898
PEDERAL REPORTER.
terms of section 5015, and therefore the remainder of the . debt could not be proved, if this provision has the positive quality which is ascribed to it. Yet there are cases in which it is of the greatest importance for all parties that a sde should be made at such a. time. See Re G,'innell, 9 N. B. R. 137. The secured creditor, after all, has the most direct and vital interest in the security, and is the principal sufferer if an opportunity for realizing it is lost. These creditors were ina difficult position, and having exercised in good faith their best discretion, at a tiIQ.e co:qcerning which this section of the statute is silent, and having realized a considerable sum, which at the time seemed to be a clear gain from an utterly worthless security, we are of .opinion that the dist.rict judge had the power, and has well exerc:ised it, of the sale as if made after the confirmation of the assignees, and by previous authority, and that the proof for the remainder of the debt should be allowed j and it is so ordered.
F ..:..ULKS and others v.
KAMP
and another. --,1880.)
(Cirouit Court, 8. D. NvUJ York.
I
In Equity. Chas. N. Judson and E. H. Benn, for complainants. J. C. Clayton, F. J. Fithian, and E. S. Bacbock, for defendants. WHEELER, D. J. This suit is brought for relief against infringement of letters patent No. 68,282, dated August 27, 1867, and granted to the defendant Charles Brown for an im-
PAULKS t1. KUIP.
899
provement in baling short-cut hay. The orators claim to have the title to the whole of the patents for the New England States, New Jersey, and New York, except Erie county, and allege infringement at the city of New York. Their title is not disputed, except that the defendants allege that one Samuel B. Clark owns a share in the patent, said to be one twenty-fourth part; and they justify under a license granted by the former owners to Angelina Brown, wife of Charles Brown. The share of Clark does not appear to cover the territory involved in this suit; and the license to Angelina Brown was revocable, and was revoked by the conveyance of the title of the licensors, so that the orators are considered as holding the title to the patent for this territory. Of course the whole of their title must have been derived from the defendant Brown, to whom the patentwas granted. Faulks, orator, first by various mesne conveyances, the whole title for this territory. He conveyed shares to each of the defendants, and they, with him and a son of his, formed a copartnership which carried on the business of baling hay under the patent. Then they sold their interest in the partnership business and property, including the patent, to him, and in their conveyances of the patent each described the thing conveyed as the full and entire right, title, and interest which he had and possessed in and to the patent, and the inventIons and improvements described in and secured by it. He conveyed an interest to each of the other orators. The defendants now deny the validity of the patent, because, they say, that Brown was not the original and first inventor of the improvement described in it, and they have acquired a prior patent which they say covers the same improvement under which they claim the right to practice the invention; and they deny all infringement of the patent. There is considerable doubt whether the patent, as between the owners and the public generally, is of any validity. Hay has long been baled, to the common knowledge of all. The whole inventioti in controversy consists in baling hay cut short .inthe same manner. The well-known process of ing hay was applied to another kind of hay; The short-cut
lla.y was well known befo,ra, !Lnd the process made no. change; in its properties orqul1liiy. When baled it could be more conveniently handled, as; common hay could be. Langdon v. De Groot, 1 Paine, 203; Alcott v. Young, 16 ·0. G. 403. But it.is argued for the orators, that they entitled to have the patent treated as valid, as against the defendants, whether it is valid generally or not, and this claim seems worthy of consideration. seller of personal property impliedly warrants that he has title to and right to sell what he assumes, to sell. His. undertaking to sell includes an undertaking to that effect. 2 Black. Com. 451 ; ,:Long on Sales, (Rand's. Ed.) 203; Defreeze v. TrumptM', 1 J oim. 274; Coolidge v. Brigham, 1 Met. (Mass.) 547. In Heermance v. VC1'noy, 6 John. 5, it waB that a sale of a millstone of a bark mill to a tanneryas personal property, which might belong to the realty and not pass by .such a sale, implied a warranty of title to it as personalty; and in Hannum v. Richardson, 48 Vt. 508, that a sale of a ;negotiable ;note, although indorsed without recourse, involved a warranty that it was a genuine note due the seller. It is urged strenuously in behalf of the defepdants that these principles do not apply to sales of patentrights, on account of their incorporeal nature and the interests to the public. In Medina v. Stoll>ghton, 1 Salk. 210, Lord Colt is reported to, have said that such a warranty waa implied upon a sale by one in possession and not by one not having possession; but this saying is doubted, and the distinctoiu denied by Mr. Justice Buller in Pasley v. Freeman, 3 T. R. 51. But if possession .should be material, the defendants appear to have claimed and had the exclusive right to this invention, arid to have sold and conveyed all the right pos\lessed by them. The nature of the right covered by letters patent, does not seem to be such that a warranty of the right cannot be implied. The patent purports to grant the right to exclude all others from practicing the invention. It adds nothing to the right of the owner to practice it. This exclusive right is property recognized and protected by law. Cammeyer v. Newton, 94 U. S. 225. Whosoever assumes to sell a. patent assumes to sell that property, and assumes that he had A ' -
,
FAULKS V.JUMP·.l
90l!
