the pecuniary circnmstances of his partner and himself were very good, but that in all that time they had no idea of getting a patent, and the subject was not even talked about. He further testifies that they discontinued the manufacture and sale of caps and jars in 1862, because the improvements that were introduced "shut off that line of business;" and "that the thing became so worthless to us that we never thought about it." On cross-examination, when asked what he meant by his testimony in his direct examination that he abandoned the invention, his answer was that he gave it up,-that they stopped making them. Finally, he says, that about three years before the date of his testimony his partner informed him that he had an offer of $100 for their claim to the invention. This offer was from some person who was "after the claim," but who he was the witness did not know. Both he and his partner were willing to accept the offer, and the sale was made. The witness received $50, and supposed that his partner received a like sum. The purchaser was Cozzens, who, on the same day, received the power of attorney hereinbefore referred to. To the respondent's contention that by this testimony an abandonment of the invention is established, complainant urges-First, that Hodgetts' testimony is not reliable because of his ignorance and forgetfulness; that he is confused about dates and details; that he testifies that he does not remember anything about the original application.for the patent; and that, taken altogether, his testimony is so vague and uncertain that it should be discarded. That is not my view. On the contrary, these very characteristics add strength to his testimony that they gave up the idea of pressing an application for a patent, and abandoned the invention as worthless. No man is likely to forget facts in which he has a constant and lively interest. Very few men remember, for any great length of time, facts to which they are indifferent; and Hodgetts' inability, after the lapse of nearly 15 years from the date of their last manufacture, and 20 years after the rejected application, to recall details or dates with accuracy is not at all surprising, if it be true, as he testifies, that he and his partner abandoned the invention, and threw it aside as worthless. No one can read Hodgetts' testimony without being impressed that it was honestly and truthfully given. He had no interest in the result of the litigation. He and his partner had sold whatever claim they had for a mere trifle, and that fact strongly re.enforces his testimony that they had abandoned the invention, as does the further fact that it does not clearly appear that after the rejection of their application they ever manufactured or sold a single cap such as that which they had sought to have patented. What more significant and conclusive proof of the truth of his testimony that the thing became so worthless to them that they never even thought of it? Next, it is inSIsted that even if it be true that they dismissed the idea of obtaining a patent, and, even for so long a period as 15 years, regarded as worthless what they described in their application, there
CONSOLIDATED FRUIT JAR CO.
BELl,AIRE STAllPING 00.
was no abandonment, for the reason that in the proper construction of the thirty-fifth section of the act of July 8, 1870, mere lapse of time is not sufficient to establish an abandonment. Grant it for the sake of the argument. The answer is, first, that lapse of time is nevertheless a fact which may give great point and force to testimony disclosing what was being done in the interval. Here were men largely £ingaged in manufacturing fruit cans and caps, a,nd it is incredible that they would, at such a time and under such circumstances, utterly neglect either to press for a patent or engage in the manufacture and sale of what they regarded an improvement over the other caps they were manufacturing and selling; and when they allowed 15 years to slip by, and did nothing, and then, cans having in the mean time been largely superseded by glass jars, and their style of ca p practically out of date, to such an extent that there is no evidence that a single cap made according to the Taylor & Hodgetts' claim has ever since been made and put upon the market, the lapse of time makes conclusive the fact of abandonment, not merely of the application, as was argued, but also of the invention. Again, it is said that abandonment is a renunciation of ownership, and that if thereupon the property pass into the possession of others, the ownership is gone forever; but that where the abandonment is to oblivion or neglect, the ownership may be reasserted after any lapse of time. 'l'he owner of property may abandon it on a desert, and, turning back, retake it into his possession, and it will be his again. Even in that case, it was not his after he threw it away until he retook it, and yet he could make it his by retaking it, and then his title was as good as ever. But we are not dealing with that kind of property. The patent laws protect the exclusive right of an inventor; but the great object of those laws is to benefit the public by stimulating invention, which it is the theory of the law can be best accomplished by securing to the inventor, for a limited time, under enacted conditions, an exclusive right to the manufacture, use, and sale of his invention, thereafter to be forever free to the public. Hence, in a case of abandonment Or reissue, the matter is not to be likened to rights to chattels personal, for in reference to patents there is always a public equity which must not be disregarded. But for this public equity, in a case of reissue broadening the claim within the limits of the invention, the rights of an intervenor, who had in the mean time appropriated what had been inadvertently or by mistake or accident omitted from the claim, might be saved by granting the reissue, subject to a license to the intervenor; but applying the public equity, the court must regard the intervenor as the representative of the public, and therefore whatever rights he gains the public gains. So in abandonment. If it appears that the inventor, after perfecting his invention and applying for a patent, and thereby irretrievably committing himself to the proposition that his invention is ripe for introduction to the public, ac-
