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Keplinger

V.

1825. the act of the 21st February, 1793, c. 156. and any person without the consent of the patentee, his executors, &c. first obtained in writing, shall. De Young. make, devise, use, or sell, the thing whereof the exclusive right is secured to the said patentee by such patent, such person so offending shall forfeit and pay to the said patentee, a sum equal to three times the actual damage sustained by such patentee," &c.

How far the

evidence, con

the contract,

authorized the

The contract, taken in connexion with the nected with whole of the evidence stated in the bill of exmight have ceptions, if the same were believed by the jury, jury to infer, formed most certainly a strong case against the chine employ-defendant, sufficient to have warranted the jury ed in the main inferring, either that the machine which was patented to be employed in the manufacture of the watchowned by the chains was owned in whole or in part by the

that the

nufacture

the

of

articles, was

defendant, or

the defendant

was hired to defendant, or that it was hired to the defendant under colour for six months, under colour of a sale of the arti

of a sale of the

manufactured

articles to be cles which might be manufactured with it, and with it, and with intent to invade the plaintiff's patent right.

with intent to

violate the Whether the contract, taken in connexion with plaintiff's pa- the whole of the evidence, does or does not

tent right. "

Effect of the contract taken per se.

amount to a hiring by the defendant of the machine, or the use of it for six months, is a point which is not to be considered as being decided either way by the Court. The bill of exceptions does not call for an opinion upon it.

But the contract taken by itself, amounted to no more than an agreement by the defendant to purchase, at a fixed price, all the watch chains, not exceeding five gross a week, which Hatch

Keplinger

V.

De Young.

& Kirkner might be able to manufacture in the 1825. course of six months, with any machine they might choose to employ; and an agreement on the part of Hatch & Kirkner, to devote their whole time and attention to the manufacture of the chains, and not to sell or dispose of any of them, so as to interfere with the exclusive privilege secured to the defendant, of purchasing the whole quantity which it might be practicable for them to make.

contracts

to

tented articles

If this contract was real, and not colourable, which is the obvious meaning of the instruction, and the defendant had no other connexion with H. & K. in regard to these chains than what grew out of it, it would, in the opinion of the Court, be an extravagant construction of the patent law, to pronounce that it amounted to a breach of the plaintiff's patent right, by fixing upon the defendant the charge of having used the plaintiff's machine. Such a construction Effect of would be highly inconvenient and unjust to the purchase parest of the community, since it might subject any from a manuman who might innocently contract with a manu- infringes facturer to purchase all the articles which he patent right. might be able to make within a limited period, to the heavy penalty inflicted by the act, although he might have been ignorant of the plaintiff's patent, or that a violation of it would be the necessary consequence of the contract. It might possibly extend farther, and affect contracts express or implied, though of a more limited character, but equally innocent, as to which, howit is not the intention of the Court to ex

ever,

facturer who

the

1825. press any opinion, as this case does not call for it.

Keplinger

V.

This cause was argued by the plaintiff's counDe Young. sel as if the opinion of the Court below had been Effect of the given upon the whole of the evidence. But this opinion of the Circuit Court, was not the case. No instruction was asked for as applied to but by the defendant's counsel, and that was the case upon confined to a single part of the case, the construction was nexion between the defendant and H. & K., in

that part of

which an in

asked.

The opinion

of this Court

regard to the watch-chains which the latter bound themselves, by their contract, to manufacture and deliver to the former. If the jury had been of opinion, upon the whole of the evidence, that the contract was not a real one, or that that instrument did not constitute the sole connexion between those parties, or that the transaction was merely colourable, with a view to evade the law, the jury were not precluded by the instruction from considering the plaintiff's patent right as violated, and finding a verdict accordingly.

Had the plaintiffs counsel thought proper to confined to the call upon the Court for an opinion and instrucsingle point, upon which tion to the jury, upon any points arising out of

the charge of

the Court be- the whole, or any part of the evidence, it would

low, excepted.

to, was given. have been their duty to give an opinion upon

such points, leaving the conclusion of fact from the evidence to be drawn by the jury. But this course not having been pursued, this Court can take no notice of the evidence, although spread upon the record, except so far as it is connected with the single point upon which the opinion, which is excepted to was given. As to the residue of that opinion, that "the legal aspect of the

V.

Johnson.

case would not be changed, although the de- 1825. fendant might, on any occasion, have supplied, at the cost of H. & K, the wire from which the chains so manufactured were made," it is quite as free from objection as the preceding part of it, since it stands upon precisely the same principle.

Judgment affirmed, with costs.

[USURY. LEX LOCI CONTRACTUS.]

DE WOLF v. J. JOHNSON, R. M. JOHNSON, W. T.
BARRY, and J. PRENTISS.

In a contract for the loan of money, the law of the place where the
contract is made is to govern; and it is immaterial that the loan
was to be secured by a mortgage on lands in another State.
In such a case, the statutes of usury of the State where the contract
was made, and not those of the State where it is secured by mort-
gage, are to govern it, unless there be some other circumstance to
show, that the parties had in view the laws of the latter State.
Although a contract be usurious in its inception, a subsequent agree-
ment to free it from the taint of usury, will render it valid.
The purchaser of an equity of redemption cannot set up usury as
a defence to a bill brought by the mortgagee for a foreclosure, espe-
cially if the mortgagor has himself waived the defence.
Under a usury law which does not avoid the securities, but only for-
bids the taking a greater interest than six per centum per annum, a
Court of equity will not refuse its aid to recover the principal.
A certificated bankrupt or insolvent, against whom no relief can be
had, is not a necessary party to a suit in equity; but if he be made
a defendant, he cannot be examined as a witness in the cause, until
an order has been obtained upon motion for that purpose.

1825.

De Wolf

V.

Johnson.

APPEAL from the Circuit Court of Kentucky. This was a bill filed by the appellant, De Wolf, in the Court below, on the 4th of September, 1818, for a foreclosure of a mortgage given by Prentiss, one of the respondents, on the 7th of July, 1817, to secure the repayment of the sum of 62,000 dollars. The bill alleged, that the mortgagor had conveyed his equity of redemption to W. T. Barry, by a deed of trust dated the 16th of March, 1818, describing the lands as "all those tracts or parcels of land described and contained in a deed of mortgage from the said J. Prentiss to the said J. De Wolf, dated the 7th of July, 1817," "it being the intention and meaning hereof, that after the satisfaction of the debts set forth in said deeds, the remainder of the property described in said deeds," "shall be hereby conveyed." According to the provisions of the deed, Barry exposed the premises for sale at public auction, on the 27th of May, 1818, "subject to the encumbrances of any previous mortgage or deed of trust, particularly a mortgage deed to J. De Wolf, from J. Prentiss, dated the 7th of July, 1817," "recorded in the clerk's office of the Fayette County Court, and to which all persons wishing to purchase are referred for more particular information." At this sale, the property was purchased by J. Johnson and R. M. Johnson. Prentiss filed no answer to the bill, and it was taken pro confesso against him. J. Johnson answered, claiming as a bona fidei purchaser for a valuable consideration, and setting up the defence of

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