were watching; they should be'inteirei.-ed with for9ix m6nths, or nine months', or S0me other tithe afterwards. It is a case where, to Use a common phrase, a lllan' buys into alawsuit, and must take his chances of the result; for here the defendants knew all about the litigation, and what the consequence of Ii decision by the supreme court must be, and based their expectations on the belief that the litigation would terminate adversely to Mr. Bell. But it has ended in his favor. This case is of much importance, and I have heard several days' atgtiment on the' motion, and given it all the consideration possible dUring the week. It is evident from what has been said that the complainants are entitled to the preliminitry injunction asked for, and it is granted·
BELL TEL. Co. et cd. ". SOUTliERN TEL. Co. et al.
(Circuit Oourt, E. IJ. Arkan'a8. April 17,1888.)
PATENTS FOR INVENTIONS-AcTION FOR INFRiNGEMENT-PLEADING.
The averment, in a biil for injunction against infringem.ent of a patent, that complainant's patent has been adjudicated by another circuit court, and held valid, being in accorqance with the rule that a party seeking relief by injunction must first establish his title at law, is proper. The allegation that complainant has a patent, describing it in a general way. coupled with profert of the patent, is sufficient. The profert is equivalellt to an avcrm!lnt that he has title to all the rights specifically described in such patent.
In a bill for injunction against infringement of a patent, the simple averment that the defendant has infringed, without specifying in what particulars, is sufficient. .
In Equity. Bill for injunction against infringement of patent. On exceptions and special demurrer to bill. James J. Storrow, John McClure, and Eben W. KimbaU, .for complainants. U. M. RoBe, Casey Young, and Jefferson Ohandler, for defendants. BREWER, J. In reference to the matters that were argued yesterday, I have but these few words to say: One of those matters is the exceptions to bill, for impertinence. The defendants say that the matters contained in said bill, beginning with the words, "The most important in said suits," in section 7, and ending 'with the words, "are owned by the said respective defendants," at the close of section 24 in said bill, are irrelevant a.nd impertinent. Their challenge is to the substance of those statements, rather than the manner in which they are made. .They are averments of the fact of prior adjudications on the validity of the patents. This is a bill for injunction; and the old equity rule-a rule which is not enforced, perhaps, with the same strictness, or in as many cases now, as formerly-is that a party must establish his title at law
before he comes into equity for injunotive relief; and it is in carrying out that idea that these averments are introduced, and commonly introduced, into bills for injnnction, because the oomplainant's title of course is his patent. When he has an adjudication elsewhere that it is Yalid, while it may not be concluaive,-of course is not conclusive,-and may not be any evidence as to whether the defendant has infringed, yet it is an adjudication in favor of and sustaining his title. He has a judgment or decree, and, as the patent is a grant frqm the federal government of certain riKhts,-a grant which depends not at all upon any local statute or state law for validity or extent,-whenever anywhere in the United \ SQites, by any circuit court, there is an adjudication that the patent is valid, it is an adjudication which, though not conclusive upon any other circuit court, is certainly very persuasive upon all; and this, because there should be a uniformity of ruling as to the validity and extent of a title given by a patent granted by the government. When a party comes in applying for injunctive relief in a patent case, it is the commonest thing in the world for him to a.ver that his patent has been adjudicated els&where by some circuit court, as showing that there has been such an adjlldication npon the validity of his title as may justify a court in granting a preliminary injuuction. It is only in carrying out that idea that those averments. are introduced; and it seems to me, both upon reason and upon the general practice in patent cases, that it must be held that such averments are proper, and the exceptions to them should be overruled. Parker v. Brant, 1 Fish. Pat. Cas. 58; Manufacturing Co. v. Rubber Co., 3 Sawy. 542; Tilghman v. Proctor, 102U. S. 707. i So far as respects theother matter,-t!?-e specialderourrer to the bill l the bill alleges that the complainant has a patent, giving number and date, and, in a general way, that it is one fot: the process of telephonic !transmission of words, and makes profert of the patent. The weight ofauthurity is that the profert of any recorded instrument is equivalent to annexing a copy, (Bogart v. Hinds, 25 Fed. Rep. 484, and caE:ies cited; Post v.' Hardware 00., 26 Fed. Rep; 618i) and if a party aversthat he holds title to anything by a certain instrUIllent, which he annexes, and that instrument both grants the title and describes the full extent ofthe rights conferred,:-;,-and the patent does that; it is a grant from the governml'lnt, and it describes exactly and specifically what is granted,-it is equivalent to an averment that; he has title to all the rights specifically described in such instrument. It would not be assisted or strengthened by erate averments that he held a right to this claim and that claim, ating them specifically He avers th;lt he has title to all when he says that he has a patent which contains all. ,I should think, therefore, both upon principle as well as upon authority, that that objection ought to be overruled. On authority, the other objection ,must also he overruled; that is, the objection that there is eimply a general averment that the defelldapt infringes. It is .not so easY to. sustain that upon principle, as was well stated by co.unsel exactness and certainty of. equity pleadings would seem very properly to require that, instea.dof,a simple avermep.t that the defendant has infringed, particu-
larly in a case where a patent covers many claims,-in this case also covering both a process and an apparatus,-it would narrow the inquiry if the averments were made specific that the infringement was in reference to one claim, and not in reference to the rest. Still, whatever might be the decision if the matter was open to question, the practice is very general in bills in patent cases to simply aver that the defendant has infringed. Practically, 80 far as the present application is concerned, the certainty which is desired will be made patent by the facts that are presented in the moving papers; and practically, too, in all litigation before the question comes up for final hearing, the exact point of the infringement is so developed, by the testimony or otherwise, that the parties are not misled. So, while as a matter of principle it may not be so easy to sustain this practice, yet, in view of the great weight of authority as to the form of pleadings that are sufficient in patent cases, this objection must also be held not well taken, and the special demurrer will be overruled. Pitts v. Whit'l1Utn, 2 Story, 609; TurreU v. Oammerre:r,3 Fish. Pat. Cas. 462; Haven v. Brown, 6 Fish. Pat. Cas. 413; McMillan v. Transportation 00., 18 Fed. Rep. 260; McCoy v. Nel8cm, 121 U. S. 484,7 Sup. Ct. Rep. 1000.
(District Oourt, E. D. New York. April 19, 1888.),
BHIPPING-LmERTYTO CALL AT 'ANY PORT-QUARANTINED PORT-DETENTION -DAMAGE TO FRUIT CARGO-BILL OF LADING-EvIDENCE. ,:
The shipper of a cargo of fruit took from the ship a bill of lading cont,ain· ing permission to the vessel to call at any port or ports. One port. at which the ship was accustomed to call, was known to all parties to be quarantined. Evidence was given to show that the agent of the ship gave the shipper to understand that the vessel would not call at the quarantined port. Nevertheless the shipper thereafter accepted the bill of lading containing the permission, without objection. Thereafter the ship did so call.. and was detained inquarantine, and by snch delay the shipper's fruit was damaged. Held, that ,bill of lading governed, and that he could not recover in an action brought upon it.
Ulw, Ruebsamen « Hubbe, for libelant. Wing, Slwudy « Putnam, (a. a. Burlingham,) for claimant.
BENEDICT, J., This is an action to recover damages for a breach of a contract of affreightment. The libel sets forth II bill of lading, issued for the transportation in the steam-ship Sidoniau of 1,500 boxes of lemons from the port of Genoa to the port of New York. It also avers a payment of the freight, and a failure to cleli \'Cl' the 1l3lfions in like good order and condition as they were shipped. The libel further avers that the
lReI"orted by Edward G. Renedict, Esq., 01 the New York bu.r.