ration was to use reasonable care to enforce its rules. Ladd v. R. R. Co., 119 Mass., 412; Zeigler v. Day, 123 Mass., 152; Snow v. R. R. Co., 8 Allen, 445; Rose v. R. R. Co., 58 N. Y., 217. Messrs. A. A. Strout and Geo. F. Holmes, for defendant in error: care and prudence, the defendant would be liable; that if two of those causes contributed, the Company would be liable; that the mere negligence of Noyes, of itself, does not exonerate them if one of their own faults contributes." To this, an exception was taken. The jury returned a verdict for Cummings, upon which a The cases of Oscanyan v. Arms Co., 103 U. judgment was rendered against the Company. S., 262 (XXVI., 540); Improvement Co.v. Mun- To reverse that judgment, this writ of error son, 14 Wall., 442 (81 U. S., XX,, 867); Pleas- was brought, and the only errors assigned are: ants v. Fant, 22 Wall., 116 (89 Ü. S., XXII., 1, the refusal to direct a verdict for the Com780), and Herbert v. Butler, XXIV., 958), es- pany at the close of Cummings' testimony; and, tablish the principle, that if, after the testimony 2, the giving of the instruction which was exis all in, it is insufficient to sustain a verdict, the cepted to. court will be justified in directing a verdict for It is, undoubtedly, true that a case may be the defendant. But the material testimony must presented in which the refusal to direct a verbe undisputed, in order, under the decisions, to dict for the defendant at the close of the plaintwarrant the withdrawal of the case from the iff's testimony will be good ground for the rejury. versal of a judgment on a verdict in favor of the plaintiff, if the defendant rests his case on such testimony and introduces none in his own behalf; but if he goes on with his defense and puts in testimony of his own, and the jury, under proper instructions, finds against him on the whole evidence, the judgment cannot be reversed, in the absence of the defendant's testimony, on account of the original refusal, even though it would not have been wrong to give the instruction at the time it was asked. Ins. Co. v. Snyder, 93 U. S., 393 (XXIII., 887); Klein v. Russell, 19 Wall., 465 (86 U. S., XXII., 124); Griggs v. Houston, 104 U. S., 554 (XXVI., 840); R. R. Co. v. Fraloff, 100 U. S., 26 (XXV., 533). Cummings did not contract against the combined negligence of a fellow-servant and of his employer, and the negligence of the servant does not excuse the Corporation for negligence which contributed to the injury. Paulmier v.R.R. Co., 34 N. J. L., 151-157; McMahon v. Henning, 3 Fed. R., 353; Cone v. Del. R. R. Co., 81 N. Y., 206; Booth v. R. R. Co., 73 N. Y., 38; Crutchfield v. Richmond R. R. Co., 76 N. C., 320; Fifield v. R. R. Co., 42 N. H., 225; Cayzer v. Taylor, 10 Gray, 274. Mr. Chief Justice Waite delivered the opinion of the court: The present case comes within this rule. The evidence introduced on the part of the Company is not in the bill of exceptions, and the court was not asked to instruct the jury to find for the defendant on the whole case. Under such circumstances, it must be presumed, in the absence of anything to the contrary, that when the case was closed on both sides, there was enough in the testimony to make it proper to leave the issues to be settled by the jury. In this we are not to be understood as saying that the instruction ought to have been given when it was asked. This was a suit brought by Cummings, the plaintiff in error, an engine-man in the employ of the Grand Trunk Railway Company of Canada, to recover damages for an injury sustained in the course of his employment, by a collision In the instruction which was given we find no of a train on which he was, with another train error. It was, in effect, that if the negligence of the same Company. The claim of Cummings of the Company contributed to, that is to say, is, that the collision was caused by the fault had a share in producing the injury, the Comand neglect of the Company; that of the Company was liable, even though the negligence of pany, that it was caused by the negligence and a fellow-servant of Cummings was contributory disobedience of a fellow-servant of Cummings. This was the issue at the trial and, at the close of the testimony on the part of Cummings, the Company asked the court to instruct the jury to return a verdict