The City Bank of New York v. Skelton.

of law, may deem proper to apply to his particular case, or such as may exist in the form of general rules of practice or decision.

This power of Circuit Courts to control and stay actions. pending before them is distinctly recognized by the Supreme Court. (Mallow v. Hinde, 12 Wheat. 193; Dunn v. Clarke, 8 Peters, 1.) In both of those cases, the suits at law stayed by injunction were pending on the law side of the Circuit Court; and, in the latter case, although the Supreme Court held that the injunction bill could not be maintained for the want of proper parties, yet they ordered a stay of the suit at law in the Circuit Court until the parties should have had time to seek relief from a State Court. The stay of proceedings in the present case might, therefore, have been rightfully made by order on the common law side of the Court, or the Court may, on a proper bill, act on the Equity side, and effect. the stay by injunction.

The Supreme Court of the State of New York exercises a broad equitable power over suits and suitors, in staying proceedings on mere motion, when the justice of the case demands such interference. (Graham's Pr. B. 3, ch. 2.) It is also a common head of Equity to restrain suits at law by injunction from Chancery, whenever the relief at law is inadequate or imperfect, or whenever the Court of Chancery has cognizance of the case already, and is competent to give the parties full relief. (Thompson v. Brown, 4 Johns. Ch. R. 619, 643; Denton v. Graves, Hopk. Ch. R. 306.) And no doubt, if Yonge had instituted his actions in a State Court of law, the Chancellor would have enjoined their prosecution. But the Courts of the United States will not exercise such authority over the State Court, (Diggs v. Wolcott, 4 Cranch, 179,) nor will the State Court of Chancery interfere with actions pending in the Federal Courts.

The case of Dunn v. Clarke, before cited, is full authority for staying proceedings in the actions at law in this Court, to await the decision upon the subject-matter in the State Court, the case here being clothed also with the additional feature,

Sparkman v. Higgins.

that the suit in the State Court was first brought and is at issue there between the same persons who are parties to the suits here.

The power of this Court thus to interfere being possessed in ample plenitude, we are satisfied that the facts of this case will warrant and indeed demand the exercise of that power. The motion to dissolve the injunction must, therefore, be denied.

SPARKMAN AND KELSEY

vs.

ELIAS S. HIGGINS AND OTHERS. IN EQUITY.

Where a plaintiff, who had obtained an injunction from this Court restraining a defendant from the infringement of a patent, set on foot a stratagem to lead the defendant to violate the injunction, and immediately made a motion for an attachment, knowing the defendant to be innocent of any wrongful act, and it clearly appeared that there had been no violation of the injunction: Held, that the plaintiff must pay the costs of the motion.

Even if there had been an actual violation of the injunction, induced by the stratagem of the plaintiff, an application for an attachment would not, it seems, be justified, either in conscience or in law.

(Before BETTS, J., Southern District of New York, October 20th, 1846.)

THIS was a motion for an attachment for an alleged violation of an injunction restraining the defendants from infringing the plaintiffs' patent for a design for floor oil-cloth. (See Sparkman v. Higgins, 1 Blatchf. C. C. R. 205.)

Daniel Lord, for the plaintiffs.

Seth P. Staples, for the defendants.

BETTS, J. A witness on the part of the plaintiffs deposes that he purchased, a few days since, some of the oil-cloth of

Sparkman v. Higgins.

the pattern in question at a store in Pearl street; that on the same day he applied for oil-cloth at the defendants' store in Broad street, and bought some of the same kind there; and that the clerk who sold the latter told him that the oil-cloth in Pearl street belonged to the defendants.

On the part of the defendants it is established, by the fullest proof, that they had no interest whatever in the Pearl street store, or in the oil-cloth sold there, and the evidence is strong to show that the plaintiffs were well aware of that fact. It is further proved by the defendants that a person applied to their porter, at their store, to see oil-cloth; that it was shown him; and that he selected out of the general stock the particular piece in question, and desired to have it sent to an address, which he gave, at a place designated, and then left the store. Immediately afterwards, one of the defendants went into the sales-room, and, on being informed by the porter of what had happened, forbade his delivering the cloth, and told him it could not be sold. The defendants further prove, that when the injunction was served they gave strict orders to their clerks to stop selling that description of cloth. The person who thus called at their store did not pay for the cloth, and it was not sent to the address. The name he gave was an assumed one, and it appears that he acted for the plaintiffs. The motion for an attachment is made on his affidavit.

