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this increase was mainly the result of his labor, or of the joint labor of the two spouses. The 66 rents, issues, and profits" of the separate estate, which are intended by the code to remain separate property, should be confined to those proceeds which arise without the husband's active use of the separate property, as a capital, in carrying on some business, trade, or profession, and, therefore, without the husband's direct labor as the agency or means for their production. Familiar illustrations are the rents, arising from lands belonging to his separate estate, which have been leased; the dividends, and other such income, which arise from funds belonging to his separate estate, which are invested in stocks, government bonds, and other like securities; interest arising from monies loaned upon notes, mortgages, and the likes, and all similar forms of income and profits, which do not result from the husband's labor, directly expended in producing them.

If this be a correct interpretation of the phrase "rents, issues and profits," we are now in a position to suggest a general rule applicable to all cases coming within the description given at the commencement of this article. Such rule should be simple and practical, capable of being applied under all circumstances, and it should have regard to and make provision for the interests represented by the husband's separate estate, as well as for the interests represented by the community property.

The following rule seems to possess all these qualities. Suppose, for simplicity and clearness of statement, the husband at his marriage had a separate estate of $10,000, which he used as the capital in his business. Carrying on a business with this capital, he dies leaving a total property of $60,000, and there has been no other property or source of property during the marriage. As the original $10,000 of separate estate is included in this total sum, and as it continues to be the husband's sepa rate estate, it should of course be deducted. Is the residue $50,000 all separate property, or all community property? In my opinion it is all of neither kind, the only fair, equitable and practical rule to determine the portions which belong to each kind is substantially as follows: A sum which would equal the income upon the the original separate estate ($10,000) if invested at a fair, reasonable, average rate of interest during the entire period of the marriage, would represent the portion of this entire increase which belongs to the separate estate; the balance, being due to the husband's labor, and therefore, in contemplation of the law, to the labor of both the spouses, would represent the portion belonging to the community property. It might be proper, at least under some circumstances, in calculating the portion of the increase representing the separate estate, according to this rule, to make rests at stated intervals, perhaps even annual rests, and thus give the effect of compounding the interest. J. N. P.

CIRCUIT COURT, DISTRICT OF CALIFORNIA.

J. J. SCRIVNER ET AL. v. THE OAKLAND GAS COMPANY.

September 1, 1884.

PROCESS AN INVENTION DISTINCT FROM MECHANISM PRODUCING THE PROCESS. -A process by which a new result is obtained, is a different thing from the mechanism by which it is carried out, and is a distinct, severable and independent patentable invention.

REISSUE ENLARGING THE PATENT AFTER LONG DELAY VOID.-The original patent was for the mechanism by which a new and useful result was produced. The patent, after eleven years delay, was reissued in such form as to embrace a claim for the process as well as for the mechanical means, by which the process was carried out. Held, that the reissued patent for the process is void.

M. A. Wheaton and J. J. Scrivner, for the complainant.

Jno. H. Boalt, for the defendant.

SAWYER, CIRCUIT JUDGE, delivering an oral decision. This is a suit in equity upon a reissued patent. The patent was reissued eleven years after the date of the issue of the original patent, and it enlarges the claims of the patent very materially. The reissued patent embraces a claim for the process, as well as for the mechanical means by which the process is carried out.

The original patent contained no claim, whatever, for the process. Not only, the claim is enlarged, but a whole page of descriptive matter, as to the character of the process, is inserted in the reissue; and it is upon these new claims that this suit is prosecuted.

In the case of James v. Campbell, 104 U. S., 357, it was held, that a process is a very different thing from the mechanism by which it is carried out, and is a different, and distinct, patentable in

vention.

I am unable to take this case out of the rule laid down in Miller v. The Brass Co., 104 U. S., 350, which holds, that, after so long a period of time, a patent cannot be enlarged by a reissue so as to embrace matters not within the original patent.

When that case was first decided, I was uncertain how far the supreme court intended to go, but they have affirmed it, and reaffirmed it, I suppose half a dozen times since, down to the very last part of the present term of the court, showing, that they intended to hold, rigidly, to the strictest rule laid down in that case. In some of the cases only five years had elapsed, but, in this, there were eleven; I am unable to take it out of the rule in that case, without, utterly, disregarding the decisions of the supreme court.

