Liabilities of Partners to each other and to Creditors. doubted whether he can put an end to the partnership by assigning away all the effects, except as above; and, consequently, whether he can do so for the benefit of the creditors of the firm. Pierpont and Lord v. Graham, 4 Wash. C. C. R. 232. 115. It is not meant to concede, that where two persons are indebted by simple contract, and the creditor takes the note of one for the amount of the debt, that it is always necessary to prove an express agreement to take the note in satisfaction of the debt. The agreement may be in. ferred from the nature and operation of the new contract, or from circumstances. Ibid. 116. One partner cannot withdraw himself, against the terms of the articles of association, or voluntarily, by an act of his own, terminate it without the assent of the others, though it may be put an end to by the act of God or of the law, by death or bankruptcy. lbid. 117. Where one of two partners, resident abroad, is sued here, he is not allowed to plead, in abatement, that his co-partner is not sued with him. Paylyart v. Goulding, N. Carolina Cases, 78. 118. The defendant may avail himself of the circumstance that the suit is brought in the name of one only of two partners, upon the plea of non assumpsit; but where he wishes to avail himself of the non-joinder of his own partner, as co-defendant, he must plead it in abatement. Coffee v. Eastland, 1 Cooke, 159. 119. The responsibility of unavowed partners, depends on the general principle of commercial law; not on the particular stipulations of the articles. Winship et al. v. The Bank of the United States, 5 Peters, 529. and that surplus only is liable for the separate debts of such partner. Ibid. 124. The funds of a partnership cannot be rightfully applied by one of the partners to the discharge of his own separate pre-existing debts, without the express or implied assent of the other parties; and it makes no difference in such a case, that the separate creditor had no knowledge at the time of the fact of the fund being partnership property. Rogers v. Batchelder et al., 12 Peters, 221. 125. Whatever acts are done by any partner in regard to partnership property or contracts, beyond the scope and objects of the partnership, must, in general, to bind the partnership, be de rived from such further authority express or implied, conferred upon such partner, beyond that resulting from his character as partner. Ibid. 126. The authority of each partner to dispose of the partnership funds, strictly and rightfully extends only to the business and transactions of the partnership itself; and any disposition of those funds by any partner beyond such purpose, is an excess of his authority as partner; and a misappropriation of those funds for which the partner is responsible to the partnership: though in the case of bona fide purchasers, without notice, for a valuable consideration, the partnership may be bound by the acts of one partner. Ibid. 127. If one partner write a letter in his own name to his creditor, referring to the concerns of the partnership, and his own private debts to those to whom the letter is addressed; the letter not being written in the name of the firm, it cannot be presumed that the other partner had a knowledge of the contents of the letter, and sanctioned them. Unless some proof to this ef fect was given, the other partner ought not to be bound by the contents of the letter. Ibid. 120. If promissory notes are offered for discount at a bank in the usual course of the business of a partnership, by the partner entrusted to conduct the business of the partnership, and 128. Where money is advanced to a partnerare discounted by the bank, and such discount ship, under a guaranty, and the partnership is was within such business; the subsequent mis- dissolved, and the debt is carried at the request application of the money, the holders not being of the debtors to their separate accounts, accordparties or privy thereto, or to the intention to ing to their proportion of interest in the partnermisapply the money, would not deprive them ship; and the creditors give the parties sepaof their right of action against the dormant part-rately a credit for such portion, and discharge ners in such a co-partnership. Ibid. 121. There is no doubt that the liability of a deceased co-partner, as well as his interest in the profits of a concern, may, by contract, be extended beyond his death; but without such a stipulation, even in the case of a co-partnership for a term of years, it is clear that death dissolves the concern. Scholefield v. Eichelberger, 7 Peters, 586. 122. The priority of the United States does not extend so as to take the property of a partner from partnership effects, to pay a separate debt, due by such partner to the United States, when the partnership effects are not sufficient to satisfy the creditors of the partnership. United States v. Hack et al., 8 Peters, 271. 