(Circuit Court, 8. D. New York. May 8, 1880.)
PATENT-IMPROVEMENT m SKIRT PROTECTORS-MOTION TO OPEN OASB TO ADMIT OTHER DEFENCES-INSUFFICIENT AFFIDAVIT.
In Equity. Miles B. Andrus and Edward N. Dickerson, for complainant. M. P. Stajford, for defendant. WHEELER, D. J. This cause is substantially like that of Day v. Combination Rubber Co., heard at the same term, except that it is founded upon letters patent No. 161,012, dated March 23, 1875, and issued to the plaintiff, assignee of Theodore D. Day, for an improvement in skirt protectors by placing a moulding of India rubber, having two ribs, upon the lower edge of skirt protectors, made of plain material, and stitching it there through the web between the ribs, in addition to the De Forest patent, and the defendants have moved to have the case opened to admit other defences. The affidavit in support of the motion sets forth no particular facts constituting defences desired to be brought forward, and no reason why they have not been brought forward in the usual manner, if they exist, except that the case was not attended to either by the defendants or their solicitor. Such an affidavit is wholly insufficient for the purpose. There is nothing in the case to show that the patent is not valid for that addition to skirt protectors. The evidence shows that the defendants have sold, for use, skirt protectors of that particula'r form, as well as those having the band of the De Forest patent. Therefore, upon the case as made up and presented, there must be a decree that both patents are valid, that the defendants have infringed them, and for an injunction and an account accordingly. Let a decree be entered for the plaintiff accordingly, with costs.
MERCHANTS NAT. BANK, LITTLE ROOIr, V. PULASKI CO.
NATIONAL BANK OF LITTLE ROOK V. OF PULASKI.
(Circuit Court, E. D. Arkansas.
(JOUNTY- BONDS-NEW BONDS IN LIEU OF OLD-FAILURE OF COUNTY TO CARRY OUll' AGREEMENT-PROPER REMEDY.-Bonds were issued by a county, under an act of the legislature, making it obligatory on the county to levy an annual tax sufficient to pay the interest on the bonds as it accrued, and the principal at maturity. Afterwards, the county proposed to the holders of such bonds that if they would scale them 2& per cenL, and take new bonds for the reduced sum, the county would annually levy and collect a sufficient tax to pay the interest on the new 'bonds as it accrued, and the principal at maturity, and that if it failed to do so the holders of the new bonds should be restored to all their rigbts under the old bonds. New bonds were issued under this agreement, but the county failed to pay the interest thereon, and by reason of the terms of the act under which they were issued could not levy a tax for that, purpose. Qeld, an action at law could be niaintained on the original bonds, !lnd that a bill in equity, not seeking for IIny discovery, would not lie. SURRENDER OF VALID EVIDENCE OF INDEBTEDNESS FOR ONE THAT IS IN· VALID-EFFECT.-Where II valid evidence of indebtedness issued by a county is surrendered by the holder to the county, and II new evidence of debt issued therefor, which is invalid, the legal rights of the creditor are not aiIected thereby.
Demurrer to Bill. Prior to the twenty-ninth of May, 1878, the complainant was the holder and owner of divers bonds of the defendant cor· poration, amounting in the aggregate, including interest, to the Bum of about $43,000. These bonds were of two classes: First, bonds issued in pursuance of the provisions of the act of the general assembly of the state entitled "An act to authorize certain counties to fund their outstanding indebt. edness," approved April 29, 1873; second, bonds issued under the provisions of an act of the general assembly of this state entitled "An act to authorize the several counties in the state to fund their outstanding indebtedness," approved March 6, 1875, and an act supplementary thereto. By an act of the general assembly of Arkansas, approved March 6, 1877, (Acts 1877, p. 21,) the several counties of v.2,no.6-35