in its favor, which being refused, an exception was taken. All the testimony before the jury, when this instruction was asked, has been put into the bill of exceptions. also. If the negligence of the Company con- The judgment of the Circuit Court is affirmed. The Company then introduced testimony touching the points covered by that on the part LOT M. MORRILL, Collector, etc., Plff. in of Cummings. None of this testimony is in the record. The Company did not contend that Cummings was guilty of contributory negligence. At the close of the case on both sides, the court gave to the jury sundry instructions, not Err., v. JOHN WINSLOW JONES. (See S. C., 16 Otto, 466, 467.) ficient objection. excepted to, and then, at the request of Cum- Treasury regulations-duty on animals—insufmings, instructed them further "That if Noyes (the person claimed to be a co-servant) was negligent, and if the Company was also wanting in ordinary care and prudence in discharging their duties, and such want of ordinary care contributed to produce the injury, and the plaintiff did not know of such want of ordinary 1. The Secretary of the Treasury cannot, by his regulations, alter or amend a revenue law, nor put into the body of the statute a limitation which Congress did not think it necessary to prescribe. the seas for breeding purposes, are free of duty. 2. All animals, specially imported from beyond was not made below. 3. It is a sufficient answer to an objection, that it | only be accomplished by an amendment of the law. That is not the office of a treasury regu[No. 140.] lation. Submitted Jan. 3, 1883. Decided Jan 8, 1883. The history and facts of the case sufficiently appear in the opinion of the court. Mr. Wm. A. Maury, Asst. Atty-Gen., for plaintiff in error. Mr. Charles P. Mattocks, for defendant in error. Mr. Chief Justice Waite delivered the opinion of the court: It has been argued here, that, as it appears from the testimony which has been incorporated into the bill of exceptions that the importation in this case was from Prince Edward's Island, it was not from "beyond the seas" and, therefore, that the judgment below was right. It is a sufficient answer to this objection, that no such point was made below. The court was not asked to rule on any such question. Our examination is confined to such exceptions as were taken to the rulings actually made on the trial and incorporated in some form into the record, an authenticated transcript of which is returned with our writ of error. The judgment of the Circuit Court is affirmed. True copy. Test, James H. McKenney, Clerk, Sup. Court, U. 8. Section 2505 of the Revised Statutes provides, among other things, that "Animals, alive, specially imported, for breeding purposes, from beyond the seas, shall be admitted free (of duty), upon proof thereof satisfactory to the Secretary of the Treasury, and under such regulations as he may prescribe." Article 383 of the Treasury Customs Regulations provides that, before a collector admits such animals free, he must, FIRST NATIONAL BANK OF YOUNGSamong other things, "Be satisfied that the animals are of superior stock, adapted to improving the breed in the United States." Jones, the defendant in error, imported certain animals, which were entered at the Port of Portland, Maine, and claimed that they should be admitted free, as they were specially imported for breeding purposes. "The Collector, though the importation was for breeding purposes, demanded the duties because he was not satisfied the animals were of "superior stock." The duties were, accordingly, paid under protest, and this suit was brought to recover back the amount so paid. On the trial, the court instructed the jury, "That, under the statute, animals, whether of superior or inferior stock, if in fact imported specially for breeding purposes, are entitled to be admitted free of duty," and "that the law does not give to the Secretary of the Treasury power to prescribe in the regulations what classes of animals imported for breeding purposes shall be admitted free of duty." To this instruction, an exception was taken. The jury returned a verdict against the Collector, upon which judgment was rendered. To reverse that judgment, this writ of error was brought. The only error assigned, on the exceptions actually taken at the