below. But the court may and oftentimes will notice matters of its own motion where no exceptions or errors were assigned thereon.2 d. EFFECT OF PRIOR ADJUDICATIONS. A prior adjudication in another circuit, on the patent in suit, is entitled to great weight with the Circuit Court of Appeals, and it is believed will by the examiner, and made a part of the record, is sufficiently authenticated as a part of the evidence in the case on appeal. Clark Thread Co. v. Willimantic Linen Co., 140 U. S. 481. Part of Evidence Not Before Appellate Court. Where the Circuit Court found infringement mostly from comparison of two designs, and there was conflicting evidence on the point the appellate court, in the absence of an opportunity to inspect and compare the two designs, will not take it upon itself to say that the Circuit Court erred in finding infringement. Dobson v. Dornan, 118 U. S. 10. 1. See article EXCEPTIONS AND OBJECTIONS, vol. 8, p. 153; and Western Electric Co. v. Sperry Electric Co., 58 Fed. Rep. 186. An Objection for Misjoinder of Parties in a suit in equity for infringement, raised for the first time in the appellate court, after a final decree, comes too late. Livingston v. Woodworth, 15 How. (U. S.) 546. The Objection that the Word "Patented" Was Not Affixed on the article as required by Act March 2, 1861, cannot be taken in the appellate court where the bill and answer are both silent on the point. Providence Rubber Co. v. Goodyear, 9 Wall. (U. S.) 788. Correctness of Master's Report. On appeal from the final decree in a patent suit, it is too late to object to the correctness of the master's report, no exceptions having been filed in the court below. Kinsman v. Parkhurst, 18 How. (U. S.) 289. Account Beyond Order. Where the parties to a suit in equity for infringement have consented to a decree by which an account should be taken of gains and profits, according to the prayer of the bill, the defendant is not precluded from objecting on appeal that the account went beyond the order. Livingston v. Woodworth, 15 How. (U. S.) 546. 2. Standard Elevator Co. v. Crane Elevator Co., 76 Fed. Rep. 767. Decree Broader than Findings. — The public has an incidental interest in patent litigation which throws a duty on the appellate court to notice certain matters of its own motion. One of these is to correct a decree which is broader than the findings of the court. The duty of drawing out a proper decree rests on the solicitor for the complainant, and where he draws an improper one the court will be protected by a proper adjustment of costs. But where the appellant has assigned no error on this account he will not be allowed costs. Shute v. Morley Sewing Mach. Co., 64 Fed. Rep. 368. Estoppel to Question Validity of Patent.. - The estoppel of an assignor to question the validity of the patent in a suit for infringement brought against him. by the assignee, is not waived because the complainant did not anticipate the defense of invalidity in his bill, and. the court on appeal will give effect to the estoppel though the parties did not. wish to raise it. Otherwise there would be submitted to the court a moot patent cause, which, on account of the public interest involved, the court is ordinarily disinclined to permit. Woodward v. Boston Lasting Mach. Co., 63 Fed. Rep. 609. Procedure Where Case Goes Off on Point Not Raised. Where on appeal in a suit in equity for infringement it is apparent that the result has turned on an issue which the appellants did not anticipate, either in the higher or lower court, and the surprise comes from the fact that the issue was raised by the court while the parties intended not to raise it; and it is suggested by the appellants that the issue can be met by further proofs; the court may deny a rehearing of the appeal, but reserve to the appellants liberty to file in the Circuit Court an application for