123. It is a rule too well settled to be now called in question, that the interest of each partner in the partnership property, is his share in the surplus, after the partnership debts are paid; VOL. II.-30 the partnership account by carrying it to such separate account, and no notice is given thereof to the guarantor, the guarantor is discharged from all responsibility. Creemer v. Higginson, 1 Mason's C. C. R. 323. 129. Upon a guaranty to the plaintiff, of all notes of A which he should endorse, to the amount of ten thousand dollars, the plaintiff en dorsed notes to A to the stipulated amount, at several banks; and when the notes became due, they were taken up at the banks, and new notes signed by A, and B, his partner, were received by the banks, and the old notes given up. It was held, that the guaranty did not apply to the new notes; and that by the substitution, the old notes were extinguished. Russell v. Perkins, 1 Mason's C. C. R. 368. 130. Although one partner is not bound singly to pay a debt due for the partnership, if when sued, he plead in abatement the omission to join Dissolution of Partnership. Evidence in Actions, &c.—Bankruptcy of a Partnership and of Partners. his partner in the action; yet he is not entitled to recover a partnership debt, in an action in his own name. If he sue in his own name, the defendant may avail himself of it, on the general issue. Jordan v. Wilkins, 3 Wash. C. C. R. 110. of a joint demand, even when made after the dissolution of the partnership.. Ibid. 3. Dissolution of Partnership. 131. Until the partnership is dissolved, the accounts liquidated, and the balance struck, one partner cannot maintain indebitatus assumpsit against the other. Lamalere v. Caze, 1 Wash. C. C. R. 413. 140. In an action against A and B as partners, on a contract executed in the partnership name, A suffered a default, and B pleaded the general issue: Held, that letters, written by A in the partnership name, could not be read in evidence to show that B was not a partner. Chamblin, Ex'r, v. Telley et al., 3 Day's Rep. 303. 141. But, in such case, an account book, containing entries made by A and B, may go to the jury as evidence of a partnership. Ibid. a 132. Where a bill of exchange was drawn by A, after the dissolution of his partnership with B, and the proceeds of the bill went to pay, and did pay, the partnership debts of A & B, which A, on the dissolution of the firm, had assumed to pay; the holder of the bill after its dishonour can have no claim on B, in consequence of the particular appropriation of the proceeds of the bill. Le Roy v. Johnson, 2 Peters, 199. 133. A dissolution of partnership puts an end. Morrison, 1 Peters, 373. to the authority of one partner to bind the other. It operates as a revocation of all power to create new contracts; and the right of the partners as such, can extend no further than to settle the partnership concerns already existing, and to distribute the remaining funds: and this right may be restrained by the delegation of authority to one partner. Bell v. Morrison, 1 Peters, 370. 134. After a dissolution of a partnership, no partner can create a cause of action against the other partner, except by a new authority communicated to him for the purpose. Ibid. 142. Query, Whether an acknowledgment of debt by one partner, after the dissolution of the partnership, is sufficient to take the case out of the statute of limitations? Clementson v. Williams, 8 Cranch, 72; 3 Cond. Rep. 37. 143. The acknowledgment of a debt by one partner, after a dissolution of the co-partnership, is not sufficient to take the case out of the sta tute of limitations, as to the other partner. Bell 135. Upon a dissolution of partnership, each partner has a lien on the effects, as well for his own indemnity against the joint debts, as for his portion of the surplus; but the creditors of the partnership, as such, have no lien on the partnership effects for their debts. Carr v. Hoxie, 1 Sumner's C. C. R. 173. 136. Dissolution of partnership should be made known by express notice, or publication in some newspaper of general circulation. Shurlds v. Tilson, 2 M'Lean's C. C. R. 458. 144. In an action against A as a dormant partner of B, who was insolvent, the creditor of B is not a witness to prove the partnership. Corps V. Robinson, 2 Wash. C. C. R. 388. 145. The confessions of a partner, after the dissolution of the partnership, are not evidence Walter, 2 M'Lean's C. C. R. 87. to charge the firm. Bispham v. Patterson and 146. Goods were purchased by one of the defendants, for which a promissory note was given; other defendant, and, by consent of both partafterwards he entered into partnership with the ners, and the holder of the note, the words, "and company" were added, to make the note stand against the company. Held, that the note was binding on the firm. Crum v. Abbott, 2 M'Lean's C. C. R. 233. 