trial, relates to the instruction as to the effect of the treasury regulation. The Secretary of the Treasury cannot, by his regulations, alter or amend a revenue law. All he can do is to regulate the mode of proceeding to carry into effect what Congress has enacted. In the present case, we are entirely satisfied the regulation acted upon by the Collector was in excess of the power of the Secretary. The statute clearly includes animals of all classes. The regulation seeks to confine its operation to animals of "superior stock." This is manifestly an attempt to put into the body of the statute a limitation which Congress did not think it necessary to prescribe. Congress was willing to admit, duty free, all animals specially imported for breeding purposes; the Secretary thought this privilege should be confined to such animals as were adapted to the improvement of breeds already in the United States. In our opinion, the object of the Secretary could TOWN, OHIO, Appt., v. JAMES B. HUGHES, Late Auditor of MaHONING COUNTY, FREMAN H. SHERER, Present Auditor of MAHONING COUNTY, and MONROE W. JOHNSON, Prosecuting Attorney of MAHONING COUNTY, OHIO (See S. C., " Youngstown Bank v. Hughes," 16 Otto, 66 523-525.) APPEAL from the Circuit Court of the United States for the Northern District of Ohio. The history and facts of the case sufficiently appear in the opinion of the court. On motion to dismiss. Mr. W. C. McFarland, for appellees, in support of motion. Mr. Sidney Strong, for appellant, contra. Mr. Chief Justice Waite delivered the opinion of the court: Section 2782 of the Revised Statutes of Ohio, 1880, provides that, if a county auditor has reason to believe or is informed that any person has given to a tax assessor a false statement of his personal property, moneys, etc., or that the assessor has made an erroneous return of any property, moneys, etc., which are by law subject to taxation, he may proceed to correct the return and to charge such persons, on the tax duplicate, with the proper amount of taxes; NOTE.-Jurisdiction of U. S. Supreme Court depends on amount; interest cannot be added to give jurisdiction; how value of thing demanded may be shown; what cases reviewable without regard to sum in controversy. See note to Gordon v. Ogden, 28 U. S. (3 Pet.), 33. CHARLES E. SHELTON ET AL., Appts., v. EDGAR M. VAN KLEECK ET AL. (See S. C., 16 Otto, 532-535.) "To enable him to do which, he is *** authorized and empowered to issue compulsory process, and require the attendance of any person or persons whom he may suppose to have a knowledge of the articles, or value of the personal property, moneys or credits, investments in bonds, stocks, joint stock companies or oth- Bill of review-admission by demurrer—new materwise, and examine such person or persons, on oath, in relation to such statement or return." Section 2783 provides for process of subpoena, in case any person shall neglect to appear and testify when called on by the auditor, and for punishment for contempt. Under the authority of this statute the Auditor of Mahoning County, in the exercise of his power to charge persons on the tax duplicate with the proper amount of taxes, called on the Cashier of the First National Bank of Youngs town to appear and testify and, because he could not testify without, to bring with him the books of the Bank showing its deposits. Thereupon the Bank filed a bill in equity to enjoin the Auditor, alleging, for cause, that such a proceed ter. bill of review for error of law appearing on the face 1. The only questions open for examination on a of the record, are such as arise on the pleadings, proceedings and decree, without reference to the evidence in the cause. 