§ 948, an.y circuit or district c(.Illrt may, at any time in its
and upon such terms as it may deem allow an amendment of any process returnable to or beiore it, where the defect has not prejudiced, and the amendment will not injure, the party against whom such process issues. ' , I am of opinion that an amendment of these writs will not prejudice defendants; who had due notice to. appear on Sunday, and who did appeal', though under protest, on Monday. IIamptoll v. ROlUe, 15 Wall. 684; Semmes v. U. S. 91 U. S. 21; Mclniffe v. Wheelock, 1; Gray, 600. The question, it must be remembered, is not whether the common law would have called these writs void or voidable, (though if that were the question it might be well maintained that they were voidable only,) but whether the statute ,of the United States is broad which may be amended. enough to include them in the class of Of this there is no doubt. A.s the writs were voidable, I think they should be amended on the terms of the plaintiff, taxing no costs up to the time of the amendment. Amendment on terms within 80 days.
NOTE. 'fhe circuit court may allow an amendment of a writ of error made returnable on a wrong day. Semmes v. U. S.91 U. S. 21; Wool,'idge v. M".. Kenna, 8 FED. REP. 663. A summons which did notissuecaunot be amended by adding a seal and the signattire of the clerk. DWightv. Merritt, 4 FED. REP. 614: S. C. 18 Blatchf. 306: Peaslee v. Habel'stl'o, 15 Blatchf. 472.-[ED.
DbY, Receiver, etc.,
(Circuit U()U1·t, lJ.lndil.ma. October 28, 1882.)
Where t.he mal'llhal is required to serve process in suits other than where the United States requires the serVice, ho has a right to demand his foea in advance of t.he service to beperfonned.
Claypool & Ketcham,
U. 8. Atty.,f6rthe marshal. D. J. The usual process was issued in this case, directed to the marshal, commanding him to summon the defendant. The marshal refuses to s.erve the process until the 'proper fees are paid in advance or a deposlt of money for their security. A rule is
-Reported by Uhas. H.
U. S. AUT.
, RDEBAL UPOBTEB.
asked against the marshal to show cause why'he should not be punished for contempt for his refusal to serve the process. In settling his accounts with the proper accounting officers of the treasury department, the marshal is charged with all fees earned by him, and from the amount thus earned he is allowed to retain for his personal compensation, over and above'the necessary expenses of his office, including clerk hire and the amount allowed his deputies, any Bum remaining, not exceeding $6,000. If any excess remains over and above the credits allowed by law, he is required to pay it into the treasury, whether the fees earned have been collected or not. The marshal is therefore a public officer, charged with the duty of colle'cting funds for the United States, and when he is required to ' serve process (not in suits 'where the United States requires the service) he has a right to demarid'thepayment of the proper fees in advance of the service performed. He need not wait and take the chances of' collecting' them' on an execution. See Rev. St. 841 to 846, inclusive.
Co. and others.
(Circuit (Jourt, No
PATENTS FOR INVENTIONS-CONVEYANCE OF RIGIIT.
A conveyance of "all my right, title, and interest in and to" a patent, though properly recorded, does not include the right for two counties covered by a prior conveyance, although thepriol' eQnveyance was not recorded in the patent-office.
2, CONVEYANCE OF PATENT-WHAT INCLUDES.
A conveyance of the right to make and sell a patent includes the right to the use of the thing patented.
In Equity. James L. High, for complainants. West et Bond, for defendants.", , DRUMMOND, C. J. I think the 'plaintiffs in this entitled to a. decree. Some of the questions involied are of importance; a.nd 'be,en reargue4 in this " ", " , "''.the bill chargesan infringeme:llthy the defendants of two claims patent, issued .originally Qctober 18, 1859,' in i87i, for some improvements in a plow or cultivator. ' One of the principal, and the most important questions in the caseariaes under
TURNBULL V. WEIR PLOW CO.