On the part of the complainants here, it is sought to take the case out of the rule cited on the principle stated in Morey v. Lockwood, 8 Wal., 240, and Russell v. Dodge, 93 U. S., 461.

In Russell v. Dodge, the patent was issued in 1869, and reissued in 1870, within a year. No such question as this, is involved in that case. That patent was for tanning a certain kind of leather with hot fat, and it is nowhere intimated in the specifications of the patent, or the claim, that cold fat could, or would, perform the same offices, and be equally practicable as hot fat; but it turned out, that

cold fat was as good as hot fat, or, at least, that it, practically, answered the same purpose, and the patentee thereupon applied for, and, afterward, obtained, a reissue covering cold fat. The supreme court held the patent to be void, as covering matters not suggested, or indicated in the original specifications, and patent; and said that, that was not a case like Morey v. Lockwood, quoting a passage from the decision in the latter case, wherein the party, who applied for the reissue, had endeavored to obtain a patent for the whole invention in his original application; and the patent office had refused to grant it to him, and compelled him to strike out of his original application and claim, the parts which were, afterward, inserted in the reissued patent, and for this reason it was the fault of the office, that he did not get his patent for his entire invention. The question there was, not as to the time within which the application for a reissue must be made, but related to the extent to which the patentee could go, under the circumstances, in inserting new matter. The court said, in Russell v. Dodge, that it is not a case like the former one of Morey v. Lockwood, and quote the passage referred to, saying that under the circumstances of this case, the rule adopted in the former would not authorize the patentee to broaden his claim, because he had not put it in his original application. It never was suggested that cold fat would answer the required purpose, until it was stated in the amended specifications, on the application for a reissue, and it was, therefore, held that it did not come within the case of Morey v. Lockwood. That case was decided as far back as 8 Wallace. The patentee, in that case, had applied, originally, for a broader claim, but, he was compelled to cut it down, and take such as the patent office was willing to grant to him. Some years afterward, he applied again to the new commissioner, reinserting his original claim, and got his patent reissued covering it. The court said in that case it was not the patentee's fault. He did the best he could to obtain his patent, and a reissue was sustained; but there was no question, then, as to the time, when the application must be made. It was long before this decision in the Brass Company case was announced. The decision in the Brass Company case has been recognized by the bar, at least, as a departure from the rule that had theretofore obtained, so that, that question never was raised in the case of Morey v. Lockwood. Since the Brass Company case, the question has been raised, and decided, over and over again, that if a party fails to, promptly, pursue his right to a patent covering his whole invention, he, thereby, abandons it to the public. Where the party examines the patent, and sees that it does not cover all he claims, he should apply, promptly. It is claimed, here, that the party sought to get a broader patent in his original application. I am by no means certain, that the original application is as broad as the present, but conceding it to be so, it seems to me, it makes it under the later decisions a stronger case against him, instead of a weaker one, because, not only, by the reading of the patent, could he see that his patent did not cover his whole invention, but he did,

in fact, know, that it was defective because he sought to obtain a broader patent, and it was rejected; and having been rejected, he, not only, had an opportunity of knowing by reading his patent, but he knew, in fact, that he had not obtained, as much as he claimed, and, yet, neglected to take any means by appeal, or, otherwise, to enlarge his claim for eleven years. The case seems to me clearly within the rule laid down in the cases cited.

I am, therefore, unable to take it out of these cases, and I must hold the patent void in those points in which it was claimed to be infringed; and the bill must, therefore, be dismissed.

WILLIAM SHARON v. SARAH ALTHEA HILL.

October 16, 1884.

DUPLICITY IN PLEA IN EQUITY.-Duplicity and multifariousness in a plea, in a suit in equity,renders it bad.

ABATEMENT DIVORCE--FRAUDULENT MARRIAGE CONTRACT.-A suit in equity by one party to a marriage contract in writing, alleged to have been entered into in pursuance of section 75 of the civil code of California, to annul the contract as fraudulent and for an injunction, is for a different cause from one by the other party to the contract, for a divorce arising upon the same alleged marriage contract, and a suit for the latter object pending in one court, will not abate a suit of the former character subsequently brought in another court.