2. A demurrer admits only such facts as are properly pleaded. As questions of fact are not open for re-examination, on a bill of review, for errors in sistent with the decree, is not admitted by a delaw, the truth of any fact averred in the bill inconmurrer. which relates only to the proceedings in making the 3. New matter, alleged to have been discovered, Submitted Dec. 14, 1882. Decided Jan. 8, 1883. ing on his part would unlawfully expose its AP business affairs, lessen public confidence in it as a depository of moneys, diminish its deposits and greatly impair the value of its franchises. The circuit court dismissed the bill and the Bank appealed. A motion is now made to dismiss the appeal for want of jurisdiction because the value of the matter in dispute does not exceed $5,000. In Barry v. Mercein, 5 How., 120, it was decided that to give this court jurisdiction, in cases dependent upon the amount in controversy, "The matter in dispute must be money, or some right, the value of which, in money, can be calculated and ascertained." To the same effect are Pratt v. Fitzhugh, 1 Black, 273 [66 U. S., XVII., 207]; De Krafft v. Barney, 2 Black, 714 [67 U. S., XVII., 352]; Potts v. Chumasero, 92 U. S., 361 [XXIII., 499]. States for the Northern District of Illinois. Nov. 18, 1877, Edgar M. Van Kleeck, the principal appellee, filed a bill in the Circuit Court of the United States for the Northern District of Illinois, against the appellants and others, to foreclose a mortgage or trust-deed which was executed Sep. 21, 1871, to secure $9,000, with the interest to accrue, upon certain lands in Livingston Co., Ill. Appellants filed their joint and several answer, and Elizabeth Blue her separate answer, to said bill, Sep. 6, 1877, setting up various defenses and, among others, the defense of usury, partial payment of amount claimed, and that other land than appellants' should be made to pay a large part of the amount claimed. The cause was then referred to a master to take evidence and report his conclusion thereon; the defendants, other than appellants and Elizabeth Blue, all having been defaulted. April 28, 1879, the master filed his report, dated Apr. 1, 1879. Exceptions were filed to said report, and overruled, and the court entered a decree of foreclosure. No appeal was taken from this decree. Sep. 30, 1879, the master sold the premises and, Oct. 10, 1879, filed his report of sale in said cause. No exceptions to the report of sale were filed nor taken; and the report was approved and sale confirmed, in December, 1879. Subsequently, Dec. 15, 1880, the court entered a special order confirming the sale. Dec. 31, 1880, the last day allowed by law for redemption from the sale by a creditor, appellants filed, in the cause, a motion to set aside the sale. The motion was heard Jan. 12, 1881, and overruled by the court. The master, thereupon, executed his deed to appellee, Van Kleeck, and he was put into possession of the premises. The present suit is not for money nor for anything, the value of which can be measured by money. The Bank has no interest in the taxes to be placed on the tax duplicate. There is no property in dispute between the Auditor and the Bank. If the cashier is compelled to testify and to produce the books to be used in evidence for the purposes required, the damages, if any, resulting to the Bank, would be, in the highest degree, remote and speculative. Certainly, no suit for even nominal damages could be sustained against the Auditor, on account of what he had done. All the cashier is required to do, is to give testimony in a proceeding instituted under the authority of law, by the Auditor, to perfect the tax lists of the County. It is supposed the books of the Bank contain evidence pertinent to this inquiry, and appropriate measures are taken to have them produced for examination. The case is in no respect different in principle from what it would be if the evidence was called for in an ordinary suit in a court of justice between individuals. Affidavits can only be used to furnish evidence of value not appearing on the face of the record when the nature of the matter in disputentitled to bring a bill of review. Assignees cannot. is such as to admit of an estimate of its value in money. The motion to dismiss is, therefore, granted. James H. McKenney, Clerk, Sup. Court, U. S. NOTE.