Upon this preliminary question the evidence warranted a finding either way. The judge having rejected the letters, it is to be assumed that his finding upon this preliminary question was that the plaintiff did not write them; and that finding we cannot disturb. Upon such a finding the court properly excluded the letters. The rules of law applicable to such a situation have been so fully discussed in the recent cases of Commonwealth v. Reagan, 175 Mass. 335, 78 Am. St. Rep. 496, 56 N. E. 577, and Commonwealth v. Tucker, 189 Mass. 457, 76 N. E. 127, 7 L. R. A., N. S., 1056, that we need only to refer to those cases and the authorities therein respectively cited.

Exceptions overruled.

The Sufficiency of the Preliminary Proofs to justify the admission of such documentary evidence as a photograph is a question committed to the discretion of the trial judge, and will not be reviewed on repeal unless there has been an abuse of such discretion: See note to State v. Matheson, 114 Am. St. Rep. 441.

AMERICAN CIRCULAR LOOM COMPANY v. WILSON. [198 Mass. 182, 84 N. E. 133.]

EQUITY PRACTICE-Additional Findings. It is the right and duty of the judge to make such additional or different findings of fact, without hearing further evidence, as follow as inferences from the facts reported by the master. (p. 424.)

EQUITY PRACTICE.-The formal confirmation of the report of a master, though the more regular practice, is not indispensable where the action of the court amounts to a practical confirmation. (p. 424.)

JURISDICTION-State and National Courts-Patent Rights.A state court has jurisdiction to try and determine a suit in equity to establish an equitable title to letters patent issued by the United States. (p. 424.)

LETTERS PATENT-Employer's Right to an Invention of His Employé. The superintendent of a manufacturing department, charged with the duty of looking after machinery and making improvements therein, who makes an invention, his employer furnishing the money necessary to pay the expenses of procuring a patent, does not thereby lose his right to the invention so as to entitle his employer to an assignment of the letters patent, where such employer has had the benefit of the invention through the use of machines made under the patent and contributing largely to the success of his business. (p. 425.)

LETTERS PATENT, Employer's Right or License to Use.When one in the employ of another in a certain line of work devises an improved method or instrument for doing that work, and uses the

property of his employers and the services of their employés to develop and put into practicable form such invention, and explicitly assents to the use by his employers of such invention, he thereby gives some kind of license, or, at least, a shop right to any patent which may be issued to him as the result of his invention and of the use of his employers' property and employés thus given to him, but his employers are not from these facts entitled to a perpetual and exclusive right under the patent. (p. 428.)

EMPLOYÉ in Manufacturing Plant, Duty of to His Employer. One who is both a director and an employé of a manufacturing corporation owes it the duty to be vigilant in acquiring information as to all experiments made in its factory relating to machinery, and to communicate to the board of directors, or, at least, to the managing director, all material information he may obtain in regard to contemplated improvements or inventions, to enable his employer to act intelligently and promptly upon the subject of acquiring title to any new inventions or patents relating to its machinery, and is legally bound not to act in antagonism to the interests of the corporation. (p. 430.)

CORPORATION, MANUFACTURING, Employé and Director of, When may not Acquire a Patent for His Own Use.-A director and trusted employé of a manufacturing corporation, knowing that it is able to purchase any invention or improved machinery for use in its business, and that its interests would be promoted by such acquisition, violates his duty by secretly purchasing any such invention or improvement, either for the purpose of afterward selling it at an advance price or of using it to the injury of his employer, and such employing corporation may, by proper proceedings in equity, secure to itself the benefit of any purchase made by such employé. (p. 430.)

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EMPLOYER AND EMPLOYÉ, Duty of the Former to Act Promptly When Informed that the Latter has Purchased Patent Rights to Which the Employer may Become Entitled. If an ployé, becoming aware of an invention susceptible of being applied to the machinery and in the business of his employer, takes an assignment of the patents for his own use, and the employer permits the employé to pay off an indebtedness existing in favor of the employer for moneys advanced to the inventor while perfecting his invention and also to make additional payments to the inventor, and then remains silent for more than two and a half years, this is an election to permit the employé to retain for his own use the rights acquired by an assignment to him of the letters patent, and precludes the employer from maintaining any suit to compel such rights to be assigned to it or used for its benefit. (pp. 431, 432.)

EMPLOYER AND EMPLOYÉ, Right of the Former to an Assignment of Patent Rights Acquired by the Latter.-If a trusted employé of a manufacturing corporation knows of experiments being made and inventions perfected relating to machinery of the class used in the business of the employer in the charge of such employé, and acquires by assignment letters patent to such invention without first giving his employer an opportunity to do so, the latter may treat the assignment as taken in trust for his benefit, and may compel the transfer upon reimbursing his employé for the respective amounts paid by him. (pp. 432, 433.)

LETTERS PATENT, Equitable Assignment of Right to by One Corporation to Another.-If letters patent to an invention are acquired under such circumstances that a corporation has a right to insist that the acquisition shall be treated as a trust for its benefit, and it turns over all its assets to another corporation, which takes charge

of its business affairs, and a formal assignment is made of such assets, including letters patent, inventions and choses in action, the assignee corporation is entitled to have the inventions so acquired held in trust for its benefit, and to a decree requiring an assignment to it. (p. 433.)

EQUITY PRACTICE-Discretion Respecting Recommitting the Master's Report-It is within the discretion of the trial judge to determine whether he will recommit the master's report as requested at different times by each party. (p. 434.)

INJUNCTION PENDENTE LITE, Discretion of the Court Respecting. It is in the discretion of the judge whether he will issue, continue or dissolve an injunction pendente lite, and what terms, if any, he will impose on either party, and whether he will require a bond to be given as a condition to such issuing. (p. 434.)