ABATEMENT-DIFFERENT JURISDICTIONS. The state and United States courts are courts of different jurisdictions, and a suit pending in a state court, will not abate a suit, subsequently, brought in a United States court for the same cause.

EQUITY RULE 69-BURDEN OF PROOF.-Where the time of taking testimony has expired under equity rule 69, and the case is heard on the bill, plea and replication to the plea, without evidence to support the plea, the plea will be overruled for want of evidence. The burden of proof is on the party pleading the facts relied on to oust the jurisdiction.

See decision on demurrer in this case, Sharon v. Hill, 2 West Coast Rep., 164; 9 Saw., showing character of the suit.

W. H. L. Barnes, for the complainant.

Tyler & Tyler, for the defendant.

SAWYER, CIRCUIT JUDGE, delivering an oral decision.

If

There is but one thing to do in this case; and that is, to overrule the pleas. There are, in fact, two pleas; one is, that another suit is pending in a state court for the same cause of suit. The other is, that the complainant, Sharon, is a citizen of the state of California, and, therefore, that this court has no jurisdiction in the case. the complainant had objected to the plea on the ground of duplicity, and multifariousness, and set it down for argument instead of replying, the court would have been obliged to overrule it on that ground. But one plea can be set up in equity without express leave of the court: Sto. Eq. Pl., sec. 653-4; 2 Dan. Ch. Pr., 681–2, Perkins' Ed. The plea is bad on that ground. The plaintiff's counsel did not see fit to set it down for argument on that ground. Admitting the facts as alleged in the plea of another suit pending to be true, the plea must be held bad, because the two causes of suit are not the same. The suit in the state court is for a divorce and a division of the community property. The suit in this court is for a

decree declaring the written instrument set out and claimed to be a contract of marriage made in pursuance of section 75 of the civil code of California, to be fraudulent and void; for cancelling it on that ground, and for a perpetual injunction restraining defendant from claiming any rights under it. It is true the same principle issue will arise in both cases, but the bills of complainant in the respective suits call and pray for entirely different and inconsistent relief. They are, therefore, not the same cause of suit; nor is the relief sought in the two suits by the same party. The first plea would be bad in substance on that ground: 2 Danl. Ch., 720-1. The whole effect sought in the second suit could not be had in the first, nor by the same party. A cross bill at least would be necessary, which would, in effect, be another suit. It is also bad on another ground-that the suit set up is not pending in a court of the same jurisdiction. (Ib.) It is well settled by the supreme court of the United States, that a cause of action pending in another jurisdiction can not be pleaded in abatement of a suit in the United States courts; and that the courts of the states and of the United States are courts of different jurisdictions: Stanton v. Embrey, 93 U. S., 548, 550; Gordon v. Gilfoil, 99 U. S., 169, 178. Here there are two jurisdictions-jurisdictions of two distinct governments. One is state jurisdiction, and the other is the jurisdiction of a national court. If it were a fact, that a suit is pending for the same cause in the state court-a court of a different sovereign jurisdiction,-it would not abate the suit here. The plea is bad, in substance, on that ground; and this objection is taken in the replication. This plea conceding the facts set up to be true in fact, still affords no ground for abating the suit. But a replication having been filed, taking issue on the plea, to the jurisdiction, the case is submitted for decision on the pleadings without any evidence. The plea was filed April 24, 1884. The plaintiff joined issue by filing his replication on May 3, 1884, taking issue on the facts alleged in the plea. The party under equity rule 69, prescribed by the supreme court of the United States, had a certain prescribed time within which he could take testimony. "Three months, and no more, shall be allowed for the taking of testimony after a cause is at issue, unless the court, or a judge thereof, shall, upon special cause shown by either party, enlarge the time; and no testimony taken after such period shall be allowed to be read in evidence at the hearing." No extension of time was given, or even applied for. That rule is specific. The filing of this plea to the jurisdiction that Mr. Sharon is a citizen of California, and the replication to it presented issues of fact. The plea was filed early in May. Over five months have elapsed since the case was at issue on the plea. No testimony has been taken and no application for an extension of time was made. The three months having expired, no testimony can now be taken. It was on that ground that the case was submitted on the pleadings without evidence by complainant's counsel on yesterday, as he had a right to do, it having been regularly set down for hearing on the calendar for that day, and

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