The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1875-08-06
UNITED STATES SUPREME COURT
PATENT cAsE-AsCERTAISMENT OF DAMAGES
AMENDMENT AFTER DECREE.


AMENDMENT AFTER DECREE.
WASHINGTON. August 5. 1875.
Nos. 11s ana 1l9. Charles Nj. Iremain and Will.
lam Is. Tremain, appellants. vs. Alonzo HITCHCOCK
OF al, and cross appeal.-Appeals from the Cir.
cult Court OF the Sou hern District OF New YORK.
Mr.. Justice Strong delivered the opinion OF tne
Court. The bill filed by the complainants IN the
Court below set forth that patent Tor .,tremolO
attachment" 10 musical instruments was granted
on the 9th oil June, 1865, TO Il. W. Carpenters that
subsequently the patentee assigned the letters
patent to the compainants; taat on the 1sth day
OF May, 1860, they surrendered the patent and
bered 3.444) and that the defendants nad been
guilty of Infringing their rights under the patent
To the com plant thus exhibited the defendants
answered. admitting the grant or the letters TO
Carpenter. sut denying all knowledge as 10 the
truth OF the allegations that Carpenter mad at any
time assigned mis- interest 20 the complainants,
or TO any one or more OF them, and therefore 1e-
nyng that the complatnants had any lateresr In
the said letters patent or 10 the reissue" OF the
same, as set forth In the bill or complaint.
The answer further averred that carpenter
was not the original inventor OF the Tree
molo attachment, but that lt was known
and was IN use before his alleged Invention was
made. Still farther he answer denied that the
defendants had lnIringed upon the rights anu
privileges granted by tne patent dated june ~,
1865 ''Or by any OF the reissues OF the same" 10
this answer u general replication was put IN and
the parties went trial, when the complainants
gave evidence, without objection, reissued LETT
ters patent No. 1865, dated october 8, 1869,
which mad been granted on me surrender
OF the first reissue No 3444 THIS second re-
but it plain both parties supposed
1t was through all the progress OF tue trlai: AS
we have noticed. the answer denied Infringe
ment, not of tue single reissue men toned In the
bill, but OF any o. the reissues. No other than
No. ,665 was put in evidence. rue decretei order
to account expressly mentioned IL. The eyidence
taken by the master under the order OF reference
related solely To attachments sold by the defend
ants after the second reissue was granted. In tho
exceptions taken by them to the masters report
no animation was made that the rlgnts OF tne
compliments under the reissue, 3G65, were hot
on trial, and not even when the 1ual decree was
made was IL suggested that the parties had been
trying the case on an issue not made by the plead
tngs. Practically, indeed, the rights or the COM
painants under the second reissue, ana the de-
fendants' infringement thereof were in issue un-
der the answer and the replication. We think,
therefore the order OF the Court, directing that
the record.be amended by inserting IN the OIL an
avermenr OF the second reissue was properly
made under the circumstances OF the case,
though made after the final decree. Ii deprived
the defendants OF no rights which they had not
enjoyed during all the progress Of the trial ls
form, because 1t introduced no other cause of ac-
ton than that which had been tried. 1t Is trud
acLer OF the bill ought not generally co be
allowed alter a case has been set ioI
a bearing, and SIM less after ter, It has
become lnappllcable II such an amendment De
permitted. But IN this case the defendants were
could have mad, II the bill had originally averred
the second reissue. The is undoubtedly
be subserved by denying 10 the Clrcuis
Court the power TO order such an amend
tried precisely as IL must have been tried If tie
bill had originally contained the avermenp In
serted by the amendment. on the merits the de-
cree becree below IN favor or the complalnan1s Is
affirmed, the Court sanctioning the rule adopted
that the general expenses OF the whole business IS
70 be taken into consideration wAen estimating
the deductions TO be made from the price obs
tanned in the sale OF organs with the attachment.
coNF1scAr1oN-LHE ESTATE OBTAINED By
Fraud "REMINISCENCES OF THE WAR.