-Bill of review; nature of; when may be brought; who may maintain; time within which; what it should contain. See, note to Bk. of U. S. v. Ritchie, 33 U. S. (8 Pet.), 128. Bill of review; when may be brought; for what. Thompson v. Maxwell Land Grant & Ry. Co., 95 U. A decree of affirmance is not a bar to a bill of review for newly discovered evidence. Campbell v. Campbell, 22 Gratt., 649; Singleton v. Singleton, 8 B. This is a bill of review based upon this record. | the face of the record, are such as arise on the All the above facts appear upon the face of the pleadings, proceedings and decree, without refbill, and the exhibits expressly made a part of crence to the evidence in the cause. This has it. It makes the bill of foreclosure, the answer been many times decided in this court. Whiting of appellants, the master's report upon the evi- v. Bank, 13 Pet., 6; Putnam v. Day, 22 Wall., dence and the evidence therewith, the motion 66 [89 U. S., XXII., 766]; Buffington v. Harvey, to set aside the sale, and the evidence introduced 95 U. S., 99 [XXIV., 381]; Thompson v. Maxinto that motion, a part of the bill. well, 95 U. S., 397 [XXIV., 483]. The court sustained a demurrer and entered a decree dismissing the bill. Whereupon the complainants appealed to this court. The grounds relied upon to sustain the bill of review are sufficiently stated by the court. Messrs. Charles J. Beattie, Lewis E. Payson and Thomas J. Henderson, for appellants. Mr. John I. Bennett, for appellees: A bill of review cannot be maintained, on the ground that the court has decided wrong on a question of fact, or that the decree is contrary to the proofs in the case. 2 Dan. Ch. Pr., 1576, 4th Am. ed.; Stor. Eq. Pl., sec. 407; Mellish v. Williams, 1 Vern., 166; Whiting v. U. S. Bank, 13 Pet., 14; Bartlett v. Fifield, 45 N. H., 81; Barnum v. McDaniels, 6 Vt., 177; Webb v. Pell, 3 Paige, 368; Young v. Henderson, 4 Hayw., 189; Dougherty v. Morgan, 6 Mon., 153; Eaton v. Dickinson, 3 Sneed, 397; Getzler v. Saroni, 18 Ill., 517; Evans v. Clement, 14 Ill., 208; Dexter v. Arnold, 5 Mason, 303; Turner v. Berry, 3 Gilm., 544; Griggs v. Gear, 3 Gilm., 10; Garrett v. Moss, 22 Ill., 365. A bill of review will not lie to proceedings subsequent to the final decree and in execution of it. The decree of sale is the final decree in a foreclosure case, and from it an appeal will lie to the Supreme Court. Whiting v. Bank, 13 Pet., 15. Mr. Chief Justice Waite delivered the opinion of the court: The only questions open for examination on a bill of review, for error of law appearing on Mon., 340; contra, Kinsell v. Feldman, 28 Iowa, 497 Stafford v. Bryan, 2 Paige, 45; Jewett v. Dringer, 9 Reptr, 379. Bill of review cannot be brought on a judgment or decree entered by consent of parties. Ryder v. Phoenix Ins. Co., 101 Mass., 548; Cornish v. Keesee, 21 Ark., 528. When a bill of review is brought for errors of law and is in the nature of a writ of error, it will not lie after the time for bringing a writ of error has passed. Cooper, Eq. Pl., 91-93; Thomas v. Harvie, 23 U. S.(10 Wheat.), 146; Nolan v. Wimston, 17 Ohio, 170; Dolton v. Erb, 53 Ill., 289; Boyd v. Vanderkamp, 1 Barb. Ch., 273. On a bill or review, facts may be looked to, but not the evidence which proves or disproves the facts. Barnum v. McDaniels, 6 Vt., 179; Burdine v. Shelton, 10 Yerg., 41: Turner v. Berry, 3 Gilm., 544; Dougherty v. Morgan, 6 Mon., 152; Evans v. Clement, 14 Ill., 208. This court will, on a bill of review, revise or reverse its own decision for an erroneous application of the law to the facts found, whenever a court of appeals would do so for the same cause. Mitf. Eq. Pl., 84; Evans v. Clement, 14 Ill., 208: Bk. of U. S. v. Ritchie, 33 U. S. (8 Pet.), 140; Whiting v. Bk. of U. S., 28 U. S. (13 Pet.), 14; Randon v. Cartright, 3 Tex., 268; Trulock v. Robey, 15 Sim., 277; Barnum v. McDaniels, 6 Vt., 179. Errors apparent for which a bill of review will lie must be errors of law, patent on the pleadings and decree. Berdanatti v. Sexton, 2 Tenn. Ch., 699; Dexter v. Arnold, 5 Mason, 303; Eaton v. Dickinson, 3 Sneed, 401. The granting of a bill of review is a matter of discretion. It may be refused, although the facts, if true, would change the decree, where it would be productive of mischief to innocent parties, or from A demurrer admits only such facts as are properly pleaded. As questions of fact are not open for re-examination, on a bill of review, for errors in law, the truth of any fact averred in that kind of a bill of review, inconsistent with the decree, is not admitted by a demurrer, because no error can be assigned on such a fact; and it is, therefore, not properly pleaded. This disposes of the first, second, third, fourth and fifth specifications of error presented in this bill of review. They are all errors of fact and can only be determined by a reference to the evidence. It nowhere appears