vance upon everything which preceded it. Why, then, should the faculty of invention be denied to him? The decisions of the su·> preme court in Loom Co.. v. Higgins,' 105 U. S. 580, 591; Magowan v. Packing Co., 141 U.S. 332, 12 Sup. Ct. 71; The Barbed-Wire Patent, 143 U. S. 275, 12 Sup. Ct.443, 450; and Krementz v. S. Cottle Co., 148 U. S. 556, 13 Sup. Ct. 719,-furnish the amplest warrant for upholding the patent in suit. Let a decree be drawn in favor of the plaintiffs.
JAROS HYGIENIC UNDERWEAR CO. v. FLEECE HYGIENIC UNDERWEAR CO. (Circuit Court, E.D. Pennsylvania. Janu8.l'Y 30, 1894.)
PATENTS FOR lNVENTIONS-INFRINGEMENT-BILL-MuLTIFARIOUS.
A blll which alleges, and seeks to restrain, the infringement of trademark rights' and of certain rights secured by letters patent, is not multifarious, Where both allegations relate to the same subject-matter. A blll to restrain the infringement of certain letters patent for an imin the method of making seams alleged that the sald patent, "so far as the same relates to, and is based up()n, underwear and similar articles, was, by mesne assignments In writing, duly assigned" to c()m· plainant. 'Held, that this was not such an allegation of exclusive ownership as would entitle the assignee to maintain the bUl; and It Is not aided by an allegation that, "by rell-son of the premises, complainant Is the role owner" of the SlUd patent right.
SAME-AIDER-STATEMENTS OF BRIEF.
A statement in the brIef of complaInant's c()unsel that "the papers of tItle, when produced, wUl show that the patentee parted absolutely and unconditionally with the entire title to the patent, without any reservation Whatever," cannot be considered in aId of such allegations of the
In Equity. Bill by the Jaros Hygienic Underwear Company against the Fleece Hygienic Underwear Company for the infringe· ment of a patent. On demurrer. W. P. Preble, Jr., for complainant. Joseph C. Fraley, for defendant. DALLAS, Circuit Judge. The demurrer to this bill could not be sustained upon the ground first assigned for its support. The fact that the bill alleged infringement of trade-mark rights, and also of certain rights secured by letters patent, does not render it multifarious. Courts of equity are averse to the multiplication of suits; and no definite rule, of general applicability, has been, or .can be, laid down as a test of multifariousness. Th question, in each instance where it is presented, is largely addressed to the regulated discretion of the judge, and is to be determined with 'reference to the peculiarities of the particular case, upon considera· tions which are practical,rather than theoretical, in their nature. In the present suit, both the allegations, the union of which is objected to, relate to the same subject-matter; and, although two distinct rights are averred to have been violated, I perceive no reason for supposing that they may not be litigated in a single proceeding,
.TAROS HYG. UNDERWEAR CO. V.FLEECE HYG. UNDERWEAR CO.
without any injustice being done to the defendants, or any hardship being imposed upon them. The intimation reported to have been made by Vice Chancellor Shadwell in Boyd v. Moyle, 2 Colly. 316, is not without pertinency here. The multifariousness complained of in that case was that the discovery and injunction sought by the bill related to two several and distinct actions; but it was said "that, as both actions sought to be restrained related to the same goods, * * * it was not multifarious." In Adee v. Peck, 39 Fed. 209, the same point precisely as is here presented seems to have been raised, but the court did not find it necessary to pass upon it. The learned judge, however, in his opinion, did say:
"His [the plaintiff's] theory is that the defendant, by tbe sale Qf its valve under this name, has by one act infringed two rigbts of tbe complainant,bis patent right, and his rigbt to the undisturbed use, during the life of the patent, of the trade-mark which he bas adopted. It this theory was true, his bill, perhaps, would not be open to the charge of misjoinder upon the ground tbat, if two good causes of complaint· grow out of one transaction for which the same character of relief is sought, and in regard to which all the defendants bave the same claim of right, such causes may be included in Qne bill."