leave to file a bill of review, or leave to adopt other appropriate methods, and to proceed thereon as the court may determine. Woodward v. Boston Lasting Mach. Co., 63 Fed. Rep. 609. ordinarily be accorded the same effect as it would be in the Circuit Court.1 The Rule of Comity Does Not Control the Appellate Court, and it is at liberty to examine the former adjudication and dispose of it in accordance with its own convictions and to examine independently all the questions presented by the record.2 5. Judgment-a. IN GENERAL. - The appellate court disposes of the case by dismissing the bill, or by affirming or reversing the decree and granting appropriate relief.3 b. EXPIRATION OR SURRENDER OF PATENT PENDING APPEAL. Where pending an appeal in a suit in equity for infringement the patent has expired or has been surrendered, there is generally nothing left for the judgment of the appellate court to act upon, and the appeal will be dismissed.4 c. APPEAL FROM COSTS ONLY. Where the question of costs is the only substantial one raised on appeal from a decree in a suit for infringement, the appeal will be dismissed, or the decree affirmed without examining the merits. 1. Duplex Printing-Press Co. v. Campbell Printing-Press, etc., Co., 69 Fed. Rep. 250; Bresnahan v. Leveller Tripp Giant Co., 72 Fed. Rep. 920; American Paper Pail, etc., Co. v. National Folding Box, etc., Co., 51 Fed. Rep. 229; Thomson-Houston Electric Co. v. Ohio Brass Co., 80 Fed. Rep. 712. 2. Curtis v. Overman Wheel Co., 58 Fed. Rep. 785; Wanamaker v. Enterprise Mfg. Co., 53 Fed. Rep. 791; American Paper Pail, etc., Co. v. National Folding Box, etc., Co., 51 Fed. Rep. 229; National Cash Register Co. v. American Cash Register Co., 53 Fed. Rep. 367. 5 affirming a decree dismissing a bill for infringement the appellate court will refuse to allow an amendment of the bill to bring in patents not previously in issue. Martin, etc., Cash-Carrier Co. v. Martin, 71 Fed. Rep. 519, following American Bell Telepone Co. v. U. S., 68 Fed. Rep. 542. Award of Relief on Expired and Unexpired Patents. - Where suits in equity are instituted for the infringement of two patents, and the Circuit Court dismisses the bills, the appellate court, in reversing the decrees after the first patent had expired, but not the second, will award an account of profits and damages as to both patents, and a perpetual injunction as to the second patConsolidated Safety-Valve Co. v. Crosby Steam Gauge, etc., Co., 113 U. S. 157. ent. 4. Gamewell Fire-Alarm Tel. Co. v. Municipal Signal Co., 61 Fed. Rep. 208; Meyer v. Pritchard, 23 L. ed. (Ŭ. S.) 961; Lockwood v. Wickes, 75 Fed. Rep. 118. 3. Jurisdiction Wrongly Refused in Circuit Court. Where the jurisdiction of the Circuit Court in a suit in equity upon a patent is clear upon the face of the bill, but the court dismisses the bill upon allegations in the pleadings relating to the existence of a contract, the Supreme Court on appeal will reverse the decree and remand the cause to the Circuit Court with a direction to hear it upon the merits. White v. Rankin, 144 U. S. 628. Allowance of Amendment of Bill. - On U. S. 110. 163 5. Gamewell Fire-Alarm Tel. Co. v. Municipal Signal Co., 77 Fed. Rep. 490. 6. Elastic Fabrics Co. v. Smith, 100 Volume XVI. PAUPERS. See article POOR AND POOR LAWS. PAYMENT. BY ARCHIBALD R. WATSON. I. SCOPE OF ARTICLE, 166. II. NATURE, OPERATION, AND EFFECT OF PLEA OF PAYMENT, 167. 1. In General, 167. 2. Payment as Affirmative Defense, 167. 3. Payment Not a General Issue Plea, 168. 4. Plea of Payment as Dispensing with Proof of Cause of Action, 168. 5. Construction of Plea of Payment, 169. 6. Right to Open and Close, 170. III. NECESSITY FOR PLEA OF PAYMENT, 170. I. At Common Law, 170. 2. Common-law Rule in United States, 172. a. In General, 172. b. Where Plaintiff Alleges Indebtedness Generally, 173. 