KNEELAND and others v. SHERIFF and others.

(Circuit Court, W. D. Pennsylvania. June, 1880.)

PATENT-INCEPTION OF INVENTION.- -"A patentee whose patent is assailed upon the ground of want of novelty may show, by sketches and drawings, the date of his inceptive invention, and if he has exercised reasonable diligence in perfecting and adapting it, and applying for his patent, its protection will be carried back to such date."

In Equity.

Geo. H. Christy, for complainants.
Bakewell & Kerr, for defendants.

MCKENNAN, C. J. The only defence set up and relied upon in this case is that the complainant E. G. Kneeland is not the first and original inventor of the device described and claimed in his patent. This defence rests entirely upon alleged prior invention by one Robert M. Davis. The decisive question, then, in the case is one of dates.

It would not be profitable to collate the proofs on this point. That Kneeland conceived the idea of his invention in 1863; that he described it partially to different persons afterwards; that he made sketches, and had a drawing of it made in the summer of 1864; and that he was diligent in reducing it to a practical form, and in obtaining a patent for it, is all satisfactorily shown.

The precise date of the occurrence of these facts does not appear, but it is evident that the statements of the witnesses on this point are approximately correct, because, from the nature of the transactions stated, they must have occurred, if the witnesses are to be believed at all, sometime anterior to the date of the application for the patent, which was February 27, 1865.

It is not satisfactorily proved that before the date of Kneeland's invention, thus established, the device of Davis was made and used. There is at least plausible reason for the inference that the conception of Davis' valve was not matured in his own mind earlier than the latter part of 1864, and was not constructed and used until sometime during the

year 1865. This, at least, seems to me to be clear, that the conception and description of Davis' valve is not carried back by any witness to the time when it is shown Kneeland described and sketched his invention in the early part of September, 1864. That this is the latest period at which Kneeland's invention can be fixed is settled by numerous decisions. As was said in Reeves v. The Keystone Bridge Co., 1 Off. Gaz. 466: "But a patentee, whose patent is assailed upon the ground of want of novelty, may show, by sketches and drawings, the date of his inceptive invention, and if he has exercised reasonable diligence in perfecting and adapting it, and in applying for his patent, its protection will be carried back to such date."

Kneeland's inceptive invention was the earliest, and he was diligent in perfecting and adapting it, and in applying for his patent. He is, therefore, prior in right to Davis, and is entitled to a decree as prayed for.

Let a decree accordingly be prepared.

LORILLARD V. THE STANDARD OIL COMPANY.

(Circuit Court, S. D. New York. May 27, 1880.)

INFRINGEMENT-SUIT BY MARRIED WOMAN.-In the southern district of New York a married woman is not disqualified by reason of coverture from bringing and maintaining a suit in her own name, without joinder of her husband, for the infringement of a patent within the state of New York.

In Equity. Infringement of patent.
Abraham L. Jacobs, for plaintiff.

T. B. Kerr, for defendant.

BLATCHFORD, C. J. This is a suit in equity for the infringement of letters patent. The bill alleges that the plaintiff is the sole owner of the entire patent. The answer sets up that the plaintiff was, at the time of bringing this suit, a married woman, having a husband, Blaze Lorillard, in full life, and that by reason of coverture the plaintiff is incapable of, and

disqualified from, bringing and maintaining the suit in her own name, without joining her said husband as a party thereto.

The plaintiff, although a general replication has been filed to the answer, has, under rule 52, in equity, set down the cause for argument on such objection, and the defendant takes no point that this is irregular, because a replication has been filed, and the question involved has been argued.

The defendant contends that the rule of practice of the courts of New York, regulated by the statutes of New York, which permits suits by a married woman in her own name, does not apply to suits in equity in this court; that there is no statute or rule which permits the plaintiff to bring this suit without joining her husband; and that, under the general principles of equity practice, and the practice of the high courts of chancery in England, the husband must be joined. Rule 90 of the rules in equity, prescribed by the supreme court, provides as follows: "In all cases where the rules prescribed by this court, or by the circuit courts, do not apply, the practice of the circuit court shall be regulated by the present practice of the high court of chancery in England, so far as the same may reasonably be applied consistently with the local circumstances and local conveniences of the district where the court is held, not as positive rules, but as furnishing just analogies to regulate the practice."