No. 12e. Peter Mongsr, appellant, VS.. Thomas
Shirley-Appeal from the Circuit Court for tho
Eastern District or Tennessee.-Mr. Justice
Swayne delivered the opinion OF the Court. Shr-
ley was the complainant in the Court below. His
bill alleges that Monger Instituted proceedings
against him by attachment In the Circuit Court OF
Hamilton county, tennessee. upon promlssory
note purporting 10 be executed By Shirley TO
John w. Westmoreland for the sum or
$4,000, dated December Is, 1861 payable three
months from date, aud Endorsed by the paYes 10
Monger; that judgment was rendered against
Shirley by default that large and valuable farm,
belonging to him. was sold under the judgment.
and bought by Monger; that shirley was then aD.
sent from tennessee and was ignorant OF
the proceedings; that the note and indorse-
ment were foresrles, and that tne whole
proceeding eliminating IN the sale OF tna
farm was gross fraud upon shirley, perpetrated
by Monger 1t Is fnrtner alleged that Monger. IN
certain proceedings IN conhscation in the District
Court Of the Unlted States the District OF East
Tennessee, had frauduenty acquired title ia
OF the bill is that Monger's titles may De annuledl
that he may be compelled TO account Tor the rents
and profits OF the properly and Tor general relieL
Monger answered and denied all tue material ALE
cations OF the BILL Testimony was taken upon
both sides. The Court below sustained the bill and
decreed accordingly. MYngsr taereupon removed
the case by appeal to this court. Tne power OF
Court OF Equity to annul judgments and DEGREES
and all titles acquired under them, Tor fraud,
where the rights OF bona Ede purchasers have not
interviewed, Is too well settled TO require discus
sion -Freeman on Judgments, sections 4s6 4s9.
1
alleged by Monger are as folows:-Shlrley SYM
patnized with the rebel cause, and early 10 the
ing ing to be Jonn W. westmoreland cams
or the Union army, and offered TO sell the note TO
Monger for It's face In Confederate paper, whlcn
was then and there worth ten cents on the dol
lar Monger bought the note under due and paid
Tor IL accordingly. The deposition or David West
fed that about taree months before that time q
man claiming TO be John W. Westmoreland canle
to his house and said that the OBJECT OF his eau
was 10 ascertain whether they were related liz
men toned that he had sold the note or Shirley Co
Monger. The witness had never seen aim before
and never saw him atterward. The note
disap peared from the dies OF the court aud could
not be found. There Is no proof or any CONSIDER
alton for giving the note, and none OF its execu-
ton "a TO time place or circumstance The
testimony OF John w. Westmoreand was NOS
taken. and there is no proof that person of that
name or had been in existence except the
testimony OF the David Westmoreland before
mentioned and ms further testimony that be had
before the war; According TO MoRger. the seller OF
tue note came secretly and departed secretly.
There Is no proof tnat at that time lie saw any
one but MOnger. There no trace or his resi-
dence or presence anywhere, before or afterward.
The deposition OF David Westm0reland IN n0wlSo
identines the Stranger who called on aim as the
person he assumed 70 be. The testimony is lnJu-
rious to honger. That person. whoever he was,
was living In the TALL OF 1885, while IRIS suit Was
pending, and more than four years after
tho alleged transfer OF the note TO honger. lie
was willing 70 give Monger the benefit OF ri5
declarations TO David Westmoreland for Whatever
they were worth. His disappearance aud subse-
quent non-appearanee can only be accounted fof
on Tie ground that ne was AFRAID to put himself
within the reach OF the law ny appearing as a Wit
ness. on these facts anu other evidence the notd
is held 10 pe forgery, and tns decree below Is
affirmed the Court holding that the life estate
by Monger by the condscation proceed.
lngs must be held TO have been taken, as he
tooK the title under the attachment proceedings
In trust, er ntdIetoto tor shirley, ana subject 70
all his equities.
I'VE RESIGNATION OF Ar pTnnY