formed, Cornish could .no,t have maintained 'an· action upon the note,although the time for payment stipulated therein had ar· rived; ltIld the bank, taki:q.g the note with full knowledge, is in no better- PQSition. The question, therefore, as to whether the right and his in the land in question has lapsed, of and S¥J to. whether there may be performance hereafter of their agreement, so as to make the consideration for the note good, is immarterial" ,There can be no recovery upon this note until the condition upon which it was given is performed. Thedemurrer is overruled.
et aI. v. TRIPP GIANT LEVELLER CO.' (Circuit Court of Appeals, First Circuit. October 12, 1893.) No. 60.
APPEAL-REVIEW-OBJECTIONS NOT RAISED BELOW. Objections to the .. of the bill, whether original
or supplemental, and to the sufflciency. of 'the allegations thereof, cannot be taken in the appellate court: for the first time.
The Cutcheon patent, No; 384,893, for beating olit ·the soles of boots and shoes! is vl/-Ud as 1 and 3. 52 Fed. 147, affirmed.
. Appelll from' the Circuit Oourt of the United states for the District of MassachliSettlil. ' . In Equity: 'Suit by tile Tripp Giant Leveller Company against George W.Herrick,Frederick W. Herrick, and George H. Herrick, doing business 'as· George W. Herrick & Co., for infringement of let· terf!l patent No. 884,893, issued June 19, 1888, to Cutche,on & Johnson, as"assignees of James. C. Cutcheon. ' The patent, which is for a machine for beating out the soles of boots and shoes, was sustained by the court below, and infringement decll,tred. See 52 Fed. 147, where the opinion below is reported under the title of Cutcheon et al. v. Herrick et aI. Defendants appeal. Modified and affirmed. Oharles Allan Taber and Thomas W. Porter, for appellants. Alexander P. Browne, for appellee. Before· PUTNAMj Circuit Judge, and NELSON and WEBB, District Judges. PER CURIAl\f. The objections made by the appellants touching the form of the bill, whether supplemental or original, and those as to the sufficiency of the allegations of the bill, not raised in the court below,and cannot be taken for the first time in this court. The cour't below was right in holding that the :first and third claims of the Cutcheonpatent were valid, and were infringed by the machine used by the appellants; that the iron last in the appellants' machine was a JD,echanical equivalent for the jack of the pat· lit;.and that there was no sufficient proof that the stop mechanism of the third claim was in use by others prior to October 28, 1887,
denied November 16, 1898.
JONATHAN MILLS MANUF'G CO. tJ. WHITEHURST.
the date of the application for the patent. See the opinion of the court below in Cutcheon v. Herrick, 52 Fed. 147. As only the first and third claims of the patent were in controversy, the decree of the court below is to be modified so as to extend to those claims only; otherwise, the decree of the court below is affirmad, with costs.
JONATHAN MILLS MANUF'G CO. v. WHITEHURST et oJ. (Circuit Court, S. D. Ohio, E. D.
LACHES-PATENT SUITS-DELAY IN SETTING UP DEFENSE.
February 3, 1894.)
In· a suit for infringement of a patent the doctrine of laches does not apply to delay short of the statutory limitation in setting up thel defense that plaintiff had no right in the patent which he sues on.
InEquity. Suit by the Jonathan Mills Manufacturing Company against M. C. Whitehurst and others for infringement of let tel's patent No. 267,098, issued November 7, 1882, to Jonathan Mills, for an improvement in machines for bolting flour. A decree fol' complainant was heretofore granted. 56 Fed. 589. Heard on motion for rehearing. Granted. Poole & Brown, for· complainants. George J. MUl'ray, for respondents. SAGE, District Judge (orally). This cause is before the court upon a petition for rehearing, setting forth that after the opinion was filed defendants' counsel for the first time learned that in a suit in the circuit for the county of Wayne, state of Michigan, in chancery, it was determined that patent No. 267,098, upon which this suit is based, was the property of the George T. Smith Middlings Purifier Company, and that in fraud of its rights it had been transferred by George T. Smith, he holding the title, as its trustee, to his wife, Eliza B. Smith, and by her to Charles H. Plummer, whose executor was a defendant in said suit. It was further determined that both said assignments were in fraud of the George T. Smith Middlings Purifier Company and its creditors, and the defendants were, by the decree in said cause, ordered to make the necessary transfers to vest the title to said pat· ent (together with other patents, which had been by said George T. Smith fraudulently assigned) ill the complainants in said suit, who were the receiveI.'B of said George T. Smith Middlings Purifier Company. It was also ordered that the decree itself should operate aB an assignment, transfer, and release of all the right, title, and interest, legal or equitable, owned or claimed by said Eliza B. Smith, George T. Smith, or said Plummer, or any of them, at the time of filing the bill in said suit, to wit, August 13, 1890. The petition for rehearing further sets forth that it appears from the assignment from Jonathan Mills to the complainant hereinthat is to say, to the Jonathan Mills Manufacturing Companyv.60F.no.1-6