The legal title to this patent is in the plaintiff. By the law of New York, as interpreted by the courts of New York, a married woman may hold property of every description in the same manner as if she were a feme sole. Gage v. Danchy, 34 N. Y. 293; Buckley v. Wells, 33 N. Y. 518; Knapp v. Smith, 27 N. Y. 277. The bill alleges that the plaintiff belongs to New York, and is a citizen of the United States, and that some of the infringements were committed in New York. Under the provisions of sections 629, 4919 and 4921 of the Revised Statutes of the United States, suits in equity for the infringement of letters patent must be brought by the party in interest in his or her own name, and such right cannot be delegated to another person, to bring the suit in the name of such other person, when the suit is not for the benefit in any way

of such other person. Goldsmith v. American Paper Collar Co. 2 FED. REP. 239. On the same principle such other person is neither a proper nor a necessary party to be joined with the real party in interest, as plaintiff, when such other person has no interest in the patent, and when the suit is not for the legal benefit in any way of such other person. Under rule 90 it is inconsistent with the local circumstances of this district to require the wife in this case to join her husband with her. The rule of joining husband with wife in suits to recover her personal property was founded upon the principle of unity of existence and interest between husband and wife, in law, and the right of the husband in the wife's personal property, and the care exercised by courts in regard to those who are not in a situation to take care of their own rights. These principles being now changed for this jurisdiction, the practice based on them necessarily falls. Cessante ratione cessat lex. Voorhees v. Bonesteel, 16 Wallace, 16, 31.

The objection taken is overruled.

THE NEW YORK COFFEE POLISHING COMPANY (limited) v. WILSON.

(Circuit Court, E. D. New York. June 11, 1880.)

PATENT FOR COFFEE POLISHING.-The first claim of a patent being abandoned at the trial, and no defence being made to the averment of infringment of the second claim, held, that a decree must be given against the defendant for infringement of the second claim.

In Equity.

W. W. Goodrich, for plaintiff.
Richards & Held, for defendant.

BENEDICT, D. J. This is an action brought by the assignee of a patent for an improvement in cleaning and polishing coffee, which patent was issued to William Thompson and Samuel Thompson, on January 31, 1871, numbered 111,403. Upon the trial the plaintiff abandoned the first claim of the patent and relies only upon the second claim.

In regard to the second claim, the defendant did not at the trial undertake to dispute his liability, or to deny the plaintiff's right to a decree. Under such circumstances I discover no reason why, in this case, a decree should not go against the defendant for an infringement of the second claim of the patent.

MAGUIRE V. THE STEAM-BOAT SYLVAN GLEN, etc.

THE HARLEM & NEW YORK NAVIGATION COMPANY V. THE SLOOP MAGUIRE BROTHERS, etc.

(District Court, S. D. New York. May 26, 1880.)

COLLISION-BURDEN OF PROOF.-The burden is on a steam-boat to clearly prove that the luffing of a sloop would have saved a collision made imminent by the negligence of such steam-boat.

In Admiralty.

W. W. Goodrich, for sloop.

S. H. Valentine, for steam-boat.

CHOATE, D. J. These are cross libels to recover damages caused by a collision between the steam-boat Sylvan Glen and the sloop Maguire Brothers, on the evening of November 1, 1878, in the East river, about off pier 41. The steam-boat was on her regular trip to Astoria, having left Peck slip at 10 minutes past 6 o'clock. The sloop was light, bound from Newtown creek to Haverstraw. She was beating down the river, the wind being about west, or nearly ahead-a fresh breeze. She left the creek about 5 o'clock, and had made several tacks across the river before the collision. The collision happened while she was on her starboard tack, standing across from the New York shore to the Brooklyn shore. The tide was strong ebb.

The case made for the sloop in her pleadings is that both her side lights were set and burning brightly; that she ran out her port tack close to the New York shore, and stood about on the starboard tack, and after having gathered headway and while upon this tack, and when about three lengths