Eastman v. Bodfish. 1 Story. of the plaintiff, in infringement of the right and privilege secured to the plaintiff by the letters-patent, &c., did make, construct, and use, and vend to others to be used, the said saw and useful invention and continue [* 529 ] the use thereof for a long time previous to the date of the writ, to wit, for the space of three years and eight months next preceding the date thereof." The writ was dated the 13th of January, 1838. Deblois, for the plaintiff, contended that he was entitled under the allegations in the declaration, to go into evidence to establish a violation of the patent by the defendant, under the original patent, which had expired, as well as under that of the Act of 1835. Fox and Codman, a contrà, insisted, that the plaintiff could not go into evidence of any such violation of the original patent; but was confined to the time, since the grant of the patent under the Act of 1835; and at all events, that the breach itself tied up the inquiry to the period of three years and eight months before the date of the writ. STORY, J. I have no doubt whatsoever in the present case. By the frame of the declaration, the right of action is exclusively founded upon the Act of 1835; and there is nothing in the declaration, which points to any breach under the old patent, which expired on the 15th of March, 1834. In short, I cannot understand that the declaration purports to found any claim under the old patent, but the latter is merely recited as introductory to the right and title under the Act of 1835, and the violation thereof. If the plaintiff intended to have made any claim under the old patent, he should have filed a distinct and independent count. Moreover, I am of opinion, in this case, that the plaintiff Eastman v. Bodfish. 1 Story. has by the breach, as stated in the declaration, tied himself up to a violation of the patent-right within three years and eight months before the date of the writ; that is, before the 13th of January, 1838. In cases under the patent laws, I conceive, that the plaintiff is confined to giving evi[* 530] dence of the making, constructing, or using the invention in violation of his patent-right during the period which he specifies in his declaration. If it were otherwise, the recovery in the suit would be no bar to another action for any anterior breach, since it could not judicially appear, that any damages had been recovered for any such anterior breach; and the form of the declaration itself, specifying the term, would repel any presumption to the contrary. Besides, the length of time of the use is, or at least may be, a very material ingredient in the ascertainment and assessment of the damages by the jury, and the plaintiff ought to give notice by his declaration of the term of the user, for which he seeks damages. It is by no means true, that the specification of time is in all cases immaterial to be proved, as laid in the declaration. Wherever time is material, not only in matters of contract, but in matters of tort, the plaintiff is strictly bound by that time. Now, in trespass with an allegation of a continuando, or diversis diebus, if the plaintiff insists upon proving repeated acts of trespass, he will not be allowed to give evidence thereof, unless committed within the time specified.1 In truth, the usual mode of declaring in actions for an infringement of a patent is, to allege, that the defendant on such a day (naming it) "and on divers other days and times between that day and the day of the commencement of the suit (or exhibiting the bill) did unlawfully, Chitty on Plead. 3d edit. p. 258; 1 Saund. Rep. by Williams, p. 24, note 1; Brook v. Bishop, 2 Ld. Raym. 823; Monkton v. Pashley, Id. 974, 976; Com. Dig. Pleader, C. 19; 2 Starkie on Evid. 210, 2d Lond. edit. Prouty et al. v. Draper et al. 1 Story. &c., make and sell and use, &c." The district judge concurred in this opinion. Mem. The cause afterwards proceeded before the jury, who found a verdict for the defendant. DAVID PROUTY AND ANOTHER v. DRAPER, RUGGLES, & Co. [1 Story, 568. October T. 1841.] Where the plaintiff claimed the combination of three things, as his invention, in a patent for an improvement in the construction of ploughs; it was held, that the patent was for the entire combination of the three, and not for a combination of any two of them; and, therefore, it was no infringement of the patent to construct ploughs containing two of them. THIS was an action on the case for an infringement, by the defendants, of a patent of the plaintiffs, for "a new and useful improvement in the construction of the plough." The defendants pleaded the general issue, and also filed a specification of special matters of defence under the Patent Act of 4th of July, 1836, ch. 357. At the trial, various questions, both of law and fact, were made by the defendants, under their different specifications of matters of defence; but the cause finally went off upon a question of law, arising upon the construction of the specification of the patent. The patent was dated the 4th of March, 1836. The specification was as follows: Be it known, that we, the said Prouty and Mears, have jointly invented, made, and applied to use a new and useful improvement in the construction of the plough, which inven 1 2 Chitty, Pl. 3d ed. p. 356, 357; Phillips on Patents, p. 522, ed. 1837. Prouty et al. v. Draper et al. 1 Story. tion and improvement we describe and specify as follows, namely: Heretofore, the standard and landside of the plough has been placed perpendicular to, and at right angles with, the plane of the share. On this standard the beam has been placed in such a manner, as to form an acute angle with the landside, of such extent as to place that part of the beam, to which the moving power is applied, at the distance of three or more inches from an extended line of the land[*569] side to the right, * while the after part of the beam extends one or more inches to the left of the perpendicular of the landside near the handle. The object has been to cause the plough "to run to land," or hold its width of furrow; the effect produced has been an uneasy, struggling motion, as it meets resistance at the point, wing, or heel. We make our ploughs with the standard and landside forming an acute angle with the plane of the share, the standard inclining to the right or furrow side, in such manner as to enable us to place the centre of the beam on a line parallel with the landside, the forepart thereof at such distance from the extended line aforesaid, as to cause the plough to hold its width of furrow, and the after part falling within the perpendicular of the landside of the plough, the centre of it being nearly perpendicular to the centre of resistance on the mouldboard; which we conceive to be at about one fourth part of the lateral distance from the landside to the wing of the share, and at about one third part of the perpendicular height from the plane of the share to the upper edge of the mouldboard. This location of the centre of resistance, we base on the fact, that many ploughs, which have been used in sharp, sandy soils, have been worn quite through at that point. The result of this formation of the plough, is a steady, well-balanced motion, requiring less power of draft, and less effort in directing the plough in its course. Prouty et al. v. Draper et al. 1 Story. The inclination of the standard and landside, causes the plough to cut under and take up the furrow in the form of an oblique-angled parallelogram, or like a board feather-edged, which, being turned over, falls in level with the last furrow more readily than the right angled or square-edged work. The coulter or knife, having a similar inclination, cuts the roots of the grass, &c., and leaves all vegetable matter on the surface, at a greater distance from the under edge * of the furrow, which, being turned over, more [* 570] readily falls in, and is far better covered than with square-edged work. The top of the standard, through which the bolt passes to secure the beam, is transversely parallel to the plane of the share, and extends back from the bolt to such a distance, as to form a brace to the beam, where the after part is pressed down by lifting at the forepart, the share being fast under a rock, or other obstruction. The after part of this extension is squared in such manner, that, being jogged into the beam, it relieves the bolt in heavy draft. The bolts, which we use to fasten the pieces of cast iron (of which our ploughs are made) together and to the woodwork, are round, with inverted convex heads, or like the woodscrew, with a projection on the under side of the head of semicircular form, which fits into a groove in the counter-sink part of the bolthole, as it is cast to receive it, which not only prevents its turning, but also diminishes the liability of breakage at the corners of square holes; all which will more fully appear by reference to the drawing annexed to and forming part of this specification. We hereby declare, that what we claim as new, and of our invention, is the construction of such ploughs as aforesaid, and the several parts thereof, not separately, but in combination for the purposes aforesaid, namely: 1st. The inclining the standard and landside so as to form an acute angle with the plane of the share. 2d. The placing the beam on a line |