5. Bankruptcy of a Partnership, and of Partners. 147. Under the bankrupt law of the United States, a joint debt may be set off against the separate claim of the assignee of one of the partners; but such set off could not have been made at law, independent of the bankrupt law. Tucker v. Oxley, 5 Cranch, 34; 2 Cond. Rep. 182. 148. A joint debt may be proved under a separate commission, and a full dividend received; it is equity alone which can restrain a joint creditor from receiving his full dividend until the joint effects are exhausted. Ibid. 4. Evidence in Actions by and against Partners. 137. A promissory note given by one member of a commercial company to another member, for the use of the company, will maintain an action at law by the promisee in his own name, against the maker; notwithstanding both parties were partners in that company, and the money 149. Under a separate commission of bankwhen recovered would belong to the company. ruptcy against one partner, only his private proVan Ness v. Forrest, 8 Cranch, 30; 3 Cond.perty, and his interest in the funds of the comRep. 14. pany passes. Harrison v. Sterry, 5 Cranch, 289; 2 Cond. Rep. 260. 138. In cases of partnership, the confession of one partner, in relation to a partnership concern, is in general admissible, in an action against the other. It is not evidence to prove the partnership itself; but that being once admitted or proved, aliunde, the confessions are let in for all collateral purposes. Corps v. Robinson, 2 Wash. C. C. R. 388. 139. Such confession is admissible to take a case out of the statute of limitations, and to establish, not merely the amount, but the existence PASSENGERS. No passage money is due to a ship engaged to transport a passenger, before the arrival of the vessel at the port of destination: unless compen sation, pro rata itineris, is agreed to be paid. Passenger Laws of the United States.-Passport.-Patents for Useful Inventions. The expenses of a passenger, or the means of proceeding to the place of destination, must be paid or tendered to a passenger. On his refusal to proceed, compensation, pro rata, may be demanded. If the passage money has been advanced, it ought to be repaid if the voyage is not performed. Howland v. The Brig Lavinia, 1 Peters' Adm. Decis. 126. PASSENGER LAWS OF THE UNITED STATES. 1. The passenger laws of the United States apply only to passengers whilst on their voyage, and until they shall have landed. After the landing of passengers, the laws of the United States do not come in conflict with the laws of a state, which obliges security to be given against their becoming chargeable as paupers; and for their removal out of the state, in the event of their having become so chargeable. City of New York v. Miln, 11 Peters, 102. 2. Persons are not the subject of commerce; and not being imported goods, they do not fall within the reasoning founded upon the construction of a power given to congress to regulate commerce, and the prohibition of the states from imposing a duty on foreign goods. Ibid. 3. In estimating the number of passengers in a vessel, no deduction is to be made for children or persons not paying; but those employed in navigating the vessel are not to be included. United States v. The Louisa Barbara, Gilpin's D. C. R. 334. 4. In estimating the tonnage of a vessel bringing passengers from a foreign country, the measurement of the custom-house, in the port of the United States where the vessel arrives, is to be taken. Ibid. PASSPORT. A passport granted and certified by the secretary of state, under the impression of the seal of the United States, stating the person named therein to be a citizen of the United States, is not, per se, legal evidence of the facts stated therein. Urtetiqui v. D'Arbel and others, 9 Peters, 692. PATENTS FOR USEFUL INVENTIONS. Invention or 1. The form and subjects of patents. 3. Proceedings and pleadings in actions for the viola. 4. Evidence in actions for the violation of patent rights 5. Surrender and repeal of patents. ......... ........ 360 363 ent machines can be comprehended in the same patents, so as to give a right to the exclusive use of the several machines in combination; yet the act of January 21st, 1808, ch. 117, for the relief of Oliver Evans, authorizes the issuing to him of a patent for his invention, discovery, and improvements in the art of manufacturing flour, and in the several machines applicable to that purpose. Evans v. Eaton, 3 Wheat. 454; 4 Cond. Rep. 291. 