Scuttle: Reissue No. 3,438, for improve- 
ment in manufacture, held not infringed. — Habe- 
man v. Whitman, Case No. 5,885a. 

Collar: Reissue No. 1,646 (original No. 3S.- 
961), held void for want of novelty. — Union 
Paper-Collar Co. v. Van Deusen, Case No. 14,- 
395. 

Collar: Reissue No. 1,828 (original No. 11,376), 
for improvement, held valid and infringed. — 
Union Paper-Collar Co. v. Van Deusen, Case 
No. 14,395. 

Collar: Reissues Nos. 1,980, 1,981 (original 
No. 23,771), held invalid for want of novelty. — 
Union Paper-Collar Co. v. Van Deusen, Case 
No. 14,395. 

Collar: Reissue No. 2,309 (original No. 3S,- 
664), for improvement in paper shirt collars, 
held void for want of novelty. — Union Paper- 
Collar Co. v. Van Deusen, Case No. 14,395. 

Collar: Reissue No. 5,109 (original No. 11,- 
376), for improved shirt collar, held valid and 
infringed. — Union Paper-Collar Co. v. White, 
Case No. 14,396. 



1777 (§ 267) 



PATENTS, Sin. 

[Fed. Cas. Digest.] 



(§ 267) 1778 



Collar and Cuff: Reissue No. 5,259 (original 
No. 23,771), for paper collars and cufts, iiela 
void for want of novelty.— Union Paper-Collar 
Co. v. Leland, Case No. 14,394. 

Corset: Reissue No. 6,100 (original No. 97,- 
418), for improvement, held valid and infringed. 
—Thomson v. Jacobs, Case No. 13,982. 

Corset Spring: Reissue to Barnes, for im- 
provement, construed, and held valid and in- 
fringed.— Barnes v. Straus, Case No. 1,022. 



Hand Car: Reissue No. 5,274,^ for improve- 
ment, construed to cover combinations only, and 
not infringed by machine omitting an essential 
part.— Brown v. Hinkley, Case No. 2,012. 

Harness: Reissue No. 5,155, for dies for 
finishing rubber coated mountings, held valid.— 
Albright v. Celluloid Harness-Trimming Co., 
Case No. 147. 

Harvester: Reissues Nos. 72; 1,682, and 1,- 
683, for improvements, held valid and infringed; 



« C « • « «««7 • * 7 ■£«'*> -Seymour v. Marsh, Case No. 12,687. CON- 
Crucible: Reissue No. 6,166 (original No. 49,- TR / Sevmour v. Osborne, Case No. 12,688. 



140), for improvement in the manufacture of 
plumbago crucibles, held void for want of nov- 
elty.— Pickering v. McCullough, Case No. 11,- 
121. 

Cultivator: Reissue No. 3,932, for improve- 
ment in, held valid and infringed.— Calkins v. 
Bertrand, Case No. 2,317. 

Enameled "Ware: Reissue No. 7,779 (original 
No. 177,953), for improvement in the manu- 
facture of enameled iron ware, held valid and 
infringed.— St. Louis Stamping Co. v. Quinby, 
Case No. 12,240. 

Explosive Compound: Reissues Nos. 4,818, 
4,819, held to be invalid as for compounds where 
the original patent was for a process.— Giant 
Powder Co. v. California Powder Works, Case 
No. 5,379. 

Explosive Compound: Reissue No. 5,799, for 
combination of nitroglycerin with an absorb- 
ent substance, held valid and infringed.— At- 
lantic Giant Powder Co. v. Goodyear, Case No. 
623; Same v. Mowbray, Id. 624; Same v. 
Parker, Id. 62a; Same v. Rand, Id. 626. 

Firearm: Reissue No. 60 for improvement 
in locks, lield valid.— Allen v. Sprague, Case. 
No. 238. 

Fire Extinguisher: Reissue No. 4,994 (orig- 
inal No. 88,844), for improvement, held void for 
want of novelty. — Northwestern Fire Extin- 
guisher Co. v. Philadelphia Fire Extinguisher 
Co., Case No. 10,337. 

Fire Gong: Reissue No. 6,831, for combina- 
tion with fire-alarm gong, of attachment auto- 
matically releasing horses from stalls, held in- 
fringed.— Bragg v. San Jose, Case No. 1,803. 

Flour: Reissue No. 4,712, for improvement 
in cooling and drying meal, held valid. — Her- 
ring v. Nelson, Case No. 6,424. 

Flour: Reissue No. 5,841 for manufacture of 
new process by purification of "middlings" in- 
valid as broader than original. — American Mid- 
dlings Purifier Co. v. Atlantic Milling Co.', Case 
No. 306. 



TRA, see Seymour v. Osborne, Case No. 12,688. 

Harvester: Reissue No. 239, for improve- 
ments in reaping machines construed, and held 
not infringed.— McCormick v. Manny, Case No. 
8,724; Same v. Seymour, Id. 8,727. 

Harvester: Reissues Nos. 875, 877, 878, 879, 
2,610, and 2,632, for improvement, held valid.— 
Wheeler v. Clipper Mower, etc., Co., Case No. 
17,493; Same v. McCormick, Id. 17,499. 

Harvester: Reissue No. 1,211, for improve- 
ments in combined harvesting machines, con- 
strued, and held void for want of invention.— 
Kirby v. Beardsley, Case No. 7,837. 

Harvester: Reissue No. 1,262, for improve- 
ments in grain harvesters, as restricted -to valid 
claims, held not infringed.— Kirby v. Dodge & 
Stevenson Mfg. Co., Case No. 7,838. 

Harvester: Reissue No. 2,254 (original No. 
37,630), for an improvement in harvesters, con- e 
sisting in a raking and reeling apparatus, con- 
strued, and held not infringed.— Marsh v. Dodge 
& Stevenson Mfg. Co., Case No. 9,115. 

Harvester: Reissues Nos. 2,608, 723, 724, 
726, for improvements, held valid.— Aultman v. 
Holley, Case No. 656. 

Harvester: Reissue No. 3,372 (original No. 
19,377). for improvement, held valid.— Sprague 
v. Adriance, Case No. 13,248. 

Harvester: Reissues Nog. 4,484, 4,672, and 4,- 
673, for improvements in grass cutting and har- 
vesting machines, held valid and infringed.— 
Ketchnm Harvesting Mach. Co. v. Jphnston 
Harvester Co., Case No. 7,741. 

Hat; Reissue to Modena Hat Company for an 
improved fabric for hats, bonnets, etc., held 
not infringed.— Baldwin v. Schultz, Case No. 
804. 

Hat: Reissue No. 2,942, for machine for mak- 
ing hat bodies, held valid.— Wells v. Gill, Case 
No. 17,395; Same v. Jacques, Id. 17,399. 



Such patent, held infringed.— Wells v. Gill, 

-Case No. 17,393. 

Fluting: Reissue No. 3,000, for an improve- j g h t t r u t in f ring ed.— Wells v. Hag- 
ment in fluting machines, construed, and heU\ " X N 17396 
™iid «™i infiWed.--Kimr v. Maudelbaum, aman,. Oase *v>. ±<,<$w>. 



valid and infringed. — King v. Maudelbaum, 
Case No. 7,799; Same v. Werner, Id. 7,809; 
Kursheedt v. Same, Id. 7,947. 

Fluting: Reissue No. 3,001, for an improve- 
ment in fluted pufling, held void for want of 
novelty. — King v; Werner, Case No. 7,809. 
CONTRA, seq King v. Maudelbaum, Case No. 
7,799. 

Fly Trap: Reissue No. 6,493, for improve- 
ment, held valid and infringed. — Harper v. 
Cooke, Case No. 6,086. 

Gate: Reissue No. 2,667, for improvement in 
farm gates, held invalid.— Wright v. McMillan, 
Case No. 18,083. 

Glue: Reissue No. 4,072, for improvement in 
manufacture, held invalid for lack of invention. 
— Milligan & Higgins Glue Co. v. Upton, Case 
No. 9,607. 

Grain Separator: Reissue No. 4,793, for im- 
provement, held valid and infringed. — Howes v. 
McNeal, Case No. 6,789. 

Gutter: Reissue No. 6,675, for machine for 
making, held not infringed.— Buffum v. Oakland 
Mfg. Co., Case No. 2,113. 



Hinge: Reissue No. 4,006 (original No. 53,- 
251), for improvement in the mode of hinging 
covers to stoves and open-topped vessels, con- 
strued.— Perry v. Littlefield, Case No. 11,008. 

Hook: Reissue No. 2,166 (original No. 21,879), 
for an improvement in self-mousing or snap 
hooks, held valid and infringed.— Middletown 
Tool Co. v. Judd, Case No. 9,536. 

Horse Power: Reissue No. 1,322, for improve- 
ment, held not infringed.— Gray v. Hulshizer, 
Case No. 5,717. 

Horse Rake: Reissues Nos. 1,912-1,915, for 
improvement, held valid and infringed.— Hoffi- 
heins v. Brandt, Case No. 6,575. 

Hose Coupling: Reissue No. 3,768, for im- 
provement in, held void as for worthless inven- 
tion.— Bliss v. Brooklyn, Case No. 1,546. CON- 
TRA, see Bliss v. Gaylord Patent Coupling & 
Manufacturing Co., Case No. 1,547; Same v. 
Haight, Id. 1,548. 

Such patent held infringed.— Bliss v. Gaylord 
Patent Coupling & Manufacturing Co., Case No. 

X,Otrl» 



1779 (§ 267) 



PATENTS, XIII. 

[Fed. Cas. Digest.] 



(§ 267) 1780 



Hub: Reissue Xo. 5,366, for improvement in 
hubs of wagon wheels, held valid and infringed. 
—Hall v. Jones, Case No. 5,937. 

India Rubber Shoe: Reissue No. 4,977 (origi- 
nal No. 111,962), for an improvement, construed, 
and held void for want of novelty. — Meyer v. 
Pritchard, Case No. 9,517. 

Inking Roller: Reissues Nos. 1,771, 1,772, for 
composition for printer's inking rollers, held 
valid, but not infringed.— Francis v. Mellor, 
Case No. 5,039. 

Kettle: Reissues Nos. 3,995, 3,996, for im- 
provement in machine for making kettles, and 
improvement in kettles, held valid and infringed. 
— Waterbury Brass Co. v. Miller, Case No. 17,- 
254. 

Knob Latch: Reissue No. 3,909, for improve- 
ment in reversible knob latches, held valid.— 
Norwalk Lock Co. v. Berger, Case No. 10,355. 

Lamp: Reissue No. 325 (original No. 8,154), 
for improvement, held invalid for want of in- 
vention.— Sangster v. Miller, Case No. 12,320. 

Lamp: Reissue No. 3,747, for devices for re- 
moving the globe, held invalid.— Dane v. Illinois 
Mfg. Co., Case No. 3,558. 

Lamp: Reissue No. 7,417, for improvement 
in, held invalid.— Blackman v. Hibbler, Case Xo. 
1,471. 

Lamp: Reissue No. 7,511 (original No. 182,- 
973), for a combination of a transparent shade 
holder and shade to perform the functions of a 
chimney, held valid.— Schneider v. Jackson, Case 
No. 12.469. CONTRA, see Schneider v. Thill, 
Case No. 12,470a. 

Lamp Chimney: Reissue No. 7,069, for an 
improved attachment, held valid and infringed. 
— Kerosene Lamp Heater Co. v. Littell, Case 
No. 7,724. 

Lantern Deflector: Reissue No. 2,765 held 
void, as involving no invention. — Dane v. Chi- 
cago Mfg. Co., Case No. 3,557. 

Lathe: Reissue No. 1,400, for machine for 
shaping irregular surfaces in wood, held not in- 
fringed by the machine patented to Oakes for 
cutting irregular forms.— Hale v. Stimpson, Case 
No. 5,915. 

Locomotive: Reissues Nos. 5,050, 5,051 (orig- 
inal No. 120,637), for improvement in spark-ar- 
resters and consumers for locomotive engines, 
construed, and held valid and infringed.— Pike 
v. Providence & W. R. Co., Case No. 11,163. 

Loom: Reissue No. 947, for an improvement 
in looms for weaving figured fabrics, construed, 
and held valid, but not infringed. — Crompton v. 
Belknap Mills, Case No. 3,406. 

Loom: The second claim of reissue No. 5,150, 
held not void for want of novelty.— Carstaedt 
v. United States Corset Co., Case No. 2,467. 
But see Carstaedt v. United States Corset Co., 
Case Xo. 2,468. 

Lubricator: Reissue No. 5,328, for an im- 
provement, held anticipated bv No. 111.881. — 
Siebert v. Garratt, Case No. 12,845. 

Mattress: Reissue No. 2,092, for a spring 
mattress, held valid and infringed.— Kittle v. 
Frost, Case No. 7,856. 

Mill: Reissue No. 3,794, for an improved 
smut mill and separator, construed, limited, and 
held not infringed.— Knox v. Murtha, Case No. 
7,911. 

Mitre: Reissue No. 3,445, for improvement in 
mitre machines, held valid, and infringed by a 
machine made according to the Hall patent of 
August 17, 1858.— La Baw v. Hawkins, Case 
No. 7,960. 

Molding: Reissue No. 243 (original No. 5,575), 
for improvement in machinery for making, con- 
strued.— Serrell v. Collins, Case No. 12,672. 



Mop-Head: Reissue Xo. 3,6S2 (original Xo. 
22,990), for improved mop-head, construed, and 
held not infringed.— Taylor v. Garretson, Case 
No. 13,792. 

Mowing Machine: Reissue No. 3,460, for im- 
provement, held valid and infringed.— Jackson 
v. Breck, Case Xo. 7,132. 

Musical Instrument: Reissue No. 484, for im- 
provement in reed musical instrument, held void, 
as broader than original.— Cahart v. Austin, 
Case No. 2,288. 

Organ: Reissue No. 3,665, for tremolo at- 
tachment, held valid and infringed.— Hitchcock 
v. Shoninger Melodeon Co., Case No. 6,537; 
Same v. Tremaine, Id. 6,538. But see Saxe v. 
Hammond, Case No. 12,411. 

Oven: Reissue to Ball, for improvements, 
held invalid as broader than original.— Ball v. 
Withington, Case No. 815. 

Paint: Reissue No. 4,598 (original No. 40,515), 
for a paint to prevent the fouling of ship's bot- 
toms, held valid, but not infringed. — Wonson v. 
Gilman, Case No. 17,933. But see Tarr v. 
Webb, Case No. 13,757. 

Paint: Reissue No. 4,599 (original No. 40.515), 
for paints for ship's bottoms, held valid and in- 
fringed.— Tarr v. Folsom, Case No. 13,756; 
Wonson v. Peterson, Id. 17,934. 

Paper Bag: Reissue No. 920 (original No. 17,- 
184), and Ntf. 38,452, for improvement in ma- 
chines for making paper bags, construed, and 
held valid and infringed in part— Union Paper- 
Bag Co. v. Nixon, Cases Nos. 14,3S6, 14,391. 

Pavement: Reissue No. 4,106, for Belgian 
pavement, held invalid for want of noveltv.— 
Guidet v. Brooklyn, Case No. 5,858. CON- 
TRA, see Guidet v. Barber, Case No. 5,857. 

Pavement: Reissue No. 4,364 (original No. 
105,599), for improved concrete pavement, held 
valid and infringed. — Schillinger v. Gunther, 
Case No. 12,456. 

Pick: -Reissue No. 6,951, for a method of 
forming the eyes of picks by drawing them 
down on a mandrel between rolling dies, which 
completely encompass the walls of the eye, lield 
valid and infringed.— Klein v. Park, Case No. 
7,868. 

Plane: Reissue No. 6,498 (original No. 67,- 
398), for improvement, held valid and infringed. 
—Stanley Rule & Level Co. v. Bailey, Case No. 
13,287. 

Plough: Reissue No. 6,824, for improvement 
in attachments, construed, and held infringed.— 
Gale Mfg. Co. v. Prutzman, Case No. 5,191a. 

Plug Tobacco: Reissue No. 7,362, for im- 
provement, held invalid for want of patentable 
invention.— Lorillard v. Ridgway, Case No. 8,- 
511. 

Powder: Reissue No. 2,769 (original No. 41,- 
097), for improvement in putting up powders, 
held void for want of novelty.— Sawyer v. Bix- 
by, Case No. 12,398. 

Pump Filter: Reissue of letters patent No. 
5,804 are valid as to the first claim, but void 
as to the second claim.— Ohristman v. Rumsey, 
Case No. 2,704. 

Pump: Reissue to Barker, for improvements 
in buckets for chain pumps, held infringed by 
buckets made under Stowe's patent.— Barker v. 
Stowe, Case No. 994. 

Pump: Reissue No. 6,962, for improved an- 
paratus for cleaning privies, held valid.— Odor- 
less Excavating Apparatus Co. v. Clements, 
Case No. 10,437. 

Railway Switch: Reissue No. 7,690, for im- 
provement in safety railroad switches, held val- 
id.— Cooke v. New York Cent & H. R. R. Co., 
Case No. 3,176. 



1781 (§ 267) 

Reaping Machine: Reissues Nos. 449, 450, 
451, 742, 917, for improvements, held valid and 
infringed.— Hussey v. Bradley, Case No. b,yab, 
Same v. McCormick, Id. 6,948. 

Reaping Machine: Ball held entitled to reis- 
sue of his reissue No. 832.— Ex parte Ball, Case 
No. 811. 

Reflector: Reissues Nos. 3,826 and 3,827, for 
improved reflectors for gas lights, construed, 
and held valid ■ and infringed— Fnnk v. Petry, 
Case No. 5,128. 

Register: Reissue No. 6,929, for improved 
fare register, held valid and infringed.^ORailway 
Register Mfg. Co. v. Highland St. Ry. Co., 
Case No. 11.535. 



Register: Reissue No. 7,120, for an improved 
fare register, construed, and held not infringed. 
—Railway Register Mfg. Co. v. Highland bt. 
Ry. Co., Case No. 11,535. 

Reservoir Cooking Stove: Reissue No. 5,435, 
for improvements, construed, and held infringed. 
— Bussey v. Wager, Case No. 2,231. 

Rock Drill: Reissue No. 3,690, for improve- 
ment, construed, and held valid.— American Dia- 
mond Rock Boring Co. v. Sheldon, Case No. 
296; Same v. Sullivan Mach. Co., Id. 298. 

Roof: Reissue No. 2,684, for improved com- 
position for roofing, held valid.— Plastic blate- 
Roofing Joint-Stock Co. v. Moore, Case No. 11,- 
209. 

Sash Lock: Reissue No. 6,693, for improve- 
ment, as construed, held not infringed.— Hop- 
kins & Dickinson Mfg. Co. v. Corbin, Case No. 
6,695. 

Seat: Reissue No. 21, for improvement, lield 
valid.— Allen v. New York, Case No. 232. 

Seed-Hulling Machine: Reissue No. 1,299 
Md valid.— Birdsall v. McDonald, Case No. 1,- 
434. 

But not infringed.— Birdsell v. Hagerstown 
Agricultural Implement Mfg. Co., Case No. 1,- 
436. 

Seed Planter: Reissues Nos. 1,036-1,040 and 
1,091-1,095 held invalid for want of novelty of 
invention.— Brown v. Selby, Case No. 2,030. 

Sewing Machine: Reissue and extension of 
Bachelder, held infringed by machines construct- 
ed under reissues Nos. 346 and 414.— Bachelder 
■ v. Moulton, Case No. 706. 

Sewing Machine: Reissue No. 1,562 (original 
* No. , 11,971), for improvement in relation to 
shuttle driver, construed, and held valid.— Par- 
ham v. American Buttonhole, Overseammg & 
Sewing-Mach. Co., Case No. 10,713. 

Sewing Machine: Reissue No. 6,550, for im- 
provements, held valid and infringed.— Thomas 
v. Shoe Machinery Mfg. Co., Case No. 13,911. 

Shade: Reissue No. 2,756, to Hartshorn, 
for improvement in spring fixtures, construed 
broadly, and lield to be infringed.— Hartshorn 
v. Almy, Case No. 6,166; Same v. Shorey, Id. 
6,167; Same v. Tripp, Id. 6,168. 

Shawl Strap: Reissue No. 4,289 held invalid 
for want of novelty.— Crouch v. Roemer, Case 
No. 3,437. CONTRA, see Crouch v. Speer, 
Case No. 3,438. 

Skate: Reissue No. 7,151 (original No. 28,- 
495), JLor improvement in mode of fastening to 
the feet, held valid and infringed.— Turrell v. 
Spaeth, Case No. 14,269. 

Skirt and Bustle Stiffening: Reissue No. 501 
(original No. 17,602), for improvement, con- 
strued, and held not infringed.— West v. Silver 
Wire & Skirt Mfg. Co., Case No. 17,425. 

Slide for Extension Table: Claim of reissue 
letters No. 40,317 examined and limited, and 
certain claims therein held not to show patent- 
able invention.— Carter v. Messinger, Case No. 
2,478. 



PATENTS, XIH. (§ 267) 1782 . 

[Fed. Cas. Digest.] 

Soda-Water Apparatus: Reissue No. 2.711, 
for improvement, held valid in part, ana in- 
fringed by apparatus- constructed under patent to 
Matthews, Oct, 3, 1865.— Bigelow v. Matthews, 
Case No. 1,401. 

Spinning Machine: Reissue No. 6,036, for 
improvement in bobbins and spindles, held valid 
and infringed.— Pearl v. Ocean Mills, Case No. 
10,876. 

Spoon and Fork: Reissue No. 2,682, for^ im- 
provement, held valid and infringed.— Grosjean 
v. Peck, Stow & Wilcox Co., Case No. 5,841. 

Spring: Reissue No. 4,202 (original No. 10,- 
280), for an improvement in combined India 
rubber and steel springs, held valid and in- 
fringed.— National Spring Co. v. "Onion Car 
Spring Mfg. Co., Case No. 10,051. 

Square: Reissue No. 5,408, for improvements 
in machinery for graduating carpenters 
squares, Md valid and infringed.— Hart, B. & 
M. Mfg. Co. v. Sargeant, Case No. 6,156. 

Stamp: Reissue division A, No. 4,143, for an 
improvement in post-office postmarking and can- 
celing hand stamps, lield valid.— Campbell v. 
James, Case No. 2,361. 

Steam Gauge: Reissue No. 4,775 (original . 
No. 101,583), for improvement, construed, and 
held not infringed.— United States Steam-Gauge 
Co. v. American Steam-Gauge Co., Case No. 
16,794. 

Steam Safety Valve: Reissue No. 5S,962, as 
properly limited, held not infringed by patent 
No. 58,294.— Ashcroft v. Boston & L. R. Co., 
Case No. 577. 

Steam Valve: Reissue No. 1,260 (original 
No. 4,199), for an improvement in tripping cut- 
off valves, held void, because for a different in- 
vention than that of the original patent- 
Sickles v. Evans, Case No. 12,839. 

Stone Crusher: Reissue to Blake, January^, 
1866, for improved machine, held valid and in- 
fringed.— Blake v. Eagle Works Mfg. Co., Case 
No. 1,494; Blake v. Stafford, Id. 1,504. 

Stove: Reissue No. 3,523, for improvement 
in self-feeding coal stoves, held valid and in- 
fringed.— Henderson v. Cleveland Co-operative 
Stove Co., Case No. 6,351. 

Stove: Reissue No. 6,979, for improvement 
in base-burning stoves, held valid and infringed. 
—Detroit Stove Works v. Michigan Stove Co., 
Case No. 3,834. 

Tan Bark: Reissue No. 1,922, for improved 
process of extracting, held invalid.— Bridge v. 
Brown, Case No. 1,857. 

Such patent lield not infringed.— Bridge v. 
Brown, Case No. 1,858. 

Tin Can: Reissue No. 1,804 held ^ not in- 
valid as broader than the original claim.— De- 
Florez v. Raynolds, Case No. 3,742. 

Trunk: Reissue No. 7,149, for improvement 
in corner clamps or protectors for trunks, held 
invalid for want of novelty.— Gould v. Ballard, 
Case No. 5,635. . 

Vault: Reissue No. 303, for an improvement 
in vault covers, construed, and held not in- 
fringed.— Lake v. Fitzgerald, Case No. 7,993. 

Ventilator: Reissue No. 5,786, for a method 
of cooling and ventilating rooms, construed, and 
lield valid and infringed.— Lyman Ventilating & 
Refrigerator Co. v. Lalor, Case No. 8,632. 
CONTRA, see Lyman Ventilating & Refrig- 
erator Co. v. Chamberlain, Case No. 8,631. 

Vulcanized Rubber: Reissued patent No. 3,- 
531 did not embrace the invention of Charles 
Goodyear for the manufacture of vulcanized 
India rubber.— Carew v. Boston Elastic Fabric 
Co., Case No. 2,397. 

Weaver's Harness: Reissue No. 5,282, for 
an improvement in machines for making weav- 



1783 (§ 267) PATENTS, XIII. 

[Fed. Cas 

er's harnesses, held infringed. — Kendrick v. 
Emmons, Case No. 7,694. 

Whip Socket: Reissue No. 4,071 (original 
No. 52,439), for an improvement in whip sock- 
ets, construed, and held not infringed.— Merriam 
v. Drake, Case No. 9,461. 

Whip Socket: Reissue No. 5,400 (original No. 
70,627), for improvement in whip sockets for 
carriages, held valid and infringed— Searles v. 
Van Nest, Cases Nos. 12,587, 12,587a. 

Whip Socket: Reissue No. 5,713 (original 
No. 43,858), for attachments for fastening whip 
sockets to carriages, construed, and held not in- 
fringed.— merriam v. Van Nest, Case No. 9,462. 

Window Screen, Adjustable: Reissue No. 
o2,726 held invalid as too broad.— Adjustable 
Window-Screen Co. v. Boughton, Case No. 81. 

Winnower: Reissue No. 306 (original No. 
6,545), for improvement, construed, and held 
valid only in part.— Sanders v. Logan, Case No. 
12,295. 

Wire Staple: Reissue No. 2,183 (original No. 
19,(47), for improvement in wire staples adapt- 
ed for use in making window blinds or screens, 
held valid and infringed.— Rogers v. Sargent, 
Case No. 12,020. 

Wood Pulp: Reissues Nos. 1,448 and 1,449, 
for improvement, held invalid.— American W T ood 
Paper Co. v. Heft, Case No. 322. 

Wringer Roller: Reissue of April 18, 1865, 
for improvement, Jield valid.— Bailev Washing 
& Wringing Mach. Co. v. Lincoln, Case No. 
750. 

§ 268. Design patents. 

Cheese Safe: Design patent held void for 
want of invention.— Northrup v. Adams, Case 
No. 10,328. 



(§ 2) 1784 



Design for Handle of Table Spoon and Fork; 
Patent to Gorham and others held not in- 
fringed.— Gorham Mfg. Co. v. White, Case No. 
5,627. 

Sieve: Design No. 4,637, for flariDg rim, 
held invalid.— Adams & W. Mfg. Co. v. St. 
Louis Wire-Goods Co., Case No. 72. 

Stove: Design patent No. 7,456 held valid.— 
Perry v. Starrett, Case No. 11,012. 

PAUPERS. 

Action or defense in forma pauperis, see 
"Costs," § 10. 

PAYMENT. 

I. REQUISITES AND SUFFICIENCY. 

§ 1, What constitutes payment. § 2, 

Medium of payment — In general. § 3, 

Notes or coin. § 4, Confederate bonds 

and notes. § 5, Acceptances, notes, and cheeks 
—Of debtor. § 6, Of third person. 

II. APPLICATION. 

§ 7, General rules. § 8, By debtor. § 9, By 
creditor. § 10, In absence of application by 
parties. § 11, Secured and unsecured debts. 
§ 12. Principal and interest. § 13, Rights of 
sureties. § 14, Presumptions. 

III. OPERATION AND EFFECT. 

§ 15, Discharge of debt. § 16, Discharge of 

interest. 

IV. PLEADING- AND EVIDENCE. 

§ 17, Pleading. § IS, Issues and proof. § 19, 

Presumptions— in general. § 20, Lapse 

of. time. § 21, Admissibility and sufficiency of 

evidence — In general. § 22, Receipts. 

5 23, Province of court and jury. 



■PAYMENT, I. 

. Digrest.] 

V. RECOVERY OF PAYMENTS. 

§ 24, Right to recover in general. § 25, 
Fraud. § 26, Mistake of fact. § 27, Duress. 
§ 2S, Taxes, license fees, and assessments. 

See, also, "Accord and Satisfaction"; "Com- 
promise and Settlement"; ''Tender." 

Amount, see "Sales," § 8. 

By one partner, see "Partnership," § 27. 

Part payment within statute of limitations, see 
"Limitation of Actions," § 25. 

Payment into court in admiralty, see "Ad- 
miralty," §m. 

Rights of assignee in bankruptcy, see "Bank- 
ruptcy," § 197. 

Subrogation on payment, see "Subrogation." 

Suspension, as act of bankruptcy, see "Bank- 
ruptcy," §§ 79-87. 

To trustees, see "Trusts," § 17. 

Of particular classes of obligations or lia- 
bilities. 

See "Bills and Notes," §§ 81-84; "Customs 
Duties," §§ 55-59; "Execution," § 22; "In- 
surance," §§ 164-166; "Judgment," §§ 73-78; 
"Taxation," § 11. 

Bottomry bond, see "Shipping," § 126. 

Costs, see "Costs," § 27. 

—. in admiralty, see "Admiralty," §§ 150-153. 

Freight, see "Shipping," § 187. 

Lays or shares in earnings of vessel, see "Sea- 
men," § 151. 

Legacies, see "Wills," § 46. 

Liens, see "Maritime Liens," § 3S; "Mechan- 
ics' -Liens," § 6. 

Premiums for insurance, see "Insurance," §S 
17, 31, S5-S7. 

Price of goods sold, see "Sales," §§ 28, 32. 

of land sold, see "Vendor and Purchaser, 

§ 13. 



*t 



Wages of seamen, see "Seamen," §§ 115-120. 

I. REQUISITES AND SUFFICIENCY. 

§ 1. What constitutes payment. 

A simple contract debt is not extinguished by 
taking new security, unless so agreed, or the 
security is of higher nature.— The Betsv and 
Rhoda, Case No. 1,366. 

Where a higher security is given by the debt- 
or, the law presumes, prima facie, that it is 
intended as an extinguishment of the debt; 
otherwise where the security is the bond of a 
third person.— United States v. Lyman, Case 
No. 15,647. 

Inclosing money in a letter deposited in a 
post office, for the purpose of paying a debt, 
held a payment, under the circumstances, 
though it never reached the creditor. — Selman 
v. Dun, Case No. 12,648. 

A deposit by a debtor of a sum of money 
with a third person for his creditor, who as- 
sented thereto, or gave the depositary a new 
credit, will discharge the original debtor. — Swift 
v. Hathaway, Case No. 13,698. 

A note against one partner held paid by agree- 
ment of other partner to credit its amount on 
a note which he held against the payee, where 
the proper credits were made in the firm ac- 
counts.— Gwathney v. McLane, Case No. 5,882. 

A bank held a note for collection, and, before 
it was due, received a deposit of money from 
one of the makers to pay it. Held, that the 
note remained unpaid, where the bank failed 
on the day on which it fell due, where the mon- 
ey was not actually applied to its payment. — 
Hulburt v. Squires, Case No. 6,855. 

§ 2, Medium of payment— In general. 

The word "dollars," as used in a note made 
in the United States, means lawful money of 
the United States.— Stoughton v. Hill. Case No. 
13,501. 



1785 (§2) 



PAYMENT, I. 

[Fed. Cas. Digest.] 



(§5) 1786 



"Lawful money" of any state is equivalent 
to United States money.— Cocke y. Kendall, 
■Case No. 2,929b. 

In estimating freight, expressed in dollars, 
■on goods shipped to England, the pound sterling 
is to be Teckoned at its mercantile value in 
-dollars in England.— Jelison v. Lee, Case No. 
7,256. 

Under a stipulation for payment in New York 
-of an amount expressed in English money, "at 
the current rate of exchange" for bills on 
London, the amount payable is not calculated 
in gold, but in currency, at the current rate 
•of bills on London, with interest at the New 
York rate.— Hus v. Kempf, Case No. 6,944. 

A creditor suing for a balance due on ac- 
count, payable in a foreign country, is entitled 
to be paid at the rate of exchange.— Grant v. 
Healey, Case No. 5,696. 

A balance of account, for advances made at 
Boston, upon goods consigned 'to the plaintiffs 
-at Trieste, Jield payable at Boston, and to be 
estimated at the par, and not at the rate of 
-exchange.— Grant v. Healey, Case No. 5,696. 

Under an act authorizing the court to settle 
the rate of exchange, witnesses may be exam- 
ined to prove such rate. — Bond v. Grace, Case 
No. 1,622. 

A person indebted in a certain sum of Brit- 
ish sterling gave a bond for the amount in ster- 
ling generally, payable in Ireland. Meld to be 
-construed British sterling, but to carry Irish 
interest.— Bushby v. Camac, Case No. 2,226. 

New York creditors were given notes payable 
in Illinois for collection, to apply the proceeds in 
payment of their debts. Held, that Illinois cur- 
rency received in payment thereof was to be 
applied only at its value in New York.— Howe 
v. Wade, Case No. 6,777. 

A payment in bank notes issued without au- 
thority of the bank is not valid where the party 
paying knew that fact at the time.— Cassedy v. 
Williams, Cage No. 2,501. 

■§ 3. Notes or coin. 

Foreign charter to pay freight "in cash" on 
delivery in New York held to mean in specie.— 
Gladstone v. Chamberlain, Cases Nos. 5,469, 
5,470, 5,471. 

A decree for freight payable in sterling mon- 
key will be for the amount of such money in gold 
And silver coin of the United States. — Forbes v. 
Murray, Case No. 4,928. 

A contract to pay 1,000 pounds sterling, law- 
ful money of Great Britain, agreed to be worth 
:a certain sum "in the gold coin of the United 
States." is solvable only in gold coin.— The Edith, 
Case No. 4,281. 

The recovery on such contract must be for 
■so many dollars in gold and silver coin as are 
-equivalent, at the rate agreed upon, to .the 
pounds sterling.— The Edith, Case No. 4,281. 

An express contract to pay in gold, made since 
the passage of the legal tender acts, is valid and 
-enforceable.— The Edith, Case No. 4,281; The 
Emily B. Souder, Id. 4,454, 4,456. 

On a shipment at St. John for a voyage to 
terminate in the United States for wages at 
"$25 per month," the seaman is not entitled to 
an amount in our currency equal to the value 
of the contract price here, if paid in the cur- 
rency of St. John.— Trecartin v. The Rocham- 
beau, Case No. 14,163. 

Where a debt for advances to a vessel in a 
foreign port is contracted in gold, the decree 
against the vessel therefor will be for the amount 
in gold.— The Emily B. Souder, Case No. 4,454. 

An agreement for payment of wages in pounds 
held to mean pounds sterling, and not the cur- 
rency of the locality, which was greatly depre- 



ciated. — Quimby v. The Euphemia, Case No. 
11,512. 

Reservation in 1779 of an annual rent of £26, 
current money in Virginia, permits payments in 
paper money while current, but requires gold 
and silver afterwards.— Marsteller v. Faw, Case 
No. 9,137. 

While a company may issue promissory notes, 
in the form of bank notes, in payment, they have 
no right to issue them for the purpose of putting 
them in circulation as a current circulating me- 
dium.— United Stajfces v. Bay, Case No. 16,124. 

The principal of a ground rent is not a debt, 
within the meaning of Act Feb. 25, 1862, in re- 
lation to legal tenders of money. — Philadelphia 
& 11. R. Co. v. Morrison, Case No. 11,089. 

§ 4. Confederate bonds and notes. 

Payment in Confederate bonds o£ a balance 
of account with the bank of North Carolina, ac- 
cepted by the depositor, held valid. — Hblleman v. 
Dewey, Case No. 6,607. 

Where, in the absence of fraud, etc., Confed- 
erate money has been received in exchange for 
property, the federal courts will not interfere. — 
Bailey Y. Milner, Case No. 740. 

An executor who receives payment during the 
Civil War, in Confederate money, of a bond 
given before the war, if liable at all, is only 
liable for the value of the Confederate currency, 
as of that date. — Howland v. Kelly, Case No. 
6,796. 

Credit for payment in Confederate money for 
damages to land held should be scaled down to 
the gold value at the time, in computing the 
liability of the one receiving it.— Bigler v. Wal- 
ler, Case No. 1,404. 

Payment during the Civil War in Confederate 
money to an agent in the Southern states of a 
citizen of a Northern state does not discharge 
the debt.— Anderson v. Bank, Case No. 354. 

Where funds in a bank belonging to an enemy 
are in Confederate notes, the payment under mil- 
itary authority may be made in Confederate 
notes.— Bank of Tennessee v. Union Bank of 
Louisiana, Case No. 899. 

§ 5* Acceptances, notes, and cnecks — Of 
debtor. 

The delivery and receipt of a promissory note 
of the debtor does not constitute payment, un- 
less it appear that the creditor expressly agreed 
or intended to take the note as payment. — In re 
Ouimette, Case No. 10,622; Baker v. Draper, 
Id. 766; Maze v. Miller, Id. 9,362; Weed v. 
Snow, Id. 17,347; Risher v. The Frolic, Id. 
11,856. 

An indorsed note taken for an account, where 
it bears a higher rate of interest and the ac- 
count is receipted as paid in full by the note, 
extinguishes the debt. — Risher v. The Frolic, 
Case No. 11,856. 

A note given by an agent for goods sold to 
enable the seller to raise money at the bank, 
where no settlement is made, and the account is 
not receipted, will not be presumed to be in 
payment.— Hudson v. Bradley, Case No. 6,833. 

In Massachusetts a negotiable note or bill of 
the debtor given for a pre-existing debt is prima 
facie evidence of payment.— Page v. Hubbard, 
Case No. 10,663; Palmer v. Elliot, Id. 10,690; 
Baker v. Draper, Id. 766. 

Such presumption may be rebutted by cir- 
cumstances showing that such was not the in- 
tention of the parties.— Page v. Hubbard, Case 
No. 10,663; Palmer v. Elliot, Id. 10,690. 

Where notes are given for money due under a 
simple contract, the presumption in Massachu- 
setts is that this was accepted as payment, in 
the absence of circumstances indicating a con- 
trarv intent. — Kimball v. The Anna Kimball, 
Case No. 7,772. 



1787 (§ 5) 



PAYMENT, L, II. 

[Fed. Cas. Digest.] 



(§ 11) 1788 



Whether the giving of promissory notes for 
money due under a charter party operated as 
payment is to be determined in a suit in ad- 
miralty in a federal court by the rule prevailing 
in the state where the transaction took place. — 
Kimball v. The Anna Kimball, Case No. 7,772. 

If it be shown that a payment, acknowledged 
in a receipt, was by bill or note, which was not 
paid, then there is no payment. — Maze v. Miller, 
Case No. 9,362. 

An indorsement on an account of "Rec'd pay- 
ment," after accepting the negotiable note of one 
of two debtors, held prima facie evidence of pay- 
ment. — Palmer v. Priest, Case No. 10,694. 

An order payable out of a particular fund, and 
not negotiable, is not payment of a preceding 
debt. — Virginia v. Turner, Case No. 16,970. 

§ 6. Of tliird person. 

Tak : ng a draft or note of a third person does 
not discharge the debt, unless it is received un- 
conditionally as payment.— Slocomb v. Lurty, 
Case No. 12,949; Allen v. King, Id. 226. 

Taking a bill of exchange is only prima facie 
evidence of a satisfaction and extinguishment 
of an antecedent debt. — Wallace v. Agry, Case 
No. 17,096. 

A debt is discharged by the taking of a bill 
of exchange in payment, or in such manner as 
imports an intention to take the risk of the 
bill. — Brown v. Jackson, Case No. 2,016. 

An accepted draft will not be considered in 
payment of an indorsed note, unless there was 
an express contract that it should be so receiv- 
ed.— Cooper v. Gibbs, Case No. 3,194. 

A bill of exchange is not payment of a pre- 
existing debt unless paid or accepted as such, 
or the debtor sustain injury by the laches of 
the creditor receiving it.— Gallagher v. Roberts, 
Case No. 5,195. 

A note taken from an indorser by his creditor 
operates to discharge the debt if the indorsee 
fails to demand payment and give notice of dis- 
honor. — Allen v. King, Case No. 226. 

A bill of exchange remitted to a creditor in 
payment of a debt will be considered as pay- 
ment, where the amount of the bill is lost by 
the negligence of the creditor. — Roberts v. Gal- 
lagher, Case No. 11,902. 

Goods consigned by an agent, with notice that 
they belong to his principal, are not paid for by 
the acceptance and payment of drafts drawn by 
the consignor on general account. — In re Baxter, 
Case No. 1,119. 

Where notes of a third person are taken from 
a debtor upon an agreement that they shall be 
considered in payment, if collectible, the cred- 
itor is bound to use ordinary means and dili- 
gence to collect them. — In re Ouimette, Case 
No. 10,622. 

The taking of negotiable notes from the debt- 
or held no extinguishment of a mortgage which 
had been given to one partner to secure a debt 
due the firm. — Osborne v. Benson, Case No. 
10,596. 

An assignment of recognizances as security 
for a debt to be collected as the creditor may 
think proper is no bar to an action to recover 
the debt; otherwise when negotiable instru- 
ments are assigned. — Kemmil v. Wilson, Case 
No. 7,685. 

II. APPLICATION*. 

In case of usury, see "Usury," § 13. 

§ 7. General rules. 