3. Under Statutes, 174. a. In General-New Matter, 174. b. Conflict of Cases Considered, 177. c. Matter in Discharge of Contract, 180. d. Action for Existing Balance, 181. 4. Payment in Mitigation of Damages, 182. b. Payment in Bar of the Action, 182. IV. REQUISITES OF PLEA OF PAYMENT, 183. 1. In General, 183. 2. Denial of Original Liability, 185. 3. Certainty and Particularity, 186. a. In General, 186. b. Objection for Want of Certainty, 188. (2) How Taken, 188. (3) When Taken — Objection to Evidence, 189. c. Amendments, 189. 4. Conclusions of Law, 190. 6. Negative Pregnant, 191. 7. Information and Belief, 192. 9. Payment in Manner Other than as Provided For in Con tract, 193. a. In General, 193. b. Payment in Property, 193. c. Payment by Check, Draft, or Note, 194. (2) Payment in Suspension, 195. 10. Payment by Stranger, 196. 11. Payment as Garnishee, 196. 12. Payment to Agent, 196. 13. Payment to Assignor, 197. 14. Payment After Breach, 197. 15. Payment After Action Brought, 198. 16. Payment to One of Several Joint Plaintiffs, 198. 17. Conclusion of Plea, 198. 18. Time to Plead Payment, 200. 19. Foinder with Other Pleas, 200. b. With Improper Matter, 201. 20. Actions on Bonds and Records, 201. 21. Part Payment, 201. a. In General, 201. b. Definiteness and Certainty, 203. c. As Complete Defense, 203. d. Smaller Sum in Discharge of Greater, 204. e. Foinder with Other Pleas, 205. f. Actions on Specialties and Records, 205. V. EVIDENCE ADMISSIBLE UNDER PLEA OF PAYMENT, 205. 1. Early Doctrine, 205. 2. More Modern Rule, 207. a. In General, 207. b. Amount and Particulars of Payment, 208. c. Payment in Property, 208. d. By Testamentary Provision, 210. e. Payment to Agent, 210. f. Payment to Assignor, 210. g. Payment to Third Parties, 210. h. Discharge of Sealed Instrument, 211. i. Accord and Satisfaction, 211. j. Set-off, 212. k. Counterclaims, 212. 1. Failure of Consideration, Mistake, etc., 212. m. Fudgment in Garnishment, 213. n. Discontinuance of Action, 213. o. Statute of Limitations, 213. p. Partial Payments, 213. 4. Collection and Loss of Collaterals, 214. r. Equitable Defenses, 215. 3. Evidence to Disprove Cause of Action, 215. 4. Facts Excusing Nonpayment, 215. 5. Where Manner of Payment Expressly Stated, 215. 7. Payment with Leave, etc., 216 a. In General, 216. b. Necessity for Notice, 217. VI. REPLICATION TO PLEA Of Payment, 218. 1. In General, 218. 2. Rule as Affected by Conclusion of Plea, 219. 3. Construction of Plea with Reference to Necessity for Repli cation, 220. 4. Replication by Way of New Assignment, 221. VII. VERDICT and JUDGMENT, 221. VIII. COSTS, 221. 1. In General, 221. 2. Payment Puis Darrein Continuance, 221. 3. Reduction of Debt by Payment Below Furisdictional Limit, 222. a. In General, 222. b. Where Plaintiff Recovers No Costs, 222. c. Discretionary Costs, 224. d. Limited Costs, 225. 4. Payment into Court, 226. a. Costs Accruing Before Payment into Court, 226. b. Costs Subsequently Accruing, 228. c. Should be Set Up by Plea, 228. CROSS-REFERENCES. See in general, in connection with this subject, articles FUNDS AND DEPOSITS IN COURT, vol. 9, p. 727; TENDER; NEGOTIABLE INSTRUMENTS, vol. 14, p. 655. As to Judgment Specifying Means of Payment, see article JUDG- Plea of Payment in Suit to Enforce Mechanic's Lien, see article Alleging Nonpayment in Action on Bill or Note, see article I. SCOPE OF ARTICLE. This article is devoted to a consideration of the manner of setting up and relying on the defense of payment at common law and under the codes. It also includes a discussion of the effect of payment, under various statutes making special provision as to the costs of the action, where the plaintiff's debt or demand has been reduced below a stipulated amount, usually the minimum jurisdictional limit of the court in which the action is brought. And in addition to the foregoing there will be found a treatment of payment into court, as affecting |