2. Under the sixth section of the patent law of February 21st, 1793, ch. 156, if the thing secured by patent had been in use, or had been described in a public work, anterior to the supposed discovery, the patent is void; whether the patentee had a knowledge of this previous use or description, or not. Ibid. 3. A party cannot entitle himself to a patent for more than his own invention; and if the patent be for the whole of a machine, he can maintain a title to it only by establishing that it is substantially new in its structure and mode of operation. Ibid. 4. If the combinations existed before, in machines of the same nature, up to a certain point; and the party's invention consists in adding some new machinery, or some improved mode of operation to the old, the patent should be limited to such improvement; for if it includes the whole machinery, it includes more than his invention, and therefore cannot be supported. Ibid. 5. Where a patent is taken out for an improvement, the specification ought to describe what the improvement is; and the patent should be limited to such improvement. Ibid. 6. The taking of the oath required by the patent act, previous to the issuing a patent, is but a pre-requisite to the granting of a patent; and in no degree essential to its validity: and if not taken, still the patent is valid. Whittemore v. Cutter, 1 Gallis. Č. C. R. 429. 7. No defect or concealment in the specification, will avoid the patent, unless it arose from an intention to deceive the public. Ibid. 8. The first inventor is entitled to the benefit of his invention, if he reduce it to practice, and obtain a patent therefor; and a subsequent inventor cannot, by obtaining a patent, oust the first inventor of his right, or maintain an action against him for the use of his own invention. Woodcock v. Parker et al., 1 Gallis. C. C. R. 438. 9. If the machine for which the patent was obtained substantially existed before, and the plaintiff made an improvement only therein, he is entitled to a patent for the improvement only, and not for the whole machine: and where, under such circumstances, the patent comprehends the whole machine, it is too broad, and therefore void. Ibid. 10. It is not necessary to defeat the plaintiff's 364 patent, that a machine should previously have 366 existed in every respect similar to his own; for Invention a mere change of former proportions, will not entitle a party to a patent. Ibid. 1. The Form and Subjects of Patents. tion. 11. If he claim a patent for the whole machine, it must in substance be a new machine; 1. Although it is not settled whether, under that is, it must be a new mode, method or appli the general patent law, improvements in differ-cation of mechanism, to produce some new The Form and Subjects of Patents. Invention or Discovery. The Specification or Description. effect; or to produce an old effect in a new way. Ibid. 12. If one who has invented merely an improvement, take out a patent for the whole machine, his patent is too broad, and utterly void. Whittemore v. Cutter, 1 Gallis. C. C. R. 478. 13. Where a specific machine already exists, producing certain effects, if a mere addition is made to such machine, to produce the same effect in a better manner; a patent cannot be taken for the whole machine, but for the improvement only. Ibid. 14. In like manner, if to an old machine some new combinations be added to produce new effects, the right to a patent is limited to the new combinations. Ibid. 15. A patent can, in no case, be for an effect only, but for an effect produced in a certain manner or by a peculiar operation. For instance, no patent can be obtained for the admeasurement of time, or the expansive operations of steam; but only for a new mode or new application of machinery to produce these effects: and, therefore, if new effects are produced by an old machine, in its unaltered state, no patent can be legally supported, for it is a patent for an effect only. Ibid. 16. On the other hand, if well known effects are produced by machinery, in all its combinations entirely new, a patent may be claimed for the whole machine. Ibid. 17. So, if the principles of the machine are new, either to produce a new or an old effect, the inventor may well entitle himself to the exclusive right of the whole machine. Ibid. 18. By the principles of a machine, as those words are used in the statute, is not meant the original elementary principles of motion which philosophy and science have discovered, but the modus operandi, the peculiar device or manner of producing any given effect. The expansive power of steam, and the mechanical powers of wheels, have been understood for ages; yet a machine may well employ either the one or the other, and yet be so entirely new in its method of applying them, as to entitle a party to his patent for his whole combination. İbid. 19. It is not sufficient to give validity to a patent, that the specific machine, with all its combinations and effects, did not exist before; for if the same effects were all produced