A debtor owing several accounts, who makes 
a payment, may appropriate the same as he 
pleases. Where he fails to make the appro- 
priation, the creditor may make it; and, if nei- 
ther makes it, the law applies it to the oldest 



item.— United States v. Bradbury, Case No. 
14,635; Cremer v. Higginson, Id. 3,383; Unit- 
ed States v. Wardwell, Id. 16,640. 

Where the debtor omits to make the appro- 
priation, the creditor may make it; if both omit 
it, the law will apply payments according to its 
own notions of justice.— Leef v. Goodwin, Case- 
No. 8,207. 

The officers of the treasury department have 
not the right to make application of payments 
against the will of the debtor or of his admin- 
istrator. — United States v. Wardwell, Case No. 
16,640. 

In cases of running accounts, where debits 
and credits are made at different times, the 
payments are to be deemed as made towards 
items antecedently due in the order of time in 
which they stand in the account. — United States 
v. Wardwell, Case No. 16,640. 

The case of the United States furnishes no 
exception to such rule. — United States v. Ward- 
well, Case No. 16,640. 

§ 8. By debtor. 

A bank must apply the proceeds of a note dis- 
counted by it as intended by the person offering 
it. — Bank of Alexandria v. Saunders, Case No- 
852. 

§ 9. By creditor. 

A creditor holding several notes of his debtor 
has a right to apply a general payment equally 
to all the notes to protect them from the bar of 
the statute. — Jackson v. Burke, Case No. 7,133. 

The creditor cannot elect to what debt to ap- 
ply an indefinite payment, except where it is 
utterly indifferent to the debtor to which it is 
applied. — Gass v. Stinson, Case No. 5,262. 

Where an appropriation is made by a receipt, 
it is prima facie made by the creditor. — United 
States v. Bradbury, Case No. 14,635. 

Where the revenues of Spain were pledged to- 
secure a loan, duties payable to the king of 
Spain, coming legally into the hands of the cred- 
itors, are properly applied by them to the liq- 
uidation of the loan. — King of Spain v. Oliver, 
Case No. 7,813. 

§ 10. In absence of application by par- 
ties. 

Where a payment is not applied by either 
party, the court will make the application ac- 
cording to the equities of the case. — Gordon v. 
Hobart, Case No. 5,608. 

The right of appropriation exists only between 
the original parties. The assignee of the one 
making the payment cannot insist on a specific 
appropriation. — Gordon v. Hobart, Case No. 
5,608. 

Payments on running accounts, where there is 
no direction or application by the parties are to 
be applied to the earliest items. — Gass v. Stin- 
son, Case No. 5,262; The A. R. Dunlap, Id. 
513; Leef v. Goodwin, Id. 8,207. 

Advances made on account generally will be 
applied to extinguish the amounts due on con- 
tracts completed in preference to those not com- 
pleted. — McDowell v. Blackstone Canal Co., 
Case No. 8,777. 

Application of payments in case of long-run- 
ning account between parties of notes, accept- 
ances, etc. — Whetmore v. Murdock, Case No. 
17,510. 

§ 11. Secured and unsecured debts. 

Payments not applied by the parties will be 
appropriated in law to extinguishment of debt 
secured by lien rather than unsecured debt — 
The Antarctic, Case No. 479. But see On& 
Hundred and Fifty-One Tons of Coal, Id. 10,- 
520. 

An application of payments once made will 
not be varied so as to affect the liability of a 



1789 (§ 12) 



PAYMENT, IL-IV. 

[Fed. Cas. Digest.] 



(§ 20) 1790 



surety.— Bank of North America v. Meredith, 
Case No. 893. 

§12. Principal and interest. 

Payments will be applied first to the interest 
of the debt.— Russell v. Lucas, Case No. 12,- 
156a. 

§ 13. Rights of sureties. 

A debtor cannot appropriate a payment in 
such manner as to affect the relative liability 
or rights of his different sureties, without their 
assent.— Postmaster General v. Norvell, Case 
No. 11,310. 

Where a public officer has given different 
bonds with different sureties, his payments 
must be so appropriated as to give each bond 
credits for the moneys respectively due, collect- 
ed, and paid under it.— Postmaster General v. 
Norvell, Case No. 11,310. 

If a debtor of the government fail to make 
an application of payments, the government may 
do so. If both fail, the law will make the ap- 
plication, but it cannot do so to the prejudice 
of the rights of the debtor's sureties.— United 
States v. Linn, Case No. 15,606. 

§ 14. Presumptions. 

A payment by a partner to his private cred- 
itor, who is also a creditor of the partnership, 
will be presumed to be on his private account. — 
Gass v. Stinson, Case No. 5,262. 

m. OPERATION AND EFFECT. 

Effect to release surety, see "Principal and 
Surety," § 10. 

§ 15. Discharge of defct. 

A payment by a bank to military authorities 
of funds belonging to the enemy, under coercion, 
discharges the debt.— Bank of Tennessee v. 
Union Bank of Louisiana, Case No. 899. 

Where an indorser paid the amount of the 
note, but by mistake another note by the same 
maker was surrendered to him, Jield that it was 
nevertheless a payment of the first note.— Maury 
v. Mason, Case No. 9,314. 

The acceptance of a deed of land in payment 
of a debt bars an action for the debt; and, if 
the title be defective, the creditor must look to 
his warranty .^-Miller v. Young, Case No. 9,596. 

Where the payment of the principal is accept- 
ed, a separate suit will not lie for the interest, 
though the right thereto was expressly reserved 
in the receipt given.— Riley v. Maxwell, Case 
No. 11,838. 

Payment will not be permitted in equity to 
operate as an extinguishment, as against those 
equitably entitled to substitution in place of the 
partv receiving payment— In re Foot, Case No. 
4,90*6. 

Payment is no ground of quashing the pro- 
ceedings in a suit on the debt. — Bingham v. 
Wilkins, Case No. 1,416. 

The acceptance of new security without full 
knowledge of the facts, or where induced by 
fraud or deceit, is not a discharge.— Baker v. 
Draper, Case No. 766. 

§ 16. Discharge of interest. 

After the plaintiff has received the principal 
debt, he cannot recover the interest in an action 
for principal and interest. — Potomac Co. v. 
Union Bank, Case No. 11,318. 

A receipt given for the principal is no bar to 
a recovery of interest, where the question of in- 
terest is expressly reserved at the time. — Burr 
v. Burch, Case No. 2,187. 

IV. PIiEADING AND EVIDENCE. 

§ 17. Pleading. 

A plea of payment referring to the instrument 
sued on, as a "supposed writing obligatory," is 



nevertheless good, and those words may be re- 
jected as surplusage. — Murphy v. Byrd, Case 
No. 9,947b. 

A plea of payment admits all the allegations 
in the plaintiff's declaration, essential to sup- 
port the action, and it is unnecessary for the 
plaintiff to prove them.— Archer v. Morehouse, 
Case No. 18,225. 

§18. Issues and proof. 

The letters and transactions between officers 
of the government and a debtor to the United 
States, relative to his account, may be given 
in evidence under a plea of payment — United 
States v. Beattie, Case No. 14,554. 

In an action against one of two sureties in a 
joint and several bond given to the United 
States, a discharge of the other surety by the 
president under Act March 3, 1817, cannot be 
given in evidence under a plea of payment. — 
United States v. Beattie, Case No. 14,554. 

Upon the plea of payment to debt on a single 
bill, it is not necessary to produce the bill in 
evidence.— Turner v. White, Case No. 14,264. 

In Pennsylvania, any evidence may be given, 
under a plea of payment, which proves that ex 
equo et bono the debt ought not to be paid.— 
Latapee v. Pecholier, Case No. 8,101. 

Under a plea of payment, proof of a discon- 
tinuance of the suit is inadmissible; the al- 
leged discontinuance should ■ have been taken 
advantage of before making defense. — Latapee 
v. Pecholier, Case No. 8,101. 

Bonds whose consideration had failed, pre- 
viously assigned in payment of a debt, cannot be 
given in evidence on a plea of payment.— Wil- 
son v. Hurst, Case No. 17,809. 

§ 19. Presumptions— In general. 

The presumption that negotiable security giv- 
en for a pre-ex|sting debt is in payment may be 
controlled by proof to the contrary.— The Betsy 
and Rhoda, Case No. 1,366. 

§ 20. — Lapse of time. 

No presumption of payment from the lapse of 
time can be raised against the government. — 
United States v. Williams, Cases Nos. 16,720, 
16,721. 

A presumption of payment, arising from lapse 
of time, may be rebutted by accounting for the 
time, and showing the improbability of pay- 
ment— Hopkirk v. Page, Case No. 6,697. 

The presumption of payment of a bond aris- 
ing from lapse of time is not rebutted by the 
obligee's indorsement of a payment on account 
by work done, unless this was with the privity 
of the obligor.— Kirkpatrick v. Langphier, Case 
No. 7,849. • 

The presumption of payment of a mortgage 
debt arising after the lapse of 50 years, the 
original securities not being produced, and the 
mortgagor being in possession, is rebutted by 
proof that the mortgage debt has not been paid. 
— Burnham v. Hewey, Case No. 2,175. 

A presumption of payment of a debt arises 
at common law after the lapse of 16 years. 
After the lapse of 20 years, the presumption is 
conclusive.— Didlake v. Kobb, Case No. 3,899. 

Payment of a bond is presumed in 20 years 1 
if no interest has been paid in that time. If a 
shorter period is relied upon, the presumption 
should be fortified by circumstances.— Goldhawk 
v. Duane, Case No. 5,511. » 

Payment must be presumed as to installments 
due on a bond after 20 years, and may be pre- 
sumed after 19 years and 10 months.— Miller v.- 
Evans, Case No. 9,569. 

The equitable rule of limitation applied to 
bonds, where there has been no demand for 20 
years, is a mere presumption of payment, not an 
absolute limitation. — Postmaster General v. Rice, 
Case No. 11,312. 



1791 (§ 20) 



PAYMENT, IV., V. 

[Fetl. Cas. Digest.] 



(§28) 



1792 



The presumption of payment of a bond or note, 
arising from the lapse of 20 years, may be re- 
butted by circumstances. — Denniston v. Mc- 
Keen, Case No. 3,803. 

§ 21. Admissibility and sufficiency of evi- 
dence—In general. 

The fact that a note was given and received 
in payment of an account may be shown by cir- 
cumstances. — Riley v. Anderson, Case No. 11,- 
835. 

Payment of an account held to be sufficiently 
shown by authority to another to settle it, fol- 
lowed by the rendition of an account by the 
creditor showing credit in full. — Bradley v. Rich- 
ardson, Case No. 1,786. 

§22. Receipts. 

A receipt is prima facie evidence that the sum 
of money expressed in it was paid according to 
its tenor. — Tint v. King, Case No. 16,950; Find- 
lay v. Vint, Td.; Allen v. Same, Id.; Sheffey 
v. Same. Id. 

A receipt is only evidence of payment, and 
may be explained or contradicted bv parol. — 
Weed v. Snow, Case No. 17,347. 

Where a bill is receipted, "Received payment 
by note." the giving of the note must be treated 
as a payment thereof, in the absence of any evi- 
dence to qualify the receipt. — Drew v. Hull of a 
New Ship, Case No. 4,078. 

The receipt of a bond of a third person "in 
part pay" of a precedent debt is conclusive evi- 
dence of payment to that extent, although the 
obligor was insolvent when the receipt was giv- 
en.— Muir v. Geiger, Case No. 9,902. 

A receipt of payment by a note is not conclu- 
sive, but only prima facie evidence of payment. 
— Moore v. Newbury, Case No. 9,772. 

The words, "received in full payment" or "sat- 
isfaction," do not necessarily mean absolute sat- 
isfaction, whe'n a note or other security is tak- 
en.— In re Hurst, Case No. 6,925. 

§ 23. Province of court and jury. 

The question whether a bill of exchange drawn 
upon a London firm, and payable in Paris, is to 
be governed in respect to the medium of pay- 
ment by the French law, held to be a question 
for the jury. — Searight v. Calbraith, Case No. 
12,585. 



V. ItECOVERY OP PAYMENTS. 

See, also, "Money Received." 

Recovery of insurance premium paid, see "In- 
surance," § 34. 

* 
§ 24. Right to recover in general. 

Money paid on contracts expressly prohibited 
by law cannot be recovered. — McLean v. Lafay- 
ette Bank, Case No. S,8SS. 

Where, on payment of a debt, a bond was giv- 
en to secure the obligee against a possible sub- 
sequent payment "on compulsion of law," and. 
afterwards two suits were brought to recover 
the same debt, whereupon the obligee filed a bill 
of interpleader, and paid the sum into court, held 
a voluntary payment, not recoverable under the 
bond. — Massey V. Schott, Case No. 9,262. 

§ 25. Fraud. 

An action will lie at once for money advanced 
on a forged note.— iGibson v. Stevens, Case* No. 
5,401. 

An action will lie for money fraudulently ob- 
tained on a note, before the note becomes due. — 
GibsoD v. Stevens, Case No. 5,401. 

§ 26. Mistake of fact. 

Money paid by an agent under a mistake of 
the legal obligation of his principal may be recov- 
ered back by the latter. — United States v. Bart- 
lett, Case No. 14,532. 



The purchaser of a vessel, who has paid ex- 
penses of a previous voyage upon the master's 
order, under a mistaken expectation that he was 
to be reimbursed out of the freight, cannot re- 
cover them from the master.— Hodgson v. Butts, 
Case No. 6,564. 

A person entitled to recover money paid under 
a mistake of fact must give prompt notice of the 
discovery of the mistake to the person to whom 
the money was paid.— United States v. Union 
Nat. Bank, Case No. 16,597. 

The person to whom the money is paid is dis- 
charged from liability where he sustains dam- 
age in the loss of his remedy over against an- 
other, through the neglect to give notice of tie 
discovery of the mistake.— United States v. 
Union Nat. Bank, Case No. 16,597. 

The United States, suing to recover money so 
paid, is chargeable with such neglect equallv 
with any other plaintiff.— United States v. Union 
Nat. Bank, Case No. 16,597. 

An action by the United States to recover the 
amount of a draft paid upon a forged signature 
will not lie against the banker who innocently 
collected the same, after the lapse of six years. 
—United States v. Cooke, Case No. 14,855. 

Money paid to purchase freedom by a person 
held in slavery abroad and remaining with his 
master after coming to the United States may 
be recovered back as paid without consideration. 
— Curranee v. McQueen, Case No. 3,488. 

Where plaintiff pays money under a mistake 
of fact, he will not be allowed interest, both par- 
ties having acted in good faith. — Curranee v. 
McQueen, Case No. 3,488. 

§27. Buress. 

Assumpsit will lie for money extorted by 
duress of goods.— Tutt v. Ide, Cases Nos. 14,- 
275a, 14,275b. 

A payment by an executor while in commit- 
ment upon a ca. sa., issued upon a Judgment of 
a justice of the peace in an action against him, 
is under duress, and may be recovered back. — 
Foy v. Talburt, Case No. 5,020. 

Real property is not under duress unless there 
be an illegal demand made against the owner, 
coupled with a present power or authority in 
the person making such demand to sell or dis- 
pose of the same if payment is not made as de- 
manded.— Mariposa Co. v. Bowman, Case No. 9,- 
089. 

A payment made by a shipper to a carrier at 
the place of destination of a rate in excess of 
that previously agreed, to obtain possession of 
the goods after the carrier's refusal to deliver 
them, is not voluntary, and the excess may be 
recovered back. — Tutt v. Ide, Cases Nos. 14,- 
275a, 14,275b. 

Payments, without objection, of illegal exac- 
tions by government officials, cannot be recov- 
ered back. — Hamilton v. Dillin, Case No. 5,979. 

Payments made by a person on the unlawful 
demand of the government, as a condition of be- 
ing allowed to have goods deposited in his 
bonded warehouse (Act 1846), are voluntary, 
and cannot be recovered back.— Corkle v. Max- 
well, Case No. 3,231. 

A payment under protest of a half month's 
storage before the collector would allow goods, 
which had been entered for warehouse, to be 
landed for consumption, held voluntary, and could 
not be recovered back. — Irvin v. Schell, Case No. 
7.072. 

§ 28. Taxes, license fees, and assessments. 
Payment to a public officer, if unaccompanied 
by oral or written remonstrance or protest, is 
voluntary.— United States v. Clement. Case No. 
14,815. 

A payment of internal revenue taxes, under 
protest, is not a voluntary payment, where both 



1793 (§ 28) 



(§ 5) 1794 



the collector and the party paying understand at 
the time that payment must be made, or the 
law -will be enforced.— Shaefer v. Ketchum, Case 
No. 12,693. 

Money paid for a license to carry on a business 
in a city which the city had no right to exact 
cannot be recovered back. — Washington v. Bar- 
ber, Case No. 17,224. 

See, also, "Internal Revenue," § 20; "Taxa- 
tion," § 11. 

PEACE. 

Breach of public peace, see "Breach of Peace." 

PEDIGREE. 

Declarations as evidence, see "Evidence," § 41. 



PAYMENT, V.— PENALTIES. 

[Fed. Cas. Digest.] 

§ 3. Nature and grounds of action. 

Actions for penalties, being founded upon the 
implied contract which every person enters into 
with the state to observe its laws, are civil ac- 
tions, both in form and substance.— Stearns v. 
United States, Case No. 13,341. 



PENALTIES. 

§ 1, Statutory provisions. § 2, Remission of penal- 
ties. § 3, Nature and grounds of action. § 4, In- 
formers. § 5, Defenses. § 6, Jurisdiction. § 7, 
Pleading. § 8, Evidence. § 9, Trial. § 10, Costs. 
§ 11, Decree and enforcement. § 12, New trial and 
arrest of judgment. 

Breach of contract, see "Damages," § 7. 
Cutting timber, see "Public Lands," § 8. 
Engaging in slave trade, see "Slaves," § 4. 
Nonpayment of tax, see "Taxation," § 18. 
Relief against, see "Equity," § 7. 
Taking usury, see "Banks and Banking," § 20: 
"Usury," § 19. * ' 

Under copyright law, see "Copyrights," §§ 16, 

mail contracts, see "Post Office," § 10. 

Violation of customs laws, see "Customs Duties," 

of election laws, see "Elections," § 12. 

— —of embargo and nonintercourse acts, see 

of gaming laws, see "Gaming," § 2. 

of internal revenue laws, see "Internal Rev- 
enue," §§ 91-95. 

of regulations as to carriage of passengers, 

see "Shipping," § 206. 

of regulations as to patents, see "Patents," 

§ 163. 

of regulations relating to pilots, see "Pilots " 

§ 13. 

of regulations relating to seamen, see "Sea- 
men," § 13. 

of shipping regulations, see "Shipping," §§ 

* 11-15. 

§ !• Statutory provisions. 

Penal statutes strictly construed.— Andrews v 
United States, Case No. 381. 

The legislature cannot create an obligation 
or impose a penalty for an act which, when done, 
incurred no such liability.— Falconer v. Camp- 
bell, Case No. 4,620. * 

Construction of penal statutes, see "Statutes," § 

Repeal of statutes, see "Limitation of Actions," 
§ 7; "Statutes," § 15. 

§ 2. Remission of penalties. 

The secretary of the treasury has no power 
to remit penalties, unless in cases provided for by 
law.— The Margaretta, Case No. 9,072. 

"Prosecution," as used in the act for the re- 
mission of penalties, includes all the proceed- 
ings in a suit, as well before as after judgment, 
including the execution.— United States v. Mor- 
ris, Case No. 15,816. 

The certificate of a consul is evidence to remit 
a penalty due to the United States.— Brown v. 
The Independence, Case No. 2,0li 
Fed.Cas.Dig.— 57 



Although, in the absence of an informer, the 
government may have judgment for the whole, 
yet this does not authorize the proceeding by in- 
dictment.— United States v. Tilden, Case No. 
lb,523. 

A qui tarn action is not the proper remedy 
where no part of the penalty goes to the party 

5 ui K£* for it.— Washington v. Eaton, Case No. 
17,228. 

Where both a money penalty and imprison- 
ment are prescribed as punishment for an of- 
fense, an action of debt will lie for the money 
penalty.— United States v. Foster, Case No. 15,- 

See, also, "Debt, Action of," § 1. 

Abatement and survival of action, see "Abate- 
ment and Revival," § 5. 

Election of remedies, see "Election of Reme- 
dies," § 2. 

§ 4. Informers. 

An officer who obtains information by the ex- 
amination of witnesses compelled to testify be- 
fore the grand jury is not the informer.— United 
States v. One Hundred Barrels of Distilled 
Spirits, Case No. 15,946. 

An officer who acts on information furnished 
nim by another officer intended to be given the 
government, and does not discover new facts by 
his own diligence, or who merely makes certain 
what was suspected, is not the informer.— United 
States v. One Hundred Barrels of Distilled Spir- 
its, Case No. 15,946. 

, An assistant assessor of internal revenue held 
entitled to the informer's share, where he gives 
information, leading to the indictment and con* 
viction of an offender, which he acquired of his 
own motion, while in the discharge of his official 
duties.— United States v. Chassell, Case No. 14,- 
789. * 

It is only the giving of information which led 
to the seizure which entitles a person to a part 
of the penalty as an informer.— Brewster v Gel- 
ston. Case No. 1,853. 

It is only when the amount of the penalty 
has been recovered by judgment of the court that 
an informer is entitled to a moiety thereof.— 
United States v. One Hundred Barrels of Dis- 
tilled Spirits, Case No. 15,946. 

The penalty of a recognizance for the appear- 
ance in court of a defendant charged with a 
crime under Act March 2, 1799, is not a penalty 
recovered by virtue of such act, and the informer 
is not entitled to a share therein.— United States 
v. Fanjul, Case No. 15,069. 

4 An agreement between informers to divide the 
informer's share equally is valid, and will be re- 
garded by the court in distributing it— United 
States v. Stockwell, Case No. 16,406. 

Where a statute creates an offense, and affixes 
a specific pecuniary penalty, appropriating one- 
half thereof to the informer, it adopts by impli- 
cation those remedies by which alone the in- 
former can sue.— United States v. Tilden, Case 
-No. 16,523. 

A pardon remitting a penalty under the rev- 
enue law after judgment therefor operates to 
remit the moiety adjudged to the informer.— 
United States v. Thomasson, Case No. 16,479. 

§ 5. Defenses. 

Ignorance of the existence of penal statute 
forms no legal excuse for its violation.— The- 
Ann, Case No. 397. 



1795 (§ 6) 



PENALTIES- 

£Fed. Cas. 



§ 6. Jurisdiction. 

In suits for penalties incurred under Act Aug. 
2, 1S13. giving a moiety to the United States, 
and the other moiety to the collector or inform- 
er, the state courts have jurisdiction.— Stearns 
v. United States, Case No. 13,341. 

The judiciary act of 1789, giving exclusive 
original cognizance to the district courts in cases 
of penalties incurred under the federal laws, is 
pro tanto repealed by Act Aug. 2, 1813, giving 
the state courts jurisdiction in certain cases.— 
Stearns v. United States, Case No. 13,341. 

Jurisdiction of admiralty, see "Admiralty," § 34. 
of federal district court, see "Courts," § 96. 

§ 7. Pleading. 

The complaint in an action by a private person 
must allege plaintiff's right to sue.— Briscoe v. 
Hinman, Case No. 1,887. 

The complaint, in an action for a statutory 
penalty, must state that the act or omission 
alleged was contrary to the statute.— Briscoe v. 
Hinman, Case No. 1,887. * 

In an action on a statute, the party prosecut- 
ing must allege every fact necessary to make out 
his title and his competency to sue.— Ferrett v. 
Atwill, Case No. 4,747. 

In debt on a penal statute the existence ot 
the statute must be alleged as a matter of fact 
by a direct allegation.— United States v. Batch- 
elder, Case No. 14,540. 

A declaration describing two penal offenses in 
one count, where one penalty only is sought, is 
good after verdict.— Smith v. United States, Case 
No. 13,122. 

A declaration in debt for a penalty describing 
the offense in the words of the statute held good 
after verdict.— Jacob v. United States, Case No. 
7,157. 

A declaration to recover a statutory penalty 
must demand a precise sum, although the stat- 
ute declares that the penalty shall be not more 
than" a sum stated.— United States v. Elliot, 
Case No. 15,043. 

Where several acts are mentioned in the decla- 
ration, an allegation that "by force of said act,' 
without designating the particular act, is not fa- 
tal on error.— Sears v. United States, Case No. 
12.592. 

Such declaration need not specify the uses to 
which the forfeiture inures, and an allegation in 
that respect may be stricken out as surplusage. 
—Sears v. United States, Case No. 12,592. 

Declarations in penal actions are to be strictly 
construed, and they must negative all excep- 
tions.— Smith v. United States, Case No. 13,122. 

In an action for a statutory penalty, the decla- 
ration must conclude against the form of the 
statute.— Cross v. United States, Case No. 3,434; 
Sears v. Same, Id. 12,592; United States v. 
Babson, Id. 14,489. 

Or with words of equivalent import.— United 
States v. Babson, Case No. 14,489. 

A declaration for a penalty given by a single 
statute is good on error, although it concludes 
against the form of the "statutes."— Kenrick v. 
United States, Case No. 7,713. 

A conclusion in a declaration of debt for a 
penalty under a statute "against the law in such 
case made and provided" is not a conclusion 
against the form of a statute, and is bad on 
error —Smitji v. United States, Case No. 13,122. 

§8. Evidence. . 

An answer by one who is charged with a. 
forfeiture under a law of the United States is 
not admissible against him in an action brought 
against him for a penalty under the same law.— 
Clark v. United States, Case No. 2,837. 

§9. Trial. 

On an issue found against defendant on plea 
of nil debet in an action of debt to recover a 



-PENSIONS. (§ 4) 1796 

Digest.] 

penalty given by the embargo act, the amount 
of the penalty is to be fixed by the jury.— Unit- 
ed States v. Allen, Case No. 14,431. 

Right to trial by jury, see "Jury," § 2. 

§ 10. Costs. 

A prosecutor liable for costs upon an indict- 
ment for a misdemeanor has no right to with- 
draw the prosecution without the consent of the 
attorney of the United States.— Virginia v. Du- 
lany, Case No. 16,959. 

§11. Decree and enforcement. 

The record in a friendly action of debt for 
penalties after compromise of criminal proceed- 
ings for frauds on the revenue and an action 
for estimated duties is not conclusive of the 
rights of the parties, and the character of the 
fund.— In re Webster, Case No. 17,332. 

Penalties may be enforced either by an execu- 
tion against defendant's property or by capias; 
but where the sentence directs collection by ex- 
ecution a subsequent imprisonment under a ca- 
pias is illegal.— In re Teuscher, Case No. 13,- 
846. 

§ 12. New trial and arrest of judgment. 

A verdict in favor of defendant in an action 
to recover a statutory penalty will be set aside 
if contrarv to the evidence and the law applica- 
ble thereto.— United States v. Fox, Case No. 15,- 
155. 

In a suit to recover a pecuniary penalty, the 
court has power to grant a new trial, although 
the verdict was for defendant.— United States v. 
Halberstadt, Case No. 15,276. 

Where the declaration is defective in this par- 
ticular, the judgment will be arrested on motion. 
—United States v. Batchelder, Case No. 14,540. 

PENDENCY OF ACTION. 

Effect as- to property involved, see "Lis Pen- 
dens." 



PENNSYLVANIA. 

Grants of public lands, see "Public Lands," §§ 
69-73, 77-SO. 

PENSIONS. 

§ 1, Power to grant. § 2, Persons entitled. § 3, 
Officers— Bonds. § 4, Fraudulent payments. § 5. Of- 
fenses. 

§ 1. Power to grant. 

Under the constitutional authority to raise and 
support armies, congress has power to bestow 
bounties and pensions upon those who may en- 
gage in military service.— United States v. Fair- 
childs, Case No. 15,007. 

§ 2. Persons entitled. 

An adopted child is not entitled to a pension, 
but a legitimated child is entitled to a pension 
under Act March 4, 1814.— United States v. 
Skam, Case No. 16,308. 

§ 3. Officers— Bonds. 

Where, under a rule of the department, an 
accounting is required before a new bond of an 
officer is accepted, held, that the sureties on the 
old bond were liable where the officer resigned 
two days after the approval of the new bond, 
and before an accounting.— United States v. 
Haynes, Case No. 15,334. 

§ 4. Fraudulent payments. 

A town having notice of fraud in obtaining a 
pension which sues the pensioner for supportas 
a pauper, and receives a portion of the pension 
monev in compromise, is liable to the United 
States in an action for money had and received. 



1797 (§5) 



PENSIONS— PEKJUKY, L 

[Fed. Cas. Digest.] 



(§5) 1798 



— United States v. Waterborough, Case No. 16,- 
G48. 

§ 5. Offenses. 

Act July 4, 1864, §§ 12, 13, limiting the fees 

of pension agents and attorneys, and making it 

a misdemeanor to take any greater compensation, 

' is constitutional. — United States v. Fairchilds, 

Case No. 15,067; Same v. Marks, Id. 15,721. 

One collecting an excessive fee for services in 
procuring a pension under Act July 4, 1862, 
is not subject to the penalty prescribed by Act 
July 4, 1864, § 13.— United States v. Marks, Case 
No. 15,721. 

Under the constitutional authority to raise and 
support armies, congress may make it an offense 
to detain from a military pensioner any portion 
of the sum collected in his behalf as his pension. 
—United States v. Pairchilds, Case No. 15,067. 

Specification of elements necessary to be prov- 
ed to convict one of withholding pension money. 
Rev. St. § 54S5.— United States v. Howard, Case 
No. 15,400. 

The mere fact that a banker or other person 
agrees to collect a pension check does not make 
him an agent for the prosecution of a pension 
claim, within the meaning of said section. — Unit- 
ed States v. Howard, Case No. 15,400. 

An agent is indictable under such act who 
withholds from a pensioner a pension granted un- 
der a later act. — United States v. Chaffee, Case 
No. 14.771. 

Effect of repeals and re-enactments of pension 
acts as to the punishment of the offense of with- 
holding pension claims allowed, stated. — United 
States v. Bennett, Case No. 14,570. 

An indictment for retaining a greater sum 
than the statutory allowance for collecting a 
pension cannot be sustained where the amount 
was paid under a prior contract for services in 
causing to be removed from the rolls of the war 
department a charge of desertion. — United States 
v. Snow, Case No. 16,350. 

The two acts of transmitting and presenting 
forged papers, etc., are not separate offenses, 
under Act March 3, 1823, to punish frauds 
against the United States. — United States v. 
Armstrong, Case No. 14,468. 

PERJURY. 

I. OFFENSES AND RESPONSIBILITIES 

THEREFOR. 

§ 1, Statutory provisions. § 2, The oath. 
§ 3, Nature of the proceeding. § 4, Jurisdic- 
tion of court or officer. § 5, Knowledge and 
intent. 

II. PROSECUTION AND PUNISHMENT. 

§ 6, Mode of proceeding. § 7, Indictment or 
information. § 8, Evidence. § 9, Trial. § 10, 
Sentence and punishment. 

Ground of opposition to discharge in bankrupt- 
cy, see "Bankruptcy," §§ 586-588. 

I. OFFENSES AND RESPONSIBILI- 
TIES THEREFOR. 

Offenses against bankrupt laws, see "Bankrupt- 
cy," § 6T2. 

§ 1. Statutory provisions. 

The act of 1S25 in relation to perjury, being 
a general law, applies to all subsequent cases 
which come within it.— United States v. Ni- 
hols, Case No. 15,880. 

S 2. The oath. 

An oath to do a certain thing in the future 
cannot be the subject of a prosecution for per- 
jury.— United States t. Glover, Case No. 15,218. 



§ 3. Nature of tne proceeding. 

A state statute, punishing false swearing in 
"judicial proceedings," hdd applicable only to 
proceedings under the state laws. — Ex parte 
Bridges, Case No. 1,862. 

Whether perjury committed on a hearing on 
a criminal complaint before a district judge is 
punishable under Act April 30, 1790, c. 9, § 18, 
query.— United States v. Clark, Case No. 14,- 
804. 

An indictment for an act which does not con- 
stitute an offense under the laws of the United 
States is still "a suit, controversy, matter or 
cause pending," in which perjury may be com- 
mitted. Act 1790.— United States v. Reese, 
Case No. 16,138. 

Although the income tax act makes no provi- 
sion for compelling a person to make oath to his 
return, yet, as it permits him to do so, inten- 
tional false swearing therein is perjury.— United 
States v. Smith, Case No. 16,341. 

The secretary of war may prescribe the con- 
tents of affidavits by drafted soldiers claiming 
exemption from military service, and false swear- 
ing as to such facts is perjury. Act March 3, 
1863.— United States v. Sonachall, Case No. 16,- 
352. 

Perjury may be committed in an affidavit to 
an account for the purpose of getting it passed 
by the orphans' court— United States v. Thomas, 
Case No. 16,475. 

An oath administered by a commissioner to a 
person tendering himself for justification, as bail 
for a person committed by such commissioner to 
await the issuing of a warrant for his removal 
for trial, will support an indictment for perjury, 
though it does not appear thaf the deposition 
was used on the application for bail;— United 
States v. Volz, Case No. 16,627. 

§ 4. Jurisdiction of court or officer. 

To sustain an indictment for perjury, the oath 
must be administered by some one authorized. 
— United States v. Deming, Case No. 14,945. 

An oath in a case required by law, taken be- 
fore a deputy collector, may be the basis of an 
indictment for perjury.— United States v. Bar- 
ton, Case No. 14,534. 

An oath, not required to be administered by 
any law or rule of court, is not perjury, though 
administered under the usage of a ministerial 
officer. — United States v. Babcock, Case No. 14,- 
488. 

Authority to a county clerk* to swear petition- 
ers resident in his county does not give him pow- 
er to administer an oath to one who resides in 
another county.— United States v. Deming, Case 
No. 14,945. 

Where an act expressly describes the kind of 
proof of compliance with its requirements, it is 
not competent for any officer of Hie United States 
to require new oaths, so as to make the false 
taking of them perjury.— United States v. Nick- 
erson, Case No. 15,878. 

§ 5. Knowledge and intent* 

A false swearing from mistake is not perjury. 
— Anonymous, Case No. 475. 

False swearing is committed by knowingly 
swearing falsely to any material fact, and not 
merely by rash or reckless swearing.— United 
States v. Moore, Case No. 15,803; Same v. Shell- 
mire, Id. 16,271. 

An affidavit to the existence of a fact does not 
import that the affiant has personal knowledge 
thereof, unless it is so stated, or the fact be of 
such a character that he must have personal 
knowledge.— United States v. Moore, Case No. 
15,803. 

Perjury, under Act 1823, may be either by 
swearing to a fact which the party knows is not 
true, or to his knowledge of a fact when he has 



1799 (§ 5) 



PEE JURY, L, H. 

[Fed. Cas. Digest.] 



(§ 10) 1800 



not knowledge. An intent to defraud the gov- 
ernment is not necessary. — United States v. At- 
kins, Case No. 14,474. 

To constitute the offense of false swearing un- 
der the fisheries bounty act of 1813, there must 
be a willful and corrupt intent to swear falsely. 
—United States v. Smith, Case No. 16,336. 

An indictment for perjury cannot be sustained 
under Act July 29, 1S13, §§ 7, 9, granting boun- 
ties to vessels engaged in the fisheries, where 
the owner signs the certificate, and the agent 
swears to it.— United States v. Kendrick, Case 
No. 15,519. 

A person cannot be convicted of perjury in 
swearing falsely to an income tax return, where 
it was not made with a corrupt intention, but 
with the honest belief that it was correct- 
United States v. Smith, Case No. 16,341. 

Where affiant stated the facts truly, and sign- 
ed an affidavit on the advice of his lawyer, in 
whom he confided, that they were substantially 
the same therein, he is not guilty of perjury, 
though the affidavit be false.— United States v. 
Stanley, Case No. 16,376. 

H. PROSECUTION AND PUNISHMENT. 

Jurisdiction, see "Criminal Law," § 13. 

§ 6. Mode of proceeding. 

If the party purge himself on oath, the court 
will not hear collateral evidence for the purpose 
of impeaching his testimony and proceeding 
against him for the contempt; but, if perjury 
appear, he will be recognized to answer, etc. — 
United States v. Dodge, Case No. 14,975. 

§ 7. Indictment or information. 

An indictment for perjury alleged to have been 
committed on an examination of a person char- 
ged with a crime against a law of the United 
States should show what the particular crime 
was.— United States v. Wilcox, Case No. 16,692. 

An indictment for perjury alleged to have been 
committed on an examination before C, "a com- 
missioner of the United States, newly appoint- 
ed," but not stating how, or by whom, or under 
what statute, or for what purpose such com- 
missioner was appointed, is bad on demurrer. — 
United States v. Wilcox, Case No. 16,692. 

The indictment should set out the name and 
official title of the officer before whom the oath 
was administered.— United States v. Wilcox, 
Case No. 16,692. 

Act April 30, 1790, §§ 19, 20, do not dispense 
with the necessity of such averment. — United 
States v. Wilcox, Case No. 16,692. 

The judgment will be arrested where the in- 
dictment fails to state the day upon which the 
trial took place, and on which defendant was 
sworn in the case in which the perjury was 
alleged to have been committed. — United States 
v. Bowman, Case No. 14,631. 

The indictment should charge that the oath 
was false, and known to be so by the witness, 
and that the motive was corrupt. — United States 
v. Babcock, Case No. 14,488. 

The materiality of the facts sworn to must 
appear in the indictment either by averment or 
by a statement of facts which show their mate- 
riality.— United States v. Cowing, Case No. 
14,880; Same v. McHeiry, Id. 15,681. 

An indictment for subornation of perjury (Act 
March 3, 1825, § 13), averring that defendant 
did feloniously, knowingly, and willingly pro- 
cure B. to swear falsely in the taking of an 
oath, etc., but not averring that B. knowingly 
and willingly swore falsely, is bad on demurrer. 
—United States v. Wilcox, Case No. 16,G93. 

An indictment for subornation of perjury must 
aver that defendant knew that the testimony 



which he instigated the suborned witness to give 
was false, and that, in giving such testimony, 
the witness would commit the crime of perjury. 
—United States v. Dennee, Case No. 14,947. 

Where an indictment charges perjury at the 
circuit court held on the 19th day of May, and 
the record shows that the court was held on the 
20th of May, the variance is fatal.— United 
States v. McNeal, Case No. 15,700. 

§ 8. Evidence. 

Papers filed by the prisoner to sustain the al- 
legations contained in the original paper, if they 
tend to establish the charge made in the indict- 
ment as to guilty knowledge, will be admitted 
in evidence.— United States v. Gardiner, Case 
No. 15,186a. 

The falsity of the oath, taken under the rev- 
enue laws, on which perjury is assigned, may 
be shown by the books and papers of the de- 
fendant.— United States v. Mayer, Case No* 
15,753. 

The affidavit of a third person is admissible- 
to show what the prisoner swore to, where both 
affidavits were on the same sheet of paper. — 
United States v. Buete, Case No. 14,680a. 

The prosecution must show that the oath was- 
administered to defendant by the person named, 
that he Jiad authority to administer it, that de- 
fendant was sworn in a matter where an oath 
or affirmation is required under the laws of the- 
United States, and that defendant swore with a 
wicked and corrupt intent, willfully false in 
regard to the matters alleged to be untrue. 
Act March 3, 1825, § 13.— United States v. 
Coons, Case No. 14,860. 

Where a witness testifies that he is well ac- 
quainted with the applicant, on an application 
to a state court for the naturalization of a for- 
eigner, and it appears that he was a total stran- 
ger to the applicant, and volunteered as a 
witness, there is sufficient evidence to warrant 
a conviction of the witness on an indictment 
for perjury, under Rev. St. § 5392.— United 
States v. Jones, Case No. 15,491. 

On an indictment for perjury, an affidavit of 
the defendant directly contradicting the one on 
which the perjury is assigned, is not sufficient 
evidence of the falsity of the latter.— United 
States v. Mayer, Case No. 15,753. 

It is only necessary to prove so much of the- 
testimony of the witness as relates to the par- 
ticular fact on which the perjury is assigned. 
—United States v. Erskine, Case No. 15,057. 

A copy of the record in the cause in which 
the perjury was committed, where the court is 
the same, need not be produced. — United States 
v. Erskine, Case No. 15,057. 

The statements of defendant which are inadc- 
the basis of a charge of perjury must be dis- 
proved by two witnesses, or by one witness and 
corroborating circumstances. — United States v. 
Coons, Case No. 14,860. 

There need not be positive evidence that the 
paper was sworn to by the prisoner; it may 
be proved by circumstantial evidence.— United 
States v. Gardiner, Case No. 15,186a. 

§ 9. Trial. 

Whether a false oath was taken under mistake- 
as to the law or fact involved therein is a ques- 
tion of fact for the jury.— United States v. 
Smith, Case No. 16,341. 

Alleged errors in instructions on a trial for 
perjury considered.— United States v. McHenry* 
Case No. 15,681. 

§ 10. Sentence and punishment. 

Upon a conviction of perjury the court may 
inflict the punishment of fine, imprisonment, 
and the pillory.— United States v. Snow, Case 
No. 16,349. 



1801 (§ 1) 



PERPETUITIES— PILOTS. 

[Fed. Cas. Digest.] 



(§ 3) 1802 



PERPETUITIES. 



§ 1, Statutory provisions. § 2, Creation of future 
contingent estates in general. § 3, Remoteness of 
.gifts to charities. 

:§ 1. Statutory provisions. 