INJUNCTION, Assessment of Damages for Wrongfully Issuing It, When may be Refused.-Where no bond was required or given to authorize the issuing of an injunction, the court issuing may, on its dissolution, refuse to make any assessment of the damages suffered from such issuing. (p. 434.)

EQUITY PRACTICE—Amount to be Paid for an Assignment When Should not be Left Open.-When a court finds that the plaintiff should pay the defendant certain expenditures made by him as a condition of the assignment by him to the plaintiff of letters patent, the amount so to be paid should not be left in blank in the final decree, to be determined on a further application to the court, but the question of such amounts should be settled by the final decree. (p. 435.)

EQUITY PRACTICE Requirement of an Assignment, When Should not be Absolute.-Where a decree establishes the complainant's rights to the assignment of letters patent on the repayment of disbursements made by the defendant, and where the plaintiff has an option not to make such payment unless he wishes to enforce his right to such assignment, the decree should not require the defendant absolutely to make the assignment, and should be to the effect that the defendant assign upon the repayment of the sums found to be due. (p. 435.)

Suit seeking to establish in the plaintiff corporation an alleged equitable title to seven letters patent issued by the United States and one pending application for a patent. On the filing of the bill, an ad interim injunction was ordered, and after a hearing, on motion, a further order was made that the injunction be continued pendente lite. A master's report was filed on December 31, 1906, and a motion made on January 16, 1907, by the plaintiff to recommit the case to the master for a supplemental report was denied as to certain specified matters, and granted as to others, providing the master "could make such report upon the evidence already introduced at the hearings before him." The plaintiff appealed from so much of the order as partially denied its motion.

On January 6, 1907, the supplemental report was filed, to which the plaintiff interposed eighty-seven and the defend

ant four exceptions. These were heard before the trial judge, who, on March 15, 1907, made a memorandum and order on the exceptions and also an order for a final decree. This order directed a decree for the tubing machines and the three loom patents, and for the plaintiff as to the remaining three patents and the application for a patent.

The plaintiff, on March 18, 1907, appealed from the order contained in the memorandum, and on April 3d following, the defendants moved that the injunction be dissolved as to the patents regarding which a decree had been ordered in their favor. The defendants also moved that the damages which they had sustained by reason of the injunction be assessed. The motions were denied, and the defendant James S. Wilson appealed.

May 4, 1907, an interlocutory decree was entered overruling some of the plaintiff's exceptions to the master's report and sustaining others, and this decree was, as to the defendants' exceptions, as follows: "The defendants' exceptions are all overruled. They are four in number, and relate almost wholly to the rulings of the master upon matters of law. The court will state its own rulings upon matters of law so far as necessary to dispose of the case in the order for final decree." The defendants appealed from this latter decree.

May 25, 1907, a motion was made by the defendants that the report be recommitted to the master to find upon certain specified matters respecting which, according to the affidavit of their counsel, the inferences contained in the judge's memorandum for a decree drawn from the facts reported by the master were at variance with the evidence introduced before him. Counsel for the plaintiff filed an affidavit stating that the findings for which the defendants requested a recommittal of the report were either wholly immaterial or sufficiently covered by matters appearing in the master's report, or were directly contrary to the findings made by him and the evidence upon which the findings were made, and that many of the matters concerning which further findings were requested involved pure questions of law and inferences. of fact on matters clearly inferable from facts appearing in the master's report. This motion having been denied, September 3, 1907, the defendants appealed. On the lastnamed date, the court denied a motion again interposed that the plaintiff be required to give a bond to pay damages sustained by reason of the injunction, and also denied an application to assess such damages, and from this action of the court the defendants also appealed.

The master's findings respecting the employment of the defendant Wilson upon which the complainant relied were as follows: "In 1892 the plaintiff was engaged in a small way in producing flexible tubing at a small shop or factory at West Hanover, Massachusetts. Both its output and financial resources were very small. The defendant at this time was the owner of a factory building in Chelsea, Massachusetts, and a resident of that city. He was then about thirtyone years of age and temporarily out of employment. He had had a varied business experience, having been a traveling salesman, a shipping clerk, and assistant superintendent of a paper mill and factory, and had for some time run a stock farm. He was a man of energy and executive ability and of good character, and the matter of renting his factory in Chelsea to the plaintiff and entering its employ came up. At a directors' meeting held in 1892, the following vote was passed: 'Voted, that the treasurer be authorized to make a contract with J. S. Wilson of Chelsea, Massachusetts, for the rent of his factory at Chelsea, Massachusetts, at a rent of one thousand dollars per year, with the privilege of four years at the same rate, also for his services for one year at eighteen hundred dollars to be paid at the rate of one hundred dollars per month and six hundred dollars at the end of the year.' No written contract was executed, but a verbal agreement in the matter was entered into, following sundry conversations between the defendant and the officers of the plaintiff company. The verbal agreement as regards the employment was in substance for the services of the defendant at the salary above named, and defendant entered plaintiff's employ in June, 1892, in accordance with said agreement, and rented his factory to the plaintiff in accordance with the terms of said vote.

"The first important contested question which arises is as to the terms of this verbal contract of employment. What did the parties understand by the 'services' of Wilson? The plaintiff contends that defendant was hired, in part at least, as an inventor or mechanical expert to improve the slow and inefficient methods then in use in making flexible tubing, and in general to have full charge and control of the mechanical and producing end of the business, subject, however, to one Brooks, who was then and until his death in July, 1899, the general manager of the company; that the defendant, either by express agreement or necessary implication, bound himself to transfer to the plaintiff patents to all inventions which he might either make or acquire while in the employ of the