by the application of machinery in separate parts, and the party merely combined them together, or added a new effect, the combination would not sustain the patent; as the artist who added a second hand or repeater to a watch, could not have been entitled to a patent for the whole watch. Ibid. 20. Nor will the patent be protected if the patentee was the inventor of all the material improvements in the old machine, if he suffered them to be used, fully and freely, by the public at large, combined with all the usual machinery; for in such case he must be deemed to have made a gift of them to the public. Ibid. 21. The original inventor of a machine is exclusively entitled to a patent for it. Mere colourable differences or slight improvements, will not affect his rights. Odiorne v. Winkler, 2 Gallis. C. C. R. 51. 22. If another person invent an improvement on such machine, he can entitle himself for a patent to the improvement only, and does not thereby acquire a right to patent and use the original machine: and if he obtain a patent for the whole machine, and not for the improvement only, his patent is too broad, and therefore void. Ibid. 23. The material question in patent causes, is not whether the same elements of motion, or the same component parts are used, but whether the given effect is produced substantially by the same mode of operation, and the same combination of powers in both machines. Mere colourable differences, or slight improvements, cannot shake the right of the original inventor. Ibid. 24. By the expression "true inventor," in the statute, is undoubtedly meant the sole and exclusive inventor: for if the machine were the joint invention of several persons, neither of them could claim to be the true inventor, having an exclusive right to the patent; but the interest would be a joint or common interest in the whole. In such a case, therefore, if a party were to obtain a patent for the invention, having sworn that he was the true inventor, he would, in the language of this act, obtain it upon "false suggestion;" as such false suggestion would be a surprise and fraud upon the government, it might well also be declared to be obtained "surreptitiously." Stearnes v. Barret, 1 Mason's C. C. R. 153. 25. The law allows a party a patent for a new and useful invention: and by "useful invention," is meant, not an invention, in all cases superior to the modes now in use for the same purpose, but useful in contradistinction to frivolous and mischievous inventions. Lowell v. Lewis, 1 Mason's C. C. R. 182. 26. The patentee must describe in his patent in what his invention consists, with reasonable certainty, otherwise it is void for ambiguity. It it be for an improvement in an existing machine, he must, in his patent, distinguish the new from the old, and confine his patent to such parts only as are new; for if both are mixed up together, and a patent is taken for the whole, it is void. Ibid. 27. But if the invention is definitely described in the patent, so as to distinguish it from what is before known, the patent is good, although the specification does not describe the invention in such full and exact terms, that a person skilled in the art and science of which it is a branch, would construct or make the thing invented: unless such defective description or concealment were with intent to deceive the public. Gray v. Osgood, Peters' C. C. R. 394. 28. As among inventors, he who is first in time has a prior exclusive right to the patent for the invention. Ibid. 29. By "useful invention," in the patent act of the United States, is meant an invention which may be applied to a beneficial use in so│ciety, in contradistinction to an invention which The Form and Subjects of Patents. Invention or Discovery. The Specification or Description. is injurious to the morals, the health or the good | patents, at the same time, for the same invenorder of society. Bedford v. Hunt et al., 1 Ma- tion. The first that he obtains, while it remains son's C. C. R. 302. Kneass v. The Schuylkill unrepealed, is an estoppel to any future patent Bank, 4 Wash. C. C. R. 9. for the same invention, founded upon the general patent act. Odiorne v. The Amesbury Nail Factory, 2 Mason's C. C. R. 28. 30. It is not necessary that the invention should be of such general utility, as to supersede all other inventions previously in practice to accomplish the same purpose. Bedford v. Hunt et al., 1 Mason's C. C. R. 302. 31. Nor is it important that its practical utility should be very limited, for the law does not look to the degree of utility. Ibid. 32. A joint patent may well be for a joint invention, but not for a sole invention of one of the patentees: if each of the patentees obtain separate patents for the same invention, as his exclusive invention, and afterwards both obtain a joint patent for the same as their joint invention; they are estopped by the joint patents from asserting any title under the several patents. Barrett et al. v. Hall et al., 1 Mason's C. C. R. 447. 