A devise of lands to be held until the last 
born grandchild became of age, then to be di- 
vided among all living grandchildren, and the 
issue of such as were dead, taking per stirpes, 
is not void as to the child of a grandchild who 
■died before the testator, under a statute pro- 
hibiting devises except to persons in being when 
the will is made, or their immediate issue or 
immediate descendants. Act Ohio Dec. 17, 
1812.— McArthur v. Allen, Case No. 8,659. 

§ 2. Creation of future contingent estates 
in general, 

A devise over, if the parties first taking should 
all die, "without leaving any issue of the body 
of either of them," at the death of the last sur- 
vivor, "or if such issue should all die before 
attaining the age of 21 years," is too remote. — 
Maxwell v. Call, Case No. 9,323. 

§ 3. Remoteness of gifts to charities. 

A condition against alienation annexed to 
property devoted to charity does not render the 
devise void.— -Jones v. Habersham, Case No. 
7,465. 

An immediate gift to trustees for a general 
charity, which cannot take effect except on the 
occurrence of contingent and uncertain events, 
is valid, and the fund will be held up for a rea- 
sonable time to await the happening of the con- 
tingencies. — Jones v. Habersham, Case No. 
7,465. 

A devise to trustees for a charitable purpose, 
which is to be carried on by them until a build- 
ing to be erected for the charity shall be com- 
pleted, which is then to be handed over by the 
trustees, with the funds to support it, to a cor- 
poration to be created, creates no perpetuity. — 
Jones v. Habersham, Case No. 7,465. 

PERSONAL INJURIES. 

See, also, "Negligence." 

Damages for, see "Damages," §§ 1-3, 9. 

From assault, see "Assault and Battery," § 6. 

Jurisdiction over action for, see "Admiralty," 
§ 32. 

Limitation of liability, see "Shipping," § 246. 

Received on Sunday, see "Sunday," § 3. 

To employe, see "Master and Servant," §§ 3-8. 

To licensees, see "Railroads," § 69. 

To passengers, see "Carriers," §§ 40-48; "Ship- 
ping," § 203. 

To seamen, see "Seamen," §§ 156-174. 

To traveler on highways, see "Highways," §§ 
4, 5; "Municipal Corporations," § 25. 

To trespassers, see "Railroads," § 69. 

PERSONAL PROPERTY. 

See "Property." 

PETITION. 

In admiralty, see "Admiralty," § 91. 

In bankruptcy, see "Bankruptcy," §§ 37, 54. 

In pleading, see "Pleading," §§ 4r-15. 

PHYSICIANS AND SURGEONS. 

§ l f Authority to admit to practice. § 2, Practicing 
without authority. § 3 f Right to compensation. 

§ 1. Anthority to admit to practice. 

Constitution and legality of the medical board 
of examiners of the District of Columbia. — Unit- 
ed States v. Williams, Case No. 16,713. 



§ 2. Practicing without authority. 

In a prosecution for practicing medicine with- 
out a license, a witness will not be compelled to 
produce the medicine which he received from 
defendant.— United States v. Williams, Case 
No. 16,713. 

The application, by an oculist, of a liquid to 
the eye, is not the practice of medicine, but 
rather of surgery.— United States v. Williams, 
Case No. 16,713. 

§ 3. Right to compensation. 

Where a statute provides for a board of med- 
ical examiners, and requires a license from 
them as a condition of practicing medicine, a 
physician may maintain an action at law for 
his services, though he practiced without a li- 
cense, if during the time of such services there 
was no existing board of examiners. — Woodside 
v. Baldwin, Case No. 17,995. 



See "Wharves." 



PIERS. 



PILOTS. 



§ 1, Statutory regulations. § 2, Pilot commission-* 
ers. § 3, Licenses. § 4, Obligation to take pilots. 
§ 5, Tender of services. t § 6, Rights and duties. § 7, 

Compensation— Right in general. § 8, Amount. 

§ 9, Actions. § 10, Lien. § 11, Trans- 
fer of wages. § 12, Liability for negligence. § 13, 
Penalties for violations of regulations 

§ 1. Statutory regulation. 

The t territory of Washington has power to 
pass pilot laws. Such power is recognized as 
concurrent in the states by Act Aug. 7, 1794. 
—The Panama, Case No. 10,702. 

Act Aug. 30, 1852, providing for the employ- 
ment of pilots on vessels propelled in whole or 
in part by steam, engaged in carrying passen- 
gers on any of the bays, lakes, or other naviga- 
ble waters of the United States, so far as it 
goes, supersedes all state laws regulating the 
employment of pilots on such vessels. — The 
Panama, Case No. 10,702. 

In case of conflict the presumption is that 
congress intended to abrogate state laws on the 
subject.— The Panama, Case No. 10,702. 

The Pennsylvania compulsory pilotage law of 
1803 applies to foreign as well as American ves- 
sels.— Smith v. The Creole, Case No. 13,032. 

Validity of state laws, see "Commerce," § 1. 

§ 2. Pilot commissioners. 

Act providing that pilot commissioners "may" 
appoint a secretary Jield to be mandatory.— The 
California, Case No. 2,313. 

§ 3. Licenses. 

A pilot's license, when prima facie evidence 
of the facts recited therein.— The California, 
Case No. 2,313. 

A pilot commissioner cannot authorize an- 
other member of the board to sign his name to 
a license.— The California, Case No. 2,313. 

A state law requiring that a pilot licensed by 
the inspectors of steam vessels (Act Feb. 25, 
1867) shall also be licensed by the state pilot 
commissioners when navigating a vessel within 
the state, held valid.— The George S. Wright, 
Case. No. 5,340. 

A warrant to act as pilot, appearing on its 
face to have been regularly issued, cannot be 
questioned collaterally, and justifies the master 
of the ship in dealing with the holder as a law- 
fully constituted pilot.— The Panama, Case No. 
10,702. 

A pilot for the port of Charleston, S. C, 
must be thoroughly acquainted with the bar at 
the mouth of the harbor, and the practicability 



1803 (§ 4) 



PILOTS. 

[Fed. Cas. Digest.} 



(§ 9) 1804 



of crossing it at a given time.— The Washington 
v. The Saluda, Case No. 17,232. 

§ 4. Obligation to take pilots. 

Neither in nor out bound vessels are, by the 
laws of Massachusetts, positively bound to em- 
ploy a pilot.— Camp v. The Marcellus, Case No. 
2,347. 

A vessel that is -within pilotage ground, but 
disabled so that she cannot get into port with- 
out steam, is not bound to accept the offer of a 
pilot, or pay his fee.— Flanders T. Tripp, Case 
No. 4,854. 

Pilots held not entitled to fees on tender and 
refusal of services to vessels passing through 
Boston harbor, bound to Lynn and Dorchester. 
Rev. St Mass. c. 32, §§ 15-22.— Nash v. The 
Thebes, Case No. 10,022. 

A vessel owned by a resident of Maine, and 
sailing under a fishing license, is not liable for 
half pilotage as either a "foreign vessel" or 
"vessel under register," within the New York 
pilot law. — Weaver v. McLellan, Case No. 17,- 
309. 

A law which obliges vessels entering and leav- 
ing a harbor to receive a pilot or forfeit half 
pilotage is not compulsory, but optional; ^ and 
hence a vessel navigated by such a pilot is liable 
for a collision caused by his negligence. Case 
No. 13,032 reversed.— Smith v. The Creole, Case 
No. 13,033. 

§ 5. Tender of services. 

Tender of services by a Hell Gate pilot to a 
vessel bound through Hell Gate at a point 17 
miles east of Sand's Point held effective.— The 
Georgia D. Loud, Case No. 5,353. 

The exhibition to the master of the vessel of 
the pilot's warrant is a necessary part of the 
tender of services, under Act Wash. T. Jan. 
26, 1S63.— The Eldridge, Case No. 4,332. 

Act N. Y. 1865, giving half pilotage on a ten- 
der and refusal of services, held applicable to 
a tender made as far east as Sand's Point, to a 
vessel bound to New York.— Horton v. Smith, 
Case No. 6,709. 

An offer to take on board a pilot tendering 
services, accompanied with refusal to pay off- 
shore pilotage, is a refusal to take the pilot, 
within the meaning of the New York statute, 
though another pilot is subsequently taken and 
in-shore pilotage paid. — The Nevada, Case No. 
10,130. 

The tender of services by a Hell Gate pilot 
as far east as Block Island is not legal, and a 
refusal and subsequent settlement with him 
will not prevent a pilot, who tendered his serv- 
ices off Oak Neck, from recovering half pilot- 
age, where they were refused.— The S. & B. 
Small, Case No. 12,291b. 

§ 6. Rights and duties. 

Licensed pilot, employed to remain on vessel 
to take her in and out of port, is subject to 
master's discipline, but not liable to ship's duty 
except when in charge as pilot.— Beataugh v. 
Nicholson, Case No. 1,194. 

Use of force to compel obedience of pilot held 
a trespass. — Beataugh v. Nicholson, Case No 
1,194. 

Master is not justified in ordering regularly 
employed pilot ashore, for failure to obey order 
to leave quarter deck.— Beataugh v. Nicholson, 
Case No. 1,194. 

The master may interfere in case of gross 
ignorance or palpable and dangerous mistake by 
the licensed pilot in charge. — Camp v. The Mar- 
cellus, Case No. 2,347. 

§ 7. Compensation — Right in general. 

Right to compensation for salvage services, see 
"Salvage," §§ 5, 20, 23, 44, 



State pilot laws have suflicient effect beyond 
the state boundaries to fix the compensation 
of pilots.— The Nevada, Case No. 10,130. 

It is not the mere clearance for a port, but 
being actually bound into it, that imposes on a 
vessel the obligation to pay a pilot. — Nash v. 
The Thebes, Case No. 10,022. 

The seizure of a vessel on process, which in- 
terrupts her regular business, is notice to the 
pilot that his services are no longer required, 
and terminates his right to wages.— The Joseph 
Hall, Case No. 7,539. 

An abandoned bark, towed into New York, 
is not liable for the fees of a pilot who does 
not board her, nor control her navigation. — Chap- 
man v. The Lucerne, Case No. 2,605. 

A vessel in the port of New York, which has 
entered on a voyage which will carry her 
through Hell Gate, who refuses a pilot's serv- 
ices, is liable for half pilotage, though the voy- 
age through Hell Gate is not completed. — The 
Traveller, Case No. 14,147. 

To charge one, as agent of a vessel, for half 
pilotage fees under the New York statute, he 
must be shown to have some connection with 
her. — Mason v. Ingraham, Case No. 9,238. 

§ 8. — Amount. 

A pilot was allowed $100 extra pilotage for 
navigating into the port of New York a passen- 
ger ship discovered 60 miles outside Sandy 
Hook in a disabled condition.— The Warren, Case 
No. 17,193. 

Pilots taking a vessel partly crippled, but not 
in immediate peril, nor unnavigable through 
Sandy Hook channel, held entitled to a reason- 
ble extra compensation, but not to double fees, 
as a legal right under a claim of usage of the 
port — Love v. Hinckley, Case No. 8,54S. 

A pilot who does not take charge of a vessel 
until she reaches pilot grounds is only entitled 
to inshore pilotage. — The Alaska, Case No. 129. 

To sustain a claim for half pilotage by a Hell 
Gate pilot, he must show that the vessel was in 
the prosecution of a voyage which would carry 
her through Hell Gate.— The Kalmar, Case No. 
7,601. 

The limits of pilot grounds are not fixed by any 
rule of law, but depend upon usage or custom; 
and that usage is not settled and uniform, but 
varies according to circumstances. — Hope v. The 
Dido, Case No. 6,679. 

A pilot is not bound to take charge of a dis- 
abled vessel for the usual pilot's fee. — Flanders 
v. Tripp, Case No. 4,854. 

Pilot who takes charge of, and tows into port, 
an abandoned ship, at request of vessel which 
had been towing her, is entitled to greater com- 
pensation than the usual pilot fee.— The Cham- 
pion, Case No. 2,582a. 

§ 9. Actions, 

Admiralty has jurisdiction over action to re- 
cover half pilotage under state laws for services 
tendered and refused. — Banta v. McNeil, Case 
Xo. 966. CONTKA, see Arcularias v. Staples. 
Case No. 509b. 

The inference that no pilot was employed on 
board a vessel which refused libelant's offer of 
services may be drawn from the fact that the 
master admitted the correctness of libelant's 
claim, and no evidence of employment was giv- 
en.— The Nellie Husted, Case No. 10,098. 

Presumptions and proof as to the terms of hir- 
ing at monthly wages of a pilot on the Hudson 
river.— Truesdale v. Young, Case No. 14,204. 

A claim to half pilotage for a tender and re- 
fusal of services, supported only by the oath of 
the pilot, and contradicted by two witnesses 
from the other vessel, cannot be sustained where 
the pilot might have produced other witnesses, 



1805 (§ 10) 



PILOTS— PIRACY- 

[Fed. Cas. Disrest.] 



(§ 3) 1806 



whose absence he did not account for.— The 

Thomas Turrall, Case No. 13,932. 

Jurisdiction of admiralty, see "Admiralty," § 27. 

§ 10. — Xiien. 

A claim for half pilotage given by b. state law 
on a tender and refusal of services is a lien on 
the vessel, and admiralty has jurisdiction to 
enforce the ■ same.— The* Calif ornia, Case No. 
2,312; The America, Id. 289; The Kalmar, Id. 
7,601; The George S. Wright, Id. 5,340. CON- 
TRA, see Leitch v. The George Law, Case No. 
8,223; Harrison v. The Anna Kimball, Id. 
6,132; The Robert J. Mercer, Id. 11,891. 

The pilot has a lien for wages, as such, though 
when the vessel was in port he officiated and 
was recognized as master. — Logan v. The iEo- 
lian, Case No. 8,465. 

A pilot has a lien on the ship for services in 
bringing the vessel into port, rendered under 
agreement with the passengers in pretended mu- 
tiny.-^Tohnson v. The Anne, Case No. 7,370. 

# 

Mere wrongdoers or mutineers have no author* 
itv to bind the ship for pilotage.— The Anne, 
Case No. 412. 

§11. Transfer of wages. 

A contract by a pilot purchasing a share in 
a vessel that his part owners shall retain yearly 
out of his wages such sum as he is able to spare, 
until the balance of the purchase money is paid, 
is not an assignment of unaccrued wages, with- 
in Rev. St § 4536.— Somers v. The Jersey Blue, 
Case No. 13,169. 

§ 12. Liability for negligence. 

A licensed pilot, who runs his vessel on a 
shoal in fair weather and open daylight, is liable 
for resulting damages, and cannot set up the 
failure of the vessel to have a hawser, with 
which she might have been warped off without 
injury.— Santiago v. Morgan, Case No. 12,331. 

See, also, "Collision," § 95. 

§ 13. Penalties for violations of regula- 
tions. 

A master who, without being licensed, per- 
forms the duty of pilot to make up the required 
number, is liable to a penalty of $100 (Act Aug. 
30, 1852), besides subjecting the boat and its 
owners to a penalty of $500. Act July 7, 1838, 
§ 1.— United States v. The Science, Case No. 
16,239. 

PIRACY. 

§ 1, Statutory provisions. § 2, What constitutes. 
§ 3, Persons liable. § 4, Defenses. § 5, Evidence. 

Jurisdiction, see "Criminal Law," §§ 10, 11. 

§ 1. Statutory provisions. 

The provisions of the law relating to piracy 
were not repealed by Act June 26, 1812, 2 Stat. 
759.— United States v. Jones, Case No. 15,494. 

Congress may make depredations upon the high 
seas punishable as piracy, though they do not 
strictly constitute such crime as known to inter* 
national law.— Charge to Grand Jury, Treason 
and Piracy, Case No. 18,277. 

§ 2. "What constitutes. 

A pirate is one who acts solely on his own 
authority, without any commission or authority 
from a sovereign state, seizing by force, and 
appropriating to himself, without discrimination, 
every vessel he meets with. — Davison v. Seal- 
Skins, Case No. 3,661. 

The United States court will treat as pirates 
all persons engaged in plundering vessels of the 
United States citizens under authority of a gov* 
ernment set up by insurgents against whom a 
civil war is being waged. — United States v. 
Smith, Case No. 16,318. 

Act 1790, c. 9, § 8, as well as Act 1820, c. 113, 
applies to all murders and robberies committed 



on board of or upon American ships on the high 
seas.— United States v. Gibert, Case No. 15,204. 

Act April 30, 1790, § 9, in regard to piracy or 
robbery on the high seas, applies only to citizens, 
and not to foreigners.— United States v. Baker, 
Case No. 14,501. 

Larceny committed on boara" an American ship 
in an inclosed dock in a foreign port is not 
punishable under Act April 30, 1790, c. 9, § 16. 
—United States v. Hamilton, Case No. 15,290. 

To constitute robbery on the high seas within 
Act May 15, 1820, § 3, the taking need not be 
such as to amount .to piracy according to the 
law of nations. — United States v. Baker, Case 
No. 14,501. 

Act May 15, 1820, § 3, in regard to robbery 
on the high seas, applies to all persons, whether 
citizens or foreigners.— United States v. Baker, 
Case No. 14,501. 

The seizure of a vessel carrying arms and 
munitions of war to a port of the enemy by an 
armed ship, whose officers held commissions from 
the hostile country, is not piracy. — United States 
v. Smith, Case No. 16,339a. 

The crime of piracy, as defined by the law of 
nations and the acts of congress, consists of 
robbery or forcible depredation upon the sea.— 
United States v. Chapels, Case No. 14,782. 

Slave trade is not punishable as piracy. — Unit- 
ed States v. Corrie, Case No. 14,869. 

To constitute the offense of running away with 
a vessel, it must appear that the command 
was taken from the master, and that the act 
was done feloniously, and with intent to convert 
the vessel and cargo or either of them to the 
use of the persons concerned in the act. — United 
States v. Haskell, Case No. 15,321. 

Robbery on the high seas is piracy; but to 
constitute the offense the taking must be felo- 
nious, and the quo animo may be inquired into. 
—Davison v. Seal-Skins, Case No. 3,661. 

If the seamen participated in taking property 
from a Spanish ship, it must be shown that they 
knew or might have known that robbery, and 
not capture as prize, was contemplated. — United 
States v. Jones, Case No. 15,496. 

To constitute the offense of piracy (Act April 
30, 1790, c. 9) by piratically and feloniously 
running away with the vessel, personal force 
and violence is not necessary. There must be 
a fraudulent and unlawful conversion. — United 
States v. Tully, Case No. 16,545. 

A confederacy by American citizens on land 
or on board an American vessel, with pirates, 
under the laws of nations, or the yielding up of 
a vessel by a citizen to such pirates, is punish- 
able, under section 8, Act April 30, 1790.— 
United States v. Howard, Case No. 15,404. 

So, also, is an endeavor by a mariner to cor- 
rupt the master of the vessel and induce him to 
go over to such pirates. — United States v. How- 
ard, Case No. 15,404. 

The language of section 12 implies contract 
and association with the pirates as well in re- 
lation to the past as to the future. — United States 
v. Howard, Case No. 15,404. 

Sections 10 and 11, Act April 30, 1790, as to 
accessories, refer to the piracy mentioned in sec- 
tion 8, which includes only crimes committed 
by American citizens, or on board American 
vessels.— United States v. Howard, Case No. 
15,404. 

§ 3. Persons liable. 

In order to affect all the officers and crew of a 
piratical vessel with guilt, the original voyage 
must have been undertaken with a piratical de- 
sign, and the officers and crew have known and 
acted upon such design; otherwise, those only 
are guilty who actively co-operated in the piracy. 
—United States v. Gibert, Case No. 15,204. 



1807 (§ 3) 



PIRACY— PLEADING. 

[Fed. Cas. Digest.] 



1808 



In order to convict a seaman on a privateer for 
piracy committed in conjunction with the offi- 
cers, he must be shown to have participated felo- 
niously in the taking, and proof of acts of rob- 
bery generally by officers and crew is insufficient. 
— United States v. Jones, Case No. 15,496. 

A subordinate officer, who in good faith enters 
a formal protest against a seizure by his vessel, 
is not guilty with the others of an act of piracy. 
—United States v. Smith, Case No. 16,339a. 

The simple fact of presence on board the pirat- 
ical vessel, where there was no original piratical 
design, is not sufficient per se to affect a party 
with a crime. — United States v. Gibert, Case No. 
15,204. 

The rule that robbery on the high seas is 
piracy has no exception or qualification in favor 
of commissioned privateers. — United States v. 
Jones, Case No. 15,494. 

A French citizen transiently within the Unit- 
ed States cannot be criminally prosecuted for 
piracies and robberies committed by the captain 
of a privateer owned by him, upon neutral ves- 
sels. — United States v. Owners of the Unicorn, 
Case No. 15,979a. 

§ 4. Defenses. 

A commission by a nation at war to a private 
armed vessel will afford protection even in the 
judicial tribunals of the enemy, against a charge 
of robbery or piracy. — United States v. Baker, 
Case No. 14,501. 

A forged commission under which an officer 
acts in good faith held a good defense to an in- 
dictment for piracy. — United States v. Smith, 
Case No. 16,339a; Same v. Bass, Id. 14,537. 

§ 5. Evidence. 

Parol evidence is admissible to establish the 
time of sailing, and the course and termination 
of a voyage, without proving that the log book 
was missing or lost. — United States v. Gibert, 
Case No. 15,204. 

A commission from a government whose inde- 
pendence has not been recognized may be given 
as evidence, merely as a paper found on board, 
but not to justify acts done under it. — United 
States v. Hutchings, Case No. 15,429. 

Other evidence of ownership of the ship and 
cargo may be admitted, besides the register and 
bills of sale, and the invoice, bills of lading, 
etc. — United States v. Jones, Case No. 15,494. 

PLEA. 

In civil actions, see "Equity," §§ 43-54; "Plead- 
ing," §§ 16-36. 

In criminal prosecution, see "Criminal Law," §§ 
45-50. 

PLEADING. 

I. ORDER, FORM, AND ALLEGATIONS IN 

GENERAL. 

§ 1, Form of pleading in general. § 2, Order 
of pleading. § 3, Matter of law. 

II. DECLARATION OR COMPLAINT. 

§ 4, Title of court. § 5, Statement of venue. 
§ 6, Joint defendants. § 7, Uncertainty. § 8, 
Anticipating and negativing defenses. § 9, 
Inducement. § 10, Surplusage. § U. Duplici- 
ty. § 12, Jurisdictional facts. § 13, Averment 
of citizenship. § 14, Pleading and setting out 
documents. § 15, Abandonment of counts. 

III. PLEA OR ANSWER. 

§ 16, Time of answer or filing plea. § 17, 
Sufficiency of plea or answer in general. § 18, 
Statement of partial defense only. § 19, Ar- 
gumentative plea. § 20, Joint answer. § 21, 
Inconsistent allegations or defenses. § 22, 



Plea puis darrien continuance. § 23, Matter 
occurring after commencement of suit. § 24, 
Impertinence. § 25, Distinct defenses. § 26, 
Misnomer. § 27, Duplicity. § 28, Frivolous 
plea. § 29, Verification. § 30, Dilatory pleas 

—Plea to the jurisdiction. § 31, Plea or 

answer in abatement. § 32, General issue. 
§ 33, Admissions. § 34, Pleas in confession 
and avoidance and special pleas. § 35, Set- 
off and counterclaim. § 36, Pleas amounting 
to general issue. 

IV. REPLICATION OR REPLY AND SUB- 

SEQUENT PLEADINGS. 
§ 37, Replication or reply. § 38, Rejoinder. 

V. DEMURRER. 

§ 39, Grounds for demurrer. § 40, Special 
demurrer. § 41, Demurrer to whole or part 
of pleading. § 42, Demurrer as opening rec- 
ord. § 43, Admissions by demurrer. § 44, 
Pleading on overruling or sustaining demur- 
rer. 

VI. AMENDED AND SUPPLEMENTAL 

PLEADINGS, REPLEADER, AND 
WITHDRAWAL OP PLEADINGS. 

§ 45, Power and discretion of court. § 46, 
Notice to adverse party. § 47, Amendment of 
declaration. § 48, Amendment of demurrer. 
§ 49, Time of amendment. § 50, Imposing 
conditions on allowing amendment. § 51, 
Form and sufficiency of amended pleading. 
§ 52, Effect of amendment. § 53, Supplemen- 
tal pleadings. § 54, Repleader. § 55. With- 
drawal of pleadings. 

VH. SIGNATURE AND VERIFICATION. 

§ 56, Sufficiency of signature. § 57, Time ot 
verification. § 58, Sufficiency of verification. 
§ 59, Effect of failure to verify. 



VHI. PROEERT AND OYER. 

§ 60, When party entitled. § 61, Time of 
demanding. § 62, Sufficiency. 

IX. BILL OP PARTICULARS. 

§ 63, When bill will be ordered. § 64, Suffi- 
ciency and effect. 

X. MOTIONS. 

§ 65, Motions to strike out. 

XI. ISSUES, PROOF,. AND VARIANCE. 

§ 66, Joinder of issues of fact. § 67, Evi- 
dence admissible under pleadings. § 63, 
Variance between allegations and proof. 

XII. WAIVER OF "OBJECTIONS AND 

AIDER BY VERDICT. 

§ 69, Waiver of objections in general. § 70, 
Aider by verdict. 

After removal of cause, see "Removal of Caus- 
es," § 60. 

As evidence, see "Admiralty." § 94; "Equity," 
§§ 92, 93; "Evidence," § 27. 

Conformity of judgment to pleading, see "Judg- 
ment," § 16. 

Defects as ground for new trial, see "New 
Trial/' § 4. 

Estoppel by allegations in, see "Estoppel." § 1. 

Indictment or criminal information or complaint, 
see "Indictment and Information." 

Waiver of objection to jurisdiction, see "Admi- 
ralty," § 36. 

Allegations as to particular facts, acts, or 

transactions. 

See "Accord and Satisfaction," § 4; "Adverse 
Possession," § 9; "Damages," § 12; "Es- 
toppel," § 9; "Fraud," § 7; "Judgment," §§ 
81-83; "Pardon," § 7; "Payment," §§ 17, 18; 
"Statutes," § 36; "Usury," § 16. 



1809 (§ 1) 



PLEADING, L, II. 
[Fed. Cas. Digest.] 



(§9) 1810 



Discharge in bankruptcy, see "Bankruptcy," §§ 
634, 635. 



in insolvency, see "Insolvency," § 16. 



Jurisdiction, see "Bankruptcy," § 18; "Courts," 

§§ 60-62. 
Laches, see "Equity," § 21. 
Statute of frauds, see "Frauds, Statute of," § 6. 

of limitations, see "Limitation of Actions," 

§§ 26, 27. 

In actions by or against particular classes of 

parties. 

See "Corporations," § 56: "Executors and Ad- 
ministrators," § 48; "Municipal Corporations," 
§ 41; "Officers," § 5; "Partnership," § 36; 
"Seamen," § 138; "Sheriffs and Constables"; 
"United States Marshals," § 21. 

Assignees in bankruptcy, see "Bankruptcy," § 
361. 

Insurance companies, see "Insurance," §§ 172, 
173. 

In particular actions or proceedings* 

See "Account," § 1; "Assumpsit, Action of," § 
4; "Cancellation of Instruments," § 8; "Cred- 
itors' Suit," § 8; "Debt, Action of," § 2; "Det- 
inue," § 3; "Discovery," § 4; "Ejectment," § 
10; "False Imprisonment," § 4; "Forcible 
Entry and Detainer," § 1; "Libel and Slan- 
der," §§ 15-18; "Malicious Prosecutions," § 
6; "Quieting Title," §'7; "Replevin," § 8: 

- • "Specific Performance," § 14: "Trespass," § 

7; "Trespass to Try Title"; ''Trover and Con- 
version," § 3. 

Criminal prosecutions, see "Criminal Law," §§ 

45-50. 
For breach of contract, see "Contracts," § 39. 

of covenants, see "Covenants," § 9. 

of promise of marriage, see "Breach of 

Marriage Promise," § 1. 
For collision, see "Collision," §§ 125-129. 
For foreclosure, see "Mortgages," § 35. 
For forfeiture, see "Forfeitures," § 8; "Internal 

Revenue," § 83. 
For infringement of copyright, see "Copyrights," 

§ 43. 
of patents, see "Patents," §§ 194r-198. 

of trade-mark or trade-name, see "Trade- 
Marks and Trade-Names," § 29. 

For injunction, see "Injunction," § 12. 

For penalties, see "Customs Duties," § 120a; 
"Penalties," § 7. 

For rent, see "Landlord and Tenant," § 9. 

For violation of customs laws, see "Customs 
Duties," § 101. 

of embargo and nonintercourse acts, see 

"War," § 19. 

In admiralty, see "Admiralty," §§ 37-49, 79-91. 

In bankruptcy, see "Bankruptcy," §§ 106-122. 

In equity, see "Equity," §§ 35-93. 

In justices' courts, see "Justices of the Peace," 
§ 9. 

On bills or notes, see "Bills and Notes," §§ 96- 
99. 

On bonds, see "Bonds," §§ 20, 21. 

in replevin, see "Replevin," § 15. 

On guaranty, see "Guaranty," § 11. 

Prize proceedings, see "War," § 59. 

To enforce liens, see "Maritime -Liens," §§ 59, 60. 

trusts, see "Trusts," § 48. 

To recover duties or charges paid, see "Cus- 
toms Duties," § 70. 

salvage, see "Salvage," § 65. 

To set aside fraudulent conveyances, see "Fraud- 
ulent Conveyances," § 31. 

I. ORDER, FORM, AND ALLEGATIONS 

IN GENERAL. 

J} 1. Form of pleading in general. 

Under the system of pleading adopted in New 
York, judgment at trial, in a suit at law, is to 
be rendered in accordance with the facts plead- 
ed and proved, without regard to the form of the 
pleadings or the theory on which they were pre- 
pared.— Whalen v. Sheridan, Case No. 17,476. 



§ 2. Order of pleading. 

The order of pleading is part of the common 1 
law, and does not depend upon a mere rule of tht 
court.— Fenwick v. Grimes, Case No. 4,734. 

§ 3. Matter of law. 

It is not necessary to aver matter of law or 
public statutes of which the court takes judicial 
notice. — Young v. Montgomery & E. R. Co., 
Case No. 18,166; Jones v. Hays, Id. 7,467. 

H. DECLARATION OR COMPLAINT. 

See, also, post, §§ 47, 70. 

§ 4. Title of court. 

It is sufficient to state the title of the court in 
the caption of the declaration.— Gassett v. Palm- 
er, Case No. 5,265. 

§ 5. Statement of venue. 

The jurisdiction of the court is not affected 
by the venue laid, or a wrong one, or by the en- 
tire omission to lay one. — Cage v. Jeffries, Case 
No. 2,287. 

A declaration in a local action in a federal 
district court, which does not lay a venue, or 
avers a wrong one, is bad on demurrer. — United 
States v. Woolsey, Case No. 16,762. 

The venue, if substantially laid, is sufficient.— 
Gassett v. Palmer, Case No. 5,265. 

Venue in the margin of pleading is sufficient 
where none is laid in the body of the declaration. 
—Cocke v. Kendall, Case No. 2,929b. 

A venue in the body of the declaration is 
sufficient without being stated in the margin.— 
Dwight v. Wing, Case No. 4,219. 

Where the absence of a venue in one count 
may be supplied by necessary inference from 
the venue in others, the count is not bad. — Noe 
v. Prentice, Case No. 10,284a. 

Venue is necessary to every traversable fact, 
and, where one is laid in the count, all matters 
following refer to it.— Cocke v. Kendall, Case 
No. 2,929b. 

Where a cause of action is local, a reference 
to the "district aforesaid," named in any pre- 
ceding count, is a sufficient designation of the 
place.— Jones v. Van Zandt, Case No. 7,505. 

The words "state aforesaid," in the body of 
the declaration, Jield to refer to the state or venue 
in the margin, and not those mentioned in the 
body.— Cage v. Jeffries, Case No. 2,287. 

§ 6. Joint defendants. 

A declaration against two of three obligors 
is defective which does not aver that all three 
have failed to pay the debt. — Robins v. Pope» 
Case No. 11,931a. 

§ 7. Uncertainty. 

An allegation that the defendant failed to 
furnish transportation to laborers furnished the 
defendant by plaintiff, to his damage so many 
dollars, is not uncertain, but only nominal dam- 
ages can be recovered under it. — Oh Chow v. 
Hallett, Case No. 10,469. 

§ 8. Anticipating and negativing de- 
fenses. 

Matter in defeasance of an action need not 
be stated in the declaration. — Hammer v. Kauf- 
man, Case No. 5,997. 

The continued use of an improvement, where, 
under lie agreement with plaintiff, nonuser was 
to release defendant from his obligation topay, 
need not be alleged in the declaration. — Ham- 
mer v. Kaufman, Case No. 5,997. 

§ 9. Inducement. 

Inducement should consist of such facts as 
authorize an inference against the right asserted 
by the other party. — Egberts v. Dibble, Case 
I No. 4,307. 



1811 (§ 10) 



PLEADING, II., III. 
[Fed. Gas. Digest.] 



(§ 17) 1812 



§ 10. Surplusage. 

If a count in a declaration contains sufficient 
averments, surplusage will not vitiate it. — Wy- 
man v. Fowler. Case No. 18,114. 

§11. Duplicity. 

The union of several facts constituting to* 
gether but one cause of action, is not duplicity. 
— Jackson v. Rundlet, Case No. 7,145. 

See, also, post, § 27. 

§ 12. Jurisdictional facts. 

The facts and circumstances upon which juris- 
diction depends must be stated in the declara- 
tion or pleadings. — Donaldson v. Hazen, Case 
No. 3,984. 

Where a statute declares that a certain suit 
shall not be brought without certain allegations, 
such allegations in the declaration are essential 
to the plaintiff's right to sue. — Walker v. John- 
son, Case No. 17,074. 

Where, in order to give jurisdiction, it is nec- 
essary that defendant should be found within the 
district, a mere statement in the declaration that 
defendant "being in custody," etc., is insuffi- 
cient—United States v. Woolsey, Case No. 16,- 
762. 

§ 13. Averment of citizenship. 

A general averment of the citizenship of the 
plaintiff is sufficient. — Thompson v. Cook, Case 
No. 13,952. 

An averment of citizenship in the first count 
is sufficient for all the other counts where re- 
ferred to therein. — Jones v. Heaton, Case No. 
7,468. 

§ 14. Pleading; and setting out docu- 
ments. 

A slight variation in describing a written in- 
strument is fatal.— Clark v. Phillips, Case No. 
2,S31a. 

An exhibit is no part of a pleading in an ac- 
tion at law; a record or instrument should be 
stated in a pleading either according to its tenor 
or legal effect— Pitch v. Cornell, Case No. 4.834: 
Oh Chow v. Hallett. Id. 10,469. 

A writing merely referred to and annexed as 
an exhibit will be stricken out on motion as im- 
pertinent and irrelevant. — Oh Chow v. Hallett, 
Case No. 10,469. 

§ 15. Abandonment of counts. 

Plaintiff may enter a nolle prosequi to any 
account in his declaration. — McLain v. Ruther- 
ford, Case No. 8,868a. 

In Ohio a count cannot be abandoned after 
the jury retire to consult on the verdict. — Jones 
v. Van Zandt, Case No. 7,502. 

Counts abandoned are considered as still in 
the record for matters of references in subse- 
quent counts. — Jones v. Van Zandt, Case No. 
7,505. 

m. PLEA OB ANSWER. 

See, also, post, § 55. 

§ 16. Time of answer or filing plea. 

Defendant, at the imparlanced term, allowed 
to plead any issuable plea to the merits, although 
rule to plea expired. — Darnall v. Talbot, Case 
No. 3,57S. 

Where an amended declaration, filed 20 days 
before the commencement of the term, was re- 
moved from the clerk's office by plaintiff's coun- 
sel, the court refused to compel defendant to 
plead during the term. — Walker v. Johnson, Case 
No. 17,075. 

When a substantial amendment is made in a 
declaration, the defendant should be allowed 
until the next succeeding term to plead. — Wyatt 
v. Harden, Case No. 18,106a. 



After a cause has been at issue 18 months, 
leave will not be given to plead non est factum 
without affidavit denying execution of the bond 
in suit.— Bullock v. Van Pelt, Case No. 2,131. 

Defendant not permitted to plead the statute 
of limitations after the expiration of rule to- 
plead.— Bank of Columbia v. Hyatt. Case No. 
869; Beatty v. Van Ness, Id. 1,198; Reed v. 
Clark, Id. 11,643. But see Marsteller v. Mc- 
Clean, Case No. 9,139. 

The plea of the statute cannot be put in after 
the rule day, unless it be shown by affidavit to- 
be necessary to the justice of the case. — Thomp- 
son v. Afflick, Case No. 13.939. 

Ignorance of the practice of the court by an 
attorney recently admitted lield good cause for 
allowing the statute of limitations to be pleaded 
after the rule day. — Union Bank v. Eliason, Case- 
No. 14,350; Wetzell v. Bussard, Id. 17,471. 

The statute of limitations may be pleaded on 
setting aside the office judgment at the first 
term.— Gregg v. Bontz, Case No. 5,708; Me- 
chanics* Bank of Alexandria v. Lynn, Id. 9,384r 
Morgan v. Evans, Id. 9,800. CONTRA, Smith 
v. Stoops, Case No. 13,110. 

After interlocutory decree, and an issue order- 
ed, the court will not permit the defendant to- 
plead the statute of limitations and to file an 
answer. — Wilson v. Turberville, Case No. 17,- 
844. 

On reinstatement after nonsuit, defendant not 
permitted to plead the statute of limitations un- 
less he show it to be necessary for the justice- 
of the case. — Mclver v. Moore, Case No. 8,831. 

An 'exception (in Louisiana) that plaintiff, su- 
ing as administrator, is not administrator, must 
be pleaded in limine litis. — Barras v. Bidwell,. 
Case No. 1.039. 

Such an exception cannot be embodied in the- 
answer, and it must be verified by affidavit. — 
Barras v. Bidwell, Case No. 1,039. 

The same rules apply to the exception of lis 
pendens. — Barras v. Bidwell, Case No. 1,039. 

If the defendant on the plea day demand oyer, 
which is not given until the subsequent term, 
the court will give the defendant time to plead 
after oyer.— Calvert v. Slater, Case No. 2,326. 

§17. Sufficiency of plea or answer in. 
general. 

A plea in bar is not good if the facts stated 
do not constitute a bar. — Curtis v. Central Rv.,. 
Case No. 3,501; Smith v. Ely, Id. 13,043. 

A plea to a declaration on a bond conditioned 
to pay a certain sum in pounds sterling, that it 
was not equivalent to, and that defendant did 
not owe, the sum in United States money, as- 
averred in the declaration, held bad on demur- 
rer. — Gurney v. Hoge, Case No. 5,875. 

A plea negativing a breach assigned in its 
very words is good on a general demurrer. — Unit- 
ed States v. Hammond, Case No. 15,292. 

Where a declaration is special, stating facts 
and circumstances, a plea setting up the same- 
matter is bad. — Van Avery v. Phoenix Ins. Co., 
Case No. 16,829. 

A plea is demurrable where its structure is 
that of a plea in bar, but which avers by way 
of set-off a claim for damages for improper per- 
formance by plaintiff of the contract out of 
which plaintiff's cause of action arose. — Central 
Ohio K. R. v. Thompson, Case No. 2,550. 

A plea in bar is bad, whether involving ques- 
tions of law or fact, where it goes only to the- 
question of damages. — King v. American Transp, 
Co., Case No. 7,787. 

The extent of the rule that, where there are- 
several pleas, the legal inferences from the aver- 
ments contained in one plea have no influence- 



1813 (§ 17) 



PLEADING, III. v 
[Fed. Cas. Digest.] 



(§ 30) 1814 



in deciding on the averments of another plea. — 
Pegram v. United States, Case No. 10,906. 

A statement in the answer of the evidence 
upon which defendant relies to sustain his claim 
of ownership is irrelevant,— "Wythe v. Myers, 
Case No. 18,119. 

§ 18. Statement o£ partial defense only. 

A plea which does not answer the whole 
charge or count is had.— Culhertson v. Wabash 
Nav. Co., Case No. 3,464; Kerr v. Force, Id. 
7,730; Parker v. Lewis, Id. 10,741a; Postmas- 
ter General v. Reeder, Id. 11,311. 

Where a plea professes to answer onl^ part of 
the actionable matter charged in the count, and 
the replication or demurrer treats it as a plea to 
the whole matter, this is a discontinuance; but 
otherwise if it is treated as a plea to that part 
only which it purports to answer, provided 
that plaintiff, at the time of replying or demur- 
ring, take judgment by nil dicit for the unan- 
swered part of the count.— Kerr v. Force, Case 
No. 7,730. 

§ 19. Argumentative plea. 

A plea is bad which argumentatively denies a 
fact averred in the declaration.— Mower v. Bur- 
dick. Case No. 9.890; Kinney v. Consolidated 
Va. Min. Co., Id. 7,827. 

§ 20. Joint answer. 

A joint answer must be good as to all de- 
fendants joining therein.— United States v. Hal- 
sted, Case No. 15,287. 

§21. Inconsistent allegations or de- 
fenses. 

Defendant may plead inconsistent or contradic- 
torv defenses to the same action under Civ. 
Code Or. § 72.— Hall v. Austin, Case No. 5,925. 

Where inconsistent allegations in the answer 
are not excepted to, the one most strongly 
against claimants will be taken to be the one 
really made.— The Olbers, Case No. 10.477. 

§ 22. Plea pnis darrein continuance. 

The plea puis darrein continuance admits 
plaintiff's cause of action.— Wisdom v. Williams, 
Case No. 17,904. 

And waives all prior issues.— Spafford v. Wood- 
ruff, Case No. 13,198. 

