FOGG :V·. PISE.
them. This is all that the orators claim; but they insist that these contracts should be so interpreted as to require performance by the defendant, if he is to enjoy the license. If the royalties were to be paid for the privileges of the license, so that one was the exact consideration for the other, there might be reason founded in some authorities for the orators' view. Withers v. Reynolds, 2 Barn. & Ado!. 882; Chanter v. Leese, 5 Mees. & W. 698; B?'ooks'v. Stolley, 3 McLean, 523. These royalties were stipulated for in the thst contract before the subject of the license under consideration was in existence far enough to be mentioned or alluded to in it. The agreement to pay them was the consideration for the grant of the license under the patents which the orators then owned. The agreement to assign the patent for $300 appears to have been the substantial consideration for the license under that patent. The term of the license is the term of the patent. The right to the royalties expires with the term of the former patents. The defendant assigned his patent to the orators with the agreement that they should grant him back this license. In effect it was the same as if he had assigned all the rights , secured by his patent, except those secured by the grant of the license, or had assigned the patent reserving those,rights. ' Had the conveyance taken this form there would have been no grant of a license whatever which could have formed the consideration for the royalties, and no ground to claim that the machine of defendant should not be used unless the royalties should be paid. This is the substance of the arrangements made. The defendant never parted with the right to use his machine. By the instrument by which it was provided that he should assign his patented invention, it was provided that this right should be reassigned. He assigned the invention, and the right was reassigned. 80 this right was always his; he did not buy it, nor hire it, but created it under the law"and never agreed to pay anything for it, and cannot legally be compelled to pay anything as a condition for enjoying it. Let there be a. decree dismissing the bill, with costs.
(Ch'reui' (Jourt,8. D. Nt1D York.
January 25, 1884.)
PRELnDNART ExAMINATIONS-PRACTIcE IN STATE AND FEDERAL COURTS,
The examination of a party to a suit as a witness for the adverse party, pend. ing in a state court under a provision of the Code of Procedure for that state, may he continued. after the removal of such suit to the federal court, though such an examination would not be allowed under the practice of the fedel'a) court, had the action been origina,lly brought there;
2. Bum- SURVIVAL
OF PROCEEDINGS TAKEN IN STATE COURTS AFTER
The removal act of 1875 carefully saves to both parties the benefit of all proceedings taken in the action prior to its removal from the state court, and by section 4 of said act, it is provided that when any suit is removed from a s' ate court to a circuit court of the United States, all injunction orders and other proceedings had in such suit prior to its removal shall remain in fu.ll force aud effect until dissolved or modified by the court to which such suit has been removed.
At Law. John R. Dos Passos, for plaintiff. Miller, Peckham <t Dixon, for defendant. WALLACE, J. At the time this suit was removed from the state court by the defendant his examination as a witness was pending under an order of that court, directing him to appear and be examined before the trial as a witness at the instance of the plaintiff. By the Code of Civil Procedure of this state a deposition thus taken may be I'ead in evidence by either party at the trial of the action, and also in any other action brought between the same parties, or between parties claiming under them, or either of them, and has the same effect as though the party were orally examined as a witness upon the trial. Section 888. The plaintiff now moves for leave to proceed with the examination of the defendant pursuant to that order, and the defendant resists the application upon the ground that the examination of a party before the trial as a witness for the adverse party is not permitted by the practice of this court. It is well settled in this circuit that section 914, Rev. St., for conforming the practice of the federal courts in suits at common law as near as may be to that of the state courts, does not apply to the taking of testimony, because the statutes of congress cover the whole subject; and these statutes not only do not provide for the examination of a party as a witness for the adverse party before the trial in actions at law, but do not permit evidence thus obtained to be used upon the trial as a substitute for the oral examination of the witness. Rev. St. § 861; Beardsley v. Littell, 14 Blatchf. 102 j U. S. v, Pings, 4 FED. REP. 714. If, therefore, this were an action originally brought in this court, the plaintiff s-hould not be permitted to proceed with the exa.mination of the defendant. But the removal act of 1875 carefully saves to both parties the benefit of all proceedings taken in the action prior to its removal .from the state court. Section 4 declares that when any suit is removed from a state court to a circuit court of the United States, all injunction orders. and. other proceedings had in such suit prior to its removal shall remain in full force and effeet until dissolved or modified by the court to which such suit shall be rep:lOyed. By of this provision the plaintiff is entitled to proceed with the defendant's examination,unlessfor some substantia.r t;e!tsonthe revisory.poweJ," of this court sh()uld bE;! exercised to de'prive hlin'ejfthe benefit of the order bas obtained and the proceed-
ASHUELOT SAVINGS BA.NK V. FROST.
ing he has instituted. It lies with the defendant, therefore, to present some 90ntroling reason to the judicial discretion for denying to the plaintiff the right which he had secured, and of which he could not be deprived except by a removal of the suit. That both parties have deemed this proceeding an important one is obvious from the tenacity with which the right to pursue it has been contested. It appears by the record and moving papers that the defendant has been defeated in efforts to vacate the order for his examination by the supreme court a.t special term and at general term, and by the court of appeals; and that, although for a period of 18 months he was willing to submit his rights to the state courts, he invoked the jurisdiction of this court when there was no other resource left by which he could escape an examination. Certainly, there are no equities which should induce this court to deprive the plaintiff of the fruits of his long struggle. If the examination of the defendant could subserve no useful purpose to the plaintiff, undoubtedly the defend. ant should not be subjected to it, or be put to the annoyance or in. convenience which it might entail upon him. But althongh the de· fendant's testimony, when obtained, may not be of service to the plaintiff to the full extent it would be in the state courts, it may, nevertheless, be of some value. If it cannot be used on the trial of this action as a substitute for the oral examination of the defendant, it can be as the declarations of a party; and it can also be used in other suits in the courts of this state between the same parties, or their privies, pursuant to section 881 of the Code. There seems to be no reason, therefore, for dissolving or modifying the order of the state court, or for denying to the plaintiff the benefit of the proceed. ing which was pending when the defendant removed the suit. The motion is granted.
ASHUELOT SAVINGS BANK.". FROST.
(Cirouit Court, D, NeJI.(J Hampsht"r80 1884.)
. Co:NVEYANOE IN LIEU 011' ATTAdRMENT HELD NOT IN
Where a bank levied an attachtnent upon landsowned"by its treasurer who was under liabilities to it far exceeding in amount ofthI}Jlanq., a,d in to.8&v:e the trouble of legal proceedings a oftlielaqd to the, bank 1U heu of the attaChment, held, that creditors .ot his·who afterwards attached the land could not avoid the conveyanceto the banIL>' ',. : "' .. :.,;
At Law. Batchelder fl Faulkner, for plaintiff. A. S. Waite, for defendant. LOWELL, J. In this writ of entry the plaintiff corporation demands several parcels of land in the county of Cheshire and state of New
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