33. If several patents are taken out by several patentees for a several invention, and the same patentees afterwards take out a joint patent for the same, as a joint invention, the parties are not absolutely estopped from asserting the invention to be joint; but the former patents are very strong evidence against a joint invention. Ibid. 40. Where a patentee, in his specification, states and sums up the particulars of his inven tion, and his patent covers them, he is confined to such summary; and he cannot afterwards be permitted to sustain his patent, by showing that some part which he claims, in his summing up, as his invention, though not in fact his invention, is of slight value or importance in his patent. His patent covers it; and if it be not new, the patent must be void. Moody v. Fisk et al., 2 Mason's C. C. R. 112. 41. An invention or improvement, for which a patent has been obtained, must be useful within the meaning of the patent law; or the patent is void. Langdon v. De Groot et al., Paine's C. C. R. 203. 42. Whether the usefulness of an invention be matter of fact to be left to the jury, or whether the court is to decide it as a matter of law? Query. Ibid. 43. It seems, however, that if, on the plaintiff's own showing, the invention appears to be useless, and an imposition on the public, the court should so direct the jury. Ibid. 44. An invention of an ornamental mode of putting up thread, which gave it no additional value, but merely made it sell more readily at retail, and for a larger price, is not a useful invention within the meaning of the patent law. Ibid. 34. A patent cannot embrace various distinct improvements or inventions, but in such case the party must take out separate patents: and if the patentee has invented certain improved machines, which are capable of a distinct operation, and also has invented a combination of those machines to produce a connected result, 45. Under the patent act of February 21st, the same patent cannot at once be for the com- 1793, ch. 156, a patent is valid, although the bination and for each of the improved machines; invention may have been in use for years antefor the inventions are as distinct as if the sub-rior to the date of the patent, if the patentee was jects were entirely different. Ibid. the inventor. Goodyear v. Mathews, Paine's C. C. R. 300. Contra, Pennock v. Dialogue, 2 Peters, 16. 35. If the patent be for an improved machine, or for an improvement of a machine, for the meaning of the terms is substantially the same; then the patent must state in what the improvement specifically consists, and it must be limited to such improvement. Ibid. 36. If, therefore, the terms be so obscure or doubtful that the court cannot say which is the particular improvement which the patentee claims, and to what it is limited, the patent is void for ambiguity; and if it covers more than the improvement, it is void, because it is broader than the invention. Ibid. 37. Where a combination of machinery already exists, up to a certain point, and the patentee makes an addition or improvement to the machinery, he must confine his patent to the improvement. Ibid. 38. If an invention consist in a new combination of machinery, or in improvements upon an old machine, to produce a new effect, the patent should be for the combined machinery or improvements on the old machine; and not for a mere mode or device for producing such effects, detached from the machinery. Ibid. 39. An inventor cannot, under the patent laws of the United States, have two subsisting valid 30* 46. A patent for an entire machine is valid, although the invention consists only of an im provement on such machine; but the patentee is entitled to an exclusive use of no more than his improvement. Ibid. 47. The first section of the patent act of February 21st, 1793, ch. 156, construed in connexion with the other sections of the act, means that the invention should not be known or used as the invention of any other person than the patentee, before the application for the patent. Morris v. Huntingdon, Paine's C. C. R. 348. 48. If the invention has got into use while the inventor was practising upon it, with a view to improve it before applying for a patent, such use does not invalidate the patent; and the motive for the delay, is a question for the jury. Ibid. 49. A patent for an improvement should describe the machine in use, that it may be known in what the improvement consists. Sullivan v. Redfield et al., Paine's C. C. R. 441. 50. One had patented "a new and useful improvement in the steam tow-boat;" but the spe cification did not mention the invention as an improvement, but simply described a tow boat. 2 v |