And all previous defenses.— Good v. Davis, 
Case No. 5,530a; Wisdom v. Williams, Id. 17,- 
904. 

§ 23. Matter occurring after commence- 
ment of suit. 

A plea which states matters which occurred 
subsequent to theginstitution of the suit is bad 
on demurrer. — Lockington v. Smith, Case No. 8,- 
448. 

§ 24. Impertinence. 

Impertinences are any matters not pertinent 
to those points which are properly before the 
court for decision at any particular stage of the 
case.— Wood v. Mann, Case No. 17,952. 

§ 25., Distinct defenses. 

Where distinct defenses are pleaded, one can- 
not be taken to help or destroy the other.— Bach- 
man v. Everding, Case No. 708. 

§ 26. Misnomer. 

A plea is not bad on special demurrer because 
misnaming plaintiff in marginal title. Bank of 
Columbia v. Jones, Case No. 870, overruled.— 
Bank of Columbia v. Ott, Case No. 878. 

But a plea of the statute of limitations, mis- 
naming the plaintiffs in the margin, is bad on 
special demurrer.— Bank of Columbia v. Jones, 
Case No. 870. 

§27. Duplicity. 

A plea is bad, if it set up two distinct matters 
of defense, either of which is sufficient to defeat 
plaintiff's action.— Halsted v. Lyon, Case No. 
5,968. 



Several distinct and independent pleas to sep- 
arate parts of a count are not double, and, if 
all be held good on demurrer, will make out a 
complete bar, so that judgment must be given 
for defendant— Kerr v. Force, Case No. 7,730. 

A plea will not be considered double to set- 
ting up matter which is immaterial to the issue 
of law raised by the demurrer.— Derby v. 
Jacques, Case No. 3,817. 

See, also, ante, § 11. 

§28. Frivolous plea. 

A plea of estoppel which does not show that 
the defendant was misled by the plaintiff, or 
those under whom he claims, is frivolous. — 
Gager v. Harrison, Case No. 5,171. 

Denial of citizenship of the' plaintiff pleaded 
with matter to the merits becomes frivolous. — 
Gager v. Harrison, Case No. 5,171. 

A plea in abatement for variance, in that the 
writ did not state citizenship of the parties, 
whereas the declaration did, is frivolous, and 
will be stricken out on motion.— Burrow v. Dick- 
son, Case No. 2,203. 

A plea which expressly or in effect admits 
the cause of action cannot be stricken out as 
frivolous.— Bachman v. Everding, Case No. 708. 

A statement in the answer that defendant de- 
rives title from the administrators of a certain 
person, it not being alleged that such person ever 
owned or had any interest in the property, is 
frivolous.— Wythe v. Myers, Case No. 18,119. 

An allegation that the property was conveyed 
by administrators, in obedience to an order of 
the probate court, where it does not appear that 
the order was duly or lawfully made, or that 
the court had authority to make it, is frivolous.— 
Wythe v. HyerS, Case No. 18,119. 

A plea stating that defendant is in possession 
as assignee of an unsatisfied mortgage, but which 
does not allege that he entered with the assent" 
of the mortgagor, is frivolous, but not sham or 
redundant.— Witherell v. Wiberg, Case No. 17,- 
917, 

Plea not stricken out as frivolous if matter 
properly pleaded is included.— Bachman v. Ever- 
ding, Case No. 708. 

§29. Verification. 

A plea, which is not a direct denial of some 
material fact stated in the declaration, should 
conclude with a verification. — Tucker v. Lee, 
Case No. 14,221. 

See, also, post, §§ 57-59. 

§ 30. Dilatory pleas — Flea to the juris- 
diction. 

A plea to the jurisdiction of the court, alleging 
facts which show a want of jurisdiction, is not a 
submission to the jurisdiction. — Van Antwerp v. 
Hulburd, Case No. 16,826. 

A plea to the jurisdiction must be pleaded by 
itself, and cannot be set up in the answer. — Vose 
v. Reed, Case No. 17,011. 

A plea to the jurisdiction on the ground that a 
demand has, been colorably assigned in order to 
evade a discharge in insolvency is not to be 
treated as dilatory and captious, like some pleas 
in abatement.— Wallace v. Clark, Case No. 17,- 
098. 

After a complaint is amended on demurrer to 
cure a jurisdictional defect it becomes substan- 
tially a new suit, and defendant may interpose 
another plea to the jurisdiction.— Donaldson v. 
Hazen, Case No. 3,984. . 

In an action ex delicto, the objection that the 
court has no jurisdiction of a certain defendant 
is personal to such defendant, and cannot be 
made by one defendant for another.— Hinckley 
v. Byrne, Case No. 6,510. 



1815 (§ 30) 



An affidavit to a plea to the jurisdiction must 
be positive, and not on belief. — Adams v. White, 
Case No. 68. 

In a court of limited jurisdiction, a plea that 
the cause of action did not arise within the juris- 
diction is a plea in bar, and good after office 
judgment.— Smith v. McCleod, Case No. 13,073. 

§ 31* — Plea or answer in abatement. 

A plea in abatement of another suit pending 
in the usual form need not allege that such suit 
was not discontinued before the plea was filed. 
—Nelson v. Foster, Case No. 10,105. 

A plea in abatement must show jurisdiction 
of the former suit, if pending in a court not un- 
der the same sovereignty. — White v. Whitman, 
Case No. 17,561. 

An allegation in a plea of abatement that all 
of defendants in the action are not citizens of 
the state is bad for uncertainty.— Hinckley v. 
Byrne, Case No. 6,510. 

Where proceedings in bankruptcy are pleaded 
in abatement, all matters required to give juris- 
diction must be averred— Ex parte Balch, Case 
No. 790. 

But such plea must show that the court has 
jurisdiction.— Ex parte Balch, Case No. 790. 

A plea in abatement not upon oath, may be 
treated as a nullity. — Fenwick v. Grimes, Case 
No. 4,734; White v. Whitman, Id. 17,561. 

A plea of the pendency of a former suit in an- 
other court must offer to produce the record of 
such suit.— Riddle v. Potter, Case No. 11,811. 

Certificate of counsel that, in his opinion, the 
plea is well founded, need not accompany a plea 
of abatement in the federal court. — Nelson v. 
Foster, Case No. 10,105. 

A plea in bar overrules a plea in abatement 
—Fenwick v. Grimes, Case No. 4,734. 

Where, on a rule to show their cause of ac- 
tion, the plaintiffs have produced a positive affi- 
davit of debt, the defendant cannot give evi- 
dence that a suit for the same cause of action 
has been instituted in another court— Post v. 
Sarmiento, Case No. 11,301. 

§ 32. General issue. 

The plea of nil debet is improper where the 
action is founded on a deed; otherwise where 
the deed is only inducement to the action. — 
United States v. Cumpton, Case No. 14,902. 

When the record set forth in the declaration 
is not the foundation of the action, but only 
matter of conveyance or inducement, nul tiel 
record is not a good plea, for it does not answer 
the whole count— United States v. Litle, Case 
No. 15,608. 

When the record is shown forth in the decla- 
ration, defendant may deny the operation there- 
of.— United States v. Litle, Case No. 15,608. 

The general plea of non est factum is proper 
where an obligation under seal is void ab initio. 
— Bottomley v. United States, Case No. 1,68S. 

A plea of non assumpsit to a declaration 
sounding in tort is fatally defective. — Davis v. 
Garland, Case No. 3,636. 

See, also, post, § 36. 

§ 33. Admissions. 

A plea which does not traverse the facts aver- 
red in the declaration, but sets up new matter 
in defense, admits the case made in the declara- 
tion. — Greathouse v. Dunlap, Case No. 5,742. 

Where an unsworn plea is put in, denying the 
instrument on which the action is founded or 
the indorsement of it, the note and the indorse- 
ment as averred in the declaration are admit- 
ted.— Thomas y. Clark, Case No. 13,894. 



PLEADING, IIL, TV. 
[Fed. Cos. Digest.] 



(§ 37) 1816 



£34. Pleas in confession and avoidance 
and special pleas. 

The statement of new matter in the answer 
must be concise, and must constitute a defense 
to the action. The ultimate facts, and not the 
evidence of them, must be stated. Civ. Code 
Or. § 316.— Moreland v. Marion County, Case 
No. 9,794. 

A plea is bad which sets up matters in defense, 
and neither denies nor admits, and avoids plain- 
tiff's allegation.— Halsted v. Lyon, Case No. 
5,968. 

In special pleas in bar, color to the plaintiffs' 
right must be given.— Dibble v. Duncan, Case 
No. 3,880. 

Defendant^ in his answer, cannot introduce 
new matter in the nature of a cross bill, and 
require plaintiff and others under whom he 
claims to answer it. — Morgan v. Tipton, Case 
No. 9,809. 

A special plea is required where the instru- 
ment sued on is merely voidable.— Bottomley v. 
United States, Case No. 1,688. 

A special plea which sets up several defenses 
is bad.— Cook v. Tribune Ass'n, Case No. 3,165. 

A special plea of non est factum must con- 
clude with a verification.— Contee v. Garner, 
Case No. 3,139. 

§ 35. Set-off and counterclaim. 

A counterclaim is substantially a cross action, 
and should contain nothing but the facts nec- 
essary to constitute it; and if any other de- 
fense is inserted therein it may be stricken out. 
— Neff v. Pennoyer, Case No. 10,085. 

A claim in reconvention should be pleaded 
with the same precision and detail as an orig- 
inal cause of action. — Barras v. Bidwell, Case 
No. 1,039. 

It is a good ground of exception to a claim in 
reconvention that it has been substantially ad- 
judicated between the same parties in another 
state, where it was pleaded as a counterclaim. 
—Barras v. Bidwell, Case No. 1,039. 

Unless notice of set-off be given before the 
suit is called for trial, it will not be permitted 
to be given in evidence. — Deneale v. Xoung, 
Case No. 3,786; Whetcroft v. Burford, Id. 
17,505. 

An account in bar or set-off must be filed one 
term before trial, under the rules in the District 
of Columbia. — Janney v. Baggot, Case No. 
7,210. 

§ 36. Pleas amounting to general issue. 

A plea which amounts to ike general issue is 
bad.— Curtis v. Central Ry., Case No. 3,501; 
Dibble v. Duncan, Id. 3,880; Halsted v. Lyon, 
Id. 5,968; Parker v. Lewis, Id. 10,741a. 

A plea which admits the execution of an in- 
strument sued on and sets up matter in avoid- 
ance is not objectionable, as amounting to the 
general issue.— Thomas v. Page, Case No. 
13,906. 



IV. REPLICATION OR REPLY AND 
SUBSEQUENT PLEADINGS. 

See, also, post, § 69. 

§ 37. Replication or reply. 

A reply is not necessary when the plea does 
not state facts necessarily precluding a recov- 
ery by plaintiff.— United States v. Atwill, Case 
No. 14,475. 

A judgment in assumpsit will be reversed 
where the cause was tried without replication 
to good pleas in bar. — Miles v. Rose, Case No. 
9,544a. 

Plaintiff will not be allowed to file his replica- 
tion after the rule day and in term time except 



1817 (§ 37) 



PLEADING, IV., V- 
[Fed. Cas. Digest.] 



(§ 42) 1818 



upon condition of a continuance.— Veatch v. 
Harbaugh, Case No. 16,905. 

The state practice having been adopted by the 
standing rules of the district court of the South- 
ern district of New York, plaintiff may obtain 
leave to file a double replication to defendant s 
plea.— Valarino v. Thompson, Case No. lb,$10a. 

Granting leave to put in several replications 
not an adjudication of their sufficiency.— An- 
drew v. Redfield, Case No. 368. 

A replication may set up the title of the equi- 
table plaintiff, and notice thereof to the defend- 
ant, and thus show the asserted bar to be m 
fraud of such rights.— Brown v. Hartford Fire 
Ins. Co., Case No. 2,009. 

A replication which alleges two distinct and 
independent facts, either of which is a complete 
answer to the plea, is double, and is bad on spe- 
cial demurrer.— Burnham v. Webster, Case No. 
2,178. 

A replication to the plea of the statute of lim- 
itations, which stated that the debt arose on an 
account between merchants, and that the plain- 
tiff was beyond sea, is bad for duplicity.— Craig 
v. Brown, Case No. 3,329. 

Replication to plea of statute of limitations 
setting up agreement not to plead statute and a 
new promise is double.— Andrese v. Redfield, 
Case No. 368. 

A replication to a plea of payment in an ac- 
tion on a bond for the payment of money, that 
the sum paid was not accepted in. satisfaction, 
was not paid on the day appointed, and the 
damages and interest due for nonpayment were 
not paid, 7i£ld bad for duplicity.— United States 
v. Gurney, Case No. 15.271. 

A departure takes place when a second plea 
contains matter not pursuant to the former, 
and does not fortify the same, except that, if 
matter be pleaded which could not have been 
shown in the former plea, such new matter will 
probably not always be a departure.— United 
States v. Morris, Case No. 15.816. 

§38. Rejoinder. 

A rejoinder must answer the replication, ana 
tender an issue on a single point, else it is de- 
murrable.— McCue v. Washington, Case No. 8,- 
735; United States v. Cumpton, Id. 14,902. 

A rejoinder is bad which puts in issue to the 
jury matter of law.— McCue v. Washington, 
Case No. 8,735. 

After a plea of general performance, a rejoin- 
der stating an excuse for not performing is bad. 
— HcGowan v. Caldwell, Case No. 8,806. 

V. DEMURRER. 

See, also, post, §§ 48, 55. 

§ 39. Grounds for demurrer. 

Defects in declaration in setting forth case 
may be availed of by demurrer.— Bas v. Steel, 
Case No. 1,087. 

A variance* between the writ and the declara- 
tion cannot be taken advantage of by a demur- 
rer.— Wilder v. McCormick, Case No. 17,6o0; 
Wilkinson v. Pomeroy, Id. 17,675. But see 
Triplet v. Warfield, Case No. 14,177. 

If a defendant wishes to contest the citizen- 
ship of the parties to an action in the national 
courts, he must do so by plea in abatement; 
and such a plea, if joined to one to the merits, 
may be stricken out, but is not liable to a de- 
murrer.— Wythe v. Myers, Case No. 18,119. 

Where a plea in abatement is bad, plaintiff 
need not demur, but may treat it as a nullity.— 
Anonymous, Case No. 18,224. 

Where want of jurisdiction appears upon the 
face of the pleadings, the objection should be 



taken by demurrer; otherwise by plea.— Varncr 
v. West, Case No. 16,885. 

§ 40. Special demurrer. 

A special demurrer may be filed m all actions 
in the courts of the United States. 1 Stat. 91. 
—Cage v. Jeffries, Case No. 2,2S7. 

Defects reachable only by special demurrer at 
common law will be disregarded as special de- 
murrers are abolished.— Chandler v. Byrd, Case 
No. 2,591b. 

Objections to a replication for not alleging 
time and place can be taken only by special de- 
murrer.— Blossburg & C. B. Co. v. Tioga R. Co., 
Case No. 1,563. 

All defects in form in pleading can be taken 
advantage of only by special demurrer.— Jack- 
son v. Rundlet, Case No. 7,145. 

Objections to pleading for duplicity can be 
taken advantage of only by special demurrer.— 
Blossburg & C. R. Co. v. Tioga R. Co., Case 
No. 1,563. 

A demurrer for duplicity must point out the 
particulars in which the duplicity consists.— 
Martin v. Bartow Iron Works, Case No. 9,157. 

A special demurrer will not be permitted on 
setting aside an office judgment.— Whetcroft v. 
Dunlop, Case No. 17,506. 

The objection to misjoinder of counts can only 
be taken by special demurrer.— Dobbin v. 
Foyles, Case No. 3,942. 

Want of venue is reachable only by special 
demurrer.— Cocke v. Kendall, Case No. 2,929b. 

A variance between the writ and declaration 
may be taken advantage of by special demurrer. 
—How v. McKinney, Case No. 6,749. 

If a plea which purports to answer all the 
breaches in the declaration is a good answer to 
some of them only, the objection cannot be tak- 
en advantage of on error, but on special demur- 
rer only.— United States v. Willard, Case No. 
16,698. 

Matters of abatement alleged as special causes 
for demurring will be disregarded, and the de- 
murrer will be considered independently of 
them.— Furniss v. Ellis, Case No. 5,162. 

A special demurrer operates as a general de- 
murrer as to all the pleadings of the party de- 
murring.— McCue v. Washington, Case No. 
8,735. 

§ 41. Demurrer to whole or part of plead- 
ing. 

On a general demurrer, unless for misjoinder 
of actions, judgment must be given for the 
plaintiff, if there is one good count in the decla- 
ration.— French v. Tunstall, Case No. 5,104a; 
Parrott v. Barney, Id. 10,773a; Vermont v. 
Society for the Propagation of the Gospel, Id. 
16,920. 

A demurrer does not lie to a part of a plea 
or defense, or immaterial matter therein, but it 
must deny its sufficiency as a whole.— Lewis v. 
Oregon Central R. Co., Case No. 8,329. 

In covenant, -when several breaches are as- 
signed, some of which are sufficient if defendant 
demur to the whole declaration, judgment must 
be given against him though part are bad.— Gill 
v. Stebbins, Case No. 5,431. 

A demurrer that "the several pleas" are in- 
sufficient will be overruled, if there be one good 
plea in the record.— Brown v. Duchesne, Case 
No. 2,003. 

Code Civ. Proc. N. T. does not authorize a 
demurrer unless it is to the whole complaint or 
to a separate cause of action alleged therein.— 
Frericks v. Coster, Case No. 5,108a. 

§ 42. Demurrer as opening record. 

On demurrer judgment will be given against 
the one who committed the first fault in plead- 



1819 (§ 42) 



PLEADING, v., VI. 
[Fed. Cas. Dierest.j 



(§49) 1820 



mg.— Blossburg & C. R. Co. v. Tioga R. Co., 
Case No. 1,563; Bockee v. Crosby, Id. 1,593; 
Egberts v. Dibble, Id. 4,307; Greathouse v. Dun- 
lap, Id. 5,742; Hart v. Rose, Id. 6,154a; Mc- 
Cue v. Washington, Id. 8,735; Sagory v. Wiss- 
man, Id. 12,217; United States v. Beard, Id. 
14,551; Same v. Spencer, Id. 16,368. 

The rule that on demurrer judgment must be 
rendered against him who commits the first 
fault in pleading is only applicable to faults that 
are bad on general demurrer. — Jackson v. Rund- 
let, Case No. 7,145. 

A demurrer to a special plea cannot be carried 
back to the declaration where the general issue 
has been pleaded.— McDonald v. Orvis, Case 
No. 8,764. 

On demurrer to a plea, the court will consider 
defects in the complaint which otherwise would 
have been considered waived by the plea. — Bank 
of Illinois v. Brady, Case No. 888. 



% 43. Admissions "by demurrer. 

A demurrer in a case proceeded on under the 
civil law does not prevent the party controvert- 
ing the facts confessed.— Crawford v. The Wil- 
liam Penn, Case No. 3,373. 

§ 44. Pleading on overruling or sustain- 
ing demurrer. 

After demurrer to a plea of set-off has been 
overruled, plaintiff should have leave to replv.— 
Rochell v. Phillips, Case No. 11.974a. 

After judgment for the plaintiff on the de- 
fendant's demurrer, and writ of inquiry award- 
ed, the court will not permit the defendant to 
plead de novo, unless he will withdraw his de- 
murrer.— Woodrow v. Coleman, Case No. 17,983. 

VI. AMENDED AND SUPPLEMENTAL 

PLEADINGS, REPLEADER, AND 

WITHDRAWAL OP PLEADINGS. 

See, also, ante, § 44, and references under 
* 'Amendment." 

§ 45. Power and discretion of court. 

The powers of the court in cases of amend- 
ments are liberally exercised to promote justice. 
— Tiernan v. Woodruff, Case No. 14,027. 

In courts proceeding under the civil law, 
amendments in case of variance are allowed 
with mere freedom than in courts proceeding 
under the common law. — Crawford v. The Wil- 
liam Penn, Case No. 3,373. 

Amendments in England, under their statutes, 
constitute no rule for the courts in this country. 
— Brush v. Robbins, Case No. 2,059. 

The allowance of amendments of defective 
pleadings is in the discretion of the * court.— 
United States v. Batchelder, Case No. 14,541. 

§ 46. Notice to adverse party. 

A copy need not be served under the rule on 
the making of a slight amendment of the dec- 
laration, which in no respect can affect the 
merits of the case.— Spofford v. Bitten, Case 
No. 13,244. 

§ 47. Amendment of declaration. 

A declaration in an action brought in the 
name of a firm may be amended by inserting 
the names of the persons who compose the firm. 
— Tibbs v. Parrott, Case No. 14,022. 

An error of the attorney in stating the name 
of defendant as "James" instead of "William" 
may be corrected.— Tilley v. Tharp, Case No. 
14,047. 

Mistake in plaintiff's name in declaration 
drawn by the clerk must be regarded as the 
mistake of the attorney, and amendment allowed 
only on defendant being permitted to plead de 
novo.— Furniss v. Ellis, Case No. 5,162. 



An amendment by changing the form of the 
action from debt to covenant, and bv striking 
out the name of one of the plaintiffs, will be 
allowed.— Tyson v. Belmont, Case No. 14.31oa. 

Plaintiff not allowed to amend to change the 
form of action from trespass on the case to 
debt.— Ten Broeck v. Pendelton, Case No. 13,- 
827. 

But the court may refuse to allow the decla- 
ration to be amended by striking out the name 
of one of the plaintiffs in the suit — Moores v. 
Carter, Case No. 9,782a. 

A party will be allowed to amend before trial 
his writ and declaration by striking out the 
name of one of the defendants.— Tobev v.Claflin, 
Case No. 14,066. 

An amendment making new parties will not 
be allowed.— Morris v. Barney, Case No. 9,826. 

An amendment by changing the action from 
case to covenant will not be granted.— Scholfield 
v. Fitzhugh, Case No. 12,474. 

Declaration amended as of course at trial bv 
suggesting proceeding by two non ests against 
a joint defendant not taken.— Brooklyn White 
Lead Co. v. Pierce, Case No. 1,940. 

Declaration allowed to be amended bv increas- 
ing the damages laid.— Gregg v. Gier, Case No. 
5,799. 

The amendment of a libel in the district court 
will not be allowed where the same introduces 
a new, substantive cause of action, and a new 
charge against defendant. Otherwise where 
the new cause of action corresponds in charac- 
ter, and is kindred in nature, to that presented 
in the original libel.— United States v. One Hun- 
dred and Twenty-Three Casks of Distilled Spir- 
its, Case No. 15,943. 

§ 48. Amendment of demurrer. 

The court will not give leave to amend a de- 
murrer unless it goes to the merits of the case 
— Offutt v. Beatty, Case No. 10,448. 

§ 49. Time of amendment. 

The district courts may allow amendments of 
substance on terms, but this must be before 
final judgment.— Smith v. Jackson, Case No. 
13,065. 

Amendments may be made at any time before 
judgment, and in some cases afterwards.— Nelson 
v. Barker, Case No. 10,101. 

The declaration may be amended at any time 
before the case is actually committed to the 
jury.— Smith v. Barker, Case No. 13,013. 

At common law an amendment might be made 
while the proceedings were in paper.— Brush v. 
Robbins, Case No. 2,059. 

Amendment not permitted at trial unless de- 
fense is just— Allen v. Magruder, Case No. 230. 

Plaintiff will not be permitted to amend after 
jury is sworn, if the justice of the case be 
against him.— Clarke v. Mayfield, Case No. 
2,So8. 

An amendment of the declaration, offered aft- 
er the jury is sworn, and introducing a new 
cause of action, cannot be allowed.— Postmaster 
General v. Ridgway, Case No. 11,313. 

A misnomer may be amended after plea in 
abatement, the plea being the basis thereof.— 
Nelson v. Barker, Case No. 10,101. 

An amendment may be allowed of a declara- 
tion after a special plea, replication, and de- 
murrer, provided the cause of action remains 
the same, and costs are paid, arising from the 
demurrer.— Fiedler v. Carpenter, Case No. 4,759. 

A defective averment of citizenship of par- 
ties may be amended after verdict.— Maddux v. 
Usher, Case No. 8,936. 

An amendment to a plea, when not affecting 
the vital question on which the defense is based, 



1821 (§ 50) 



PLEADING, YL-VHL 
[Fed. Gas. Digest.] 



(§ 60) 1822 



should be allowed after commission issued.— 
Buchanan v. Trotjter, Case No. 2,075. 

1 50. Imposing conditions on allowing 
amendment. 

Leave given defendant to amend, on payment 
of costs of the term, or a continuance, at plain- 
tiff's option.— llilburne v. Kearnes, Case No. 

The payment of costs, given on leave to 
amend, is not a condition precedent. — Butts v. 
Chapman, Case No. 2,257; Wigfield v. Dyer, 
Id. 17,622. 

Leave to amend a declaration in assumpsit 
blank as to dates and amounts, allowed on pay- 
ment of full costs, after plea of the statute of 
limitations.— Ferris v. Williams, Case No. 4,749. 

The writ and declaration may be amended by 
substituting the corporate name of the plaintiff 
for "The Corporation of Georgetown," on pay- 
ment of all costs, and a continuance and leave to 
plead de novo.— Georgetown v. Beatty, Case No. 
5,344. 

After a plea of misnomer in abatement? the 
court will not suffer the record to be amended, 
but upon payment of costs and a discharge of 
the bail.— Payen v. Hodgson, Case No. 10,853. 

An amendment of the ad damnum clause in a 
declaration after verdict for a greater amount 
will only be allowed upon condition of a new 
trial and payment of costs.— Elting v. Campbell, 
Case No. 4,422. 

§ 51. Form and sufficiency of amended 
pleading. 

The citizenship of parties may be stated in 
the present tense in an amended declaration. — 
Birdsall v. Perego, Case No. 1.435. 

§ 52. Effect of amendment. 

A subsequent amendment of the record does 
not affect the issue under the plea of nul tiel 
record.— Barnes v. Lee, Case No. 1,017. 

§ 53. Supplemental pleadings. 

Hatters arising since the complaint, which in- 
crease plaintiff's damages, but do not change 
the cause of action, may be alleged by supple- 
mental complaint— Frericks v. Coster, Case No. 
5,10Sa. 

Leave to file supplemental answer, setting up 
good technical, though inequitable, defense, re- 
fused where there was unreasonable delay. — 
French v. Edwards, Case No. 5,097. 

Supplemental answers are in the nature of 
pleas puis darrein continuance under the forme* 
practice, and, like such pleas, should be inter- 
posed at the first opportunity after coming to the 
knowledge of the parties.— French v. Edwards, 
Case No. 5,097. 

After three terms leave to file a new plea 
which would oblige plaintiff to suffer nonsuit 
granted on condition of paying all costs.— Anony- 
mous, Case No. 476. 

§ 54* Repleader. 

Defendant allowed a repleader where a mis- 
take is made in a plea of puis darrein continu- 
ance through inadvertence of his attorney. — 
Heye v. Lieman, Case No. 6,445a. 

A repleader is never awarded in favor of him 
who commits the first fault in pleading, nor 
where there is one material issue in the cause. — 
Hartfield v. Patron, Case No. 6,15Sa. 

§ 55. Withdrawal of pleadings. , 

Defendant not permitted to withdraw the gen- 
eral issue and file a general demurrer. — Deakins 
v. Lee, Case No. 3,697. 

Plea to merits not allowed to be withdrawn 
to permit special demurrer.— Alricks v. Slater, 
Case No. 259. 



In case of a plea of limitations and a general 
demurrer defendant was allowed to withdraw the 
latter.— Suckley v. Slade, Case No. 13,587. 

After judgment for the plaintiff upon demurrer 
to the replication to the plea of limitations, the 
court will not permit the defendant to withdraw 
the demurrer, and rejoin specially, unless he can 
show by affidavit that it is necessary to the jus- 
tice of the case.— Wilson v. Mandeville, Case No. 
17,821. 

A plea in bar cannot be withdrawn, after the 
case has been prepared for trial, in order to 
file a plea in abatement— Yeatman v. Hender- 
son, Case No. 18,132. 

Court will not order general issue to be strick- 
en out to give defendant leave to plead in abate- 
ment. — Bank of Columbia v. Scott, Case No. 
880. 

After plea by appearance bail, defendant al- 
lowed to withdraw such plea, and plead anew. — 
Pickett v. Lyle, Case No. 11,125. 

VII. SIGNATURE AND VERIFICA- 
TION. 

See, also, ante, § 29. 

§ 56. Sufficiency of signature. 

A plea to the jurisdiction must be signed by 
the defendant in person.— Adams v. White, Case 
No. 68. 

A pleading of a county, not subscribed by the 
proper district attorney, is not duly subscribed, 
and may be stricken out of the case. Civ. Code 
Or. §§ 79, 103.— Moreland v. Marion County, 
Case No. 9,794. 

§ 57. Time of verification. 

The verification of a plea should be made when 
it is filed; it cannot be made at the trial. — 
Benedict v. Maynard, Case No. 1,296. 

§ 58. Sufficiency of verification. 

Contents of a notary's certificate to verification 
of bill by agent of corporation plaintiff.— Blake 
Crusher Co. v. Ward, Case No. 1,505. 

' An agreement that an answer may be sworn 
to in France, before any person authorized to 
administer oaths by the laws of France, is not 
complied with where the answer is sworn to 
before the American consul.— Herman v. Her- 
man, Case No. 6,407. 

§ 59. Effect of failure to verify. 

A plea denying the execution of an instrument 
sued on, if not sworn to as required in such 
case by the Iudiana statute, admits the instru- 
ment, but is good for other purposes. — McClin- 
tick v. Johnston, Case No. 8,700. 

An unsworn plea denying the signature to the 
instrument on which the action is brought admits 
the signature. — Benedict v. ^laynard, Case No. 
1,296. 

VIII. PROPERT AND OYER. 

§ 60. Wnen party entitled. 

If a party partially states a deed, which is de- 
fective, or contains matter qualifying the part 
stated, the defendant may crave oyer of the deed, 
and set forth the whole, and then demur.— Hob- 
son v. McArthur, Case No. 6.554. 

/ Profert of the bond declared on, and a collat- 
eral agreement necessary to establish the right 
.to a recovery, being made in the declaration, de- 
fendant is entitled to oyer.— Hammer v. Klein, 
Case No. 5,998. 

After oyer, and issue on the plea of payment, 
the plaintiff is not bound to again produce the 
bond.— Darlington v. Groverman, Case No. 3,576. 

Upon an issue on plea of general performance, 
plaintiff is not bound to produce the original cov- 



1823 (§ 60) 



PLEADING, 
[Fed. Cas. 



(§ 68) 1824 



enant sued upon.— Beall v. Newton, Case No. 
1,164. 

After oyer prayed and demurrer by the de- 
fendant, the plaintiff is not bound to give over at 
a subsequent term.— Offutt v. Beatty, Case No. 
10,448. 

Oyer cannot be demanded where profert not 
made.— Campbell v. Strong, Case No. 2,367a. 

Plaintiff is not bound to srive oyer of an in- 
strument not in his possession and equally acces- 
sible to defendant.— Rockhill v. Hanna, Case No. 
11,970. 

§ 61. Time of demanding. 

Oyer of plaintiff's letters of administration can- 
not be demanded after pleading to the merits. — 
Grahame v. Cooke, Case No. 5,678. 

Oyer of the record of a judgment of another 
state will not be given if not prayed before the 
expiration of the rule to plead.— Cull v. Allen, 
Case No. 3,465. 

§ 62. Sufficiency. 

A copy will be received as oyer when a profert 
has been made of the original, and, if a copy is 
offered, the defendant may demur.— Wellford v. 
Miller, Case No. 17,381. 

IX. BILL OF PARTICULARS. 

§ 63. When bill will be ordered. 

A bill of particulars will not be ordered where 
the matters of which information is sought are 
peculiarly within the knowledge of the party 
asking it, or where, from the nature of the case, 
plaintiff cannot be reasonably expected to be 
able to give the items.— United States v. Tilden, 
Case No. 16,521. 

A bill of particulars ordered on information 
for violation of the revenue laws, where the al- 
legations therein were vague.— United States v. 
Two Hundred Bushels of Corn, Case No. 16,58(5. 

Sufficient information as to the particular arti- 
cle about which evidence is to be given can be 
obtained by an order for a bill of particulars, 
and for the exhibition to defendant of the article 
itself.— United States v. Foote, Case No. 15,128. 

§ 64. Sufficiency and effect. 

A bill of particulars apnended to a petition to 
recover money paid as usury, which sets forth 
the usurious payments as general indebtedness 
for cash paid by the plaintiff to the defendant, 
is sufficient.— Whitaker v. Pope, Case No. 17,- 
528. 

Where a plaintiff is called on to furnish a bill 
of particulars, he is limited in his proof to the 
items thus made out.— Williams v. Sinclair, Case 
No. 17,737. 



VIH.-XI. 
rudest.] 

Bad pleas filed by a party given leave to 
amend may be stricken out on motion.— Parker 
v. Lewis, Case No. 10,741a. 

Plea false on its face may be stricken out. 
— Bachman v. Everding, Case No. 708. 

A plea of the statute of limitations, filed after 
the plea day, without leave of court, will be 
stricken out on motion.— Scott v. Lewis, Case 
No. 12,539. 

A complaint containing more than one cause 
of action will be stricken out for duplicity, un- 
less they are separately stated.— McKay v. Camp- 
bell, Case No. 8,839. 

The sufficiency, in point of substance, of a plea 
which is regular in form, cannot be inquired into 
on motion.— Tyler v. Hyde, Case No. 14,310. 

XI. ISSUES, PROOF, AND VARIANCE. 

rssues, proof, and variance in particular 
actions and proceedings. 
See "Assumpsit, Action of," § 5; "Covenant, 
Action of," § 4; "Debt, Action of," § 3; 
"Ejectment," § 11; "Libel and Slander," § 18; 
"Malicious Prosecutions," § 7; "Replevin," § 
9; "Trespass," § 8. 

By and against assignees in bankruptcv, see 
"Bankruptcy," § 362. 

executors or administrators, see "Execu- 
tors and Administrators," § 49. 

partners, see "Partnersmp," § 37. 

se-\inen, see "Seamen," §§ 139, 173. 



An allegation in a bill of particulars that mon- 
ey unlawfully exacted was paid to a provost 
marshal raises no inference that the money was 
received by the commander of the post.— Kim- 
berly v. Butler, Case No. 7,777. 

X. MOTIONS. 

§ 65. Motions to strike out. 

A demurrer to a plea to a chancery attachment 
waives the right to move to strike out the plea, 
as having been made without giving special bail. 
— Irwin v. Henderson, Case No. 7,084. 

Au unnecessary plea will, on motion, be di- 
rected to be withdrawn, as improperly incum- 
bering the record. — Hacker v. Stevens, Case No. 
5,SSS; Yarnum v. Campbell, Id. 16,887. 

Ambiguity or uncertainty is not a ground of 
motion to strike out— Gager v. Harrison, Case 
No. 5,171. 

Objection for duplicity, under the Oregon Code, 
must be made by motion to strike out— McKay 
v. Campbell, Case No. S,839. 



For breach of promise of marriage, see "Breach 

of Marriage Promise," § 2. 
For collision, see "Collision," § 129. 
For forfeiture, see "Customs Duties," § 101. 
For infringement of patent, see "Patents," §§ 

198. 227. 
For price of goods sold, see "Sales," § 44. 
For usury, see "Usurv." § 16. 
In admiralty, see "Admiralty," § 89. 
In bankruptcy, see "Bankruptcy," §§ 117, 571. 
In equity, see "Equity," §§ 88, 89. 
On bills or notes, see "Bills and Notes," § 99. 
On bonds, see "Bonds," § 22. 
On contract, see "Contracts," § 40. 
On insurance policy, see "Insurance," § 173. 
On .judgment, see "Judgment," § 83. 
To recover payment, see "Payment," § 18. 

§ 66. Joinder of issues of fact. 

Two affirmative facts in a plea and replication 
may be so contradictory as to make an issue, 
as where the plea averred diligence in the pros- 
ecution of a suit, and the replication charged 
negligence.— Walker v. Johnson, Case No. 17,- 
074. 

In debt on bond, entry of pleadings as "cov- 
enants performed," "joined," is sufficient joinder 
of issue.— Alexandria v. Bowne, Case No. 180. 

To a plea of want of consideration for the- 
making and for the assignment of a note plaintiff 
should take issue on one or the other, and not 
on both.— McClintick v. Johnston, Case No. 8.- 
700. 

§ 67. Evidence admissible under plead- 
ings. 

The plaintiff cannot give evidence of a consid- 
eration different from that alleged in the decla- 
ration.— Watson v. Dunlap, Case No. 17,282. 

Under a plea of the general issue evidence may 
be introduced to show fraud or fraudulent rep- 
resentations on the part of the plaintiff as to the 
subject-matter of the suit.— Goodyear t. Dav, 
Case No. 5,567. 

§ 68. Variance between allegations and 
proof. 

A bond payable on a day certain constitutes 
a variance from a declaration describing it (in 
legal effect) as payable on or before that date. — 
ICikindal v. Mitchell, Case No. 7,763. 



1825 (§ 68) 



PLEADING, XL, XII.— PLEDGES. 

[Fed. Cos. Digest.] 



(§ 8) 182a 



Where the declaration was for money received 
to plaintiff's use, and the evidence showed that 
the money was received on joint account for 
plaintiff and his partners, a nonsuit was granted 
for variance.— Jordan v. Wilkins, Case No. 7,526. 

Whenever time is material, whether in mat- 
ters of contract or of tort, the plaintiff is strict- 
ly hound by the time specified in the declaration. 
—Eastman v. Bodfish, Case No. 4,255. 

An averment of the demise from year to year 
for three years, at a certain sum per year, is 
not supported by evidence of a demise where 
the rent for one year was to be less than such 
sum. — Dorsey v. Chenault, Case No. 4,013. 

Variance between proof of by-law of March 
2T and averment of March 26.— Alexandria v. 
Brockett, Case No. 181. 

Where the legal effect of an instrument would 
be the same whether the words constituting the 
variance be inserted or not, the variance is im- 
material.— Cannell v. Milburn, Case No. 2,3&L 

XII. WAIVER OF OBJECTIONS AND 
AIDER BY VERDICT. 

§ 69. Waiver of objections in general. 

A general plea of nonassumpsit to several 
counts waives the objection that no account was 
exhibited with the declaration, as alleged there- 
in.— Semmes v. Lee, Case No. 12,652. 

After receiving and replying to a pleading 
the party cannot treat it, upon any ground of de- 
fect afterwards discovered, as. a nullity, and pro- 
ceed as if none had been served. — Gaines v. 
Travis, Case No. 5,179. 

§ 70. Aider "by verdict. 

What defects in pleading title are cured by 
verdict— Gray v. James, Case No. 5,719. 

Where the declaration omits to state a fact 
which must necessarily have been proved at the 
trial to justify the verdict, the defect is cured 
by the verdict, if the general terms of the dec- 
laration are otherwise sufficient to comprehend 
the proof.— Dobson v. Campbell, Case No. 3,945. 

A verdict will not cure a variance between the 
covenant alleged in the declaration and that 
produced on oyer. — Ingle v. Collard, Case No. 7,- 
043. 

Omission of the averments of citizenship and 
of the value of the property in dispute are de- 
fects of substance, not cured by verdict, and not 
amendable after final judgment. — Smith v. Jack- 
son, Case No. 13,065. 



PLEDGES. 

§ 1, What constitutes. § 2, Delivery. § 3 f Indorse- 
ment of negotiable instruments. § 4, Consideration. 
§ 5, Substitution. § 6, Duties and liabilities of 
pledgee. § 7, Lien of pledge. § 8, Redemption. 

Attachment of pledged property, see * "Attach- 
ments," § 3. 

By factors, see "Factors," § 6. 

Of insolvent debtor's property, see "Bankrupt- 
cy," § 255. 

§ 1. "What constitutes. 

A silver cornet was delivered to the landlord, 
with an absolute bill of sale, as security for rent. 
The tenant subsequently borrowed it to use, 
and failed to return it. Held, that the transac- 
tion was a pledge, and that the lien was gone. — 
In re IJarlow, Case No. 6,070. 

§ 2. Delivery. 

A delivery of the thing pledged where actual 
delivery is possible is necessary to render the 
pledge valid.— In re Wiley, -Case No. 17,655. 

Delivery to the pledgee may be either actual 
or constructive. — Ex parte Fitz, Case No. 4,837. 
Fed.Cas.Dig.— 58 



Possession may be kept by an agent, and that 
agent may be the pledgor.— Ex parte Fitz, Case 
No. 4,837. 

The pledge of a note at the time in the lawful 
possession of a third person may be valid without 
actual delivery to the pledgee.— In re Wiley, 
Case No. 17,655. 

* 

§ 3. Indorsement of negotiable instru- 
' nients. 
It is doubtful, in Louisiana, whether indorse- 
ment as well as delivery is essential to the pledge 
of negotiable instruments. — Casey v. La Societe 
De Credit Mobilier, Case No. 2,496. 

§ 4. Consideration. 

A pledge or mortgage made to secure a debt 
previously incurred, but still subsisting, or to 
indemnify against a present liability arising out 
of a past contract, is made on a sufficient con- 
sideration.— In re Wiley, Gase No. 17,655. 

§ 5. Substitution. 

Where bank' notes were pledged to secure a 
loan, and, as they fell due, substituted others 
in their place, the pledsre of the substituted notes 
is valid.— Casey v. La Societe De Credit Jlobilier^ 
Case No. 2,496. 

