PERKINS v. NASHUA OARD & GLAZED PAPER 00.
for two reasons, especially, without referring to any otherFirst, the evidence shows that at the time Willis Wilder gave this note to Richard H. he held notes against Richard, which he had a right to have set off against this note, so long as this note should remain in the hands of Richard, and which were so set off and adjusted by the parties; second, because Richard is now dead, and no decree can be made against him, and no executor or administrator of his has come in and been made a party to this proceeding. The bill is dismissed with costs-one bill to the Wilders, and another and distinct bill to Allen, because it is difficult to see why he was made a party to this proceeding. The assignee has all his property rights and credits, and a right to recover all property conveyed by him in fraud of his creditors. He might have been used as witness without making him a party. A decree of nullity against the two Wilders would, by operation of law, vest the estate in these lands in the assignee without any decree of nullity of the deed as against the bankrupt. He should not be brought into court without reason, and dismissed without pay.
PERKINS 'fl. NASHUA CARD
GLAZED PAPER Co.
(Oircuit Oourt, D. New Hamp81l,f,re. May 15, lSSO.)
PATENT--Two YEABB' PUBLIC UBE.-Use of machine by a patentee in his business for more than two years before applying for a patent, and by workmen unoor no pledge of secrecy, though the general public were not permitted to visit the shop where it was being used, Is such public use as will vitiate the patent therefor. SAME-SAME.-To constitute public use actual knowledge of an invention need not have been deriVed by anyone interested to practice it. It is sufficient if one or more persons, not under a pledge of secrecy, saw the invention practiced, or even might have seen it had they used their opportunities, provided it was, in fact, practiced in the ordinary way after being completed.
Oeo. D. Noyes, for complainant. Wadleigh d: Fish and H. S. Clark, for defendant. LOWELL, C. J. There is very little conflict of evidence in this case. The patentee made a machine containing his invention in the year 1857, and in 1863 he substituted for it another varying in form and proportions, but not in principle. These machines he used successively in the ordinary way of his business, as a maker of card and pasteboard, until he applied for his patent, in 1876. The specification and model represent precisely the machine of 1863. During the time that the machines were used they stood in the room with several other machines necessary for the other processes of making, drying and coloring pasteboard, and were operated chiefly by one man, Moulton, who was sometimes assisted by one other. About 23 workmen were emploJed upon the factory other parts of the manufacture. The doors of were usuallJ kept locked, and each of the 25 workmen had a key. How many visitors came to the factory is one of the disputed points. There were occasional visitors, but not many persons came to the factoq from mere curiosity. During some months Mr. Denison, a friend of the patentee, was given the use of an upper room for making tags, and his workmen passed in sight of the pasting machine. It is not proved that anJ workmen, visitors, or other persons acquired or divulged a knowledge of the mode of operation of the machine, until the workman Moulton gave that information to the defendants, in 1876. Was the invention in public use for more than two years before Perkins applied for his patent? The time was enough. Was the use a public use? The law 'del:lires to encourage inventors to make their discoveries known for the improve. ment of the art, and to discourage an extension of the monopoly beyond the statutory period. For these reasons, and because of the difficulty of ascertaining the amount of knowledge which may have been derived from the exhibition, publication or use of the invention, it has always been held that when the public have had means of knowledge they have had knowledge of the invention. Thus, if a book has been pub-
NASHUA CARD & GLAZED PAPER
lished describing the invention, it is not important that no one has read it. Stead v. Williams, 7 M. & G. 818. If a pier has been placed in the bed of a river, or a pipe under ground, it is conclusively presumed to be known to all men. It has been intimated that a use in a workshop, where the workmen are pledged to secrecy, may not be a public use. Kendall v. Winsor, 21 How. 322; Charge of Curtis, J., - ; Bevin v. Easthampton Bell Co. 9 Blatch. 50; Heath v. Smith, 3 Ellis & B. 255. In the last of these cases it is held that if the invention has been worked in the ordinary way, without an injunction of secrecy, the use is public. In McClurg v. Kingsland, 1 How. 202, it is said by Mr. Justice Baldwin, obiter, that use in a factory is a public uSe. A use very trifling in amount, or a publication purely tech. nical, or a single sale, have often been held to deprive 'an inventor of his patent, without evidence that anyone inter· ested to acquire knowledge of tbe invention had acquired it. Henry v. Provo Tool Co. 14 Off. Gaz. !:!55; Egbert V. Lippman, Id. 822; McMillan V. Barclay, 5 Fish. 189; Be Adamson'. Patent, 6 D. G. M. & G. 420; Patterson v. Gas-Light Co. 3 App. Cas. 239; Lange v. Gisborne, 31 Beav. 133. The difference between this case and Manning V. Cape Ann Isinglass Co. is that in that case the inventor, after dissolving his partnership, permitted his partner to continue to use the invention. Neither of the partners used the invention except in their respective factories. The circumstance makes that case a little stronger, but my opinion was that the use by the firm before they dissolved their partnership was a public use. Taking these decisions together, I understand the law to be that actual knowledge of the invention need not have been derived by.any one interested to practice it; it is enough that anyone or more persons, not under a pledge of secrecy, saw the invention practiced, or even might have seen it if they had used their opportunities, provided it was in fact practiced in the ordinary way after being completed. And it must be held either that the workmen and visitors wele a part of the public, or that they were persons from whom the public might have acquired the art without a breach of trust.