The counsel for the plaintiffs very properly admitted that the application could not prevail, and that the evidence fully acquitted the defendants of all blame. But it was urged that probable cause for the motion had been shown, and that costs ought not to be awarded against the plaintiffs.

The proceeding on the part of the plaintiffs was palpably a stratagem to lead the defendants to violate the injunction. This motion is not induced by any acts known to have been done by the defendants, or by any declaration or intimation of theirs that they would disregard the inhibition they were under. Their conduct was in every respect submissive to the mandate of the Court. Even if the plaintiffs' agent had,

Wilder v. McCormick,

under such circumstances, succeeded in making a valid purchase of the oil-cloth from the defendants' porter, by paying the price or obtaining a delivery of it, such transaction would not, either in conscience or in law, justify an application for an attachment. But there was no sale in fact; and, as the plaintiffs set on foot a scheme to entrap the defendants, and immediately pursued them with a motion for an attachment, knowing them to be innocent of any wrongful act, it is right that the plaintiffs should be charged with the costs of an application so made.

The motion for an attachment is denied, with costs to be taxed.

BENJAMIN G. Wilder vs. MICHAEL MCCORMICK.

Where it is assigned, as cause of demurrer to a declaration, that it is not properly entitled, but the defect is not pointed out until the argument, and is then alleged to consist in a variance between the declaration and the writ, the Court cannot act upon it on such a suggestion.

But, even if such an objection were properly raised, an amendment of the error would be allowed.

Variances between the declaration and the writ cannot be taken advantage of on general demurrer.

In a declaration on Letters Patent for an invention, it is not necessary to aver at what specific time the invention patented was made; it need only be before the application for the patent.

The grant of Letters Patent is itself sufficient evidence that all the preliminary steps required by law were properly taken by the patentee; and it is not necessary, in a declaration on a patent, to plead the taking of any of those steps.

A declaration on a patent must tender an issue on the novelty and utility of the discovery patented, but it need not show the regularity of the proceedings in the Patent Office preliminary to the grant.

The authority of the Commissioner of Patents in granting a patent is not of the nature of jurisdiction, in its common law acceptation, and the doctrine appertaining to the judgments of tribunals of inferior jurisdiction, when pleaded, is not applicable to his acts.

A declaration on a patent, which avers the patent and specification to be "in

Wilder v. McCormick.

language of the import and to the effect following," and then sets them forth in hæc verba, is sufficient, and is not open to the objection that the patent is not set forth according to its legal tenor and effect.

An averment that the patent and specification are "ready in Court to be produced," is equivalent to a profert in its most formal terms.

A reiteration of infringements of a patent may be sued for in one action.

A declaration for the infringement of a patent, commencing in case, and concluding by demanding actua! damages in gross in compensation of the wrong, is good.

Where a declaration on a patent, though not formal, embodies all that is essential to enable the plaintiff to give evidence of his right and of its violation, and affords to the defendant the opportunity to interpose every defence allowed him by law, the Court will not encourage merely critical objections, and will seek, even on special demurrer, to sustain the declaration.

(Before NELSON and BETTS, JJ., Southern District of New York, November 19th, 1846.)

THIS was an action on the case for the infringement of Letters Patent. The defendant demurred to the declaration, assigning fifteen special causes of demurrer. The plaintiff joined. The case is sufficiently stated in the opinion of the Court.

Eugene Casserly, for the defendant.

John B. Staples, for the plaintiff.

BETTS, J. Most of the causes of demurrer in this case are of an extremely technical character, touching very slightly the merits of the action. They can be best disposed of by considering them numerically in their order.

The first cause is, that the declaration is not properly entitled, but the defect or imperfection is not pointed out. It was alleged on the argument that the writ was returnable on the 19th of February, whereas the placita was of the 20th. If this objection was intrinsically of ever so great importance, the Court most manifestly would not act upon it on a suggestion so made. But, if the objection had come up on oyer of the writ, or by setting out the writ in hæc verba in the demurrer book, the Court would, under the statute, allow an amendment of an error so trivial. (Act of Sept. 24th, 1789,