§ 6. Duties and liabilities of pledgee. 

A creditor vested with authority to sell se^ 
curities deposited with him cannot exercise it 
otherwise than under a trust for the debtor's 
benefit.— Sparhawk v. Drexel, Case No. 13,204. 

Where the giving of notice of the sale of a 
pledge has been rendered impossible by the act 
of the pledgor, neither the pledgee nor its agent 
in the sale of the collateral was liable for con- 
version.— City Bank of Racine v. Babcoek, Case 
No. 2.741. 

The holder of collateral security is not liable 
for a lpss occurring without his fault, nor for 
neglecting to enforce the security when the 
debtor was, by the understanding of the parties, 
to do this.— Brown v. Hiatt, Case No. 2,011. 

§ 7. Lien of pledge. 

Corporate stock is bound for the payment of 
interest, wnere it is pledged for the redemption 
of certificates of debt, which in turn bind the 
debtor for the payment of "the sum therein men- 
tioned and the interest thereon." — JSwasey v. 
North Carolina R. Co., Case No. 13,679. 

In the case of houses composed of the same 
persons, but transacting business under different 
names at different places, securities deposited 
with one to cover a special loan. are not subject 
to a general lien in favor of the other. — Spar- 
hawk v. Drexel, Case No. 13,204. 

Where a creditor in a privileged relation, which 
gives him a general lien, receives security to 
cover a particular accommodation, such security 
is subject to the general lien.— Sparhawk v. 
Drexel, Case No. 13,204. 

A person advancing money on the pledge of a 
policy of insurance on goods is entitled to the 
proceeds as against a surety on a bottomry bond 
given by the pledgor to the insurance companv. 
— Wiggin v. Dorr, Case No. 17,625. 

Railroad coupons held by a creditor as security 
were converted into land, the unrecorded deeds 
for which were deposited with the creditor in 
place of the coupons. Held, that such creditor 
had an equity in the land superior to the lien of 
a general judgment creditor. — First Nat. Bank 
v. Caldwell, Case No. 4,798. 

§ 8. Redemption* 

Pledged bonds sold at public auction, and 
bought in by the pledgee, may nevertheless be 
redeemed within a reasonable time; but a delay 
of 11 years after the sale is / unreasonable.— - 
^larsh v. Whitmore, Case No. 9,122. 



1827 



POLICE POWER-POST OFFICE, L 

[Fed, Cas. Digest.] 



(§ 6) 182« 



POLICE POWER. 



See "Constitutional Law," § 3. 
Of municipality, see "Municipal Corporations," 
§§ 19-21. 

POLICY. 

Of insurance, see "Insurance." 

POLITICAL POWERS. 

See "Courts," § 2. 

POLITICAL RIGHTS. 

See "Constitutional Law," § 4. 
Suffrage, see "Elections." 



POSSESSION. 

See "Adverse Possession." 

Writ of assistance, see "Assistance, Writ of. 



it 



POST OFFICE. 

X. POST-OFFICE DEPARTMENT, POST 
OFFICES, POSTMASTERS AND 
OTHER OFFICERS, AND CAR- 
RIAGE OF MAILS. 
§ 1, Postmaster general. § 2, Postmasters. 
§ 3, Deputies and assistants. § 4, Bonds of 
officers— Necessity for bond. § 5, Req- 
uisites and validity of bond. § 6, Liabil- 
ities of sureties. § 7, Discharge of sure- 
ties. § S, Actions on bonds and amount 

of recovery. § 9, Establishment of post 
roads. § 10 f Contracts for carriage of mails. 

n. OFFENSES AGAINST POSTAL LAWS. 
§ 11, In general. § 12, Embezzlement or 
larceny of mail. § 13, Opening or detaining 
letters. § 14, Sending matter concerning lot- 
teries. § 15, Unlawful franking. § 16, Illegal 
carrying, and private expresses. § 17, Rob- 
bery of mails. § IS, Obstructing the mail. 
§ 19, Inclosures in printed matter. § 20, Re- 
ceiving stolen mail matter. § 21, Sending 
obscene and indecent matter. § 22, Indict- 
ment or information— In general. § 23, 

Embezzlement or larceny. § 24, Illegal 

carriage. § 25, Unlawful franking. § 26, 

Opening letters. § 27, Sending ob- 
scene matter. § 28, Variance. § 29, Evi- 
dence. 

Condemning land for building, see "Eminent Do- 
main," § 1. 

Mailing protest, see "Bills and Notes," § 76. 

Removal of causes arising under post office laws, 
see "Removal of Causes," § 8. 

3C POST-OFFICE DEPARTMENT, POST 
OFFICES, POSTMASTERS AND 
OTHER OFFICERS, AND CAR- 
IMAGE OF MAILS. 

See, also, "Collision," § 2. 

§ 1. Postmaster general. 

The postmaster general, in the discharge of 
those duties which are prescribed by law, is not 
lawfully subject to the control of the president. 
—United States v. Kendall, Case No. 15,517. 

Act March 3, 1851, § 3, authorizes the post- 
master general to deliver postage stamps to a 
deputy postmaster without prepayment; the in- 



tent being to require prepayment of persons not 
deputy postmasters.— United States v. Mason, 
Case No. 15,737. 

§ 2. Postmasters. 

The discretion of the postmaster general in 
granting or refusing extra allowance to post- 
masters for extra labor and expense in certain 
cases (Act June 22, 1854) is not subject to judi- 
cial review. — United States v. Davis, Case No. 
14,927. 

No postmaster has a legal right to the allow- 
ance for the necessary cost of rent, fuel, etc. (Act 
July 1, 1864, § 5), until it is awarded him by 
the postmaster general. — United States v. Da- 
vis, Case No. 14,927. 

As to duties of postmasters in keeping moneys 
received for postage. — Trafton v. United States, 
Case No. 14,135. 

No surrender of the property of the postoffice 
department to the government of the Confed- 
erate States, under any other than the coercion 
of armed force, will excuse a postmaster from 
liability on his bond.— United States v. Morrison, 
Case No. 15,817. 

A postmaster, until the action o£ the postmas- 
ter general, does not vacate his office by re- 
maining out of the neighborhood. — United States 
v. Pearce, Case No. 16,020. 

§ 3. Deputies and assistants. 

A deposit of post-office receipts in the joint 
name of the postmaster and his assistant does 
not make them jointlv liable.— Trafton v. United 
States, Case No. 14,135. 

Act March 3, 1825, substitutes a certified state- 
ment of the settled account as evidence in suits 
against deputy postmasters in lieu of the certi- 
fied copy of the account current required bj Act 
April 30, 1810.— Postmaster General v. Rice, 
Case No. 11.312. 

The liability of a deputy postmaster and of 
his clerks for negligence in the forwarding of let- 
ters, and the sufficiency of pleadings, and admis- 
sibility of evidence in an action for damages, 
determined.— Dunlop v. Munroe, Case No. 4,167. 

See, also, post, §§ 11-29. 

§ 4. Bonds of officers — Necessity for Bond. 

The postmaster general may require a bond 
from a deputy for the faithful performance of 
his duties, though such bond is not expressly re- 
quired by law. — Postmaster General v. Reeder, 
Case No. 11,311; Same v. Rice, Id. 11,312. 

§ 5. Requisites and validity of bond. 

A bond given by a postmaster, with sureties, 
for the performance of his official duties, does 
not constitute a binding contract until approved 
and accepted by the postmaster general. — Post- 
master General v. Norvell, Case No. 11,310. 

The reception and detention of an official bond 
by the postmaster general for a considerable time, 
without objection, is sufficient evidence of its 
acceptance. — Postmaster General v. Norvell, 
Case No. 11,310. 

The return of the bond for the purpose of 
obtaining an additional surety affords no proof 
that it had not been accepted; nor does it 
amount either to a surrender or canceling of it, 
— Postmaster General v. Norvell, Case No. 11,- 
310. 

§ 6. liability of sureties. 

The sureties on the bond of a deputy post- 
master, which stipulates that the principal shall 
faithfully account for postage stamps received, 
are liable as upon a contract at common law. — 
United States v. Mason, Case No. 15,737. 

The sureties on the official bond of a deputy 
postmaster are liable for his neglect as an agent 
of the postmaster general. — Boody v. United 
States, Case No. 1,63*6. 



1829 (§ 6) 



' POST OFFICE, L, H. 

[Fed. Cas. Digest.] 



(§ 12) 1830 



Balances due from postmasters may be extin- 
guished by subsequent payments, so that, when 
the account is continued through a series of 
years, the postmaster's sureties will remain lia- 
ble for a deficiency in his last quarterly account, 
until two years thereafter. Act March 3, 1825, 
3§ 3, 31.— United States v. Kershner, Case No. 
15,527. 

Under Act March 3, 1851, the sureties on the 
bond of a deputy postmaster are liable for post- 
age stamps received by him. — United States v. 
Mason, Case No. 15,737. 

* 

$ 7. Discharge of sureties. 

The sureties on official bonds are not dischar- 
ged by the delay of the postmaster general to 
bring suits thereon.— -Locke v. Postmaster Gen- 
eral, Case No. 8,441; Postmaster General v. 
Beeder, Id. 11,311. 

But under Act March 3, 1825, the sureties on 
a postmaster's bond are discharged where a suit 
is not brought within two years after a default. 
— Postmaster General v. Fennell, Case No. 11,- 
307; Roddy v. United States, Id. 11,990; Unit- 
ed States v. Davis, Id. 14,929; Same v. Sears, 
Id. 16,246. 

Such act does not apply to a default which oc- 
curred before the passing of the act. — Postmas- 
ter General v. Rice, Case No. 11,312. 

Such act does not apply in cases of balances 
unpaid at the end of a quarter, which are sub- 
sequently liquidated by the receipts of a suc- 
ceeding one. — Postmaster General v. Norvell, 
Case No. 11,310. 

Mere indulgence or forbearance on the part 
of the government towards a defaulting post- 
master for an indefinite time, in the absence ol 
fraud, will not discharge his sureties. — United 
States v. Wright, Case No. 16,776. 

The fact that the government continued a 
postmaster in office after discovery of a defalca- 
tion, and delayed to disclose the same, will not 
relieve his sureties from liability for subsequent 
■defalcations. — United States v. Wright, Case No. 
16,776. 

The possession of the office of a postmaster 
by a special agent of the department for one 
day, while adjusting his accounts, will not re- 
lease his sureties from all subsequent liability 
under Rev. St. § 3836.— United States v. Wright, 
Case No. 16,776. 

The sureties on the official bond of a post- 
master are not discharged by the making of an 
order of the postmaster general directing the 
postmaster to retain balances due until drawn 
for. — Locke v. Postmaster General, Case No. 
S,441; Postmaster General v. Reeder, Id. U,- 
311. 

An act of congress increasing rates of postage, 
and consequently the responsibility of the post- 
master's sureties, will not discharge them.— 
Postmaster General v. Hunger, Case No. 11,- 
309. 

The giving of a new bond by a postmaster 
does not discharge sureties on the old bond for 
past or subsequent defaults. — Postmaster Gen- 
eral v. Munger, Case No. 11,309; Same v, 
Reeder, Id. 11,311. 

In such case all the sureties are responsible 
for defaults happening after giving the second 
bond.— Postmaster General v. Munger, Case No. 
11,309. 

§ 8. _ Actions on bonds and amount of 
recovery. 

A transcript, from the post-office department, 
of the balances struck by the postmaster is 
sufficient to charge him.— Lawrence v. United 
States, Case No. 8,145. 

The return of a postmaster for a full quarter 
is evidence against his surety to show an aver- 
age liability for a part of the quarter.— Law- 
rence v. United States, Case No. ,8,145. 



In an action on a postmaster's bond, defend- 
ant may counterclaim items which have been 
duly presented to the proper department for al- 
lowance and rejected. — United States v. Davis, 
Case No. 14,927. 

Where there are items of debit and credit in 
a running account between the postmaster gen- 
eral and the deputy postmasters, in the absence 
of any specific appropriation by either party, 
the credits are to be applied to the discharge 
of the debits antecedently due, in the order of 
the account— Postmaster General v. Furber, 
Case No. 11,308. 

* 

A payment, made by a postmaster, of a great- 
er sum than the receipts of the quarter, should 
be applied as a credit for a subsequent quarter, 
as well before as after the date of his official 
bond. — Lawrence v. United States, Case No. 
8.145. 

§ 9. Establishment of post roads. 

Constitutional provision for establishment of 
post roads means such roads as are laid out by 
the authority of the state. — Cleveland, P. & 
A. R. Co. v. Franklin Canal Co., Case No. 2,890. 

"Post routes," which the postmaster general 
is authorized by Act March 3, 1851, § 10, to 
establish within cities and towns, are not the 
same as "post roads," in the act of 1S27. — 
United States v. Kochersperger, Case No. 15,- 
541. 

Act of congress making all railroads post roads 
means only such as have charters from the state. 
—Cleveland, P. & A. R. Co. v. Franklin Canal 
Co., Case No. 2,890. 

§10. Contracts for carriage of mails. 

The master or owner is not liable for the neg- 
lect of a clerk in failing to deliver a letter of 
which the former had no knowledge, unless 
they fail to exercise reasonable * diligence. — 
United States v. Beaty, Case No. 14,555. 

A recommendation by the postmaster general 
to the secretary of the navy to make a deduc- 
tion from the pay of a contractor, on the ground 
that a portion of a service was performed by a 
steamer not of the class stipulated for in the 
contract, is not the imposition of a fine within 
the terms of the act. — United States v. Collins, 
Case No. 14,834. 

The master or owner of a steamboat is not 
liable to the penalty of $150 (Act 1845, § 13) 
for failure to deliver a letter, unless it has been 
brought to him, or intrusted to his care, or is 
within his power.— United States v. Beaty, Case 
No. 14,555. 

The postmaster general has no power under 
Act June 27, 1848, to impose a fine on a con- 
tractor for carrying the mails for delays, except 
for the causes specified in the act. — United States 
v. Collins, Case No. 14,834. 



H. OFFENSES AGAINST POSTAL 

LAWS. 

§11. In general. 

Offenses under the post-office law are not fel* 
onies, but misdemeanors. — United States v. Lan- 
caster, Case No. 15,556. 

§ 12. Embezzlement or larceny of mail. 

The embezzlement of a letter and the stealing 
of its contents are distinct offenses under Rev. 
St. § 5467.— United States v. Taylor, Case No. 
16,438. 

A letter delivered to an authorized agent can- 
not be charged to have been embezzled. — United 
States v. Sander, Case No. 16,219. 

The stealing or taking a letter, etc., under 
section 22, means a taking with a criminal in- 
tent, and not a taking through mistake, or with 
an innocent intent — United States v. Pearce, 
Case No. 16,020. . 



1831 (§ 12) 



POST OFFICE, II. 

[Fed. Cas. Digrest.] 



(§ 15) 1832 



Rev. St. § 5467, is not confined to the offense 
of stealing or taking things out of a letter pack- 
et or bag, but includes the taking of the letter 
itself.— United States t. Pelletreau, Case No. 
16,023. 

No one can be convicted tinder Act 1825, § 21, 
who is not employed in the post-office depart- 
ment—United States v. Nott, Case No. 15,900. 

An employe in a post office, who steals gold 
dust from a letter in the mail, is liable to in- 
dictment, whether the same be mailable or not, 
under Act July 1, 1864, § 12.— United States v. 
Randall, Case No. 16,118. 

To constitute the offense, it is not necessary 
that the letters stolen should have been taken 
out of the post-office building.— United States 
v. Nott, Case No. 15,900. 

To constitute a post office under Act March 
3, 1825, § 22, there need not be a building or j 
room set apart. The post office may be a desk, 
trunk, or box, carried from one house or build- 
ing to another.— United States v. Marselis, Case 
No. 15,724. 

The place of deposit of the mailable matter 
would, in such case, constitute the post office, 
so that taking anything therefrom would be 
within Act March 3, 1825, § 22.— United States 
v. Marselis, Case No. 15,724. 

A post-office clerk who steals a letter or pack- 
age from the post office is punishable under Act 
March 3, 1825, § 22.— United States v. Marse- 
lis, Cases Nos. 15,724, 15,725. 

An errand boy authorized to receive letters 
from the mail, who embezzles the contents of a 
letter so received, is not liable under Act March 
3, 1825, § 22, as the taking was lawful.— Unit- 
ed States v. Driscoll, Case No. 14,994. 

One sworn in as a deputy postmaster, who 
handled the mail whenever he was about the 
post office and felt inclined to do so, is an em- 
ploye within the meaning of the law. — United 
States v. Brent, Case No. 14,640. 

A mail carrier is within Act April 30, 1810, 
§ 13, punishing embezzlement by any person 
"employed in any of the departments of the 
general post office."— United States v. Belew, 
Case No. 14,563. 

A person is not guilty of taking and embez- 
zling a letter (Rev. St. § 3792) where he took 
from the post office and retained a registered 
letter addressed in his care to a person who was 
dead, and retained a draft inclosed therein. — 
United States v. Thoma, Case No. 16,471. 

A decoy letter, containing money, mailed for 
the purpose of entrapping an employe in a 
post office, who opens it, and takes the money, 
is within Act March 3, 1825, § 21.— United 
States v. Cottingham, Case No. 14,872; Same 
v. Foye, Id. 15,157. 
See, also, "Embezzlement" 

§ 13. Opening or detaining letters. 

After the deposit of a letter in the post office, 
no one except the writer or the addressee, or 
some one authorized by them, has the right, 
while it is there, to open it, for the mere purpose 
of ascertaining its contents. — United States v. 
Eddy, Case No. 15,024. 

Neither the postmaster nor other officers have 
any authority to open it under the pretext that 
there might be something improper or even crim- 
inal therein.— United States v. Eddy, Case No. 
15,024. 

The delivery of a letter to an errand boy is 
a delivery to his employer, within Act March 3, 
1S25, § 22, and he cannot be convicted of open- 
ing the same "before it shall have been deliv- 
ered to the person to whom it is directed."— Unit- 
ed States v. Driscoll, Case No. 14,994. 

It is an offense to open a letter, which has 
beeir in the post office, before delivery to the 



addressee, with intent to obstruct his corre- 
spondence, or pry into his business or secrets, 
though the letter was not sealed, and was writ- 
ten by defendant himself, and the addressee's 
name was not correctly given. Act March 3, 
1825, § 22.— United States v. Pond, Case No. 
16,067. 

Act March 3, 1825, § 22. in relation to opening 
letters to obstruct correspondence, etc., applies 
only where the possession of letters was ob- 
tained wrongfully from the post office, or from 
a mail carrier. — United States v. Parsons, Case- 
No. 16,000. 

A person who receives a letter from a letter 
carrier, addressed to another, without fraud or 
artifice, is not liable to indictment under Act 
March 3, 1825, § 22, where he opens the same- 
and embezzles money therefrom. — United States 
v. Parsons, Case No. 16,000. 

A person who, without artifice, receives a let- 
ter for another, addressed in his care, and opensx 
and destroys the same, cannot be convicted of 
opening the same with the design to obstruct the- 
correspondence, etc., of another. — United States- 
v. Mulvaney, Case No. 15,833. 

On an indictment for taking a letter from thfe 
post office with intent to obstruct correspond- 
ence (Rev. St. § 3892), defendant may be con- 
victed without evidence of an unlawful, clan- 
destine, or fraudulent taking. — United States- 
v. Nutt, Case No. 15,904. 

Proof of an intentional nondelivery of a letter 
so taken from a post office may be sufficient. — 
United States v. Nutt, Case No. 15,904. 

A person indicted for such taking of a letter 
with intent to pry into the business or secrets 
of another cannot be convicted if he knew tin- 
contents of the letter 'before he received it. — 
United States v. Nutt, Case No. 15,904. 

It is no defense that the letter related in part 
to defendant's business, or that in good faith 
he believed that the letter was of no value to- 
tlie person to whom it was addressed, even if 
such be the fact, or that the letter was volunta- 
rily delivered to defendant by the postman.— 
United States v. Nutt, Case No. 15,904. 

The writer of a letter which has passed from 
the office where mailed has no right to inter- 
cept it, or authorize its delivery to a person 
other than the one to whom it is directed. — 
United States v. Nutt, Case No. 15,904. 

A person who takes a letter out of the post 
office and reads it by authority of the addressee, 
where it w T as also intended for him, does not 
violate the post-office law. — United States v.. 
Tanner, Case No. 16,430. 

Act 1825, § 21, which prescribes a punishment 
for the detention of a letter or packet, refers 
to a letter or packet detained before it reaches 
the place of destination. — United States v. 
Pearee, Case No. 16,020. 

A letter dropped in a post office, intended for 
a person at such place, is not a letter intended 
to be "conveyed" by post. Act 1825, c. 275, 
§ 21.— United States v. Oliver, Case No. 15,917. 

A letter carrier who delivers letters from house 
to house is a mail carrier, within Act March 3, 
1825, § 22.— United States v. Parsons, Case No. 
16,000. 

§ 14:. Sending matter concerning lotter~ 
ies. 

An act prohibiting the carrying in the mail of 
letters or circulars concerning lotteries, and pun- 
ishing as a crime the sending of such matter 
through the mails, is not unconstitutional. — In 
re Jackson, Case No. 7,124. 

§ 15. Unlawful franking. 

Though unlawful, it is not penal for a mem- 
ber of congress to frank envelopes to be used 
in transmitting printed circulars through the- 



1833 (g 16) 



POST OFFICE, II. 

[Fed. Cas. Digest.] 



(§ 21) 1834 



mail. Act March 3, 1S25. § 2S.— Dewees' Case, 
Case No. 3,848. 

$ 16. Illegal carrying, and private ex- 
presses. 

Act March 3, 1825, § 21, prohibiting mail car- 
riers carrying letters or packets, does not pro- 
hibit their carrying a package containing execu- 
tions only .—United States v. Chaloner, Case No. 
14,777. 

The postal law of 1845, prohibiting the estab- 
lishing of private expresses, held constitutional. 
—United States v. Thompson, Case No. 16,489. 

An expressman conveying letters in an ex- 
press car is punishable, under Act 1825, c. 275. 
—United States v. Gray, Case No. 15,253. 

The carrier of letters by private express, in a 
package, is not liable to the penalty under the 
act of 1825, unless he knew that the package 
contained letters.— United States v. Adams, 
Case No. 14,421. 

Act March 2, 1827, § 3, and Act March 3, 
1845, § 9, prohibit the business of private letter 
-carriers on mail routes, but not within the limits 
of a post town.— United States v. Kochersper- 
^er, Case No. 15,541. 

An order of the postmaster general declaring 
the streets of a city to be post roads does not 
make them so, within the act of 1827, or render 
the business of private letter carriers therein 
unlawful.— United States v. Kochersperger, 
Case No. 15,541. 

The setting up of a post by railroad or steam- 
hoat service is not setting up a foot post, within 
Act 1827, § 3.— United States v. Kimball, Case 
No. 15,531. 

The carrying Of letters, though without dis- 
tinct compensation, which are not in the form 
of receipts, etc., is a violation of the law. — Unit- 
ed States v. Thompson, Case No. 16,489. 

It is not unlawful for an express company to 
carry with a money letter or package an un- 
stamped letter of advice concerning such money. 
Act March 3, 1845, § 9.— United States v. Unit- 
ed States Exp. Co., Case No. 16,602. 

The proprietor of a post road is not liable for 
the penalty (Act March 3, 1825, § 19), where 
letters are carried over his line by a passenger 
without his knowledge.— United States v. Hall, 
Case No. 15,281; Same v. Kimball, Id. 15,531; 
Same v. Pomeroy, Id. 16,065. 

The owner of the line is liable where, by pub- 
lic advertisement, he has notice of the fact that 
certain persons or. agents are thus sending let- 
ters; and in such case the persons employing 
the agents are liable, under section 24. — United 
States v. Hall, Case 'No. 15,281. 

Where the owner of the line is not liable un- 
der section 19, no penalty is incurred, under sec- 
tion 24, by the person who sends such letters. 
—United States v. Hall, Case No. 15,281; Same 
v. Kimball, Id. 15,531. 

§ 17. Robbery of mails. 

The word "rob," in Act March 3, 1825, § 22, 
is used in its common-law sense. — United States 
v. Wilson, Case No. 16,730. 

The offense of robbing the mail is a capital 
crime if effected by the use of dangerous weap- 
ons. — United States v. Hare, Case No. 15,304; 
Same v. Wood, Id. 16,757. 

A sword or pistol in the hand of a robber, by 
terror of which the robbery is effected, is a 
dangerous weapon, within the law, though the 
sword be not drawn, and the pistol be not point- 
ed.— United States v. Wood, Case No. 16,756. 

The offer or threat to shoot with a pistol is 
within the law without proof that the pistol was 
loaded. — United States v. Wilson, Case No. 16,- 
730; Same v. Wood, Id. 16,756. 



Putting the person in custody of the mails in 
fear and his life in peril is putting his life in 
jeopardy.— United States v. Wood, Case No. 
16,757. 

"Jeopardy" means a well-grounded apprehen- 
sion of danger to life in case of refusal or re- 
sistance.— United States v. Wilson, Case No. 
16,730. 

The possession and exhibition of dangerous 
weapons in effecting the robbery of the mail is 
within Act April 30, 1810, § 19, cl. 2.— United 
States v. Bernard, Case No. 14,584. 

Robbers of a mail stage held not to intend to 
effect the robbery by the use of dangerous weap- 
ons which would put the guard's, life in jeop- 
ardy, where, though armed, and dangerously 
wounded, they took precautions against injur- 
ing the guard.— United States v. Aminhisor, 
Case No. 14,442. 

Carrier of the mail need not have taken the 
oath prescribed by section 2, nor need the whole 
mail be taken, to authorize a conviction. — Unit- 
ed States v.' Wilson, Case No. 16,730. 

§18. Obstructing; tbe mail. 

Elements of the offense • of obstructing the 
mails stated in a charge to the jury.— United 
States v. Lawhead, Case No. 15,570. 

An intention to obstruct the mail flows from 
an unlawful act that so operates, although its 
primary object was to accomplish another pur- 
pose.— United States v. Stevens, Case No. 16,- 
392. 

The offense of" obstructing the mail, under 
Rev. St. § 3995, is not committed unless the 
mail is in transitu, and the horse or vehicle 
taken is employed in carrying the mail.— Unit- 
ed States v. McCracken, Case No. 15,664. 

A mail carrier driving through a crowded city 
at such a rate as to endanger the lives of the 
inhabitants may be arrested by a constable with- 
out a warrant.— United States v. Hart, Case 
No. 15,316. 

A warrant in a civil suit against a mail car- 
rier is no justification to the officer executing 
it, on an indictment for obstructing the mail. — 
United States v. Harvey, Case No. 15,320. 

The unlawful stopping of a passenger train by 
persons who are willing to permit the passage 
of the mail car detached from the passenger 
car is punishable under Rev. St. § 3995, as a 
willful obstruction or retarding of the passage 
of the mail.— United States v. Clark, Case No. 
14,805. 

A driver and carrier of the United States mail 
is exempt from arrest on civil process while en- 
gaged in the service, which includes waiting for 
the mail.— United States v. Bean, Case No. 
14,550. 

The lien of a private citizen against horses 
for their livery cannot be enforced so as to stop 
the United States mail in a stage coach drawn 
by such horses.— United States v. Barney, Case 
No. 14,525. 

§19. In closures in printed matter. 

The mere writing of a name on a newspaper 
is not within the prohibition of the post-office 
act. — United States v. Grafton, Case No. 15,245. 

§ 20. Receiving stolen mail matter. 

.It is an offense under Act March 3, 1825, § 
45, to receive or buy an article knowing it to 
have been stolen from the mail. — United States 
v. Keene, Case No. 15,512. 

§ 21. Sending obscene and indecent mat- 

ter 
Rev. St. §*3893, forbidding the depositing in 
the mail of any obscene or indecent publication, 
is not repugnant to any constitutional provision. 
—United States v. Bennett, Case No. 14,571. 



1835 (§ 21) 



POST OFFICE, IL 

[Fed. Cas. Digest.] 



(§ 23) 1836 



The test of obscenity, within the meaning of 
the statute, is whether the tendency of the 
matter is to deprave and corrupt the morals of 
those whose minds are open to such influences, 
and into whose hands a publication of the sort 
may fall.— United States v. Bennett, Case No. 
14,571. 

A pamphlet of twenty-four pages, consisting 
of a sheet and a half, secured together by stitch- 
ing, with a cover of four pages, and a title page, 
is properly described as a book. — United States 
v. Bennett, Case No. 14,571. 

A notice in the form of a letter inclosed in 
a sealed envelope, if it give the prohibited in- 
formation, is w T ithin the scope of the statute. — 
United States v. Foote, Case No. 15,128. 

A written slip of paper giving the prohibited 
information is a "notice," within the meaning 
of the statute, although not volunteered, but 
sent in reply to a letter asking for the informa- 
tion. — United States v. Foote, Case No. 15,128. 

A sealed letter, written by defendant to a per- 
son who had no existence, in answer to a decoy 
letter of a detective, and which, on its face, 
gives no information of the prohibited charac- 
ter, is not within Act July 12, 1876. — United 
States v. Whittier, Case No. 16,688. 

Upon a prosecution for depositing in the mail 
a newspaper containing a quack medicine ad- 
vertisement of where to obtain an article to ob- 
tain abortion, it is not necessary that the ad- 
vertisement indicate any particular article or 
thing or its properties. — United States v. Kelly, 
Case No. 15,514. 

A publisher knowingly depositing in the mails 
a newspaper containing a quack medical adver- 
tisement of how and where to obtain article to 
produce abortion, etc., is guilty of a violation 
of Rev. St. § 3893— United States v. Kelly, 
Case No. 15,514. 

Under an indictment for mailing an article 
"designed or intended for the prevention of con- 
ception or procuring of abortion" (Act June 8, 
1872, § 148, amended March 3, 1873, § 2), it is 
no defense that the article would not in fact 
have such effect, if it was put up in a manner 
and described so as to insure its use for such 
purpose by one desiring to accomplish such re- 
sult.— United States v. Bott, Case No. 14,626. 

Under such acts, making it a misdemeanor to 
mail any advertisement or notice giving informa- 
tion where or of whom such article may be ob- 
tained, it is immaterial whether the article was 
in fact at the place designated. — United States 
v. Bott, Case No. 14,626. 

The mailing of a postal card containing words 
imputing illicit intercourse to third persons, but 
no epithet in the form of a substantive or ad- 
jective, is an offense under Rev. St. § 3893, 
punishing the mailing of postal cards containing 
"indecent or scurrilous epithets." — United 
States v. Pratt, Case No. 16,082. 

§ 22. Indictment or information-— In gen- 
eral. 

Less nicety in the form of the indictment is 
required in the prosecution of offenses under 
the postal laws than is required in cases of felo- 
nies in England. — United States v. Lancaster, 
Case No. 15,556. 

An indictment against a carrier of the mail 
for an offense under the law, punishable gen- 
erally, will sustain a conviction, the word "car- 
rier" being stricken out as surplusage. — United 
States v. Burroughs, Case No. 14,695. 

§ 23. — Embezzlement or larceny. 

To convict a person of stealing a letter, etc., 
who is employed in the department, such em- 
ployment must be distinctly alleged and proved. 
—United States v. Nott, Case No. 15,900. 

When the embezzlement is of a letter con- 
taining a banknote, it is not necessary to de- 



scribe the note.— United States v. Patterson, 
Case No. 16,011. 

In an indictment against a post-office clerk for 
embezzlement a description of the letter as di- 
rected to A. B. is sufficient where it is inclosed 
in an envelope directed to A. B. — United States 
v. Laws, Case No. 15,579. 

It is unnecessary to particularly describe the 
letter or the bank notes therein. — United States 
v. Lancaster, Case No. 15,556. 

An indictment against a postmaster for em- 
bezzling bank notes from the mail must aver 
that the note was a thing of value. — United 
States v. Cummings, Case No. 14,901. 

But an indictment charging a mail carrier 
with stealing a letter out of the mail is suf- 
ficient without alleging that it contained an ar- 
ticle of value. — United States v. Fisher, Case 
No. 15,102. 

In an indictment against a post-office clerk 
for embezzling a letter containing a bank note, 
the letter being described as directed to a per- 
son other than defendant, it is unnecessary to 
allege that the letter or note was the property 
of any one. — United States v. Laws, Case No. 
15,579; Same v. Okie, Id. 15,916. 

In an indictment for larceny from a letter 
under section 21, the property stolen must be 
laid on some person other thnn the prisoner. — 
United States v. Cummings, Case No. 14,901a; 
Same v. Foye, Id. 15,157. 

Notes of a third person, sent by a depositary 
with notes of his own, and stolen from the 
mail, may be laid in the indictment as the 
property of the depositary. — United States v. 
Burroughs, Case No. 14,695. 

An indictment under Rev. St. § 5467, against 
a letter carrier, for embezzling a letter, is not 
defective, though it does not aver that the 
letter was not delivered to the addressee. — 
United States v. Jenther, Case No. 15,476. 

Where a postmaster is indicted for embez- 
zling a letter, it is enough to allege that the 
letter came into his hands, without showing 
where it was mailed, and by what route it was 
conveyed. — United States v. Lancaster, Case 
No. 15,556; Same v. Laws, Id. 15,579; Same 
v. Okie, Id. 15,916. 

An indictment against a post-office employ^ 
for embezzling letters intrusted to him, and 
stealing bank notes therefrom, need not aver 
that the letters were intended to be conveyed 
by post. — United States v. Golding, Case No. 
15,224. 

In an indictment for embezzling a letter con- 
taining money (Act July'l, 1864, § 12), it Is 
not necessary to aver that the letter embez- 
zled was intended to be conveyed to any par- 
ticular place, but only that it was intended to 
be conveyed by post. — United States v. Okie, 
Case No. 15,916. 

An indictment against a post-office employe" 
for stealing money from a letter (Rev. St. § 
5467), which did not aver that the letter was 
one intended to be conveyed by mail, or that 
it had been deposited in any post office, or in 
charge of defendant, or that it came into his 
possession in the regular course of his official 
duty, held bad. — United States v. Winter, Case* 
No. 16,744. 

An indictment under Act March 3, 1825, § 
22, which alleges that defendant did secrete 
"and" embezzle a certain letter, is not de- 
fective.— United States v. Sander, Case No. 16,- 
219. 

The indictment need not allege that the clerk 
obtained the letter by virtue of his employment; 
it is enough that, being a clerk, he has obtain- 
ed possession of the letter. — United States v* 
Laws, Case No. 15,579. 



1837 (§ 23) 



POST OFFICE, IL— POWERS. 

, [Fed. Cas. Digest.] 



(§ 2) 1838 



In an indictment for embezzlement, it is suf- 
ficiently certain to charge that defendant was 
"a person employed in one of the departments 
of the post-office establishment of the United 
States."— United States v. Patterson, Case No. 
16,011. 

An indictment for abstracting a letter con- 
taining bank notes is good if it alleges that the 
letter was put into the post office to be con- 
veyed by post, and was being so conveyed, and 
came into defendant's possession, as driver of 
the mail stage.— United States v. Martin, Case 
No. 15,731. 

The embezzlement of the letters and stealing 
bank notes therefrom may be charged in the 
same count of the indictment. — United States 
v. Golding, Case No. 15,224. 

The embezzlement of several letters from a 
post office may be charged in separate counts 
of the same indictment, or separate indictments 
therefor may be consolidated. — United States 
v. Brent, Case No. 14,640. 

§24, Illegal carriage. 

An information under the act of 1845 for 
carrying a letter out of the mail need not neg- 
ative the fact that it was stamped.— United 
States v. Tilden, Case No. 16,523. 

§ 25. — Unlawful franking. 

Sufficiency of indictment against member of 

congress for unlawfully franking a letter. — 
JDewees' Case, Case No. 3,848. 

§ 26. — Opening letters. 

The indictment need not allege any venue of 
the lawful intent, nor that the opening was 
unlawful, nor that the addressee was a real 
person.— United States v.JPond, Case No. 16,067. 

§ 27. — Sending obscene matter. 

An indictment charging defendant with de- 
positing in the mail an obscene pamphlet, and 
a notice giving information how an article de- 
signed for the prevention of conception can be 
obtained, need not give a definite or detailed 
description of the pamphlet. — United .States v. 
Foote, Case No. 15,128. 

An indictment under such statute need not 
set forth in hsec verba the book, or the ob- 
scene part thereof, where it states that it is 
so indecent as to make it improper to place 
it on the records, where the book is otherwise 
sufficiently identified.— United States v. Bennett, 
Case No. 14,571. 

An indictment is sufficient which alleges that 
defendant knowingly deposited the obscene book, 
without alleging that he knew it to be nonmail- 
able matter under the statute.— United States 
v. Bennett, Case No. 14,571. 

The statute refers to the place where such 
articles can be "obtained or made." Held, that 
an indictment using "obtained and made" was 
good, and proof of either sufficient. — United 
States v. Kelly, Case No. 15,514. 

§ 28. — Variance. 

Certain variances as to the address upon a 
letter alleged to have been embezzled by a let- 
ter carrier, Jield not material. — United States 
v. Jenther, Case No. 15,476. 

"Where in an indictment for embezzlement the 
letter or bank note is described, it, must be 
proved as laid.— United States v. Lancaster, 
Case No. 15,556. 

The description of the termini between which 
the letter was intended to be sent by post can- 
not be rejected as surplusage, but must be 
proved as laid. — United States v. Foye, Case 
No. 15,157. 

§29. Evidence. 

On trial of an indictment charging the deposit 
in the mail of an obscene publication, clauses 
of alleged similar character cannot be read 



from other books by way of illustration. — 
United States v. Bennett, Case No. 14,571. 

On trial of an indictment for depositing scur- 
rilous postal cards in the mail, evidence is ad- 
missible of other writings of defendant con- 
taining identical errors in spelling, to prove 
authorship.— United States v. Chamberlain, Case 
No. 14,778. 

On a trial for larceny from the mail, the best 
evidence of mailing is that of the person who 
mailed the letter, and of its loss of the person 
to whom it was addressed. — United States v. 
Crow, Case No. 14,895. 

The presumption of theft arising from the dis- 
appearance of mail matter may be repelled by 
evidence of the miscarrying of mails sent through 
the same office after defendant's removal. — 
United States v. Sterland, Case No. 16,387. 

Upon a prosecution under Act 1825, § 21, for 
the embezzlement by an employs of the post 
office, some evidence is necessary of the gen- 
uineness and value of bank notes charged to 
have been stolen out of a letter.— United States- 
v. Nott, Case No. 15,900. 

The postmasters through whose offices the 
embezzled letters were passed * or distributed 
must be called as witnesses on a orosecution 
for stealing letters out of the mail.— United 
States v. Emerson, Case No. 15,051; Same v. 
Whitaker, Id. 16,672. 

To show that the article has been stolen, the 
conviction of the persons who stole it is suffi- 
cient if the article be identified. — United States 
v. Keene, Case No. 15,512. 

Evidence that the prisoner uttered, as gen- 
uine, what purported on its face to be a bank 
note, is competent proof that it was a bank 
note, though it is not otherwise shown that 
such a bank existed. — United States v. Foye, 
Case No. 15,157. 

Sufficiency of evidence to sustain conviction 
for robbing the mail. — United States v. Cum- 
mings, Case No. 14,900. 

POUNDAGE. 

See "United States Marshals," § 11. 

POWERS. 

5 1, Duration and termination. § 2, Construction 
and execution. 

Assignment in bankruptcy, see "Bankruptcy," 

§ 198. 
Created by will, see "Wills," §§ 42, 43. 
Of attorney, see "Principal and Agent." 
Of sale in mortgage, see "Mortgages," §§ 18- 

27. 
To confess judgment," see "Judgment," § 6. 

§ 1. Duration and termination. 

A collateral power, although irrevocable, ex- 
pires with the life or bankruptcy of the ap- 
pointor.— Lockett- v. Hill, Case No. S,443. 

A naked power which expires with the death 
of the party creating it is such as requires the 
power to be executed in the name and as the 
act of the grantor.— Hunt v. Ennis, Case No. 
6,889. 

Where a naked power is necessarily such as 
can be exercised only after the death of the 
grantor, it does not expire with his death. — 
Hunt v. Ennis, Case No. 6,889. 

A power coupled with an interest does not 
expire with the death of the person creating it. 
— Hunt v. Ennis, Case No. 6,889; Lockett v. 
Hill, Id. 8,443. - 

§ 2. Construction and execution. 

Where power is given to a cestui que use 
to appoint by will, it cannot be exercised in 



1839 (§ 2) POWEKS— PRESCRIPTION. 

[Fed. Cas. Digest.] 

any other way, and the court cannot interfere. 
— Markoe v. ilaxcy, Case No. 9,093. 

While the intention to execute a power of 
appointment must be clear, it need not appear 
in express terms.— Blagge v. Miles, Case No. 
1,479. 

The indorsement at the foot of a deed, "I 
consent to the above," signed by the person 
without whose "approbation and consent" a 
sale under a power of sale was not to be valid, 
held a sufficient compliance with the require- 
mentr-Waldron v. Chasteney, Case No. 17,058. 

Where a power has been completely exe- 
cuted, but with the addition of something" im- 
proper and inconsistent with its purpose, if dis- 
tinguishable, the execution is good, and the ex- 
cess is void.— Warner v. Howell, Case No. 17,- 
184. 

A power, conferred upon trustees, to appoint 
a committee to designate the disposition of the 
estate after the death of testator's children, 
held to be one coupled with an interest, which 
could be exercised by a surviving trustee. — 
Loring v. Marsh, Case No. 8,515. 

