BURDELL V. DENIG.
'(Oircuit Court. 8. D. Ohio, W. D. March Ii. 1883.)
REPLICATION-NEW CAUSE 01' 4,OTloN
A replication cannot go behind the-case made by the declaration and add another and different cause of action.
2. PATENTS-AcTION POR DAMAGES FOR lNl'RlNGEMENT-lNSUFPlOIENT REPLIOATION TO PLEA 011' AN ACCORD AND SATISFA.CTION.
In an action for damages for infringement of a patent, plaintiffs averred the construction and nse by defendants of certain infringing machines from January 23, 1861, when plaintiffs acquired their joint title to the patent, until the commencement of the action, October 6, 1861. Defendants pleaded an accord and satisfaction with an authorized agent of plaintiffs, to which plaintiffs replied that on March 13, 1860, (nearly a year before plaintiffs acquired their joint title to the patent,) the defendants purchased the infringing machines from persons unknown to and. with wh9IDpiaintiffshad no connection, and that defell-dants thereafter used said machines as alleged in the declaration. On demurrer such rcplicatio'n held to be bad. " ·
lIoadZy, Johnson tJ Oolston and Pugh tJ Pugh, for complainants. 'Perry tJ Jenney, for defendants.
'BAXTER, J. This suit was commenced on the seventh of October, 1861. At a trial thereof had several years since, plaintiffs recovered It Judgment for $125. This judgment was teversed by tbe supreme court and the cause remanded! to this court for a retrial·. Upon its by return the parties began to plelJ.d de novo. "The case, as plaintiffs' amended declaration, is a claim for damages alleged to have been sustained by the plaintiffs by reason of an infringement of a patent, described in the pleadings, in consequence, as is averred, of the construction and use of seven sewing-nlachines, by defendants, from the twenty-third of Janultry, which the plaintiffs acquired their first title to the invention alleged to have been infringed,-untilthe commenCement of this suit in the following October;-a period,.bf 8 months ,and 14, days. If the plaintiffs recover . and obtain a fair assessment of damages; tliey not l'ecoverenough to;pay more than lOper c,ent. of their attorney's fees for services in the prosecntionOf the suit. Nevertheless., ·they are American citizens, ,a to, and, judging from the record, thQre;is no j.ust· groupd to dou bt their desire to be heard. declaration.asfiled January ,7,1881·. The defendants pleaded thereto two special in
;,\'Reporled by J. C. Harper, Esq., of the Cincinnati bat.
un accounting with an authorized agent of the plaintiff for the (lamages claimed in this3<ltion. To these, plaintiffs file eight replica1;ions. In two of them they set out and aver that on the thirteenth of March, 1860, nearly,a year befoie theyacqnired their,joint title to the invention alleged to have been invaded, the defendants purchased the seven .sewing-machines, detailed in tQ.cir declaration, from parties unknown to and with whom plaintiff had no. connection, and that they thereafter used them asset forth and alleged in their declaration. Pqssibly there may besoflle pertinency in these two replications; but if SO this court is unable to see it. No recovery can be had in this suit ror any infringement of the plaintiffs' patent before they ac_ quiredtheir title thereto. The defendants raise no question as to the :validity nor do they deny their title, or the al· leged 'use thereof. Their defense is that they have accorded with 'and paid, or secured to be paid to ltnauthorized agent, the damages claimed therein. This is the issue teudered by the defendants' special pleas. The replication is an effort to go behind the case made by the declaTatiou,and add another and differeutcause of action. 1'0 these replications defendauts cemur, and we think the demurrer is well taken. But the case will proceed to trial on the other issues made by the pleading. This court,however, thinks that uow, after the lapse of '2\1.yeal's,4 months, and 26 days since its iustitution, the case might be amicably adjusted, without offending the court or doing violence to the rights of the parties·
.POAGE V. McGOWA.N
;((Mcuie [JQurt, 8. D. OMQ,
1. INVALID BY INVA.LID ,j CONSTRUED.
and others.March li,J883.)
OF DElI'Jl:CTIVE AFFIDA. VIT-"!NOPERATIVE AND
W'herethe affldavit,.u.pon an application for the reissue of a patent, alleged that the patent songht to be reissued was not "fully valid and available," held, that that.language is not the equivalent of the statutory requirement that the original must be U inoperative or invalid by reason of a defect· .iva or insrimcient specification," a'ndthat a' reissue predicated on such al) affidavit is invalid. 2! ,Reissue No.. 5,544, for in .water tanka fQr raUways, Mltl mva,lid.
C.:lInrper, Esq:. of the diDCIDDnti bllr