the law of congress upon the subject of patents. The patent was issued originally to Thomas McQuiston, and the plaintiffs claim, through him, the right in two counties, Warren and Henderson, in this state, to use the improvement patented. The conveyance by McQuiston, through which the plaintiffs claim, was not recorded in the patent-office at the time the conveyance, through which thedefendants claim, was made by McQuiston and recorded. In other words, the conveyance through which the defendants claim from the patentee was first recorded in the patent-office before that through which the plaintiffs claim was recorded. I stated, at the time 1 decided this question before, (Turnbull v. Weir Plow Co. 6 Biss. 225;) that it was one of great difficulty, and about which I had some doubt,.because the decision seemed to be contrary to the practice adopted in the patent-office as to the construction which was there placed upon assignments of Ate.:r the patentee had made an assignment of. the right to these two counties in Illinois, he made an assignment through which the defendants claim, which assignment, it is insisted, according to the general scope of the language, would ,include the two counties which been previously assigned by the patentee, and unqer which the plaintiffs claim. The language of ,the assignment to the defendants is as follows: ."Do hereby grant and convey to the said William 8. Weir all D;ly right, title, and in and ,to said letters patent in the following-described territory." The construction which court was, that it did not necessafily f9rmerly placed upon that inclllde the right which had been previously conveyed by the patentee in the coupties of Warren' and Henderson, ·but only included all, the right which the assignor then. had. The language 9f thestatrite in be Ill:ade rightssec:ured by letters ,pat,ent, is somewhat d'ifferent from that containeq. i,n this given by Mr.' Fisper at assigmnent, and also.in the fo$ the time he was commissioner of patents. 'The language in the sta.tute is this: all the right which was secured to, the patentee by 'letters patent. 'St. § 4898. The language' in prescribed by Mr. }tish,er is stibstaI\thiIl( Iikethat used,in ,assignment through "which, t,he defendants chi.im:, "all the,right, title, and interest in and to 'said letters is quite clearjo that Mr. Fisher, at the time he prescd1?ed thi,B form, was of the case where Ii patentee had of a portion of his interest in the letters patent,-as, for example, in such a case as this) where he had assigned the right in a particular terri-
FEDERAL REPORTER. '.' . ". '
tq.r.y, fesenring his right to other portions of the territory covered by therefore Icannot hold that the form prescribed by Mr: Fisher has the same efficacy as that prescribed by the statute itself. Where a man assigns all the right which was conveyed to him by letters patent, the meaning is that the assignment takes with it everything that the letters patent conveyed. It is certainly different from an aflsignment which declares merely that he assigns all the interest' which he, at the time he makes the assignment, has in tlie letters patent, provided, as case, he had previously assigned apart of the interest which he had to another person. So that, admitting that the question is oue of difficulty and doubt, I must still adhere to the view which I originally took of this case, and hold that it was not the intention of the assignment which was made to Weir, arid through which the claim, to convey to him the interest, which had been previously conveyed by the patentee, in the counties of Warren and Henderson, in this state. Another objection made to the right or the plaintiffs to recover is that the conveyance to them did; not include the right to use 8S well as .to make and sell the improvement patented within those counties. I think that the' assignment to make and sell includes necessarily the right to use the thing patented, because without the right to use, the right tomake:arid sell would be aharren right. It must be construed as having been the intention of the parties that the right to manufactiire and sell, included the right in .the vendee to use the thing sold. There is nothing in .the case to estop the plaintiffs from setting up a claim under this patent'in consequence of any supposed laches that they may have committed; and I think it must be considered that the defendants, under alltlie Circumstances in the case, have infringed of the plaintiffs.. I have not the models of the maupon chines here, without which' a statement of the' particular points constituting the claim of infringement by the defendants would be unintelligible. It is sufficient to say that I have heretofore fullyconsidered those questions, and have reconsidered them on the argument which been made, and have reached the conclusion which I then formed, although, perhaps, I did not particularly state it at the time. n may be said the is not oue of very great importance in some respectlil;that is, it includes only two counties in this state; but, as I have said, some of the questions involved are quite important, and particuladyas to theconstructioil, under the patent law, of the assignments iIi this case.