Courts always lean in favor of the execution 
of the power if it can be supported, even if it 
should disappoint the person executing it. — 
Warner v. Howell, Case No. 17,184. 

Equity cannot afford relief against the de- 
fective execution of a power created bv law. 
— bright v. Boyd, Case No. 1,875. 

A court of equity will interfere in favor of 
the grantee in a deed to aid the defective ex- 
ecution of a valid power where there is no op- 
posing countervailing equity.— Segee v. Thomas. 
Case No. 12,633. 

Under a power to appoint "among such of 
the children of A. and B., and in such pro- 
portions as B. may appoint," B. may entirely 
exclude certain children.— Ingraham v. Meade, 
Case No. 7,045. 

A devise of "all the residue of my estate, of 
every name and kind," in a residuary clause, 
held sufficient as the execution of power of ap- 
pointment.— Blagge v. Miles, Case No. 1,479. 

A power to apooint among "children" may 
include grandchildren if they are, in a general 
way, manifest objects of the trust— Ingraham 
v. Meade, Case No. 7,045. 

An application of the benefits by the ben- 
eficiary of a power in trust in a form which 
the donee could not lawfully direct Jield not to 
render the appointment void, where there was 



no prior understanding.— Ingraham v. Meade, 
Case No. 7,045. 

PRACTICE. 

See "Prohibition." 

Adoption by United States courts of practice 

of state courts, see "Courts," §§ 67-74. 
Procedure of particular courts, see "Courts." 

In particular civil actions or proceedings. 
See "Account, Action on" ; Action on the 
Case"; "Assumpsit, Action of" ; "Covenant, 
Action of"; "Debt, Action of"; "Detinue"; 
"Discovery"; "Ejectment"; "Entry, Writ of"; 
"Habeas Corpus"; "Interpleader"; "Manda- 
mus," § 7; "Quo Warranto"; "Real Ac- 
tions"; "Replevin" ; "Trespass," §§ 6-11 : 
•Trial." 

Condemnation proceedings, see "Eminent Do- 
main," §§ 5-11. 

Confiscation proceedings, see "War," § 90. 

To establish or confirm grants, see "Public 
Lands," § 88. 

Particular proceedings in actions* 

See "Abatement and Revival"; "Affidavits' 1 ; 
"Appearance"; "Assistance, Writ of"; "Bail," 
§§ 1-13; "Continuance"; ''Damages," § 12; 



1840 



"Depositions" ; "Dismissal and Nonsuit" ; 
"Evidence"; "Execution"; "Judgment"; "Ju- 
dicial Sales"; "Jury"; "Limitation of Ac- 
tions" ; "Motions" ; "Parties" ; "Pleading" ; 
"Process" ; "Reference" ; "Removal of 
Causes"; "Stipulations"; "Venue." 

Nonsuit, see "Dismissal and Nonsuit"; "Trial," 

§ 14. 
Revival of judgment, see "Judgment," § 72. 
Verdict, see "Trial," §§ 22, 23. 

* 

Particular remedies in or incident to actions. 

See "Arrest," §§ 1-10; "Attachments"; "De- 
posits in Court"; "Garnishment"; "Injunc- 
tion" ; "Ne Exeat"; "Receivers" ; "Scire 
Facias"; "Searches and Seizures"; "Tender." 

Procedure in criminal prosecutions* 
See "Bail," §§ 14-22; "Criminal Law"; Ex- 
tradition." 

In bastardy, see "Bastards," § 2. 

Procedure in exercise of special jurisdictions. 

In admiralty, see "Admiralty"; "Collision," §§ 

■ 118-1G0; "Maritime Liens," §§ 54-65; "Sal- 

vage," §§ 57-78; "Shipping" §§ 244r-255. 
In bankruptcy, see "Bankruptcy." 
In equity, see "Equity." 
In insolvency, see "Insolvency." 
In justices' courts, see "Justices of the Peace," 

§§ 8—11. 
In land office, see "Public Lands," §§ 46-49. 
In patent office, see "Patents," §§ 66-87. 
In prize cases, see "War," §§ 51-69. 

Procedure on review. 
See "Appeal and Error"; "Audita Querela"; 
"Exceptions, Bill of"; "Justices of the 
Peace," §§ 12-17; "New Trial." 

PRE-EMPTION. 

Public lands, see "Public Lands," § 22. 

PREFERENCES. 

See "Assignments for Benefit of Creditors," § 
4; "Bankruptcy," §§ 62-78, 214-250, 393- 
396, 594-601; "Fraudulent Conveyances," § 

20. . 



PREJUDICE 



Ground of continuance, see "Continuance," § 5. 
of removal of cause, see "Removal of 

Causes," § 23. 
— — of reversal in civil actions, see "Appeal 

and Error," § 35. 

PRELIMINARY EXAMINATION. 

On criminal charge, see "Criminal Law," §§ 
38-41, 72. 

PRELIMINARY INJUNCTION. 

See "Injunction," §§ 14r-34; "Patents," §§ 232- 
249, 251, 252. 

PREMIUMS. 

For insurance, see "Insurance," §§ 17, 29-32. 

PRESCRIPTION. 

Acquisition of rights, see "Adverse Possession"; 

"Easements," § 1; "Waters and Water 

Courses," § 7. 
Creation of corporation by, see "Corporations," 

8 *• 



1841 



PRESENTMENT— PRINCIPAL AND AGENT, L 

[Fed. Cas. Digest.] 



(§ 3) 1842 



PRESENTMENT. 



By grand jury, see "Indictment and Informa- 
tion." 

Of bill or note, see "Bills and Notes," §§ 59- 
SO. 

PRESIDENT. 

See "United States," § 4. 

PRESUMPTIONS. 

See "Evidence," §§ 9-14. 



PRINCIPAL AND ACCESSORY. 

See "Criminal Law," §§. &-8; "Homicide," § 1. 

PRINCIPAL AND AGENT. 

X THE RELATION. 

§ l f Creation and existence. § 2, Extension. 
§ 3, Termination. 

II. MUTUAL RIGHTS, DUTIES, AND LIA- 
BILITIES. 

§ 4, Authority conferred. § 5, Substitution. 
§ 6, Mode of executing authority. § 7, Lia- 
bility for negligent and improper execution. 
§ 8, Liability for proceeds of property. § 9, 
Liability for interest. § 10, Individual inter- 
est of agent. § 11, Conversion. § 12, Sub- 
agents. § 13, Joint agents. § 14, Indemnity 
to agent from liability to third persons. § IS, 
Actions for negligent or wrongful acts of 
agents. § 16, Compensation and lien of agent. 

■in. RIGHTS AND LIABILITIES AS TO 
THIRD PERSONS. 

§ 17, Powers of agent— Representation of 
principal. § 18, Express and implied au- 
thority. § 19, Necessity of seal to confer 

power. § 20, Evidence of authority. 

§ 21, Liabilities incurred. § 22, Es- 
toppel by agent's acts. § 23, Undisclosed 
agency. § 24, Unauthorized and wrongful 

acts— Duty to disclose authority. § 25, 

Knowledge of extent of authority. § 26, 

Effect of exceeding authority. § 27, Act- 
ing after termination of authority. § 28, 

Unauthorized dealings with principal's prop- 
erty. § 29, Representations and fraud of 

agent. § 30, Negligence or wrongful acts 

of agent. § 31, Repudiation by principal. 

§ 32, Ratification. 5 33, Notice to agent. § 34, 
Actions. 

See, also, "Attorney and Client"; "Brokers"; 
"Factors" ; "Mercantile Agencies" ; "Pow- 
ers." 

Admissions by agents as evidence, see "Evi- 
dence," §§ 33, 34. 
Agency of partner for firm, see "Partnership," 

§§ 19-31. 
Appointment of agent by administrator, see 

"Executors and Administrators," § 15. 
Competency as witnesses, see "Witnesses," § 

34. 
Corporate agents, see "Corporations," §§ 34- 

37, 81; "Insurance," §§ 91, 92; "Railroads," 

§ 6. 
Designation of agent for service of process on 

foreign corporation, see "Corporations," § 81. 
Insurance agents, see "Insurance," §§ 5, 6, 12. 
Municipal agents, see "Municipal Corporations," 

§§ 8, 24. 
Notice to agent, see "Vendor and Purchaser," 

§ 26. 



I, THE RELATION. 

§ 1. Creation and existence. 

The duties of receiver of a bank and agent 
held not inconsistent. — Benedict v. Maynard, 
Case No. 1,295. 

A power of attorney, sent by mail to a per- 
son, which never came to his possession, is. not 
operative.— Thurston v. The Magnolia, Case No. 
14,017. 

An arrangement by a broker with a corre- 
spondent in another place to execute his or- 
ders, where the account was kept only with 
such correspondent, but the purchaser or seller 
was known in each transaction, lidd to make 
such correspondent an agent of the broker. — 
Scarlett v. Van Inwagen, Case No. 12,437. 

The fact that an agent to compromise returns 
different terms from creditors than those sub- 
mitted does not make him their agent.— Cur- 
ran v. Munger, Case No. 3,487. 

One having a contract right to purchase lands 
in a limited time, and selling the right be- 
fore expiration thereof, is not an agent of the 
vendor, if there was a bona fide, expectation 
that he might make the purchase; otherwise 
if the purpose was merely to speculate by sell- 
ing the right within the time. — Mason v. Cros- 
by, Case No. 9,235. 

Letters of credit given to a Confederate agent 
to enable him to prosecute his mission abroad 
in aid of the Confederate government are void 
as in aid of the Rebellion..— The Confiscation 
Cases, Case No. 3,097. 

Instruments executed abroad, as the founda- 
tion of sealed instruments in this country, must 
be under seal. — Harman v. Harman, Case No. 
6,071. 

An individual may prove his own agency. — 
Pendall v. Rench, Case No. 10,917. 

An agency as against the individual may be 
proved by his acts and declarations. — Piatt y. 
Oliver, Case No. 11,115. 

The motives or inducements of a contract 
with an agent may be proved by his letters or 
declarations admitting facts. — Blight v. Ashley, 
Case No. 1,541. 

§ 2. Extension. 

The agency is not continued by the fact that 
notes for the unpaid purchase price and a 
mortgage securing the same were left with 
the agent in escrow to await the delivery of a 
quitclaim deed from a third person, which the 
vendor was to furnish.— "Walker v. Derby, Case 
No. 17,068. 

§ 3. Termination! 

The agency of a real-estate agent and his 
duty to his principal ceases upon delivery of the 
title papers and payment for the property, and 
thereafter he may deal for the property as any 
other person. — Walker v. Derby, Case No. 17,- 
068. 

The presumption is that a sale of a patent 
annuls an existing power of attorney relating 
thereto; but, if the power remains outstanding, 
persons dealing with the attorney on the faith 
thereof will be protected as against the prin- 
cipal. — Labaree v. Peoria, P. & J. R. Co., Case 
No. 7,959. 

The appointment of a second attorney or 
agent to collect a debt is a revocation of the 
authority of the first one, and persons know- 
ing of the second appointment are held to a 
knowledge of the revocation. — Williamson v. 
Richardson, Case No. 17,754. 

A power of attorney to conduct all one's busi- 
ness at a particular place is not revoked by a 
lease of most of the property to the attorney, 
but only modified so as to exclude such prop- 
erty.— Perkins v. Currier, Case No. 10,9S5. 



1843 (§ 3) 



PRINCIPAL AND AGENT, L, IL 

[Fed. Cas. Digest.] 



(§ 7) 1844- 



A 'power of attorney to conduct all one's busi- 
ness at a particular place is revoked pro tanto 
by the transfer by the principal of his interest 
in part of the property. — Perkins v. Currier, 
Case No. 10,985. 

Where an agent has in good faith entered 
into engagements or incurred liabilities before 
notice of revocation of his powers, the prin- 
cipal is bound tc indemnify him. — United States 
v. Jarvis, Case No. 15,468. 

A power of attorney which gives to the agent 
a veto upon the acts of his principal is equiv- 
alent to a power coupled with an interest. — 
Day v. Candee, Case No. 3,676. 

A revocation of a power is not necessarily 
implied from a subsequent power to another 
to do the same thing, where the second is not 
absolutely inconsistent with the first. — Starr 
v. Stark, Case No. 13,317. 

An agent cannot renounce his agency at 
pleasure, without notice or good cause, except 
on condition of indemnifying his principal for 
any loss sustained thereby. — United States v. 
Jarvis, .Case No. 15,468. 

Authority given an agent by the principal to 
receive notices for him ceases with the prin- 
cipal's death. — Bank of Washington v. Peirson, 
Case No. 953. 

A power of attorney given as collateral se- 
curity is irrevocable by the grantor, but it dies 
with him. — Hunt v. Ennis, Case No. 6,889. 

A power of attorney is revoked by the death 
of the principal, except so far as the attorney 
has an interest coupled with the power. — Boone 
v. Clarke, Case No. 1,641. 

The authority conferred by a power of at- 
torney is suspended by the subsequent insanity 
of the person who gave the power.— Bunce v. 
Gallagher, Case No. 2,133. 

II. MUTUAL RIGHTS, DUTIES, AND 
LIABILITIES. 

§ 4. Authority conferred* 

Authority to sell real estate must be clear and 
distinct— Bosseau v. O'Brien, Case No. l,6t>7. 

A power which authorizes the attorney to sell 
and convey lands does not authorize him to 
make a deed for lands previously sold. — John- 
son v. Sukeley, Case No. 7,414. 

An agent to sell on credit, taking a mort- 
gage as security, is not thereby authorized to 
foreclose the mortgage. — Aultinan v. Jones, Case 
No. 657. 

An agent for subscriptions or a canvasser 
for books has no right to .cancel subscriptions 
or to transfer them to another party. — Stod- 
dart v. Warren, Case No. 13,471. 

A power of attorney, to indorse notes in the 
principal's name, confines the authority to notes 
of the principal, or those in which he is interest- 
ed.— Butcher v. Tyson, Case No. 2,233. 

A power of attorney to collect and com- 
promise debts and sipoi necessary papers gives 
authority to sign a paper choosing an assignee 
in bankruptcy. — In re Knoepfel, Case No. 77892. 

A power of attorney to collect a judgment to 
arbitrate and compound the same, and to em- 
ploy 'counsel, authorizes the attorney to em- 
ploy counsel to appear in an action* to annul 
a sale under such judgment, and consent to* a 
judgment annulling such sale upon terms ad- 
vantageous to the client. — Lee v. Rogers, Case 
No. 8,201. 

The answer "I will sell" on terms specified, 
to a letter from a real estate agent asking for 
authority to sell, does not confer authority. — 
Bosseau v. O'Brien, Case No. 1,667. 

A letter authorizing an agent to purchase 
property of a person to whom it was directed, 



to be paid for at such times as should be agreed 
upon between the owner and the agent, does not 
authorize the agent to purchase such property 
from other persons. — Peckham v. Lyon, Case- 
No. 10,899. 

A person acting under a power of attorney 
from the partner of a deceased consignee of 
goods held to be agent of such partner, and not 
of the shippers, and liable for the proceeds of 
the goods turned over to such partner without 
the approval of the shippers.— Holt v. Dorsey, 
Case No. 6,647. 

Where a bond is executed in the name of 
the firm^ by a manager of the business who- 
was so in the habit of using the firm name, 
authority to sign by a written instrument need 
not be shown. — United States v. Turner, Case 
No. 16,547. 

Equity cannot aid a defective power.— Piatt 
v. McCullough, Case No. 11,113. 

§ 5. Substitution. 

A lease to a brother, who covenants to carry 
on business with the property leased for half 
the net profits, does not give him the right to- 
substitute a stranger as manager, or change 
the proportion of profits.— Perkins v. Currier, 
Case No. 10,985. 

A power of attorney to collect debts, with 
power of substitution, may authorize the at- 
torney to appoint another to act for the prin- 
cipals in bankruptcy proceedings under an act 
passed subsequent to the execution of the 
power. — In re Knoepfel, Case No. 7,892. 

§ 6. Mode of executing: authority. 

An agent whose orders are positive must 
strictly observe them, and can exercise no dis- 
cretion except as to the best method of ex- 
ecuting them. If ambiguous, they must be tak- 
en most strongly against the principal. — Kings- 
ton v. Kineaid, Case No. 7,822. 

A deed of an attorney, executed in his own 
name, is not valid as the deed of his principal. — 
Barger v. ^Miller, Case No. 979. 

A deed of an attorney in fact, manifestly in- 
tending to convey the title of the principal, is 
ineffectual, unless the attorney either signed 
the name of the principal, with a seal an- 
nexed, stating it to be done as attorney, or 
signed his own name, with a seal annexed, stat- 
ing it to be done for the principal. — Randall v. 
Jaques, Case No. 11,553. 

A power of attorney authorizing a public sale 
of property will not authorize a private sale 
of it.— The G. H. Montague, Case No. 5,377. 

A power of attorney, which authorizes a con- 
veyance to be made in as full and ample a 
manner as the principal could execute, au- 
thorizes a deed with covenants of general war- 
ranty.— Taggart v. Stanbery, Case No. 13,724. 

An agent is governed by the price stated in 
the invoice accompanying goods where he is 
directed not to sell for less than the first cost 
and charges. — Loraine v. Cartwright, Case No. 
8,500. 

Agents are held to strict account where they 
act under plain orders. — Loraine v. Cartwright, 
Case No. 8,500. 

Where an agent's orders are to sell "imme- 
diately on arrival," and forward returns by the 
same vessel, he has no discretion, but must sell 
at once, no matter at what loss. — Courcier v. 
Bitter, Case No. 3,2S2. 

A power of attorney to convey land in Ohio 
must be recorded before a record is made of 
the deed. — Johnson v. Sukeley, Case No. 7,414. 

§ 7. Liability for negligent and improper 
execution. 

An agent who does not comply with his in- 
structions is liable for the loss occasioned there- 



1845 (§ 7) 



PRINCIPAL AND AGENT, n. 
[Fed. Cas. Digest.] 



.(§ 16) 1840 



by, although the services were gratuitously ren- 
dered.— Walker v. Smith, Case No. 17,086. 

Where a ratification is necessary to bind the 
principal, agent is not liable to principal for 
abuse of power. — iEtna Ins. Co. v. Sabine, 
Case No. 07. 

A disobedience of orders is . excused where 
the principal remains silent after full and can- 
did statement of all the facts by the agent. — 
Courcier v. Hitter, Case No. 3,282. 

A collecting agent, receiving Confederate notes 
in payment, without authority, is liable.— Bank 
of Tennessee v. Union Bank of Louisiana, 
Case No. 899; Anderson v. Bank, Case No. 354. 

An agent in Virginia who collected a claim 
for a citizen of Kentucky in Confederate mon- 
ey, and invested it in Confederate bonds, by or- 
der of the state court, lield liable for the value 
of the Confederate money as of the date when 
received.— Botts v. Crenshaw, Case No. 1,690. 

The neglect of a merchant, who was in the 
habit of insuring vessels for his correspondent, 
to make insurance as ordered, will render him 
liable to the principal.— De Tastett v. Crousil- 
lat, Case No. 3,828; Morris v. Summerl, Id. 
9,837; Manny v. Dunlap, Id. 9,047. 

The neglect of the agent to give his prin- 
cipal notice of his having been unable to ex- 
ecute the order for insurance will make him 
liable in damages. — De Tastett v. Crousillat, 
Case No. 3,828. 

A direction to procure a policy of insurance 
is not satisfied by a verbal contract of insur- 
ance.— Manny v. Dunlap, Case No. 9,047. 

The principal need not maintain a suit on 
such verbal contract, where its validity is 
doubtful, before suing the agent for damages. — 
Manny v. Dunlap, Case No. 9,047. 

§ 8. Liability for proceeds of property. 

Defendant, who handles property as agent 
of plaintiff, is liable to him for the proceeds, 
although other persons may have been jointly 
interested with the plaintiff. — Gray v. Reardon, 
Case No. 5,727. 

§ 9. Iiiaoility for interest. 

An agent having a balance in his hands of a 
fund used to make purchases is not liable for 
interest until a demand is made therefor. — Wil- 
liams v. Baxter, Case No. 17,715. 

§ 10. Individual interest of agent. 

An agent by virtue of a power of attorney 
cannot acquire title as against his principal.— 
Cleveland Ins. Co. v. Reed, Case No. 2,889. 

An agent authorized to foreclose a mort- 
gage, and bid in the property, who does so in 
his own name, holds for the benefit of his 
principal. — Aultman v. Jones, Case No. 657. 

An agent to pay taxes on the land of his 
principal cannot acquire a valid title on tax 
sale. — Curts v. Cisna, Case No. 3,507. 

Private collateral, taken for himself by an 
agent when contracting for his principal, will 
be considered as held in trust for the principal. 
— Garrow v. Davis, Case No. 5,257. 

Where an agent employed to sell territorial 
rights under a patent procured a saje to him- 
self of the entire territory, on false representa- 
tions of his inability to sell to others, the 
vendor is entitled to have the sale set aside 
as to all portions of the territory not previ- 
ously disposed of by the agent, and to an 
account of the proceeds of sales by him.— Jef- 
fries v. "Wiester, Case No. 7,254. 

Every sort of profit derived by an agent from 
dealing or speculating with his principal's ef- 
fects is the property of the latter, and must 
be accounted for. — Yates v. Arden, Case No. 
18,126. 



Where an agent or factor keeps the proceeds 
of his principal's goods separate, the principal 
may claim the same, or the profits thereon, as 
against the agent or his general creditors. — 
Hourquebie v. Girard, Case No. 6,732. 

§11. Conversion. 

An agent converting to his own use money 
which he has been specifically directed to in- 
vest in a certain article is accountable for the 
value of such article after it has greatly in- 
creased in value.— Short v. Skipwith, Case No. 
12,809. 

In case of conversion by an agent the prin- 
cipal may follow his property into the hands 
of the agent or his legal representatives or as- 
signees in insolvency, if either it or its pro- 
ceeds can be traced. — Veil v. Mitchel, Case No. 
16,908; Yates v. Curtis, Case No. 18,127. 

* 

§ 12. Snbagents. 

A collection agent, who transmits bills to 
his private agent, under an arrangement where- 
by the latter credits him personally with the 
proceeds, is personally liable for a loss caused 
by the failure of any of the parties.— Taber v. 
Perrot, Case No. 13,721. 

An agency to make contracts for the trans- 
portation of freight lield to be one of special 
trust and confidence, and bills of lading sign- 
ed by the confidential clerk of such agent are 
not valid, but are admissible, when adopted by 
the agent, to show the contract for transporta- 
tion.— Pendall v. Rench, Case No. 10,917. 

§ 13. Joint agents. 

Powers given by a letter of attorney to sev- 
eral persons jointly cannot be exercised by one 
of the attorneys alone. — In re Phelps. Case No. 
11,071. . 

§ 14r. Indemnity to agent from liability 
to third persons. 

An agent purchasing property with money 
partly raised on his own credit may hold the 
same until indemnified, if his principal becomes 
insolvent. — Matthews v. Menedger, Case No. 
9,289. 

§ 15. Actions for negligent or wrongfnl 
acts of agents. 

A declaration in an action for abuse of power 
as agent must aver that defendant acted as 
agent.— -3Etna Ins. Co. v. Sabine, Case No. 97. 

The owner of gold-bearing bonds, converted 
by an agent, may recover, at his election, their 
value as damages, or the amount received by the 
agent as such. — Brewer v. Caldwell, Case No. 
1,849. 

§ 16. Compensation and lien of agent. 

Compensation to an agent for the sale and 
management of estates, the property of absent 
proprietors, remitting proceeds of sales, and 
performing all the duties of such an agency. — 
Committee of West New Jersey Soc. v. Morris, 
Case No. 3,065. 

If the agent of a creditor is authorized to 
accept compensation from debtors for securing 
compromises, in which compensation the cred- 
itor upon certain conditions was to share, no 
contract between the agent and the debtor for 
such compensation will be enforced.— Bullene 
v. Blain, Case No. 2,124. 

An agent collecting money for his principal, 
and retaining it as a* loan to himself, according 
to a prior contract with the principal, is not en- 
titled to commissions on the amounts collected. 
—Short v. Skipwith, Case No. 12,S09. 

An agent receiving back from a maritime av- 
erage adjuster a part of the sum charged for 
services must credit his principal therewith. — t 
Mauran v. Warren, Case No. 9,310. 

Agent will not be directed to deliver up 
papers in his possession if he has a lien there- 
on.— Baring v. Willing, Case No. 9S5. 



1817 (§ 16) 



PRINCIPAL AND AGENT, H., HL 
[Fed. Cas. Digest.] 



(§ 27) 1848 



An assignment of a claim made to an agent, 
to enable him to collect it in his own name, 
held an absolute assignment of so much of the 
claim as the agent was entitled to retain as 
agreed compensation.— Do well v. Cardwell, 
Case No. 4,039. 

m. RIGHTS AND LIABILITIES AS TO 
THIRD PERSONS. 

§ 17. Powers of agent— Representation of 
principal. 

The possession of property by an agent to 
sell, under a special agreement for that pur- 
pose, is the possession of the owner. — Erdhouse 
v. Hickenlooper, Case No. 4,509. 

A clerk, as such, has no authority to bind 
his employer by an agreement to receive goods 
from a carrier at an unusual time; nor has 
a truckman such authority. — Goddard v. The 
Tangier, Case No. 5,494. 

Where a power to an agent is general, he 
may do anything to bind his principal which is 
within the scope of his authority. — Allen v. 
Ogden, Case No. 233; Barger t. Miller, Id. 
979; Hooe v. Alexandria, Id. 6,667. 

Where the agency be special, everything is 
void which may be done unless in strict con- 
formity with the authority.— Allen v. Ogden, 
Case No. 233. 

Persons employed to charter a vessel, accord- 
ing to specific directions, held to be special 
agents, without power to bind their principal to 
a different contract. — Mercier v. Lachenmeyer, 
Case No. 9,455. 

§ 18. — Express and implied authority. 

A power to sign notes in renewal of existing 
notes gives au thority to sign renewal notes 
given for renewal notes. — Bank of Washington 
v. Peirson, Case No. 953. 

A letter from a part owner of a steamboat, 
requesting another to advertise the writers in- 
terest for sale, and in thus advertising to act 
as his agent, confers no authority to sell. — 
Thurston v. The Magnolia, Case No. 14,017. 

An attorney in fact authorized to collect a 
debt cannot extinguish the same by commuting 
it for one due by himself to the debtor. — Kings- 
ton v. Kincaid, Case No. 7,822. 

An agent may make a pledge of property to 
secure another for property unlawfully used by 
the principal, though not authorized in writ- 
ing. — Jenkins v. Mayer, Case No. 7,272. 

§ 19. _ Necessity of seal to confer 
power. 

Authority to indorse notes need not be un- 
der seal. — Bank of Washington v. Peirson, Case 
No. 953. 

A power of attorney, not under seal, will not 
authorize the attorney to execute a deed. — 
Piatt v. McCullough, Case No. 11,113. 

§ 20. — • Evidence of authority. 

An agent is a competent witness to prove 
his own authority if not in writing, and is not 
incompetent by reason of his liability to either 
of the parties.— Welch v. Hoover, Case~ No. 
17,3GS. 

The declarations of the agent in support of his 
authority will not be received in evidence un- 
less contemporaneous with the act, and con- 
stituting part of the res gestse. — Davis v. Robb, 
Case No. 3,649. 

It is sufficient proof of authority that the 
principal recognized the firm as agent, al- 
though only one of its members was originally 
appointed.— Burritt v. Bench, Case No. 2,201. 

§ 21. — Liabilities incurred. 

If a subagent receives from the vendee a part 
of the purchase money, and pays it over to the 



principal, taking land instead of it for his com- 
pensation, the principal is liable, on a rescis- 
sion of the purchase for fraud, to repay that 
part as well as what he received directly. — Dog- 
gett v. Emerson, Case No. 3,962. 

Money paid on account of suretyship for an 
agent in a matter where he is acting for the 
principal, and within the scope of his authority, 
creates a debt against the principal.— Tiernan 
v. Andrews, Cases Nos. 14,025, 14,026. 

The principal is' bound by the acts of a sale 
agent, though not personally known to him, 
where authority to employ sale agents is im- 
plied from the nature of the duties and powers 
committed to his general agent. — Gum v. Eq- 
uitable Trust Co., Case No. 5,867. 

An agent is not personally liable on transac- 
tions with his principal made through him un- 
less so expressly agreed. — Bradford v. East- 
burn, Case No. 1,767; Bank of Newburv v. 
Baldwin, Id. 892. 

An agent to receive a deed for joint purchas- 
ers, being one of the number, who procures a 
deed to be executed directly to a third person 
for part of his own share, held liable, on re- 
scission of the sale, for the whole considera- 
tion received.— Doggett v. Emerson, Case No. 
3,962. 

Agents who pass goods through the custom- 
house free of duty, by mistake of the revenue 
officers, are not liable for the sum afterwards 
found to be due, where their agency was well 
known.— United States v. Bevan, Case No. 14,- 
588. 

§ 22. — Estoppel by agent's acts. 

A principal may be estopped by the intention- 
al, willful misstatement of an agent. — Wyckoff 
v. Page, Case No. 18,106b. 

§ 23. Undisclosed agency. 

One contracting with agent personally may 
refuse performance where responsibility is 
shifted to principal.— The A. Cheesebrough, 
Case No. 25. 

An agent to whom a vessel is delivered by 
the builders, without notice of his agency, does 
not acquire a good title as against his prin- 
cipal.— Scudder v. Calais Steamboat Co., Case 
No. 12,565. 

Agent of undisclosed principal personally lia- 
ble.— Allen v. Schuehardt, Case No. 236. 

An engineer hired to serve on board of a 
steamboat, , by a man who appeared to have 
full control and did not state that he was an 
agent, may hold him personally for wages. — 
Farrell v. Campbell, Case No. 4,681. 

§ 24. Unauthorized and wrongful acts — 
Duty to disclose authority. 

The principal must suffer the consequences 
of the neglect of his agent to disclose the spe- 
cial nature of the contract under which he is 
acting, to those with whom he deals.— Scarlett 
v. Van Inwagen, Case No. 12,437. 

§ 25. — Knowledge of extent of au- 
thority. 

A general agent, acting under special in- 
structions, which are known to the person with 
whom he is dealing, cannot bind his principal 
by any act which violates his instructions. — 
United States v. Williams, Case No. 16,724. 

§ 26. — Effect of exceeding authority. 

Under power of attorney from several persons 
to make a joint note in renewal of a joint and 
several note, a joint and several note made by 
the attorney, if beyond his power, is invalid 
only in part.— Bank of the Metropolis v. Moore, 
Case No. 901. 

§ 27, <— Acting after termination of 
authority. 

A principal is liable for drafts drawn by an 
agent after the expiration of his authority, to 



1849 (§ 28) PRINCIPAL AND AGENT, ILL— PRINCIPAL AND SURETY. 

[Fed. Cas. Digest.] 



1850 



pay for prior purchases, duly authorized.— 
Farmers* & Mechanics' Bank v. Stickney, Case 
No. 4,657. 



§2&. 



witli 



— Unauthorized dealings 
principal's property. 

Where an agent, employed to procure a ves- 
sel to be built in his own name, and to transfer 
the title to his employer, fraudulently transfers 
the title to a stranger,, with notice, the trans- 
action creates a trust cognizable in equity.— 
Scudder v. Calais Steamboat Co., Case No. 
12,566. 

A person with whom money of one person is 
deposited to the credit of another by the agent 
of the former cannot apply the same in satis- 
faction of a claim against the latter, where he 
has knowledge of the circumstances.— Yander- 
wick v. Summer], Case No. 16,845. 

§ 29. _ Representations and fraud of 

agent. 

The principal is responsible for the misrep- 
resentations of his agent in making a sale, 
though in excess of his authority, where he 
subsequently ratifies the sale.— Doggett v. 
Emerson, Case No. 3,960. 

The owners of land, who give to another a 
bond to convey to him, or to give him all over 
a certain price, if he should make a sale, are 
bound by his representations to a purchaser 
procured by him.— Hough v. Richardson, Case 
No. 6,722. 

A contract made by an agent in excess of his 
nower, by means of false and fraudulent asser- 
tions, is void, and may be rescinded, or, where 
the principal receives the benefit and proceeds, 
he is liable in damages.— Foster v. Swasey, 
Case No. 4,984. 

§ 30. Negligence or wrongful acts of 

agent. 

The principal, and not the agent, is liable 
for the negligence of the latter.— Mandeville v. 
Cookendorfer, Case No. 9,010. 

The owners of a stage coach are liable* for 
the negligence of their agent in suffering the 
slaves of another to be taken away in the 
coach.— Lowe v. Stockton,- Case No. 8,567. 

The remedy for an illegal act of an agent 
in refusing to deliver goods sent by the nrin- 
cipal to him for others is against the principal. 
—Bradford v. Eastburn, Case No. 1,767. 

Irregularities of agent in disposing of pro- 
ceeds do not affect title of realty sold by him.— 
Andrews v. Solomon, Case No. 378. 

§ 31. Repudiation "by principal. 

The repudiation of an agent's act in excess 
of authority must be within a reasonable time 
after knowledge.— Abbe v. Rood, Case No. 6. 

A person cannot adopt that part of an agree- 
ment made on his behalf without authority 
which is beneficial to himself, and repudiate 
the part which is beneficial to the other party. 
—Starr v. Stark, Case No. 13,317. 

§ 32. Ratification. 

An authorized sale by the agent held not rat- 
ified by the principal's drawing on him for a 
part of lie proceeds. — Loraine, v. Cartwright, 
Case No. 8,500. 

A settlement of accounts made by an agent 
abroad, and acquiesced in for four years, held 
should not be disturbed.— Wilcocks v. Phillips, 
Case No. 17,639. 

The acceptance of a return cargo, ordered by 
the same vessel, is no ratification of the agent's 
disobedience of the order to sell the outward 
cargo "immediately on arrival. — Courcier v. Rit- 
ter, Case No. 3,282. 

Acts of agent in accepting notes and mort- 
gages in payment are ratified by creditors' re- 
fusal to return them and bringing suit there- 
on.— Benedict v. Maynard, Case No. 1,294. 



Failure to answer letters from an agent as 
to the consummation of a sale does not con- 
stitute ratification.— Bosseau v. O'Brien, Case 
No. 1,667. 

A contract by an agent made subject to the 
principal's ratification will be held ratified by 
the principal's entering it on his books, and 
corresponding with the other party in regard 
thereto as a subsisting contract.— Ex parte Car- 
ter, Case No. 17,4SS. 

There is no binding obligation where the 
principal fails to ratify an agreement made by 
his agent with the understanding that it should 
be submitted for ratification.— Colt v. Rood, 
Case No. 3,031; Abbe v. Rood, Case No. 6. 

The principal will be bound by an adjustment 
of a controversy by the agent in which he ex- 
ceeded his powers, if he does not repudiate it 
within a reasonable time after knowledge there- 
of.— Colt v. Rood, Case No. 3,031. 

A recognition of the acts of an agent by his 
principal is equivalent to an original grant of 
authority.— Conn v. Penn, Case No. 3,104. 

An irregular conveyance under a power of 
attorney, acquiesced in and acted upon by the 
principal, who has enjoyed the consideration, 
will vest an equitable title in the grantee.— 
Starr v. Stark, Case No. 13,317. 

§ 33. Notice to agent. 

The principal is chargeable with notice where 
his agent has full notice.— Varnum v. Milford, 
Case No. 16,891; Hough v. Richardson, Id. 
6,722; United States v. Two Hundred and 
Seventy-Eight Barrels of Distilled Spirits, Id. 
16.580. 

A purchaser from a fraudulent grantee is not 
bound by knowledge of the fraud by his agent 
who made the purchase, unless the latter had 
the same in his mind at the time of Jfre trans- 
action.— Curts v. Cisna, Case No. 3,507. 

§ 34. Actions. 

No action will lie in the name of a principal 
on a written contract made by his agent in 
his own name, although defendant knew the 
agent's character.— "United States v. Parmele, 
Case No. 15,997. 

PRINCIPAL AND SURETY. 

§ 1, Creation and existence of relation. § 2, Na. 
ture and extent of liability of surety— In general. 

§ 3, Scope of liability. § 4, Discharge of surety 

—By agreement. § 4a, Death of surety. § 5, 

Change in principal contract. § 6, Exten- 
sion of time of payment. § 7, Negligence of 

creditor. § 8, Delay in proceeding against prin- 
cipal. § 9, Release of principal. § 10, Pay- 
ment § 11, Remedies of creditors— Action against 
surety. § 12, Rights and remedies of surety— As to 

creditor. § 13, As to principal. § 14, As to 

co-surety. 

See, also, "Bills and Notes," § 32; "Bonds"; 
"Guaranty" ; "Indemnity." 

Admissions of principal as evidence, see "Evi- 
dence," § 37. 

Application of payment, see "Payment," §§ 11, 

13. 

Competency of parties as witnesses, see "Wit- 

nesses," § 33. 

Proof of secured claims in bankruptcy, see 
"Bankruptcy," §§ 371, 397-^02. 

Right of assignee of devisee, see "Bankruptcy/' 
§ 201. 

Subrogation to rights of surety, see * Subroga- 
tion," § 4. 

lAability of sureties on bonds by particular 
parties or in particular proceedings* 

Distillers, see "Internal Revenue," §§ 46-49. . 
In admiralty, see "Admiralty/' §§ 67-77, 110. 
In attachment, see "Attachments," § 17. 



1851 (§ 1) 



PRINCIPAL AXD SUKETY, 
[Fed. Cas. Digest.] 



(§ 5) 1852 



On appeal, see "Appeal and Error," §§ 41-46. 
On release of person under arrest, see "Bail." 
Purchaser on judicial sale, see "Judicial Sales," 
§ 3. 

Inability of sureties on bonds for 'performance 
of duties of office or trust. 

See "Ambassadors and Consuls," § 4; "Army 
and Navy," § 11; "Banks and Banking," §§ 
6, 10; "Corporations," § 39; "Customs Du- 
ties," § 26; "Executors and Administrators," 
§§ 75-7S; "Guardian and Ward," § 11; "Of- 
ficers," §§ 7-9; "Post Office," §§ 4-8; "Unit- 
ed States," § 13; "United States Marshals," 
§§ 24-28. 

§ 1. Creation and existence of relation. 

The omission to at once leuun a new bond 
given on the withdrawal of a surety *on the 
old bond held a presumption that it was accept- 
ed.— Gass v. Stinson, Case No. 5,260. 

A feme covert, by charging her inchoate right 
of dower for her husband's benefit, does not 
thereby become a surety for him. — Hiscock v. 
Jaycox, Case No. 6,531. 

An agent's bond is not invalidated by being 
left blank in regard to the place of agency. — 
Mutual Life Ins. Co. v. Wilcox, Case No. 9,979. 

A bond executed in blank by the surety, and 
subsequently filled in by the principal, is bind- 
ing in the hands of an oblisree without notice. — 
Mutual Life Ins. Co. v. Wilcox, Case No. 9,- 
979. 

In order for the surety to escape liability on 
the ground of existing irregularities and de- 
falcations of the agent, it must be shown that 
these were known to the principal. — Mutual Life 
Ins. Co. v. Wilcox, Case No. 9,979. 

One signing notes as surety, without duress, 
cannot plead the duress of his principal. — Mc- 
Clintick v. Cummins, Case No. 8,699. 

§ 2. Nature and extent of liability of 
surety— In general. 

Equity will not hold a surety liable, when he 
is discharged at law. — Fielden v. Lahens, Case 
No. 4,773. 

The liability of sureties signing a bond, given 
pursuant to an order of court copied therein, 
is unaffected by anything the obligee may tell 
them as to their liability. — In re Mayo, Case No. 
9,353a. 

Sureties who bind themselves jointly and sev- 
erally as principals in a bond are equally liable 
in equity with the principal debtor. — United 
States v. Cushman, Case No. 14,908. 

§ 3. _ Scope of liability. 

New sureties are not responsible for prior de- 
falcations unless the condition of the new ob- 
ligation embraces them. — Postmaster General v. 
Norvell, Case No. 11,310; Myers v. United 
States, Id. 9,996. 

When a question arises between liabilities of 
sureties on different bonds of different dates, the 
general doctrine of the application of payment 
does not apply. — Myers v. United States, Case 
No. 9.996. 

The liability of sureties on the official bond of 
the cashier of a bank is limited to his acts dur- 
ing the term of office to which he was elected 
when the bond was given. — Harris v. Babbitt, 
Case No. 6,114. 

The surety on an assignee's bond is not lia- 
ble for a default actually complete before the 
bond was given, in the absence of language in 
the bond showing an intent to be bound.— Easton 
v.. Gutter, Case No. 4,257. 

If an agent, at the time of signing the bond, 
had moneys in his hands which he ought to 
have reported as collected, but had not, they 
would come within the condition of the bond. — 



Mutual Life Ins. Co. v. Wilcox, Case No. 9,- 
979. 

The sureties on a bond given for the faithful 
collection of subscriptions are liable for collec- 
tions made during the second year, although he 
was to close his collections in one year, unless 
the time was extended.— Smith v. Addison, Case 
No. 12,998. 

Construction of condition of a teller's 'bond to 
faithfully perform his duties and make good to 
the bank "all damages which the same shall 
sustain through his unfaithfulness or want of 
care." — Union Bank of Georgetown v. Forrest. 
Case No. 14,356. 

A teller's bond, executed under the original 
charter of the bank, held would cover defalca- 
tions arising under an extended charter after the 
time when the original charter would have ex- 
pired by its own limitation. — Union Bank of 
Georgetown v. Forrest, Case No. 14,356. 