There was no pledge of secrecy proved here, and there was Bome evidence that none was exacted from anybody. There was no evidence of concealment except that the factory was not open to chance visitors. It was understood, I suppose, as most factories are conducted with no intention of divulging any secrets, and none to have curious and prying persons admitted; but without any special precautions beyond what prudent men, who do not care to be interrupted in their business, would usually adopt. For my own part I should have some doubt whether a pledge of secrecy, exacted of a number of workmen who had nothing to do with the machine in question, and had opportunity to examine it if they chose, would make the use a secret one. There is some intended to prove that the use was experimental; but, upon the whole record, it is clear that the machines were used for about 20 years in the ordinary business of the patentee, and worked so well that when Moulton first expressed an intention of leaving the factory and building a machine for the defendants the plaintiff raised his wages one-third. He did not say it would involve a breach of trust. A short time before the patent was applied for some experiments were made, which resulted in nothing of importance, and, I fear, were intended to benefit the patent rather than the machine. An improvement has now been made, but it is not described in the specification or shown in the model. At all events, a. machine which, whether entirely satisfactory or not, has been run in the ordinary course of business for 20 or for 30 years, and which is patented precisely as it was used, cannot be properly called an experimental machine. The decree must therefore be: Bill dismissed, with costs.
rUTTOCKS ". BAKEB.
Assignee, etc., v.
(Di8trict Court, D. Maine. February, 1880.)
BANKRUPTCY - ASSIGNEE - RIGHTS ACQUIRED.-An assignee In banltruptcy, except as to property attached within the prescribed time before the commencement of bankruptcy proceedings, and that trans, ferred by conveyances fraudulent and void, takes the property of the estate subject to all equities, liens and encumbrances existing against it in the hands of the bankrupt, and takes no greater interest than the bankrupt himself had. JURISDICTION-AsSIGNMENT OF lJLAnf TO CONll'ER-FRAOD-VALIDITY OF JUDGMENT.-The formal assignment of a cause of action to another person, citizen of another state, for the purpose of bringing suit in his name and thereby conferring jurisdiction upon the circuit court that it would not otherwise possess, is a fraud upon the court; but if the defendant in such action, knowing the fact, fails to raise the objection, Rnd the court assumes jurisdiction in the premises, the judgment rendered·therein will be valid. BAME-SAME-AsSIGNEE IN BANKRUPTCY.-Where, in such case, the defendant is subsequently declared a bankrupt, the fraud in obtaining the judgment is not one that the assignee or creditors can complain of. ASSIGNEE-FRAUD OF BANKRUPT.-An assignee in bankruptcy is not estopped by the fraud of the bankrupt, but the fraud that he can act upon must be one detrimental to the rights of creditors.
In Equity. Charles P. "'fattocks, for complainant. Sewall C. Strout, for respondent. Fox, D. J. The established rule is that except in cases of attachment against the property of the bankrupt, within a prescribed time, preceding the commencement of proceedings in bankruptcy, and except in cases where the disposition of property by the bankrupt is declared by law to be fraudulent and void, the assignee takes the title subject to all equities, liens or encumbrances, whether created by operation of law, or by act of the bankrupt, which existed against the property in the hands of the bankrupt. 95 U. S. S. C. R. 766; Yeatman v. Savings Institution, 93 Otto, 634. If there be no such liens, and the property has not been conveyed in fraud of creditors, the assignee has no greater interest in or better title to it than the bankrupt. Kenny v. Ingalls, 126 Mass. 488. It is alleged in the bill that the notes which were the