and the sufficiency of the plea and demurrer could be called up and tested without formal notice, in term, in presence of counsel, or by proper notice in his absence.

In the argument, counsel fully presented their views, and I will now dispose of the plea and demurrer.

And, first, upon the demurrer. The bill alleges that the complainants are sole owners of letters patent for a new and useful improvement in grain binders for the district of Minnesota and the entire territory of the United States, except the state of Michigan, and that the improvements have been extensively applied to practical use; and further alleges that by virtue of certain assignments of certain interests and rights in and to letters patent, the entire right, title, and interest in and to the inventions described in the letters patent, naming them, were secured to your orators. And the bill charges infringement, prior to the commencement of this suit by the defendant harvester works, of the patents owned by complainants; and it is further alleged that the said defendant harvester works, on or about May 31, 1884, assigned and transferred to the defendant Hodge all its property and assets in trust, and for the benefit of its creditors, but how much and of what value is unknown, and prays a discovery thereof, and charges that since the assignment aforesaid the said Hodge has continued the business of said St. Paul Harvester Works, and has made and sold a large number of binding-machines embodying the patented improvements aforesaid, and thereby infringed upon the exclusive rights of the complainants; and that the said Hodge, as assignee, threatens and is about to distribute to the creditors of the St. Paul Harvester Works the moneys realized by him from the property and assets aforesaid, without regard to the rights and claims of your orators against the said St. Paul Harvester Works, unless restrained by the injunctional order of this court. There is an allegation that the improvements described in the several letters patent are so nearly allied in character as to be capable of joint as well as several use in grain-binding machines, and that the said inventions, or substantial and material parts described in the said letters patent, have been and are used conjointly by the said defendants, etc.

A writ of injunction is prayed for, and a prayer for a decree to account for and pay over all such gains and profits as have accrued or arisen to, or been earned or received by, said defendants from the unlawful use of said inventions, and from the infringement thereof as aforesaid, and to pay the damages sustained, etc. Copies of the several letters patent are attached to and made a part of the bill. The demurrer is interposed for the reason, as alleged, that the bill is exhibited against the defendants for several and distinct matters and causes which have no relation to each other, in which, or in the greater part thereof, it is urged that the defendant the St. Paul Harvester Works is not in any way interested or concerned, and ought not to be

implicated, and that the matters and alleged causes of action pleaded against Hodge are distinct from the alleged cause of action pleaded against the defendant the St. Paul Harvester Works, and ought not to have been joined together in one bill; that the bill is multifarious. The rule invoked by the counsel for the defendant, that two or more distinct subjects cannot be embraced in the same bill, has no application to this case. The pleadings show that there is a privity of connection between the corporation and Hodge in reference to the object of the action and the subject-matter thereof. Hodge is the assignee. by voluntary assignment for the benefit of creditors. He is a trustee. required to execute the trust created by the corporation; and if any property or effects remain after its fulfillment, he must turn it over to the cestui que trust. He is alleged to be in possession of all the assets. and moneys of the defendant the St. Paul Harvester Works by a voluntary transfer, which moneys, or a portion thereof, the bill charges were gains and profits derived from the infringement of the complainants' improvements designated in the letters patent. If in equity, as is the settled doctrine, an infringer is treated as a trustee of the patentee of the gains derived by him from the infringement, (1 Ban. & A. Pat. Cas. 485,) and is held accountable accordingly, certainly an assignee of such gains in trust for creditors is a proper party for the purpose of obtaining a just account of these profits. He is a necessary party, upon the same principle as an agent who represents his principal and manages his business. How far and to what extent the funds alleged to be in his hands would be affected if the complainants should obtain a decree is not involved on this hearing. The bill is not open to the criticism suggested by the demurrer, and the same is overruled.

Secondly. The defendant Hodge files a plea to part of the bill, and claims that he cannot be compelled to render account for any such gains or profits as may have been earned by the alleged infringement of complainants' rights by the St. Paul Harvester Works prior to the assignment to him; and he urges that such voluntary assignment to him, in trust for creditors, is in law a bar to all relief claimed in the bill by the owners of the alleged infringed letters patent. The implication of the plea is that his conduct as trustee under the assignment, and the management of the property in his possession, is to be regulated exclusively by the laws of the state of Minnesota, and that he is responsible to the district court of Ramsey county for the faithful discharge of his duties, and therefore any claim which the complainants may have for infringement of letters. patent must be presented to the assignee, and if the infringement is disputed by him, settled and adjudged by the state court. I do not agree to this proposition. If the defendants confess the allegations and charges of the bill, and the amount of alleged damages, it may be that the only method of enforcement of the complainants' claim against the insolvent corporation, or at least the quickest way of sat

isfying the decree, would be to file the claim as settled, and participate in the funds; but as the defendants do not confess the infringement, or any of the matters alleged in the bill, to be true, except as stated in the plea, the complainants can litigate their rights in this court, and the fact of an assignment made by the insolvent corporation to the defendant Hodge is no bar to the prosecution of their suit.