The sureties on the bond of a bank teller are 
not liable for loss caused by his receiving as 
cash, according to the usage of banks, the check 
of an individual of good credit upon another 
bank. — Union Bank of Georgetown v. Mackall. 
Case No. 14,359. 

The fact that the teller subsequently agreed 
to take the check as his own, and look to the 
drawer for payment, will not render his sureties 
liable. — Union Bank of Georgetown v. Mackall, 
Case No. 14,359. 

The surety on a bond given by a partnership 
to an insurance company, conditioned for the 
faithful performance of the duties of the firm 
as agents, and to pay the amounts received by 
the firm, is not liable for amounts received aft- 
er the dissolution of the firm by death of one 
partner.— Connecticut Mut. Life Ins. Co. v. Bow- 
ler, Case No. 3,106. 

§ 4, Discharge o£ surety — By agreement 
The surety is entitled to a discharge as to 
future liability on giving the required notice, 
notwithstanding unsettled accounts between the 
principal and the obligee. — Gass v. Stinson, Case 
No. 5,260. 

Sureties on the bond of a collection agent held 
released to the extent of a balance due shown 
on a fraudulent account rendered by the col- 
lector, where the obligee promised to surrender 
the bond on execution of a deed to secure the 
balance shown thereon, but are liable for the 
amount fraudulently concealed. — Hopkirk v., Mc- 
Conico, Case No. 6,696. 

§ 4a. — Death, of surety. 

On the death of the surety in the case of an 
obligation joint, and not joint and several, the 
remedy at law is gone, as against his legal rep- 
resentatives. — Fielden v. Lahens, Case No. 4,- 
773. 

No state statute, enacted after the making of 
such an obligation, can change the contract of 
the surety to his prejudice. — Fielden v. Lahens, 
Case No. 4,773. 

§ 5. — Change in principal contract. 

Sureties are released by any agreement with- 
out their consent between the creditor and prin- 
cipal which varies essentially the terms of the 
contract, even though such change be to the 
sureties' advantage. — United States v. Tillotson, 
Case No. 16,524; Miller v. Stewart, Id. 9,591; 
Dennis v. Rider, Id. 3,797; United States v. 
Case, Id. 14,743. 

A change of relation from that of agent to sell 
and collect to purchaser with right to return 
goods discharges the agent's surety. — Gass v. 
Stinson, Case No. 5,260. 

A change of contract under which C. was to 
receive a salary, and the expenses of the busi- 
ness were to be borne by D., so that C. was to 
pay the expenses and sell on commission, will 



1853 (§ 5) 



PRINCIPAL AND SURETY. 
[Fed. Gas. Digest.] 



(§ 11) 1854: 



-discharge the sureties of 0.— Victor Sewing Ma- 
chine Co. v. Langham, Case No. 16,935. 

Where a bond was given by the treasurer of 
a society for the faithful collection of subscrip- 
tions, Jield, that the sureties were not released 
by the allowance, without their consent, of an 
-additional percentage to the principal on the 
collections.— Smith v. Addison, Case No. 12,998. 

An agreement substituting tapia for brick, and 
altering the mode of estimation and price of la- 
bor in the construction of a fort, will discharge 
the sureties, though the change was for their 
benefit. — United States v. Tillotson, Case No. 
16,524. 

Sureties on the bond of a contractor to con- 
struct a fort are discharged by the refusal of 
the war department to permit the administra- 
tor of the contractor to complete the work. — 
United States v. Tillotson, Case No. 16,524. 

Sureties for the performance of a contract with 
the government to build a ship canal, and keep 
it open for a certain number of years, are dis- 
charged where the government accepts the work 
done in a different .manner than as contracted. — 
United States v. Corwine, Case No. 14,871. 

§ 6. — • Extension of time of payment. 

Giving time by the United States to the prin- 
cipal in a duty bond, before breach, without con- 
sent of the surety, discharges the latter.— United 
States v. Howell, Case No. 15,405. 

The surety is discharged where the holder of 
a note, for a valuable consideration, gives time 
to the maker.— Varnum v. Milford, Case No. 16,- 
390. 

Where there is no consideration for the exten- 
sion of time, the surety is not released. — Suy- 
dam v. Vance, Case No. 13,657. 

The surety is discharged where the creditor, 
without his knowledge, takes from the princi- 
pal bonds on time to secure payment of the sum 
due, though the arrangement operated to his ben- 
efit—United States v. Hillegas, Case No. 15,366. 

A surety on a bond is released where without 
his consent the creditor. takes a new security, 
payable at a date beyond the maturity of the 
bond, with an understanding that he is not to 
trouble the principal for the money, unless the 
new security prove worthless. — Smith v. Crease, 
Case No. 13,031. 

The surety is not discharged by a confession 
of judgment at the first term, with stay of ex- 
ecution until the second, where it appears that 
in the ordinary course of the business of the 
court a judgment could not have been obtained 
before the second term. — Suydam v. Vance, 
Case No. 13,657. 

The surety is not discharged where time is 
given the principal at his instance, or with his 
consent, — Suydam v. Vance, Case No. 13,657. 

A surety upon a bond is not discharged by a 
mere delay to demand payment after it be- 
comes due, unaccompanied by fraud or an ex- 
press agreement with the principal to allow the 
delay.— Hunt v. United States, Case No. 6,900. 

The principle that the creditor loses recourse 
against security, where his debtor, to whom in- 
dulgence is . extended, becomes insolvent, does 
not apply in favor of a mere donee.— Hopkirk v. 
Randolph, Case No. 6,698. 

Sureties of claimant in admiralty proceedings 
become principal debtors after final judgment 
against them, and are not discharged by ex- 
tension of execution against * claimant. Act 
March 3, 1847.— The Col. Howard v. Hayden, 
Case No. 3,026. 

§ 7. _ Negligence of creditor. 

The neg«ect of the cashier or; a bank to set- 
tle the daily accounts of the teller according to 
the by-law of the bank will not discharge the 



sureties on the teller's bond. — Union Bank of 
Georgetown v. Forrest, Case No. 14,356. 

§ 8, — Belay in proceeding against 
principal. 

The surety is not released at law by the prin- 
cipal's becoming insolvent after he has request- 
ed the creditor to bring suit.— Dennis v. Rider, 
Case No. 3,797. 

The limitation of suits for penalties or for- 
feitures provided by Rev. St. § 1047, does not 
apply to the penal sum named in a bond. — Ray- 
mond v. United States, Case No. 11,596. 

To debt on the bond of a paymaster in the 
navy, a plea of laches on the part of the gov- 
ernment in its dealings with the paymaster, and 
that defendant had revoked the bond, is bad. — 
Raymond v. United States, Case No. 11,596. 

§ 9. — — Release of principal. 

An assent by an heir of a deceased surety to 
the release of the principal debtor, without prej- 
udice to the surety's liability, will not prevent 
the release from discharging the surety. — Unit- 
ed States v. Cushman, Case No. 14,907. 

Arrest and discharge of bail on a cap. ad sat. 
will not prevent resort to security taken in the 
shape of notes of a third person. — Hartshorne 
v. Mclver, Gase No. 6,171. 

A discharge from imprisonment by the secre- 
tary of the treasury of a debtor to the United 
States, under the act of 1798, does not dis- 
charge his co-obligors and sureties in the bond 
from their liability.— United States v. Sturges, 
Case No. 16,414. 

§ 10. — • Payment. 

Ji an agent gives a trust deed to secure pay- 
ment of a defalcation, the cancellation of the 
deed upon subsequent payment in full of that 
defalcation would not affect the agent's surety 
on a subsequent bond. — Mutual Life Ins. Co. v. 
Wilcox, Case No. 9,979. 

§ 11. Remedies of creditors— Action 
against surety. 

% The creditor, having separate obligations of 
the principal and the surety, may pursue sep- 
arate remedies against them at the same time. 
— Muscatine v. Mississippi & M. R. Co., Case 
No. 9,971. 

Separate suits may be brought against joint 
parties to different instruments, given as col- 
lateral security for the same debt. — United 
States v. Hoyt, Case No. 15,409. 

In an action against a surety in a bond to 
perform a decree, it is not necessary that notice 
of the decree should have been given- to the 
principal. — White v. Swift, Case No. 17,557. 

The sureties on the bond of an assignee of a 
contract to account for "advances unJer and 
by virtue of the contract," are entitled to the 
benefit of all limitations provided in the con- 
tract, both as to past and future advances. — 
United States v. Tillotson, Case No. 16,524. 

A demurrer generally to a plea in debt on a 
postmaster's bond, that plaintiff fraudulently 
neglected to bring suit on the bond, or give no- 
tice of the principal's, default, admits the fraud, 
and defendant is entitled to judgment thereon. 
— Postmaster General v. Ustick, Case No. 11,- 
315. 

The defense that defendant signed as surety 
on the representation that another would join 
Jield not sustained where the bond contained 
no room for another signature. — Garnett v. 
Mayo, Case No. 5,245a. 

Where a firm assumed the individual debts 
of one member who gave bond with sureties to 
indemnify the other member, and after disso- 
lution an arbitration was had by agreement 
between them, held, that the award could not 
be given in evidence against the sureties. — Si- 
monton v. Boucher, Case No. 12,877. 



1855 (§ 11) 



Entries made by the partners in the partner- 
ship books after dissolution could not be given 
in evidence against the sureties, but evidence 
could be given of the confessions of the princi- 
pal. — Simonton v. Boucher, Case No. 1&S77. 

§ 12. Rights and remedies of surety— As 
to creditor. 

A surety who lias paid a debt cannot claim 
an assignment of the instrument evidencing 
it— McLean v. Lafayette Bank, Case No. 8,888. 

The creditor is not bound to use active dili- 
gence to enforce his claim against the prin- 
cipal debtor unless requested by the surety. — 
Bank of Mount Pleasant v. Sprigg, Case No. 
891. 

A surety can require the creditor to proceed 
first against the principal, only when his sure- 
tyship appears on the face of the instrument, 
or when he offers indemnity. — In re Babcock, 
Case No. 69G. 

An indorser of a note is entitled to the ben- 
efit of a deed of trust given by the maker to 
indemnify a subsequent indorser, as against 
the holders of subsequent deeds of trust, who 
took with knowledge thereof. — Swan v. Bank 
of United States, Case No. 13,668. 

§ 13. As to principal. 

The surety cannot recover the amount of his 
responsibility without snowing that he has paid 
it before action brought. — Pigou v. French, Case 
No. 11,161. 

Money not paid for a principal before action 
brought cannot be recovered by a surety as 
money paid unless on a special valid promise 
to pay it previously. — Wnetmore v. Murdock, 
Case No. 17,510. 

The rights of the surety against the prin- 
cipal are not extinguished by a joint judg- 
ment against the two.— In re Kitzinger, Case 
No. 7,861. 

The surety who has paid the money upon ex- 
ecution may maintain an action against the 
principal for money had and received, though 
he holds the execution by assignment — Me- 
Daniel v. Riggs, Case No. 8,745. 

Where the principal is insolvent, the sureties, 
in respect to their liability, are regarded in 
equity as creditors, and may retain any funds 
of the principal in their hands, even against an 
assignee for value, without notice. — In re Rey- 
nolds, Case No. 11,724. 

One having a mortgage securing his -accept- 
ances, which he buys up at a discount, can on- 
ly charge such amount against the mortgaged 
property. — Ex parte Ames, Case No. 323. 

A debtor has a right without the assent of 
his surety, to convey his property, fairly, in 
payment of his debts.— Fiudlay's Ex'rs v. Bank 
of United States, Case No. 4,791. 

§ 14. As to co-surety. 

A surety who has pa:d more than his propor- 
tion is entitled to contribution out of the es- 
tate of his co-surety, and his claim ranks ac- 
cording to the dignity of the claim on which 
the excess was paid. — Lidderdale v. Robinson, 
Case No. 8,337. 

The summary remedy given in Virginia by a 
motion against a co-surety is confined to the 
court which rendered the original judgment. — 
Dade v. Mandeville, Case No. 3,533. 

Judgment will not be rendered on motion of 
one surety against another unless the insolven- 
cy of the principal be fully proved. — White v. 
Perrin, Case No. 17,555. 

Property given to indemnify one surety will 
not be sold for the equal benefit of a co-surety 
where the former is discharged by payment of 
the debt. — McLean v. Lafayette Bank, Case 
No. 8,888. 



PRINCIPAL AND SURETY—PROBATE. 

[Fed. Cas. Digest] 

PRIORITIES. 



1856. 



Attachment Hen, see "Attachments/' § 10. 

Bonds, see "Municipal Corporations," § 35. 

Bottomry liens, see "Shipping," § 124. 

Claims against decedents' estates, see "Execu- 
tors and Administrators," § 31. 

against estate assigned for creditors, see- 

"Assignment for Benefit of Creditors," § 12. 
in bankruptcy, see "Bankruptcy," §§ 42S- 



446, 455, 456. 

Distribution of proceeds in admiralty, see ^Mar- 
itime Liens," § 63. 

Judgments, see "Judgment," § 59. 

Jurisdiction, see "Courts," § 110. 

Liens, see "Liens," § 2; "Maritime Liens," §§■ 
49-53; "Mechanics' Liens," § 5; "Railroads," 
§ 40. 

under execution, see "Execution," § 7. 

Mortgages, see "Chattel Mortgages," §§ 11, 14; 
"Mortgages," § 12. 

Taxes, see 'Taxation," § 10. 

United States, see "United States," §§ 16-20. 

PRISONS. 

§ 1. Custody of prisoner. 

The court will not interfere in the exercise- 
of the discretion vested in a jailer, as to the- 
custody of his prisoner, unless it appear that 
he has abused such discretion for the purposes 
of oppression. — Ex parte Taws, Case No. 13,768. 

A person arrested by military force for the- 
violation of Act June 30, 1834, § 20, or Id. § 
21, may be confined in the military prison, but 
he cannot be lawfully required to labor or per- 
form any duty other than taking care of his 
person.— Waters v. Campbell, Case No. 17,265- 

PRIVATE NUISANCE. 

See "Nuisance," § 1. 

PRIVATE ROADS. 

Rights of way, see "Easements." 

Taking land for, see "Eminent Domain," § 1. 

PRIVILEGE. 

Effect on limitation, see "Limitation of Ac- 
tions*" § 11. 

Prom service of process, see "Process," § 6. 

Of married women, see "Husband and Wife," 
§ 4. 

Of witness as to testimony, see "Witnesses," §§ 
60-69. 



PRIVILEGED COMMUNICATIONS. 

Defamatory communications, see "Libel and 

Slander," § 9. 
Disclosure by witness, see "Bankruptcy," § 

328; "Witnesses," §§ 54r-58. 

PRIZE. 

See "War," §§ 26-78. 

Jurisdiction in prize cases, see "Admiralty," § 
35; "Courts," § 98. 

PROBABLE CAUSE. 

For prosecution, see "Malicious Prosecutions,'* 
§ 3. 

PROBATE. 

Of will, see "Wills," §§ 13-22. 



1857 

PROBATE COURTS. 

See "Courts," § 12. 

PROCEDENDO. 

See "Certiorari," § 3. 

PROCESS. 

§ 1, Issuance, requisites, and validity, 
ice— Personal service in general. § 3, - 

of process. § 4, Substituted service. 

Publication. § 6, Privileges and exemptions. § 

7. Return and proof of service. § 8, Defects, 

objections, and amendments. § 9, Abuse of process. 

Adoption of state practice as to* the form and 
service of process, see "Courts," §§ 67-74. 

Conflict between state and federal courts, see 
"Courts," § 118. 

Protection to officer, see "Sheriffs and Consta- 
bles," § 2. 

Resistance or obstruction, see "Obstructing Jus- 
tice." 

In actions against particular classes of parties. 

See "Corporations," §§ 52, 31; "Municipal Cor- 
porations," § 40. 

Assignees in bankruptcy, see "Bankruptcy," § 
341. 



(§ 4) 185S 



§ 2, Serv- 
— Waiver 
5, 



j> 



§§ 



In particular actions or proceedings. 
See "Appeal and Error," § 14. 

Criminal prosecutions, see "Criminal Law, 

38-43. 
Foreclosure, see "Mortgages," § 34. 
For infringement of patents, see "Patents," §§ 

193, 220. 
In admiralty, see "Admiralty," §§ 56, 57, 62. 
In justices' courts, see "Justices of the Peace," 

§ 8. 

Particular forms of vrrits or other process. 
See "Arrest"; "Assistance, Writ of; "At- 
tachment," § 7; "Entry, Writ of"; "Execu- 
tion"; "Garnishment"; ''Injunction"; "Man- 
damus"; "Prohibition"; "Quo Warranto"; 
"Replevin"; "Scire Facias." 

Search warrant, see "Searches and Seizures." 
Subpoena, see "Witnesses," § 1. 



§ 1. Issuance, requisites, and validity. 

The order directing an absent defendant to 
appear, plead, etc., must be made by the court 
in term.— Bronson v. Keokuk, Case No. 1,928. 

Deputy clerk of district court held authorized 
to sign process in his own name. Act March 
3, 1821.— Bragg v. Lorio, Case No. 1,800. 

Where necessary to the exercise of its juris- 
diction the federal court will issue the proper 
process %o bring the matter before the court- 
Murray v. Patrie, Case No. 9,967. 

The provision of the constitution of Louisi- 
ana requiring the style of process to be "The 
State of Louisiana" does not apply to citations. 
—Kimball v. Taylor, Case No. 7,775. 

Proper form of process for the commence- 
ment of a suit at law in the federal courts in 
New York.— Johnson v. Healy, Case No. 7,389. 

The absence of a seal from a citation in the 
copy of a record of a Louisiana court is no 
proof that the original was without a seal, it 
being the practice of jthe clerks to omit the seal 
in copying.— Kimball v. Taylor, Case No. 7,- 
775. 

Absence of a seal from a citation is immate- 
rial after personal service thereof.— Kimball v. 
Taylor, Case No. 7,775. 

A writ in debt, "that they answer unto him 



PROBATE COURTS— PROCESS. 

[Fed, Cas. Di&est.] 

did not run in the debet and detinet.— Guion r. 
McCullough, Case No. 5,863. 

§ 2. Service— Personal service in general. 

Fees for service and return, see "United States 

Marshals," § 10. 
On Sunday, see "Sunday," § 4. 
When service a contempt, see "Contempt," § 1. 

Congress has power to authorize the su- 
preme court to fix by rule the manner of serv- 
ing process, and a rule providing for service of 
process upon an attorney is valid. — Levinson v. 
Oceanic Steam Nav. Co", Case No. 8,292. 

The words "party to the action," as used in 
Rev. St. Minn. § 47, p. 456, relating to service 
of process, apply only to parties to the record.— 
Owens v. Gotzian, Case No. 10,634. 

Act Mass. 1797, c. 50, prescribing the modes 
of serving process, does not apply to the case 
of defendant, a former inhabitant, who has 
changed his actual domicile before suit brought 
— Picquet v. Swan, Case No. 11,134. 

If the writ is against two defendants and 
one 'only is taken, the cause is discontinued, 
tinless alias capias is issued against the other 
and continued by pluries, etc., until the trial 
term.— Nicholls v. Fearson, Case No. 10,226. 

If a person declines to receive from an officer 
a paper presented for service, the officer may 
deposit it in any convenient place in the pres- 
ence of the party, and the service will be good.— 
Norton v. Meader, Case No. 10,351. 

Where the process on defendant is not served 
20 days before he is bound to appear, all subse- 
quent proceedings are irregular, and will be set 
aside on motion.— Treadwell v. Cleaveland, Case 
No. 14,155. 

Service by a deputy marshal of a summons, 
previously in his hands, on the day after a new 
marshal files his bond and takes the oath, is 
valid.— Stewart v. Hamilton, Case No. 13,429. 

Where a writ is served on a person of a dif- 
ferent name from the one against whom it was 
issued, and ^here is no appearance, the plain- 
tiff, cannot proceed.— Elliott v. Holmes, Case 

IN O. 'xjOt/w. 

Sufficiency of service of declaration in eject- 
ment— Huidekoper v. Stiles, Case No. 6,853. 

If all the defendants in ejectment inhabit 
the same house, and this appears by the mar- 
shal's return, it is sufficient to deliver one 
copy.— Campbell v. Harper, Case No. 2,360. 

Service of federal process cannot be inter- 
rupted by the arrest of the officer, or persons 
aiding him in serving it, or in any other man- 
ner, by means of state process or warrants. — 
United States v. Morris, Case No. 15,811. 

§ 3. — 'Waiver o£ process. 

Parties may waive process and appear.— Nel- 
son v. Moon, Case No. 10,111. 

A power of attorney to confess judgment in 
a pending suit is a substantial waiver of service 
of process.— Varnum v. Runion, Case No. 16,- 

A stipulation to answer judgment waives il- 
legal service of process.— The Acadia, Case No. 
24. t 

A plea in abatement does not waive process. 
It may be abandoned, and a motion maae to 
quash the writ for defective service.— Halsey v. 
Hurd, Case No. 5,966: 

See, also, "Appearance." 



§ 4. ^— Substituted service. 

Where personal service is not made, the 
requisites of the statutes substituted for it 
must be strictly complied with.— Halsey v 
Hurd, Case No. 5,966. 

The federal courts have no power to effect: 



of a plea of debt of $1,000," held good on a a constructive serVice of process o^ 
demurrer to a plea in abatement that the writ | dents.— Parsons v. Howard, Case No 10 777 
Fed.Cas.Dig.— 59 ' 



1859 (§4) 



PROCESS. 

[Fed. Cas. Digest.] 



(§ 8) 1860 



Shares of corporate stock held by a nonresi- 
dent of the district, within which the corpora- 
tion is domiciled, are not "personal property 
within the district," so as to authorize con- 
structive service on the owner, under Rev. St. 
73S.— Kilgoui v. New Orleans Gas Light Co., 
Case No. 7,764. ' 

§ 5. _ Publication* 

When constructive or substituted service by 
publication in a personal action is authorized by 
statute in place of personal citation, the statute 
must be strictly pursued. — Galpin v. Page, Case 
No. 5,206. 

Service by publication is resorted to only when 
personal service is not practicable within a rea- 
sonable time, and by the exercise of reasonable 
diligence. Act June 1, 1872.— Bronson v. Keo- 
kuk, Case No. 1,928. 

A person temporarily residing at Honolulu as 
United States commissioner to the Hawaiian 
government is a nonresident, and may be serv- 
ed bv publication under Code Or. § 30. subd. 3. 
— Collinson v. Teal, Case No. 3,020. 

An averment in an affidavit for an order of 
publication that plaintiff has a just cause of ac- 
tion against defendant for a money demand 
on account is not sufficient to authorize such 
order. Code Or. §§ 55, 56.— Neff v. Pennoyer, 
Case No. 10,083. 

But a verified complaint on file, if it contain 
a sufficient statement of facts, will sustain the 
order.— Neff v. Pennoyer, Case No. 10,083. 

The omission of the order to direct that a 
copy of the summons and complaint be mailed 
to defendant is fatal, unless it appear that 
plaintiff had used reasonable diligence to ascer- 
tain defendant's place of residence, and that it 
was unknown to him.— Neff v. Pennoyer, Case 
No. 10,083. 

Sufficiencv of affidavit of publication, under 
Code Or. § 69.— Neff v. Pennoyer, Case No. 10,- 
083. 

An averment of due publication of a summons 
in a judgment entry which appears from the 
whole record to be untrue or is not affirmatively 
supported by the facts contained in such record 
is a nullity, and may be disregarded. — Neff v. 
Pennoyer, Case No. 10,083. 

§ 6. Privileges and exemptions. 

A judge privileged from arrest is exempt from 
service of process in a civil suit when about to 
set out on his circuit. — Lyell v. Goodwin, Case 
No. 8,616. 

A judge privileged from arrest while perform- 
ing his judicial duties may be served with sum- 
mons in a civil action when at home and not 
about setting out on his circuit. — Lyell v. Good- 
win, Case No. 8,617. 

The immunity of members of congress from ar- 
rest under the constitution does not exennit them 
from service of summons in a civil suit. — Kim- 
berly v. Butler, Case No. 7,777. 

A nonresident defendant, coming within a state 
for the purpose of defending a suit, cannot be 
legally served with process in another suit. — 
Juneau Bank v. McSpedan, Case No. 7,582; 
Parker v. Hotchkiss, Id. 10,739. 

A citizen of one state, indicted in the federal 
court of another, who comes therein to plead 
under an arrangement with the district attor- 
ney that he may appear without arrest, and 
plead and give bail, is exempt, while so in the 
state, from liability to civil process. — United 
States v. Bridgman, Case No. 14,645. 

The service of a writ by enticing the person 
within the jurisdiction of the court by false rep- 
resentations or deceitful contrivances for the 
purpose of making such service will be set aside. 
—Union Sugar Refinery v. Mathiesson, Case No. 
14,397. 



The defendant, while within the jurisdiction 
of the court, on invitation of an inventor, for 
the purpose of settling a controversy in relation 
to infringement of a patent, was served with 
process in a suit for infringement brought by 
the assignees of the inventor, who had no knowl- 
edge of the purpose of his visit. Held, that the 
service would not be set aside. — Union Sugar 
Refinery v. JIathiesson, Case No. 14,397. 

§ 7. — Return and proof of service. 

Sufficiency of return of marshal of service of 
declaration in ejectment.— Campbell v. Harper, 
Case No. 2,360. 

A return by the marshal of "Not found" where 
defendants, residing out of the district, had a 
well-known place of business within the district, 
at which they usually attended every day, is a 
false return. — International Grain Ceiling Co. y. 
Dill, Case No. 7,053. 

An affidavit of service is only necessary, where 
the service is not made by an officer of the 
court. — Campbell v. Harper, Case No. 2,360. 

The recitals of service in certificates of serv- 
ice of a summons and complaint read: "A true 

of this writ attached to a certified copy of 

complaint," and "A true of the complaint 

attached to a true copy of the summons." Held 
that the omission in one was supplied by the 
statement in the other. — Norton v. Meader, Case 
No. 10,351. 

Defendant cannot call upon the marshal to re- 
turn a writ of hab. fac. poss., although plaintiff 
may do so. — Penn v. Kline, Case No. 10,934. 

The return of an officer touching any fact 
about which he is bound to make return is con- 
clusive on the parties to the suit and their priv- 
ies.— Von Roy v. Blackman, Case No. 16,997. 

TVhere, in a suit on a joint and several bond, 
there is a return as to some defendants of "No 
inhabitants," plaintiff may proceed to trial and 
judgment against those who were served with 
process. — Pegram v. United States, Case No. 10,- 
906. 

A court has discretion to permit an officer to 
amend a return with or without notice, and at 
any time after the date thereof, so as to bind 
the parties to the action or those claiming under 
them as privies, but not third persons who ac- 
quire rights in good faith prior to such amend- 
ment.— Rickards v. Ladd, Case No. 11,804. 

An amended return, as between the parties to 
the action or their privies, whether made with 
•or without notice, cannot be questioned by them 
collaterally.— Rickards v. Ladd, Case No. 11.- 
804. 

The marshal may amend his return to process 
after he goes out of office. Act Sept. 24, 1789, 
§§ 28, 32.— Gushing v. Laird, Case No. 3,508. 

Justices of the peace in Pennsylvania may re- 
ceive proof of the service of process of ejectment, 
issuing out of the circuit court of the United 
States.— Huidekoper v. Stiles, Case No. 6,853. 

§ 8. Defects, objections, and amend- 
ments. 

A writ may be amended, by consent of par- 
ties.— Elliott v. Holmes, Case No. 4,392. 

The court will not grant leave to amend the 
writ by changing the name of one of the plain- 
tiffs.— Comegyss v. Robb, Case No. 3,049. 

Where a writ is not indorsed as required by 
the state statute, which has been adopted by 
the federal practice, an amendment to remedy 
such defect will be permitted.— Miller v. Gages, 
Case No. 9,571. 

Mistake in name of plaintiff in writ made by 
the clerk may be corrected by the memorandum 
filed bv counsel. — Furniss v. Ellis, Case No. 5,- 
162. 

After sen-ice on the right party, the writ, re- 
turn, and bill may be amended by correcting an 



18(51 '(§ 8) 



vrror in defendant's corporate name. — Noblet v. 
Ohio & M. R. Co., Case No. 10,283. 

Motion to quash is the proper manner of tak- 
ing advantage of a neglect to indorse the writ 
iis required by the state statute, adopted by the 
federal practice. — Miller v. Gages, Case No. 9,- 
571. 

It is within the power, and is the duty, of the 
court to set aside summarily any process obtain- 
ed by fraud and deception practiced upon itself. 
—In re Keiler, Case No. 7,647. 



% 9. Abuse of process. 

The circuit court, on bill or petition filed, may 
restrain the use of its process by the marshal 
in a manner contrary to law.— Gibbs v. Usher, 
Case, No. 5,3S7. 

Statements by officer, conveying the impres- 
sion that the criminal proceedings could be aver- 
ted by settling the prisoner's indebtedness, held 
not sufficient to show intent to abuse process. — 
In re Burke, Case No. 2,158. 

PROFERT. 

In pleading in general, see "Pleading," §§ 60-62. 

in suits for infringement of patent, see 

"Patents," § 197. 

PROHIBITION. 

Of traffic in intoxicating liquor, see "Intoxicat- 
ing Liquors." 

§ 1. Wlien writ will lie. 

The federal circuit court has power to issue 
the writ of prohibition only when necessary for 
the exercise of its jurisdiction.— In re Bininger, 
Case*No. 1,417. 

A federal circuit court having jurisdiction of 
a petition for review in bankruptcy will not pro- 
hibit suits by the petitioner in the state court in 
respect to the property involved. — In re Binin- 
ger, Case No. 1,417. 

PROMISE OF MARRIAGE. 

See "Breach of Marriage Promise." 

PROMISSORY NOTES. 

See "Bills and Notes." 

PROOF. 

At trial, see "Trial," § 9. 

In admiralty, see "Admiralty," §§ 89, 93, 96. 

Of claims against estate assigned for creditors, 

see "Assignment for Benefit of Creditors," § 

11. * 
Of common law, see "Common Law," § 3. 
Of death, see "Death," § 1. 
Of loss under insurance policy, see "Insurance," 

§§ 140-157, 194. 
Of marriage, see '"Marriage," § 5. 
Of service of process, see "Process," § 7. 
Taking and filing proofs in equity, see "Equity," 

§§ 94r-96 

PROPERTY. 

§ 1, Realty or personalty. § 2, Possession. 

See, also, "Exchange of Property." 

Adverse possession, see "Adverse Possession." 

Constitutional guarantees of right of property, 

see "Constitutional Law," §§ 5, 13. 
Conveyance, see "Deeds." 
Dedication to public use, see "Dedication." 
Escheat, see "Escheat." 
Estates, see "Estates." * ' 



PROCESS -PUBLICATION". 1862 

[Fed. Cas. Digest.] 

In custodia legis, see "Courts," § 118. 

Intermixture, see "Confusion of Goods." 

Licenses in respect to real property, see "Li- 
censes." 

Measure of damages, see "Damages," § 10. 

Of Indians, see "Indians," §§ 4, 5. 

Of municipal corporation, see "Municipal Cor- 
porations," § 9. 

Of United States, see "United States," § 14. 

Protection of rights of property by injunction, 
see "Injunction," § 6. 

Right of alien to acquire and hold, see "Aliens," 
§ 3. 

Taking for public use, see "Eminent Domain." 



Particular species of property. 

See "Animals"; "Copyrights"; "Fish"; "Fix- 
tures"; "Good Will"; ^Ground Rents"; "Lit- 
erary Property"; "Logs and Logging"; 
"Mines and Minerals"; "Patents"; "Ship- 
ping"; "Slaves," § 6; "Trade-Marks and 
Trade-Names." 

§ 1. Realty or personalty. 

A lease for 99 years, renewable forever, by 
the common law is only a chattel.— McLean v. 
Rockey, Case No. 8,891. 

§ 2. Possession. 

Where several persons residing together have 
a joint possession of property, the law casts 
the actual possession upon the legal owner. — 
Lenox v. Notrebe, Case No. 8,246b. 

PROPRIETARY GRANTS. 

See "Public Lands," §§ 77-80. 

PROSECUTING ATTORNEYS. 

See "District and Prosecuting Attorneys." 

PROSTITUTION. 

See "Disorderly House." 

PROTEST. 

Against- payment in general, see "Payment," 

§2S. 

of duties, see "Customs Duties," §§ 6^6S. 

of taxes, see "Internal Revenue," § 20; 

"Taxation," § 11. 
Of bill or note, see "Bills and Notes," §§ 71-79. 

PROVINCE OF COURT AND JURY. 

In civil actions, see "Trial," §§ 12-16. 
In criminal prosecutions, see "Criminal Law," 
§ 93. 

PROXIMATE CAUSE. 

Direct or remote consequences of injury, see 

"Damages," § 1. 
Of death, see "Insurance," § 111. 
Of injury, see "Negligence, 1, § 2. 
Of loss within insurance policy, see "Insurance," 

§ 104. 

PUBLIC. 

Aid to railroads, see "Municipal Corporations," 

§§ 27-37; "Railroads," §§ 12-14. 
Debt see "Municipal Corporations," §§ 26-38: 

"United States," §§ 22, 23. 

PUBLICATION. 

See "Literary Property," § 4. 

Of invention, see "Patents," §§ 45-47. 
Service of process, see "i'rocess," § 5. 
When contempt of court, see "Contempt," § 1. 



1863 



PUBLIC IMPROVEMENTS— PUBLIC LANDS, L 

[Fed. Cas. Digest.] 



(§ 2) 1864 



PUBLIC IMPROVEMENTS. 

See "Municipal Corporations," §§ 14r-18. 

PUBLIC LANDS. 

I. GOVERNMENT OWNERSHIP. 

§ 1, What are lands of the United States. 
§ 2, Lands acquired by treaty. § 3, Govern- 
mental authority and control. § 4, Trespass- 
es in general. § 5, Cutting and removing 

timber— Statutory regulation. § 6, Right 

to cut timber. § 7, Actions for recovery 

of timber or for damages. § 8, Penalties 

and forfeitures. § 9, Criminal prosecu- 
tions. § 10, False claims to bounty lands. 

II. SURVEY AND DISPOSAL OF LANDS 

OF THE UNITED STATES. 

(A) Surveys. 

§ 11, What constitutes a survey. § 12, Sur- 
veyors general and deputy surveyors. § 13, 
Method and sufficiency. § 14, Effect in gen- 
eral. § 15, Errors and omissions. § 16, Con- 
flicting surveys. § 17, Resurveys and con- 
tested surveys. 

(B) Entries and Sales. 

§ 18, Who may enter. $ 19, Lands subject 
to entry. § 20, Certificate and entry. § 21, 
Rights acquired by entry in general. § 22, 
Pre-emption. § 23, Homestead. § 24, Town 
sites. § 25, Abandonment of claim. 

(G) Donations and Bounty Lands. 

§ 26, Grants by congress In general. § 27, 
New Madrid Act § 28, Oregon Donation Act 

— Operation and effect in general. § 29, 

Grants made under act. § 30, Perform- 
ance of conditions. § 31, Claims and cer- 
tificates. § 32, Married settlers in gen- 
eral. § 33, Death of settler or wife of 

settler. § 34, Conveyances by settler. 

§ 35, Military bounty lands. 

(D) Reservations to United States. 

§ 36, Mode of reservation in general. 5 
37, Springs. 

(E) School Lands. 

§ 38, Effect of reservation and grant In 
general. 

(F) Grants in Aid of Railroads. 

§ 39, Construction and operation of grants 
to state. § 40, Construction and operation 
of grant to railroad company in general. § 
41, Vesting title in railroad company. § 42, 
Sufficiency of adoption of line. § 43, Lands 
included, reservations and exceptions. § 44, 
Overlapping grants. § 45, Forfeiture of grant. 

(G) Proceedings in Land Office. 

§ 46, Authority and duties of officers in gen- 
eral. § 47, Cancellation of entries and rein- 
statement § 4S, Determination of adverse 
claims. § 49, Conclusiveness and effect of de- 
cisions. 

(H) Patents. 

§ 50, Issuance. § 51, Delivery and accept- 
ance. § 52, Requisites and validity. § 53, 
Construction and operation in general. § 54, 

Conclusiveness. 

(I) Remedies in Case of Fraud, Mistake, or 
Trust. 

§ 55, Suits Dy United States. § 56, Relief 
to claimant of land. 

(J) Conveyances and Contracts. 

§ 57, Transfers of right in general. § 58, 
Bona fide purchasers. § 59, Validity of con- 
tracts. 



HI. DISPOSAL OF LANDS OF THE 

STATES. 

§ 60, California. § 61, Indiana. § 62, Iowa. 
§ 63, Kentucky. § 64, Massachusetts. § 65, 
Mississippi. § 66, New Hampshire. § 67, 

North Carolina— Entry and survey. § 68, 

Grant § 69, Pennsylvania— Warrants. § 70, 
Surveys. § 71, Location and settle- 
ment § 72, Patents. § 73, Confir- 
mation of titles. § 74, Tennessee. § 75, Tex- 
as. § 76, Virginia. 

IV. COLONIAL AND PROPRIETARY 

GRANTS. 

§ 77, Title and rights of proprietaries. § 
78, Surveys. § 79, Construction and opera- 
tion of grants and conveyances. § 80, Rights 
of purchasers and settlers. 

V. SPANISH, MEXICAN, AND OTHER 

FOREIGN GRANTS. 

§ 81, Right to grant § 82, Requisites and 
validity of grants. § S3, Construction and 
operation of grants. § 84, Conditions. § 85, 
Location. § 8G, Abandonment and forfeiture of 
grants. § 87, Actions and proceedings to es- 
tablish or confirm grants — Jurisdiction. § 88. 

Procedure. § 89, Evidence. § 90, 

— Review. 



Hearing and determination. § 91, — 
§ 92, Transfers by claimants. § 93, Preferred 
purchasers on rejection of grant. § 94, Pat- 
ents. § 95, Survey— Necessity of survey. § 

96, Method, sufficiency, and validity. § 

97, Confirmation of survey. § 98, 

Contest of survey. § 99. Correcting and 

setting aside survey. § 100, Conflicting 

surveys. § 101, Indemnity or lieu lands. § 
102, Decisions on particular grants. § 103, 
Title of lands in San Francisco. 

VI. TITLES DERIVED FROM INDIANS. 
§ 104, Rights acquired. 

See, also, "Boundaries." 

Appropriation of water rights, see "Waters and 

Water Courses," § 1. 
Jurisdiction of actions involving title, see- 

"Courts," § 33. 
Lands under water, see "Navigable Waters," § 



17. 
Mineral lands, see "Mines and Minerals, 

1-9. 
Taxation, see "Taxation," § G. 



»» 



§§ 



I. GOVERNMENT OWNERSHIP. 

§ 1. What are lands of the United States- 
Intermediate the treaty of Guadalupe Hi- 
dalgo and the admission of California into tho 
Union, tjie title to the lands was in the United 
States, and no military officer of the United 
States could make any alienation of the public 
land. — Friedman v. Goodwin, Case No. 5,119. 

In the absence of proof that the title to land 
in California is obtained directly from the gov- 
ernment, the legal presumption is that the title- 
is in the United States. — Patterson v. Tatum, 
Case No. 10,830. 

§ 2. Lands acquired by treaty. 

The stipulation m the Oregon treaty of 1S46- 
that the United States would respect "the pos- 
sessory right" of British occupants held not a 
grant, but a mere promise, for a violation of" 
which occupants only have a claim against the 
United States for compensation. — Town v. De 
Haven, Case No. 14,113. 

Land held not "mineral land," within the- 
meaning of a treaty in relation to its purchase,, 
because a coal deposit underlies it. — Stroud v. 
Missouri River, Ft. S. & G. R. Co., Case No^ 
13,547, 



1865 (§ 3) 



PUBLIC LANDS, I. 
[Fed. Cas. Digest.] 



(§ 10) 1866 



§ 3. Governmental authority and control* 

A state has no power over public lands with- 
in its limits. — Turner v. American Baptist Mis- 
sionary Union, Case No. 14,251. 

As between individual citizens, rights to the 
possession of public lands are protected by the 
courts, and acquiesced in by the government. — 
Lamb v. Davenport, Case No. 8,015. 

The secretary of the treasury cannot execute 
or approve of a lease of any property belonging 
to the United States without special authority 
of law. — United States v. Hare, Case No. 15,- 
303. 

§ 4. Trespasses in general. 

A settlement upon puulic land without author- 
ity of law held a trespass.— Boyreau v. Camp- 
bell, Case No. 1,760. 

A final receipt by a government officer author- 
ized to act in the premises, for rent, where sub- 
sequent to the trespass alleged, is , a full dis- 
charge, although the officer may never have ac- 
counted for the money received. — United States 
v. Gear, Case No. 15,195. 

A permit to enter on land containing lead ore 
may be shown in an action of trespass by the 
United States; not as a justification, but to 
show the nature and object of the entry. — 
United States v. Gear, Case No. 15,195. 

$ 5. Cutting and removing timber— Stat- 
utory regulation. 

The Cherokee tribe derived the title to their 
lands by grant from the United States, and 
such lands cannot be held to be "lands of the 
United States," within Rev. St. § 5383.— Unit- 
ed States v. Reese, Case No. 16,137. 

The term "timber" signifies the standing trees 
.and the felled trees prepared for transportation 
to a vessel or sawmill, such as sawlogs or lum- 
ber in bulk, but does not embrace any article 
manufactured from the tree, such as shingles 
or boards. — United States v. Schuler, Case No. 
16.234. 

.§ 6. — - Right to cut timber. 