from the bill, answer and other pleadings, together with the decree, constituting what Mr. Justice Story said, in Whiting v. Bank of U. S., supra, “is properly considered as the record," that there was any usury in the case, or that the appellants had not waived their homestead rights as alleged in the bill. All the allegations of error on the face of the record are equally bad. It is stated in the decree that all the material averments of fact in the bill were proved, and on these facts the priority of the lien of the complainant was established. All the issues were thus disposed of, and the decree was in favor of the complainant and against all the defendants. The omission of the name of McGregor, from among those against whom it was stated in the decree the bill was taken as confessed, is unimportant. If, as is stated in the brief of counsel for the appellant, he was served with subpœna and did not plead, answer or demur to the bill, the decree was in fact prè confesso as to him; and he any other cause unadvisable. Dexter v. Arnold, 5 Mason, 303, and cases cited; Thomas v. Harvie, 23 U. S. (10 Wheat.), 146; Ricker v. Powell, 100 U. S., XXV., 527; Wood v. Mann, 2 Sumn., 316; Jenkins v. Eldridge, 3 Story, 299; Massie v. Graham, 3 McLean, 52; P. & M. Bk. v. Dundas, 10 Ala., 661; Nichols v. Nichols, 8 W. Va., 186. The requisites of a bill of review for newly discovered evidence are: 1. That it must be discovered after the decree and could not have been discovered before by reasonable diligence. Patterson v. Slaughter, Amb., 293; Brainard v. Morse, 47 Vt., 320: Carter v. Allen, 21 Gratt., 245; Norris v. Le Neve, 3 Atk., 25; Beard v. Burts, 95 U. S., XXIV., 485; Dexter v. Arnold, 5 Mason, 312, and cases cited; Davidson v. King, 51 Ind., 228; Barnes v. Dewey, 58 Ind., 418; Crooker v. Houghton, 61 Me., 346; Whelan v. Cook, 29 Md., 1; Burson v. Dosser, 1 Heisk., 762. 2. The new matter must be of such a character as would have produced a different result. Todd v. Chipman, 62 Me., 189; Jenkins v. Eldridge, 3 Story, 299; Carter v. Allen, 21 Gratt., 245; Brainard v. Morse, 47 Vt., 320; Nichols v. Nichols, 8 W. Va., 185; Providence Rubber Co v. Goodyear, 76 U. S., XIX.. 828. 3. It must not be cumulative. Anon., 2 Freem., 31; Dan. Ch. Pl., 1578: Partridge v. Usborne, 5 Russ., 195; McDougald v. Dougherty, 49 Ala., 409: Her v. Routh, 3 How. (Miss.), 292; Willan v. Willan, 16 Ves., 88; Taylor v. Sharp, P. Wms., 371; Coller v. Shields, 2 Stew. & P., 423; Foy v. Foy, 25 Miss., 212; Repass v. McClanahan, Hard., 342; Love v. Blewit, 1 Dev. & B., 108. Bill of review must be brought in the court in which the original decree was rendered. Hanna v. Spotts, 5 B. Mon., 362; S. C., 43 Am. Dec., 132. is as much bound as if he had been particu- | claimed to be the sole and exclusive owner, in larly named. All the new matter alleged to have been discovered relates to the proceedings in making the sale, and can have no effect on the original decree. So far as the decree confirming the sale is concerned, the matter is not new, for the addition to the transcript, filed by consent, shows that all the affidavits now relied on to establish the new facts were actually read in evidence on the hearing of a motion, made before the confirmation, to set aside the sale. These affidavits cannot be considered on a bill of review to reverse the decree of confirmation for errors appearing on the face of the record, because, as evidence, they form no part of the record which can be looked into on such a review. But, as part of the exhibits annexed to a bill of review for alleged discovery of new matter, they may be referred to for the purpose of determining, whether, upon the showing of the complainant in review, the matter alleged to be new first came to his knowledge after the time when it could have been made use of at the original hearing. This disposes of the case; and the decree of the Circuit Court, dismissing the bill of review, is affirmed. True copy. Test: James H. McKenney, Clerk, Sup. Court, U. S JOHN H. HAYWARD, Appt., v. ALFRED H. ANDREWS ET AL. (See 8. C., 16 Otto., 672-679.) Bill in equity, when not sustainable. equity, of all claims for damages arising out of or occasioned by infringements of said re-issued letters patent, committed after September 18, 1869, and of all claims for