cept the decision rejecting his application, and cast aside his inventiQn as of no longer any value to him, he thereby makes it forever public property, and it is not in his power to take it back and make it again his own. In Consolidated Fruit Jar Co. v. Wright, 94 U. S. 92, and in Planing-machine Co. v. Keith, 101 U. S. 47!l, there is abundant authority for holding that, upon the facts disclosed in this record, Taylor & Hodgetts abandoned their invention before the renewal of their application; and the holding of this court is that the patent issued to them is therefore invalid. I do not deem it necessary to refer particularly to the rulings made in the circuit court of New Jersey, and in the Western district of Pennsylvania, in the cases cited sustaining the Taylor & Hodgetts patent. Those rulings were on motions for preliminary injunctions, and the judges who pronounced them would have decided upon final hearing, as I do, entirely independently of them, for obvious reasons. There is another view to be taken. It is clear to my mind, from the testimony, that Cozzens, in presenting the renewed application for the Taylor & Hodgetts patent, on the very last day of the time limited by the act of July 8, 1870, acted without authority. The language of the power of attorney subsequently obtained by him strongly implies this, and all the circumstances confirm it. This sub. sequent ratification, of date six months after the limit of time within which the new application could, under the law, be made, did not, and could not, vested rights intermediately accrued. The rights of Boyd under his patent of March 30, 1869, and the rights of the public, had then accrued, and they were vested rights. In Mann v. Walters, 10 Barn. & C. 626, BAGLEY, LITTLEDALE, and PARKE held that where a notice to quit is given by an agent of a landlord, the agent ought to have authority to give it when it begins to operate, and that a subsequent recognition of the authority of the agent will not make the notice good. A similar ruling was made by Lord DENMAN in Eysster v. G:oldwin, 2 B. 143; and in Stoddard v. U. S., 4 Ct. C1. 511, it was held that ratification after capture, of purchases of cotton by an agent in an insurrectionary state, during the rebellion, comes too late, and that the law does not admit of a ratification which will defeat the intervening rights of third parties, and that it does not matter whether the third party is an individual, a corporation, or the government of the United States. In Wood v. McCain, 7 Ala. 800, COLLIER, C. J., states the rule as follows:
"Now, although the general rule of law is that the r'ttification relates back to the inception of the transflction, and has a complete retroactive efficacy, or, as the maxirp is, omnis ratihabitio 1'et1'o trahitur, yet this doctrine is not nniversallyapplicable. Thus, if third persons acquire rights after the act is done, and before it has received the sanction of the principal, the ratification cannot operate retrospectively so as to overreach and defeat those rights."
This rule was recognized in Cook v. Tullis, 18 Wall. 332, and it is directly applicable here.
It follows that the renewed application of Taylor & Hodgetts was not made in time, and that their subsequent ratification of Cozzens' unauthorized appearance did not relate back to the date of that appearance. This disposes of the Taylor & Hodgetts patent. The Boyd patent, reissued to the complainauts, dates from March 30, 1869. In the pressure of other business since the close of the argument in this cause, a week ago, I have not been able to examine fully the questions necessary to a decision. I shall therefore postpone my decision as to that patent until the opening of the June term of the Eastern division, at Columbus, where this cause is pending, and where the final decree will be entered. But that patent expired at the close of the twenty-ninth of March, 1886, and is no longer in force. The restraining order hereinbefore granted is removed, and no further order will now be made.
YOUNG and others v. LEHMANN and others.
(District Oourt, S. D. New York.
April 30, 1886.)
OARRmR OF GOODS BY SHIP-DELIVERY OF IRON CARGO-WHARF BREAKING DOWN-WEIGHING-CHARTER-PAR,£Y.
Though a ship as a common carrier where she selects her own wharf is answerable for its sufficiency until the lapse of a reasonable time for removal of the goods by the consignee, including the necessary custom-house weighing and gauging, the ship is not responsible for the breaking down of a wharf apparently sound and in good condition, selected by the consignee in accordance with the provisions of the charter, when the breaking down occurs through secret defects, of which the ship has no notice, and the evidence does not establish any unusual or excessive deposit of cargo for a sound Wharf.
SAME-CASE STATED-SHIP'S AGENTS, WHEN AGENTS OF
The ship S., under a charter to the respondents, was loaded with spiegel iron "to be delivered at New York, at such wharf or place as may be ordered by the consignee on arrival. .. The consignees finding it difficult to obtain a wharf for spiegel iron, requested the local ships' agents to find a wharf, which they did, The ship began to discharge there, dumping the iron in a pile, from which it was distributed as fast as it could be weighed, A part of the Wharf, 30 feet by 20, where the pile was, gave way, and a portion of the iron not distributed slid into the river, The timbers and supports of the Wharf proved to be decayed and rotten. Held, that the charter imposed upon the consignee the duty of finding a suitable wharf for the discharge, that the ship's agents in selecting the wharf in question upon the consignee's request acted as the agents of the respondents, and that the selection made was legally the charterers' selection, and not the ship's; and the evidence not showing either notice of unsoundness to the ship or an excessive or unusual accumulation of iron, lIeld, that the ship was not answerable for the loss.
In Admiralty. E. B. Convers, for libelants. Jas. K. Hill, Wing d; Shondy, and H. Putnam, for respondents. BROWN, J. On the fourth of June, 1880, about 1 :30 P.,?I., while the libelants' ship Stranton was discharging a cargo of spiegel iron