it to sell. .This suit is between these parties, and involves their rights alone, and not the rights of the' The determination of :the validity of the patent in this suit will only determine its validity between them, and not affect its validity as to others not parties. .The defendaRts in possession and enjoyment of that exclusive right assumed to sell and trans. fer it. After that, in justice, they ought not to be heard to say that they had it not and did not sell it, and to be allowed to dtlrogate from their own grant by setting up that it did not pass. They may have deprived themselves of the right to practice it within the territory when otherwise; they would have retained the right in common with all others; but, if they did, that would not so affect the public as to avoid their obligation.. They could exclude themselves in that way ·by contract, independently of the patent, and the contract would be upheld if it went no further than upholding this patent as against them in the territory in question would take them. It would be upon good consideration, reasonable, and only in partial restraint of trade. Pierce. v. Woodward, 6 Pick. 206; Chitty on Cont. 576. The question as to the right of a vendor of a patent to deny its validity afterwards came up in bers v. Chrichley, 33 Beav. 874 That case was similar to this in important features. The parties had been partners in the manufacture of stoves under a patent which they owned. The defendant sold his share in the partnership assets, including the paten', to the plaintiffs, but afterwards continued the manufacture and the suit was brought for that infringement. Upon that case Sir John Romilly, master of the rolls, in delivering judgment, said: "I do not intend to express my opinion as to the validity of Wright's patent. I will assume, for the purposes of my judgment, that it is worth nothing at all. But this is certain, that the defendant sold and assigned that patent to the plaintiffs as a valid one, and having done so he cannot derogate from his own grant. It does not lie in his mouth to say that the patent is not good." And an injunction and an account were decreed. It is argued for the defendants that as the conveyances were of the right, title, and interest of the grantors, the warranty would only
909
FEDERAL REPORTER.
extend to whatever right they might have which a.nd. that the warranty was kept. But the conveyances were made to carry out the sale in the manner required by law for passing the title, and the warranty grew out of the sale and not out of the form of the conveyance. And the patent subsequently purchased by the defendants may be better than this for covering this invention, but if it is it cannot help the defendants as against the orators. It is ,a familiar law, and has been for a long time, that a warranty of title or right draws to it any after-acquired right or title of the warrantor, and carries it to the benefit of the person to whom the warranty runs. So whatever right, if any, the defendants acquired to the invention covered by this patent, enured directly to the benefit of the orators. It is also urged that the purchaser knew of the defects and was not deceived, and that, therefore, the defendants are not estopped. But the rights of the orators do not rest upon the estoppel merely; they rest upon the purchase, which must operate so that the orators may have what they bought, and so that the defendants shall not both sell and keep the same thing. The evidence of the acts, conduct, and claims of the defendants leaves no room for any fair doubt but that they infringe by doing what they claimed and exercised as their exclusive right when they had the patent, and by practicing the invention which the patent purports to cover. Let a decree be entered for an injunction and a.n a.cCQunt, according to the prayer of the billl with costs.
DAILY V. DOm.
908
DAILY v. DOE, ete., and CANAL-BoAT A.. NOXON, etc. (District Court, S. D. New Yorle. - - , 1880.)
L JURISDICTION-SUIT FOR POSSESSION OJ' SHIPs.-There is nothing in the laws of the United States impairing the concurrent jurisdiction of the state courts over suits for the possession of ships, where the title of the defendant was derived under a marshal's deed. BAllE-JUSTICE OJ'THE PEACE-AFFIDAVIT OJ' VALUE.-ANewYork statute provides that justices of the peace shall have civil jurisdiction in certain cases, including "an action to recover the possession of personal property claimed,the value of whioh, as stated in the affidavit of the plaintiff, his agent, or attorney, shall not exceed the sum of .200." It is further provided in the same statute that, before any process shall issue, the plaintiff, his agent, or attorney shall make proof, by affidavit, showing among other things the II actual value" of the property claimed. Held, that such affidavit is an essential prerequisite to the attaching of the jurisdiction of the court. ' Denil v. Crittenden, 42 N. Y. 542. BAHE-SAME-SAME-PROoF.-The mere fact that the justice went on and tOdk jurisdiction, and the defendant appeared and pleaded and raised no objection, joined to the want of affirmative proof that there was no affidavit, will create no presumption in support of a judgment, nor be sufficient to prove that the necessary affidavit was made. BALE IN ADMIRALTY - TITLE OF PURCHASER.-A purchaser in good faith under a marshal's sale, upon a decree of a court of admiralty, will be protected in his title if the court had jurisdiction to decree the sale. SAME - JURISDICTION - N OTIOE. - In such case jurisdiction over the vessel is acquired by its seizure by the marshal ']nder the process of the court, and this seizure and possession by the marshal are, in view of the law, notice to all persons interested of the pendency of the proceedings, and of their right to intervene and protect their interests. SAME-SAME-NoTICE BY PUBLICATION.-The rules and practice of the court require notice by publication, but they have not the force of statutory requirements, nor do they prescribe such publication as an absolutely essential prerequisite, eith-Jr to the assumption of jurisdiction, or to the exercise of the power of the court to condemn and sell a vessel to satisfy a maritime lien. SAME-SAME-SAME.-The want of notice by publication will furnish ground for opening the decree, but docs not render the proceedings void. SAME-MATTERS OJ' ACCOUNT.-A court of admiralty wUl take no jurisdiction of matters of account, in a suit for possession, between stranto the suit, and the respondent who has been in possession.
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