The second objection to the bill which is set up in the demurrer is well taken. It appears from the bill that the letters patent which the defendants are alleged to have infringed were granted to Samuel Jaros. The allegations with respect to the plaintiff's title are contained in two paragraphs of the bill, as follows:
"(13) That said letters patent, so far as the same relates to, and Is bluled upon, tbe underwear and similar articles, was, by mesne assignments in Writing, duly assigned to your orator, as by said original assignments, or duly certified copies thereof, here in court to be proouced, will fully appear. "(14) That, by reason of the premises, your orator became, and now is, the sole owner of the hereinbefore recited trade-mark, pictures, system of numbering, methoo of making seams, and other peculiar, distinguishing features of its said underwear, and that the same axe of great value to your ·orator."
The learned counsel for the complainant suggested during the argument that this language might be taken to mean that the entire patent had been assigned to the complainant, but, upon its being then proposed to him to amend so as to make that meaning perfectly ·clear, he declined to do so. To me these paragraphs seem to be capable of but one construction, or rather to require no construction .at all, for their effect is perfectly plain. It was, of course, incum· bent upon the plaintiff to set out its title. It cannot be assumed to have any other or better one than that which it has asserted, and all it has alleged is that the patent, "so far as the same relates to, and is used upon, underwear and similar articles," was assigned to it. It is impossible to suppose that these limiting words would have been inserted if, in fact, the plaintiff had become the owner of the whole patent. Nor is the effect of this limitation modified by the general averment of the following (the fourteenth) paragraph, that, ''by reason of the premises," the complainant is the sale owner of the before-recited method of making seams, etc. This is too -evident to call for elaboration or argument. The law of this sub· ject is not doubtful, and it constrains me to hold that the title set up
by the complainant wID not support the bill which it has filed in its ownnalle. "Such: exclusive right of action exists, in favor of a sole assignee, only in two cases, namely, where he acquires by assignment the whole interest in the patent, or a grant or conveyance of the whole interest within some particular district or territory." Suydam v. Day, 1 Fish. Pat. R. 88, Fed. Cas. No. 13,654; Pope :M:anuf'g Co. v. Q()rmully & Jeffery Manuf'g Co., 144 U. S. 248, 12 Sup. Ct. 641. In the 'brief submitted on behalf of the complainthat "the papers of title, when produced, will show ant, it that Samuel Jaros parted absolutely and unconditionally with the entire title to the patent without any reservation whatever, and has not the slightest interest whatever in any degree in this suit or in the.l'atent." A sufficient answer to this is that nothing of this kind is contained in the bill. It states that the patent was issued to Jaros,llnd does not state that he assigned it,. Therefore,for the present purpose, it is to be assumed that he still owns it, inasmuch as the demurrant need not, and the court cannot, look beyond the bill. Moreover, if the bill alleged that Jaros parted with the en· tire patent, it should also ,. allege that the complainant is now the owner of it; arid 'this only dOes not do, but, as has been shown, sets upa mere"license to him with respect to certain articles of manufaclure. ' Whether the owner of the patent (whoever. he may be, if not this complaimmt) could properly be made a party to the present bill without striking from it all that relates to trade-mark . is a question upon which I will not express an opinion at this time; ,but, in order that the COInplflinant may have opportunity to move for leave to amend, or as he may be advised, no decree will be im· mediately entered.
THE MAJESTIC. POTTER et at v. THE MAJESTIO. (OirCUlt Court of Appeals, Second Circuit. No.65. March 12, 1894.)
SHIPPING-CONSTRUCTION OF OONTRACT OF CARRIAGE-WHAT LAW GOVERNS.
A written agreement, executed and delivered In England. whereby an English corporation agrees to transport a citizen of the United States from England to this country, Is to be construed according to the English law.
CARRIERS OF PASSENGEltS-LYMITATION OF LIABJI,YTy-PERILS OF THE SEA.
A steamship passenger ticket contained an agreement to carry a passenger and a certain quantity of luggage, and included several notices and directions, but did not refer to any other conditions. At the bott4)m were the' words "See back," and on the back of the ticket was a statement that the ticket wassubjectt() several conditions, among which was one attempting to relieve, the carrier from liability for perils of sea. ·Hela., that this condition was not binding, since it was an attempt to limit the carrier's common-law liability by a mere notice, not incorporated Into the contractor carriage.
SAME-LIABILITY FOR PASSENGER'S BAGGAGE.
A condition on the back of sucb ticket liI)1iting the carrier's liabIlity for baggage to :£10, unless extra payment Is made, is binding on the passenger, where he receives the ticket in time to examine it thorougbly