gains and profits, derived by others by reason of such infringements, by virtue of certain written instruments, set out as exhibits to the bill. The first of these is an instrument, dated September 18, 1869, by which Allen grants to J. W. Schermerhorn & Co. "The sole right and privilege of manufacturing and selling school furniture, made according to " the re-issued patent, "for a tilting seat on a lever principle,' subject to the terms and conditions of an indenture between the parties, which, however, is not set out. On April 22, 1881, Jno. H. Platt, as assignee of Jas. W. Schermerhorn, George M. Kendall, and George Munger, bankrupts, transfers to the complainant all the interest of the bankrupts in the Allen patent, and all causes of action arising to him, as assignee of the bankrupts, by reason of his interest in the said patent; and especially his claim in a certain suit then pending, brought by Allen in the Circuit Court of the United States for the Southern District of New York against the City of New York. The second and only other instrument of title exhibited is an assignment from Allen, the patentee, to the complainant, dated March 8,1880, whereby Allen transfers to him and to his assigns all his right and interest in the suit, mentioned in the assignment from Platt, against the City of New York, "Together with all claims for damages arising since the 18th day of September, 1869, against any persons, firms or corporations, by reason of infringements of letters The assignee of a chose in action, as a patent-patent of the United States for a tilting seat supright, with claims of damages for its infringement, cannot proceed by bill in equity to enforce for his own use the legal right of his assignor, merely bea plain and adequate remedy at law by an action in cause he cannot sue at law in his own name; he has the name of his assignor. [No. 918.] Submitted Jan. 3, 1883. Decided Jan. 15, 1883. AP PPEAL from the Circuit Court of the United nois. The history and facts of the case appear in the opinion of the court. Messrs. Gilbert M. Speir, Ephraim Banning and Thomas A. Banning, for appel lant. Messrs. E. A. West and L. L. Bond, for appellees. Mr. Justice Matthews delivered the opinion of the court: This appeal brings into review the decree of the circuit court, sustaining a general demurrer to the amended bill of the complainant, and dismissing the bill for want of equity. ported on the lever principle," being the re-issued patent specified in the bill. And the complainant is, thereby, further constituted the attorney in fact of Allen, irrevocably in his name, to demand and recover all such damages, for his own use, paying all expenses, but accounting for thirty per cent of all sums recovered, to Allen, until the latter shall have received $6,600, and no longer. It is alleged in the amended bill that, in the suit against the City of New York, a decision was reached sustaining the validity of the patent, but no final decree therein has been entered; and that, owing to the delays incident to that litigation, while waiting for a decision upon the validity of the patent, neither Allen nor complainant have been in a situation to prosecute other infringers or sooner to file this bill. It is also alleged, in the amended bill, that the defendants have infringed the said letters patent since September 18,1869, and until the expiration thereof, and in violation thereof "Have manufactured, sold and used the said invention for improvements in seats for public buildings, patented as aforesaid, whereby great injury resulted to your orator, and great gains and profits accrued to the said defendants," for which, accordingly, an account is prayed and a decree for the amount thereof and for dam The case made by the amended bill and exhibits is this: Aaron H. Allen was the owner of re-issued patent No. 1126, granted to him upon the surrender of original patent No.12017, dated December 5, 1854, for a new and useful images. provement in seats for public buildings, which The original bill was filed December 1, 1881, was extended for seven years from December Allen being a co-complainant; and the amended 5, 1868, and which consequently expired by lim- bill on May 25, 1882, the original bill having itation December 4, 1875. The complainant been dismissed as to Allen. |