The cutting and sale of timber from four 
acres in advance of the mining operation, where 
the only reason assigned is that the stumps may 
rot and be more easily removed, held unneces- 
sary, and therefore unlawful. — United States v. 
Nelson, Case No. 15,864. 

Persons occupying under the pre-emption, 
homestead, and mining acts, before becoming 
the owners of the land, may cut and use the 
timber thereon, so far as the same may be nec- 
essary to accomplish the purpose for which the 
land is occupied, but no further. — United States 
v. Nelson, Case No. 15,864. 

A homesteader who has paid the entry fee 
and made affidavit, as required by law, has no 
right to cut and sell timber, merely for purpose 
of traffic and sale alone. — United States v. Mc- 
Entee, Case No. 15,673. 

$ ?• — Actions for recovery of timber 
1 or for damages. 

To maintain replevin for logs cut upon state 
lands and indistinguishably mingled with logs 
cut upon other lands, it is not necessary that 
the state identify each log. — Schulenburg v. 
Harriman, Case No. 12.486. 

The government may proceed civilly for cut- 
ting timber.— Bly v. United States, Case No. 
1,581. 

The defense to an action of trespass for cut- 
ting timber, that defendant claimed the land 
under Act Sept. 4, 1841, can only be sustained 
by showing some steps taken to secure a pre- 
emptive right. — United States v. Brown, Case 
No. 14,668. 

Parol evidence is inadmissible to show that 
the locus in quo was swamp land. — Bly v. Unit- 
ed States, Case No. 1,581. 



Remedies for wrongful cutting of timber, see 
"Election of Remedies," § 2. 

§ 8. Penalties and forfeitures. 

A libel against a vessel under Act March 2, 
1831, § 2, for transporting timber cut from pub- 
lic lands, must allege that the timber was taken 
from lands reserved for naval purposes, or that 
it was live oak or red cedar. Case No. 15,341 
reversed.— United States v. The Helena, Case 
No. 15,342. 

§ 9. — Criminal prosecutions. 

The government may proceed criminally for 
cutting timber.— Bly v. United States, Case No. 
1,581. 

An indictment will lie for cutting or remov- 
ing timber from any of the public lands, though 
the same are not reserved for naval purposes. — 
United States v. Redy, Case No. 16,133; Same 
v. Schuler, Id. 16,234. 

An indictment which describes the land, in 
general language, as "lands of the United 
States," is not sufficient.— United States v. 
Schuler, Case No. 16,234. 

An indictment for removing timber from pub- 
lic lands must state the particular section or 
quarter section from which the timber was tak- 
en, as a part of the description of the offense. — 
United States v. Schuler, Case No. 16,234. 

An indictment for removal need not allege 
that the timber was removed from the land on 
which it was grown, or from which it was cut. 
—United States v. Schuler, Case No. 16,234. 

In an indictment for cutting timber it is not 
necessary to state the class of lands from which 
the trees were cut. — United States v. Thomp- 
son, Case No. 16,490. 

In such an indictment it is not necessary to 
describe every kind of timber cut. — United 
States v. Redy, Case No. 16,133. 

The rule of proof on an indictment for cut- 
ting and removing timber from public lands is 
fixed by the statute. Act March 2, 1831.— 
United States v. Darton, Case No. 14,919. 

An indictment for cutting oak on public lands 
cannot be sustained by evidence that defendant 
cut pine.— United States v. Darton, Case No. 
14,919. 

In prosecutions for cutting timber, the official 
plats and books in the land office are admissi- 
ble to show title. — Bly v. United States, Case 
No. 1,581. 

A nominal fine, only, imposed for cutting tim- 
ber, where defendant had made full reparation, 
and there was no intention to defraud the pub- 
lic—United States v. Murray, Case No. 15,843. 

§ 10. False claims to bounty lands. 

It is an offense under Act March 3, 1823, to 
transmit false papers for the purpose of obtain- 
ing from the government a bounty land warrant. 
—United States v. Bickford, Case No. 14,591. 

It is an offense, under such act, to procure 
false papers with a view of their transmission 
by another; and the actual transmission by the 
prisoner need not be shown. — United States v. 
Bickford, Case No. 14,591. 

Declarations and affidavits subscribed and 
sworn to by the signers are "papers" within 
said act. — United States v. Bickford, Case No. 
14,591. 

The offense is committed in Vermont, where 
the papers are transmitted from there to Wash- 
ington city. — United States v. Bickford, Case 
No. 14,591. 

Under Act Feb. 26, 1853, an indictment may 
join several counts for offenses under Act March 
3, 1823, for transmitting false papers for the 
purpose of obtaining bounty land warrants.— 
United States v. Bickford, Case No. 14,591. 



1867 (§ 11) 



(A) SURVEYS. 
See, also, post, §§ 67, 70, 74. 

§11. What constitutes a survey. 

The marks on the ground really constitute the 
survey and determine the rights of the parties, 
the plot returned to the land office heing only 
evidence of the survey. — Smith v. Houtz, Case 
No. 13,062. 

§12* Surveyors general and deputy sur- 
veyors. 

Whether lands are vacant the officers of sur- 
vev do not determine; the applicant must judge 
for himself.— Smith v. Houtz, Case No. 13,062. 

Where the boundaries of a surveyor general's 
district depend on the construction of acts of 
congress, which have long been construed in a 
particular way, a surety on his bond cannot set 
up that the duties as performed were beyond 
the limits of his district.— United States v. 
Lytle, Case No. 15,65^. 

§ 13. Method and sufficiency. 

Where lines of a tract have been traced with- 
out a warrant, the warrant may be applied to 
such land without the surveyor going upon it, 
and the survey will bear date of the day when 
it was made. — Torrey v. Beardsly, Case No. 
14,104. 

Sufficiency of notice published by surveyor 
general. — Le Roy v. Jamison, Case No. 8,271. 

"Place of publication," as used in Act June 
14, 1860, means the place where the paper is 
first given to the public for circulation. — Le Roy 
v. Jamison, Case No. 8,271. 

A survey made on instructions by the govern- 
ment without consultation with the claimant 
or allowance to him of an opportunity to make 
an election as to the land to be surveyed, will 
be set aside. — United States v. Covilland, Case 
No. 14,879. 

The survey of a claim, made by the surveyor 
general after the final confirmation of the claim 
by the supreme court on which a patent has is- 
sued, is not invalid because the mandate issued 
by such court directing further proceedings to 
be had in the district court was not filed in the 
latter. — United States v. Vaca, Case No. 16,604. 

A survey made by the board of property mere- 
ly to mark the boundary of land claimed by the 
person for whom it is made, and not in execu- 
tion of a warrant issued for the land, is not 
such a survey as will give title. — Wells v. 
Wright, Case No. 17,405. 

A survey made without an entry is of no va- 
lidity, nor is the survey valid, after an author- 
ized or ratified withdrawal of the entry, and 
the land may be located by another warrant. 
A«t March 2, 1807— Gault v. McMillan, Case 
No. 5,274. 

Every line of a survey need not be run and 
marked on the land. It is sufficient if the lines 
are run and marked on the ground so far as to 
enable the surveyor to lay down each particu- 
lar tract by protraction. — Brown v. Arbunkle, 
Case No. 1,990. 

What is a sufficient survey of a number of 
tracts adjoining each other, belonging to the 
same person. — Griffith v. Bradshaw, Case No. 
5,821. 

§ 14. Effect in general. 

A survey will perfect the title under a defect- 
ive warrant, only where the rights of third per- 
sons have not intervened. — Phillips v. Wilson, 
Case No. 11,109. 

Title to lands by settlement, survey, etc., un- 
der Act Pa. April 3, 1792. — Balfour's Lessee v. 
Meade, Case No. 808. 



PUBLIC LANDS, II. (A), (B). (§ 19) 1868 

[Fed. Cas. Digest.] 

II. SURVEY AND BISPOSAli O T j Surveys made and returned into the land of- 
LANDS OF THE UNITED STATES. fice in blocks are to be located on the ground in 

blocks.— Smith v. Houtz, Case No. 13,06i. 

A survey returned and accepted is prima facie 
presumed to have been legally made. — Griffith 
v. Bradshaw, Case No. 5,821; Same v. Tunck- 
houser, Id. 5,823; Harris v. Burchan, Id. 6,117. 

§ 15. Errors and omissions. 

Inaccuracies will not vitiate surveys made of 
wild lands infested with hostile Indians and at 
great hazard. — Robinson v. Moore, Case No. 
11,960. 

Mistakes of surveyor, when shown by satis- 
factory proof, may be corrected in courts of 
law, as well as in courts of equity. — Conn v. 
Penn, Case No. 3,104. 

A survey referring to a tree as a live oak 
tree, where the only tree reasonably answering 
such description is a white oak tree, will not. 
on that ground, be overthrown. — United States 
v. Enwright, Case No. 15,054. 

§ 16. Conflicting sttrveys. 

Proper boundaries of purchase where surveys 
were run at different times. — Buel v. Tuley. 
Case No. 2,101. 

The lines actually run by the surveyor, and 
not those reported, control the area. — Conn v. 
Penn, Case No. 3,104. 

§ 17". Besnrveys and contested surveys. 

Grantees pendente lite from the original gran- 
tee of public lands are entitled to contest a sur- 
vey, though the majority owners approve it. — 
Bajorques v. United States, Case No. 761. 

In a proceeding to contest or reform a survey, 
no decree can be deemed final which does not 
adopt and approve some survey and plat fixing 
with precision every line of tie land. — United 
States v. Semple, Case No. 16,250. 

A case in which an order has been entered re 
jeeting the original survey, and giving directions 
for a new and reformed survey, is still "pend- 
ing," within Act June 14, 1S60. — United States 
v. Semple, Case No. 16,250. 

A "chamber survey," if returned and accepted, 
is voidable only; and a new survey may be bad 
on the same warrant, by order of resurvev. — 
Smith v. Houtz, Case No. 13,062. 

Where a survey based on a Mexican grant ap- 
pears to be incorrect, it will be rejected, and a 
new one ordered. — United States v. Castro. 
Case No. 14,749. 



(B) ENTRIES AND SALES. 

See, also, post, §§ 63, 71. 

§18. Wno may enter. 

Sioux half-breed scrip cannot be located by 
other than the party to whom the scrip issued 
in person, unless the application be accompanied 
with a power of attorney from him. — United 
States v. Chapman, Case No. 14,785. 

§19. JLands subject to entry. 

On the abandonment of a military reserve by 
giving notice to the secretary of the interior, 
the same may be considered as a part of the 
public lands open to entry and sale as other 
lands. — United States v. Railroad Bridge Co., 
Case No. 16,114. 

Sioux half-breed scrip cannot be located on 
land occupied by another. — United States v. 
Chapman, Case No. 14,785. 

Act March 2, 1807, which prohibited entries 
from being made on lands which had been sur- 
veyed or patented, does not protect void surveys 
or patents. — Miller v. Lindsey, Case No. 9,580. 

An entry within the Virginia military district 
of Ohio before extinguishment of the Indiana 
title is void. — Chinn v. Darnell, Case No. 2,684. 



1869 (§ 20) 



PUBLIC LANDS, II. (B), (G). 
[Fed. Cas. Digest.] 



(§ 28) 1870 



§ 20. Certificate and entry, 

A certificate and entry describing the land as 
"lying on the north side of the Kentucky river, 
about four miles from the river," held too gen- 
eral, and not saved by the special locative de- 
scription, "on a small branch called Rockhouse." 
—Liggett v. Marshall, Case No. 8,342. 

Notoriety as to the name of a small branch 
used as a descriptive and locative call in a cer- 
tificate and entry subsequent to the time of such 
entry, but prior to the time the rights of others 
attached, is not suflicient to sustain a claim 
thereunder.— Liggett v. Marshall, Case No. 
8,342. 

§21. Rights acquired "by entry in gen- 
eral. 

A settler on public lands in Oregon, prior to 
September 27, 1850, had a mere possession. 
His interest ceased with his occupation, and he 
could not incumber it so as to affect a subse- 
quent occupant. The latter took as if the land 
had never been occupied before. — Lownsdale v. 
Portland, Case No. 8,578. 

A person who entered and paid for his land 
before the passage of the homestead act holds 
the land unaffected by it. His patent, when 
issued, will relate to the date of his entry.— 
Union Mill & Mining Co. v. Dangberg, Case 
No. 14,370. 

Claiming the land, and exercising acts of own- 
ership over it, which has been located by the 
withdrawn warrant, held a ratification of an 
unauthorized withdrawal. — Gault v. McMillan, 
Case No. 5,274. 

What laches in a settler will postpone him 
to a warrant and survey. — Griffith v. Bradshaw, 
Case No. 5,821. 

A party cannot set up a title to land by settle- 
ment prior to the day stated for the commence- 
ment of his settlement in the warrant issued to 
him for the land, but he may prove the land 
was never in the possession of the party who 
claims it from him by the right of settlement. 
—"Wells v. Wright, Case No. 17,405. 

§ 22. Pre-emption. 

The right of pre-emption is not an interest in 
land, but only a right to be preferred as pur- 
chaser.— Aiken v. Ferry, Case No. 112. 

Rights of pre-emption cannot be acquired to 
lands while the Indian title to occupancy still 
remains.— Russell v. Beebe, Case No. 12,153. 

A reservation of land for a specific purpose 
withdraws it from general location and from 
pre-emption rights. — Turner v. American Bap- 
tist Missionary Union, Case No. 14,251. 

Public land in Indiana, containing a salt 
spring not entered at the land office, or not com- 
ing within the 36 sections conveyed to the 
state (Act 1816), is subject to pre-emption.— In- 
diana v. Miller, Case No. 7,022. 

Lands included within the limits of an incor- 
porated town are not subject to entry under the 
pre-emption law of Sept. 4, 1841.— Root v. 
Shields, Case No. 12,038. 

The provision in such act excepting lands pre- 
empted by the corporate authorities from the 
operation of tie pre-emption act was intended 
to secure to the government the enhanced value 
of lands in and adjoining a town. — Root v. 
Shields, Case No. 12,038. 

Act May 30, 1862, does not change the quali- 
fications of pre-emption claimants prescribed by 
Act Sept. 4, 1841, or the limitations imposed 
thereby.— Gimmy v. Culverson, Case No. 5,454. 

One owning land in trust for another is not 
a "proprietor" (Rev. St. § 2260) disqualified to 
acquire. right of pre-emption.— Aiken v. Ferry, 
Case No. 112. 



The pre-emptor* must actually reside on land 
until final proof and payment made. — Aiken v. 
Ferry, Case No. 112. 

A person who never has asserted any pre- 
emption rights to land, but has asserted other 
rights in contradiction thereof, cannot be deem- 
ed to have intended to claim such rights. — Root 
v. Shields, Case No. 12,038. 

The person commencing an improvement has 
a right to continue, and any one that inter- 
venes may be considered a trespasser.— United 
States v. Stanley, Case No. 16,376. 

An actual settler is only entitled to buy that 
portion of a quarter section upon which his im- 
provements are made. 14 St. 804.— Arms- 
worthy v. Missouri River, Ft. S. & G. R. Co., 
Case No. 550. 

§ 23. Homestead. 

The provision of the homestead act that no 
lands acquired thereunder shall, in any event, 
become liable to any debt contracted prior to the 
issuing of the patent therefor, is valid and 
binding on the states. — Seymour v. Sanders, 
.Case No. 12,690. 

,§24. Town sites. 

Act May 23, 1844, known as the "Town-Site 
Law," was not enforced in Oregon before the 
passage of Act July 17, 1854. — Chapman v. 
School District, Case No. 2,607. 

The act organizing Oregon territory did not 
extend the "town-site law" over that territory. 
The first act affecting the title or disposition of 
Oregon lands was the donation act. — Lownsdale 
v. Portland, Case No. 8,578. 

* 

What is an occupation for public uses under 
Act 1S64, which excepts from the grant to the 
city all sites or other parcels of land in such 
occupancy by the United States. — United States 
v. Carr, Case No. 14,731. 

§ 25. Abandonment of claim. 

A claim to lands held to have been abandoned. 
-De Fitch v. United States, Case No. 3,741. 

(C) DONATIONS AND BOUNTY LANDS. 

See, also, ante, § 10. 

§ 26. Grants lay congress in general. 

The general gift of 500,000 acres to California 
by Act Sept. 4, 1841, became a particular gift 
of specific lands, on the location by the state 
of lands subject thereto, vesting a title in the 
state from the date of such location. — Patterson 
v. Tatum, Case No. 10,830. 

The grant to certain settlers in the village of 
Peoria, 111., whose buildings had been destroyed 
by a military company, held to be for a consider- 
ation, and the heirs of a settler who died before 
it was made are entitled to the patent — For- 
sythe v. Ballance, Case No. 4,951. 

Ordinary grants and those' for meritorious 
services are governed by the same principles 
and regulations. — Teschemacher v. United 
States, Case No. 13,843. 

§ 27. New Madrid act. 

Possession for 10 years under patent issued 
in 1827, pursuant to a New Madrid certificate or 
warrant, held suflicient to defeat ejectment. — 
Mackay v. Easton, Case No. 8,S43. 

§ 28. Oregon donation act — Operation 
and effect in general. 

Land once occupied as a town site, but aban- 
doned, may be taken up and held under the 
donation act as unoccupied public land. — Bear 
v. Luse, Case No. 1,179. 

The donation act of 1850 does not include 
settlers upon the public lands in Oregon, who 
died before its passage. — Fields v. Squires, Case 
No.* 4,770; Lamb v. Starr, Id. 8,021. 



1871 (§ 28) 



PUBLIC LANDS, II. (C). 
[Fed. Cas. Digrest.] 



(§ 34) 1872 



The Oregon donation act of 1850 is a grant in 
prsesentz from the date of the settlement there- 
under, or from the date of the act where the 
settlement was prior thereto, defeasible until 
conditions performed. The patent issued is 
only record evidence of the title. — Adams v. 
Burke, Case No. 49; Fitzpatrick v. Dubois, Id. 
4,842; Lamb v. Davenport, Id. 8,015; Mizner 
v Vaughn, Id. 9,678; Wythe v. Haskell, Id. 
18,118. 

The notice of settlement given to the proper 
officer under such act relates back to lie com- 
mencement of the application, unless the same 
was prior to the passage of the act.— Fitzpatrick 
v. Dubois, Case No. 4,842. 

§ 29. Grants made tinder act. 

A grant to a settler under such act does not 
take effect prior to its passage, although made 
in consideration, or on account, of prior resi- 
dence and cultivation thereon. — Fields v. 
Squires, Case No. 4,776. 

A grant under section 4 of the Oregon dona- 
tion act, to the children of L., the wife of a 
settler, includes her children by a prior hus- 
band.— Lamb v. Starr, Case No. 8,021. 

Under that act, a grant to the "children or 
heirs" of a settler or wife takes effect first in 
favor of the children. — Lamb v. Starr, Case No. 
8,021. 

§ 30. — Performance of conditions. 

Until the complete performance of the condi- 
tions subsequent to a settlement in the dona- 
tion act, the estate granted is liable to revert 
to the donation by the failure to perform such 
conditions. — Chapman v. School District, Case 
No. 2,607. 

The patent to the settler under the donation 
act is conclusive evidence of a performance of 
such conditions in a court of law, and primary 
in equity. — Chapman v. School District, Case 
No. 2,607. 

§31. — - Claims and certificates. 

A claim under the donation act need not be 
described by its boundaries.— Alexander v. 
Knox, Case No. 170. 

Where a valid objection is found in a cer- 
tificate issued by the surveyor to a settler under 
the Oregon donation act, it should be returned 
to the local office for correction. It cannot be 
disposed of by issuing a patent contrary thereto. 
—Wythe v. Haskell, Case No. 18,11S. 

§ 32. Married settlers in general. 

Though a married man limits his settlement 
under the donation act to the quantity of land 
granted to a single man, one-half thereof inures 
to the benefit of the wife, and she takes the 
same in her own right as the direct donee of 
the United States, and not subject to any of the 
previous acts or contracts of the husband.— 
Fields v. Squires, Case No. 4,776. 



ried settler equally between the settler and his 
wife at any point of the compass he might deem 
expedient, subject, under Act July 4, 1836, § 1, 
to the supervision of the commissioner of the 
general land office.— Wythe v. Haskell, Case 
No. 18,118. 

By virtue of the marriage the husband took 
an estate for the life of himself and wife in the 
latter's half of the donation claim, and it was 
not in the power of the territorial legislature to 
devest him of his estate, although it might ex- 
empt it from execution.— Wythe v. Smith, Case 

The wife's share of the donation under Act 
Sept. 27, 1850, was not her separate estate, 
and Act Or. Jan. 20, 1852, which undertook to 
declare it so, is void so far as prior settlements 
are concerned.— Wythe v. Smith, Case No. 18,- 

Where a settler under the donation act fraud- 
ulently procures a certificate and patent to his 
wife's share, equity has jurisdiction to correct 
the error by requiring him to convey the prem- 
ises to her.— Stevens v. Sharp, Case No. 13,- 

§ 33. — Beath of settler or wife of set- 
tler. 

A settler under the Oregon donation act, who 
dies before the conditions requisite for vesting 
title in him have been fulfilled, has no devisable 
interest in the land, and his heirs and widow 
take as donees of the government.— Hall v. 
Russell, Case No. 5,943. 

On the death of the settler, after complying 
with the act, and before issue of the patent, 
the remainder vests in his children, by purchase, 
as donees of the United States.— Mizner v. 
Vaughn, Case No. 9,678; Adams v. Burke, Id. 
49. 

Under that act, a settler might change his 
location before making final proof; and, in case 
of death before completion of residence and 
cultivation, his widow might abandon her in- 
terest, and, by marrying another settler, become 
entitled to one-half *of his donation.— Lamb v. 
Starr, Case No. 8,021. 

On the death of the wife of a settler under 
such act, her interest passes directly to her hus- 
band and children in equal parts, as donees of 
the United States, and not as her heirs.— Fields 
v. Squires, Case No. 4,776; Lamb v. Wake- 
field, Id. 8,024. 

Settler's wife dying before completion of resi- 
dence under donation act has separate property 
which descends to her heirs.— Alexander v. 
Knox, Case No. 170. 



Under the Oregon donation act, the estate 
granted to a ntfarried person is a determinable 
fee, with contingent remainder to the survivor 
and the children of the grantee; and, in case 
the grantee dies before patent issues, such sur- 
vivor and children take as donees of the United 
States, not -as heirs of the deceased. — Lamb v. 
Starr, Case No. 8,022. 

A patent to a married settler under the Oregon 
donation act, and to his wife, by name, cannot 
be contradicted in an action at law by showing 
that the true wife of such settler was another 
person, by a different name. — Sharp v. Stephens. 
Case No. 12,710. 

A wife divorced before notice and proof of a 
claim is not entitled to share in the settlement, 
although the land was occupied before the di- 
vorce was obtained. — Fitzpatrick v. Dubois, 
Case No. 4,842. 

Under the Oregon donation act the surveyor 
general might partition the donation of a mar- 



§ 34. _. Conveyances By settler. 

Where a married settler under section 4 of 
the Oregon donation act has completed the resi- 
dence and cultivation required by the act, and 
made proof thereof, he is entitled to a patent 
for his donation, and may convey the same in 
fee simple.— Wythe v. Palmer, Case No. 18,- 
120. 

The rights of vendees of a married settler 
under the act, on a partition of the wife's share 
after her death, determined.— Fields v. Squires, 
Case No. 4,776. 

A donee under the Oregon donation act who, 
subsequent to the initiation of the four years" 
possession, and before the passage of the act 
has conveyed all his right, will be compelled to 
convey the legal title vested in him, by the 
patent subsequently issued. — Starr v. Stark, 
Case No. 13,317. 

The prohibition contained in the proviso to 
section 4 of the act does not include covenants 
or contracts made prior to the passage of such 
act. — Fields v. Squires, Case No. 4,776. 

Covenants between jont occupants to convey 
to their prior vendees held not a "future con- 



1873 (§ 34) 



i, tract for the sale of the land," within the mean- 
ing of the Oregon donation act. — Lamb v. Dav- 
enport, Case No. 8,015. 

A quitclaim deed by the occupants of land in 
Oregon before the passage of the donation act, 
containing a covenant of warranty against all 
claims except that of the United States, and a 
covenant to convey the title of the United 
States, if obtained by the covenantors, will 
transfer only the possession.— Fields v. Squires, 
Case No. 4,776. 



PUBLIC LANDS, II. (C)-(F). , (§ 42) 1874 

[Fed. Cas. Digest.] 

Construction of acts of June 3, 1856, and 
May 5, 1864, granting land to Wisconsin for 
railroads from Madison or Columbus to the St. 
Croix river, and from thence to Lake Superior 
and to Bayfield, and the effect of acceptance 
thereunder. — Madison & P. K. Co. v. Wiscon- 
sin, Case No. 8,938. 

The state has power to protect such lands 
from trespass, and may maintain replevin or 
trover for logs cut thereon by trespassers. — 
Schulenburg v. Harrhnan, Case No. 12,486. 



The possession delivered with the deed is a 
sufficient estate to carry the covenants therein 
to the assignee thereof.— Fields v. Squires, Case 
No. 4,776. 

A bond given between private parties, in 
relation to certain lands covered by the Oregon 
■donation act construed.— Lamb v. Vaughn, Case 
No. 8,023. 

§ 35. Military bounty lands. 

The grantee of a patentee of military bounty 
lands is not within the provision of the statute 
(Act March 1, 1800, § 7) that the patentee shall 
hold the same free from any contract of sale.— 
Smith v. Shane, Case No. 13,105. 

The patentee of military bounty lands is a nec- 
essary party to a suit by a purchaser from his 
grantee to compel a conveyance of the land. — 
Smith v. Shane, Case No. 13,105. 

An actual settlement and survey is necessary 
to constitute an appropriation of land under a 
military warrant. — Carson v. Gorden, Case No. 
■2,463. 

(D) RESERVATIONS TO UNITED 
STATES. 

§ 36. Mode of reservation in general. 

The president of the United States may re- 
serve from sale certain lands within a pueblo,* 
"by order to that effect — Grisar v. McDowell, 
•Case No. 5,832. 

-§ 37, Springs. 

A lease by a squatter on lands within the 
'"Hot Springs" reservation is absolutely void, 
.and the lessee is not estopped to deny his land- 
lord's title in a suit for rent. — Dupas v. Wassell, 
-Case No. 4,182. 



(E) SCHOOL LANDS. 

"See, also, post, § 60. 

*§ 38. Effect of reservation and 1 grant in 
general. 

The right to any particular tract under the 
grant to the state of Michigan of section 16 for 
school lands (Act June 23, 1836) did not exist 
until a survey was made; and, if such sec- 
tion be found to contain minerals, another sec- 
tion must be selected.— Cooper v. Roberts, Case 
No. 3,201. 

All mineral lands were reserved under the 
■compact with the state (Michigan) to give it 
section 8 for school lands. — Cooper v. Roberts, 
Case No. 3,201. 

(F) GRANTS IN AID OF RAILROADS. 
See, also, post, § 62. 

§ 39. Construction and operation of 
grant to state. 

Act March 3, 1863, granting lands to Kansas 
to aid railroads, did not pass title to lands re- 
served to the Osage Indians by the treaties of 
June 2, 1825, and January 21, 1867.— United 
States v. Leavenworth, L. & G. R. Co., Case 
No. 15,582; Same v. Missouri, K. & T. Ry. Co., 
Id. 15,786.. 



§ 40. Construction and operation of 
grant to railroad company in 
general. 

Construction of the grants of lands to the 
Burlington & Missouri River Railroad Com- 
pany and the Union Pacific Railroad Company. 
—United States v. Burlington & M. R. Co., 
Case No. 14,688; Hunnewell v. Burlington & 
M. R. Co., Id. 6,879. 

The secretary of war, under Act March 3, 
1819, and Act April 28, 1828, held to have au- 
thority to grant to a railroad company the pow- 
er to construct their railroad over government 
property at Harper's Ferry. — United States v. 
Baltimore & O. R. Co., Case No. 14,510. 

Under Act March 3, 1875, providing for the 
use of any caiion by more than one railroad, 
two railroads granted a right of way through a 
caflon can construct their lines irrespective of 
the width of way granted. — Canon City & S. J. 
Ry. Co. v. Denver & R. G. Ry. Co., Case No. 
2,387. 

§ 41. Vesting title in railroad company. 

The gift of lands and bonds made by the 
United States to the Union Pacific Railroad 
Company were not in the nature of a trust, 
but were made absolutely without condition 
precedent. — United States v. Union Pac. R. Co., 
Case No. 16,598. 

Act July 1, 1862, granting land to the Central 
Pacific Railroad Company, was a present grant, 
operating immediately on the passage of the 
act. — Central Pac. R. Co. v. Dyer, Case No. 
2,552. 

Under Act July 1, 1862, granting lands to 
aid in the construction of a railroad and tele- 
graph line from the* Missouri river to the Pa- 
cific Ocean, there was a present grant, which 
attached to the particular sections upon the defi- 
nite location of the road.— Sanger v. Sargent, 
Case No. 12,319. 

Lands claimed at the time of such location, 
under alleged Mexican or Spanish grants, which 
were in fact fraudulent and void, and were aft- 
erwards so judicially declared, passed by such 
grant. — Sanger v. Sargent, Case No. 12,319. 

Where patents under a land grant were to be 
issued pro tanto on the completion of every 20 
consecutive miles of road, and to be subject to 
the disposal of the company for construction 
purposes, held that the company had a complete 
title under the patents, and not one in trust. — 
North Wisconsin Ry. Co. v. Barron County, 
Case No. 10,347. 

The railroad companies to which land was 
regranted on the failure of original grantees to 
build the roads do not hold the lands subject to 
any trust in favor of the creditors of the state 
or of the former companies. — Chamberlain v. 
St. Paul & S. C. R. Co., Case No. 2,578. 

§ 42. Sufficiency of adoption of line. 

The certificate of incorporation filed by the 
Denver & Rio Grande Railway Company under 
Rev. St. Colo. c. 18, was not such an appro- 
priation of the right of way through the Grande 
Cafion as contemplated by Act June 8, 1872.— 
Canon City & S. J. Ry. Co. v. Denver & R. G. 
Ry. Co., Case No. 2,387. 

A surveying and staking of a proposed line of 
road by the Denver & Rio Grande Railway 



1875 (§ 42) 



PUBLIC LANDS, II. (F)-(H). 
[Fed. Cas. Disrest.] 



(§ 51) 187t> 



Company did not amount to an appropriation of 
the right of way granted to that company by 
Act June 8, 1872, nor was the building of the 
road from Pueblo to Caiion City. — Cafion City 
& S. J. Ry. Co. v. Denver & R. G. Ry. Co., 
Case No. 2,3S7. 

Where a railroad company exhibits a copy of 
the profile of its line through the Grande Canon, 
approved by the secretary of the interior, it will 
be considered as made in accordance with Act 
March 3, 1875.— Caiion City & S. J. Ry. Co. v. 
Denver & R. G. Ry. Co., Case No. 2,387. 

Section 7, Act Cong. July 1, 1862, granting 
land to the Central Pacific Railroad Company, 
which required the company, within two years, 
to designate the route of the road and file a 
map, did not affect the grant of the right of 
way, but only furnished the means by which the 
land taken by the railroad could be withdrawn 
from private entry. — Central Pac. R. Co. v. 
Dyer, Case No. 2,552. 

§ 43. Lands included, reservations and 
exceptions. 

A grant of alternate sections of land within 
certain limits to aid in the construction of a 
railroad (Act July 25. 1866) held to attach on 
the filing of the plat of survey of the line with 
the secretary of the interior and the withdraw- 
al of the land from sale, etc., but not as to any 
land lying outside of the limit to make up a 
deficiency, until such defie : ency had been ascer- 
tained. — Ryan v. Central Pac. R. Co., Case No. 
12,185. 

The exception in the grant to the Union Pa- 
cific Railroad Company of lands to which home- 
stead claims had attached does not operate in 
favor of a sham and fraudulent homestead 
claim.— Union Pac. R. Co. v. Watts, Case No. 
14,385. 

§ 44. Overlapping grants. 

Overlapping grants to the Union Pacific Rail- 
road Company and the Sioux City Branch make 
the two companies tenants in common.—- Sioux 
City & P. R. Co. v. Union Pac. R. Co., Case 
No. 12,909. 

In the case of overlapping patents, held, that 
the patentees under the elder grant, though it 
was the last finallv located and patented, had 
the better right. — Bissell v. Henshaw, Case No. 
1,447. 

§ 45. Forfeiture of grant. 

The lands granted to the state of Wisconsin 
by Act June 3, 1856, to aid in the building of 
railroads, did not ipso facto revert to the United 
States by a failure to build the road within the 
prescribed period. — Schulenburg v. Harriman, 
Case No. 12,486. 

(G) PROCEEDINGS IN LAND OFFICE. 

§ 46. Authority and duties of officers in 
general. 

The board of land commissioners was author- 
ized to consider and determine the claim to land 
made by the Catholic bishop of Monterey by 
virtue of a Mexican grant to the church for re- 
ligious purposes. — Mora v. Foster, Case No. 9,- 
784. 

A commissioner of the land office has power, 
with the consent of the party in interest, who 
refused to accept the patent on the ground that 
it was erroneously located, and of defects in 
the proceedings prior to the patent, to recall the 
patent and order a resurvey. — Le Rov v. Clav- 
ton, Case No. 8,268. 

The commissioner of the general land office 
may order a further examination, on the ground 
that the return of a survey made by the sur- 
veyor general of California represented the 
tract as containing more than the quantity sold 
and confirmed. — United States ex rel. Castro v. 
Hendricks, Case No. 15,347a. 



§ 47. Cancellation of entries, and rein- 
statement. 

Congress has power to reinstate an entry can- 
celed by the land office, and to provide that this 
shall relate back to the original entry, so as 
to inure to the benefit of intermediate grantees. 
— McCarty v. Mann, Case No. 8,685. 

In such case the intermediate grantees receive- 
the benefit whether they took with or without 
warranty. — McCarty v. Mann, Case No. 8,685. 

§ 48. Determination of adverse claims. 

Person without showing right in himself can- 
not question right of others. — Aiken v. Ferry, 
Case No. 112. 

§ 49. Conclusiveness and effect of deci- 
sions. 

Decisions of land office on questions of fact 
conclusive, in absence of fraud or mistake. — 
Aiken v. Ferry, Case No. 112; Bear v. Luse,. 
Id. 1,179. 

Whether a settler under the donation act un- 
on unsurveyed lands could commute his resi- 
dence under Act Feb. 14, 1853, and Act July 17, 
1S54, is a question of law, and the decision of 
the land department thereon may be reviewed 
at the suit of a party having a prior equity.*— 
Bear v. Luse, Case No. 1,179. 

The subject of surveys of confirmed claims is 
under the control of the land department, and 
its action is not subject to the supervision of 
the courts, however erroneous. — United States 
v. Flint, Case No. 15.121. 

In acting upon a claim to pre-empt a tract of 
land, the land officers exercise a judicial discre- 
tion, with which the court cannot interfere by 
injunction. — Litchfield v. Register, Case No. 8,- 

38S. 

The decision of the board of land commission- 
ers on a claim within their jurisdiction cannot 
be collaterally impeached. — Mora v. Foster, Case 
No. 9,784. 

The determination of the commissioner upon 
receiving a survey transmitted to him as pub- 
lished, as to the regularity and sufficiency of 
the publication, is conclusive, unless reviewed 
and corrected on appeal by the secretary of the 
interior. — Le Roy v. Jamison, Case No. 8,271. 



(H) PATENTS. 

See, also, post, §§ 60, 72. 

§ 50. Issuance. 

As to the power of the commissioner of the- 
general land office, relative to private claims to 
land and the issuing of patents therefor, under 
Acts July 4, 1S36, June 14, 1860 and 1864— Le 
Roy v. Jamison, Case No. 5,271. 

No patent can issue pending a contest before- 
the register and receiver of the United States- 
land office between a purchaser from the state, 
on a state selection, and a claimant under Sioux 
half-breed scrip location. — United States v. 
Chapman, Case No. 14,785. 

The entry, in the books of the land office, that 
the balance of the purchase money was paid by 
the person "to whom the patent had issued," is 
evidence that a patent did issue, although the- 
patent is not produced. — Willis v. Bucher, Case- 
No. 17,769. 

Under Act June 14, 1860, it was the duty of 
the commissioner of the general land office, be- 
fore issuing a patent upon a survey, to see 
that the necessary publication had been made, 
to render the survey final, when not submitted 
to the district court. — Le Roy v. Jamison, Case- 
No. 8,271. 

§ 51. Delivery and acceptance. 

A personal delivery of a patent to a patentee 
is not necessary to the vesting of the title.— 
Le Roy v. Clayton, Case No. 8,268. 



1877 (§ 51) PUBLIC LANDS, 

[Fed. Cas. 

The acceptance of a grant where no personal 
obligation is imposed will be presumed in the 
absence of an express dissent, whenever the 
conveyance is placed in a condition for accept- 
ance.— Le Roy v. Jamison, Case No. 8,271. . 

§ 52. Requisites and validity, 

A patent for lands paid for by the father, but 
delivered to his son of the same name, who was 
described, by his residence, as the grantee, is 
valid until vacated for the mistake of descrip- 
tion.— Babcock v. Pettibone, Case No. 700. 

§ 53. Construction and operation in. gen- 
eral. 

A patent for land covered by a paramount 
title does not vest the fee in the patentee.— 
Nelson v. Moon, Case No. 10,111. 

A patent to a deceased person inures to the 
benefit of his successor in interest. 5 Stat. 31. 
—Lamb v. Starr, Case No. 8,022. 

A patent for land is presumptive evidence 
that the proper steps have been regularly pur- 
sued.— Brown v. Galloway, Case No. 2,006. 

A patent signed, sealed, and recorded takes 
effect from such time, and it cannot be recalled 
while en route to the local officer for delivery to 
the patentee, without consent of the patentee. — 
Le Koy v. Clavton, Case No. S,26S; "Same v. 
Jamison, Id. S,271. 

Location of land with scrip, under the act of 
July 17, 1854, passed the fee out of the United 
States and was enuivalent to a patent. — Larri- 
viere v. Madegan, Case No. 8,096. 

A certificate and patent thereon, issued under 
the Oregon donation act, are parts of the same 
transaction or procedure, and may be read to- 
gether for the purpose of correcting or explain- 
ing the patent, and where there is an absolute 
contradiction between them the certificate must 
prevail.— Wythe v. Haskell, Case No. 18,118. 

§ 54. Conclusiveness. 

A patent valid on its face cannot be collat- 
erally impeached in the federal courts in eject- 
ment to recover the land granted by it.— Le 
Roy v. Clayton, Case No. S,268. 

Equity has no jurisdiction to affect a patent 
except upon the ground of an antecedent equity 
in the plaintiff, disregarded in the issuing there- 
of.— Bear v. Luse, Case No. 1,179. 

The patent to a settler under the Oregon do- 
nation act is only record evidence of the donee's 
right— Adams v. Burke, Case No. 49; "Wythe 
v. Haskell, Id. 18,118. 

(I) REMEDIES IN CASE OP FRAUD, MIS- 
TAKE, OR TRUST. 

§ 55. Suit liy United States. 

The United States may sue in equity in their 
own name in the circuit court to set aside a 
patent issued without authority of law. — United 
States v. Leavenworth, L. & G. R. Co., Case 
No. 15,5S2. 

The assignee of a land warrant, fraudulently 
procured from lie government, has no higher 
legal rights than the warrantee. — Bronson v. 
Kukuk, Case No. 1,929. 

§ 56. Relief to claimant of land. 

A patent may be canceled, on the application 
of the grantee, where the land is lost in whole 
or in part.— Nelson v. -Moon, Case No. 10,111. 

Courts will not restrain the issue of patents 
for land, but will relieve against fraud prac- 
ticed to procure them.— Leitensddrfer v. Camp- 
bell, Case No. 8,225. 

Decision of conflicting claims to lands upon 
the evidence in a suit in equity to prevent the 
issuing of certain scrip.— Walker v. Smith, Case 
No. 17,085a. 



II. (H)-(J), HI. (§ 60) 1878 

Digest.} 

A patent may be avoided at law for fraud 
only where it relates to the issuing of the pat- 
ent.— Cooper v. Roberts, Case No. 3,201. 

For the purpose of showing mistake in the 
calls of a grant, resort may be had to the plat 
and certificate of survey.— Dallum v. Brecken- 
ridge, Case No. 3,547. 

Government may waive all regulations and ir- 
regularities, except as against vested rights of 
others.— Bernard v. Ashley, Case No. 1,346. 

A junior settler to whom the land office by 
erroneous construction of law issues a patent 
will be decreed to hold in trust for senior settler. 
—Aiken v. Ferry, Case No. 112. 

A bill against the register and receiver of the 
land office to restrain them from permitting 
settlers on lands treated by the department as 
public lands from entering them under the pre- 
emption laws, when such settlers are not made 
parties, is fatally defective.— Litchfield v. Reg- 
ister, Case No. 8,388. 

. (J) CONVEYANCES AND CONTRACTS. 

§ 57. Transfers of rignt in general. 

A deed of military bounty lands, made in 
1820 by the attorney of a patentee under a pow- 
er of attorney executed in 1816, where the pat- 
ent was not issued until 1819, is void ab initio 
under Act April 16, 1816.— Wright v. Taylor, 
Case No. 18,096. 

A warranty deed executed by an executor be- 
fore the patent issues from the government 
conveys no legal title, but it will operate by way 
of estoppel, where a patent is afterwards is- 
sued in the name of the executor, though the 
will did not authorize him to convey. — Lewis v. 
Baird, Case No. 8,