was. made is void, for the reason that it does not show on its face that the oommissioner is an officer authorized to act under the law of congress of August 12, 1848. This law is entitled" An act for giving effect to certain treaty stipulations between this and foreign governments for the apprehension and delivery up of certain criminals," and by its terms the commissioner must be authorized to act as a magistrate in extradition cases. I agree with Judge BLA.TCHFORD (In re Ferez, 7 BIatchf. 34) that the proceeding is special, instituted under the treaty and the act of congress of 1848, and the fact that the commissioner who issued the Wlnrant is authorized so to do is jurisdictional, and must appear upon t.he face of the warrant. It does not so appear in this warrant, and in my judgment the prisoner cannot be legally held under it. He is therefore discharged.
ADAMS V. BELLAIRE STAMPING SAME
(Oircuit Oourt, 8. D. Ohio, E. D.
J?ATENT LAW-RIGHT OF ASSrGNEE OF CHOSES IN ACTION 'fO SUE AT LAW THEREFOR IN HIS OWN ,NAME-APPLICATION OF STA'fE STATUTES OF LIMITATIONS To AC'fJONS FOR THE INFRlNGI!:MENT OF PATENTS.
Plaintiff, Adams, became the assignee of the entire interest in and to the patent a year and more before its expiration, tak-ing with an assignment of the legal title the right to recover all past. damages. Bis title was made up of three chains of title, involving a number of individual interests. The patent having expired, suit was commenced at law, and a general and four special demurrers filed. Query. In sllch a case, can the plaintiff sue in his own name for infringements occurring during the period When his assignors held the legal title, or must his assignors be joined in separate Ruits according as priority between them shall appear Y And, quer.1/, do the state stat. utes of limitations apply to such acth,ns Y Held: F,rst. 'fhat under 4919, Rev. St., plaintiff, by virtue of his title us assignee, has the right to sue in his own name for all infringements, including those of dat.e prior to the assign. ments under which he claims. Moore v. Marsh, 7 Wall 516, distinguished. Second. As to the application of the. state statutes of limitations the authorities are in conflict, and the jury will be instructed, if they flnd for the plaintiff, to find separately, by special verdict, the damages prior and those subsequent tl> the limitation claimed.
On Defendants' Demurrer to Declaration. James H. Raymond, for plaintiff. George W. Dyer, (with whom is Charles H. Grosvenor,) for defendants. SAGE, J. 1. It is my opinion that the plaintiff in these actions, .by virtue of his title as assignee, has the nght to sue in his own name for all infringements, including those of date prior to the assignments under which he claims. This opinion is based upon the provisions of section 4919, Rev. St., that damages for infringement may be re··
HOE V. KAHLER.
covered in the name of the party interested. In cases where the assignment does not include prior claims for infringement the holder of the patent at the time of the prior infringement should be joined as a plaintiff, but only for the reason that the assignment of a patent does not carry with it claims for prior infringements. That was the point decided in Moore v. Marsh, 7 Wall. 515. But in the case at bar the assignments include, in terms, all claim for prior infringements. The plaintiff is therefore the only party interested, and the actions are rightly brought in his name. 2. The state statute of limitation's does not apply. The authorities are in conflict, and the question is one of great difficulty. Without entering upon discussion I have concluded, while deciding this point against the defenda.nts, that the cases in their further progress should be so shaped as, in the event of verdict for the plaintiff, to save the question for decision by the appellate court without putting the parties, whatever that decision may be, to the expense or delay of a new trial. The demurrers will be overruled, with leave to defendants to plead within 30 days. If they plead the statute of limitations, the plea will be overruled on demurrer; but on the trial the jury will be ipstructed, if they find for the plaintiff, to find separately, by special verdict, the damages prior and those subsequent to the limitation claimed.
and another v.
(Circuit Court, S. D. New York.
October 23, 1885.)
PATENTS FOR INVENTIONS-HOE PRINTING-PRESS-CONSTRUCTION OF PATENT 131,217-RKGULARl'ry OF ISSUE OF PATENT.
Former decision in 20 Blatehf.430, and 12 Fed. Rep. HI, examined, anuopinion therein expressed 'ldhered to.
In Equity. B. F. Thurston and M. B. Philipp, for plaintiffs. B. F. Lee and JK. H. L. Lee, for defendant. BLATCHFORD, Justice. The bill in this case was filed April 21, 187U, the answer on August 9, 1879, and an amended answer on October 7, 1879. The proofs were taken between February 16, 1880, and July 7, 1881. The case was heard on December 6, 1881, and decided on March 27, 1882, in an opinion reportecl in 20 Blatchf. 430, and 12 Fed. Rep. 111. A decree was ordered in favor of the plaintiffs on claims 3 and 4: of the patent sued 0'1, and was entered May 5, 1883. It declared the validity of the patant and the infringement of claims 3 and 4, and ordered an account of profits and damages before a master, and a perpetual injunction as to claims 3 and