I do not see how the insolvent law of the state of Minnesota can affect the proceeding to enforce the rights of a patentee against an infringer. If the defendants will admit the charge of infringement, and permit a decree to be entered settling the amount of the complainants' claim, there would be some force in the suggestion that the complainants must apply for payment under the laws of the state of Minnesota regulating assignments for the benefit of creditors. It is true that the complainants, if they were so disposed, could present their claim to the assignee and abide by his decision; but they are not compelled to do so, and no state law can deprive the complainants of the right to litigate disputed infringements of letters patent in this court.

This is not an action involving contract rights between the parties thereto, but is a case arising under the patent-right laws of the United States, and the jurisdiction vested in the courts of the United States is exclusive of the courts of the state. Rev. St. § 711, p. 135. The plea is overruled.

MCFARLAND and another v. SPENCER and another.

(Circuit Court, S. D. New York. February, 1885.)

PATENTS FOR INVENTIONS-METAL TENON FOR BLIND-SLATS-PATENT No. 76,491. Letters patent No. 76,491, issued to William McFarland and John H. Campbell, April 7, 1868, for a metal tenon for blind-slats, held valid, and infringed by defendants.

In Equity.

Peter Van Antwerp, for complainants.

Edward S. Clinch and E. T. Rice, for defendants.

COXE, J. The complainants are the owners of letters patent No. 76,491, issued to William McFarland and John H. Campbell, April 7, 1868, for a metal tenon for blind-slats. The object of the invention is to provide tenons for blind-slats when the original tenons are broken off or injured so as to become inoperative. The following diagrams will serve to illustrate the invention:

Fig. 1 represents the tenon applied and fitted to a blind-slat, and working in the mortise of the frame, in place of the one broken or removed; Fig. 2, the face view of the tenon, with escutcheon plate on its inner end; Fig. 3, the same reversed, showing the connection of the escutcheon plate to the tenon by means of a beveled shoulder. The inventor declares in the specification that "heretofore the breaking off or the decay of a tenon has caused the entire loss of the slat, there being no means or device known, previous to my invention, whereby the tenon could be restored or repaired without incurring too much expense; and furthermore, the repair or restoration of a broken tenon is difficult without the removal of one of the side-bars of the frame." The advantages of the invention are economy, simplicity, symmetry, and durability. It is much cheaper to use the metal tenon than to remove the slat. A person possessed of a pocket-knife and a very limited amount of mechanical skill can make the repair. Prior to the invention it was necessary to take down the blind, separate the frame, remove the broken slat, substitute the new slat, attach it to the hand-rod which operates the series of slats, and readjust the frame. All this required time and skill, was expensive and inconvenient, and when the work was done it was found almost impossible to make the new slat correspond in color with the old ones. The device is an exceedingly simple and unpretending one,-so simple that, to one who sees it now, the wonder is that it did not occur to some one long before the date of the patent. But it never did. Criticism that an invention is so plain that it must be perceived by all, comes with poor grace from those who did not themselves perceive it.

The answer is confined to specific denials of the allegations of the complaint; no affirmative defense is pleaded. The defendants introduced in evidence a patent granted to George R. Clark, March 5, 1867, for an "improved metallic blind-slat, clasp, and pivot. It consists of a metal cap, carrying a tenon, which fits on the end of the slat. The merits claimed for it are that it prevents longitudinal splitting, and furnishes a pivot of great durability for the slat to turn on. Should a tenon become broken, the frame must necessarily be dismembered, precisely as in the case of the wooden tenon, in order to repair it. The Clark device is wholly dissimilar from that of the complainants. The defendants also, under objection, introduced testimony showing that in 1837 or 1838, 200 tenons were made, to fill a special order, out of 16-gauge strap-iron, the strap being bent so as to grasp the slat on both sides, and a pivot to swivel the slat being riveted to the bent end. These tenons could not be used for purposes of repair, except by taking the frame apart. It required mechanical skill to apply them, and they could be made only on special order, as it was necessary that they should exactly fit the slat. The defendants also proved that between 1849 and 1851 the iron shutter of a building on Reade street, New York, was repaired with a tenon like the complainants'; also that in 1844 and 1846, in Germany, similar tenons were used in the original construction of iron shutters, and that for 300 years shutters so made had been used in the tower of the church at Wittemberg, to the front door of which Martin Luther nailed his theses. It will be seen that even had the defendants pleaded prior use, as required by section 4920 of the Revised Statutes, there is nothing in this testimony which anticipates the complainants' invention. There is no allegation that the inventor or other persons here had knowledge of the alleged prior use in Germany; but in any view the evidence is wholly inadequate to defeat the patent. As showing the state of the art, the testimony, though involved in obscurity and doubt, may be admissible, and, were the question one of infringement, such proof might require the narrow construction of a broad claim; but it is obvious that it cannot avail the defendants where they deal in the identical contrivance covered by the patent. No one, so far as the record shows, ever used, prior to the patent, a tenon like the complainants,' on wooden blind-slats, for the purposes of repair. This is what the invention covers.

There should be a decree for the complainants for an injunction and an account, with costs.