been transferred to him. How then can we say that the plaintiff ought to recover back all that he has paid? I think that there must be judgment for the defendant." Heath J. "It might as well be said, that if a man lease land, and the lessee pay rent, and afterwards be evicted, that he shall recover back the rent, though he has taken the fruits of the land." Chambre J." In the case of Arkwright's patent, which was not overturned till very near the period at which it would have expired, very large sums of money had been paid; and though something, certainly, was paid for the use of the machines, yet the main part was paid for the privilege of using the patent right, but no money ever was recovered back which had been paid for the use of that patent." Judgment of nonsuit."1

In the above case some stress was laid on the circumstance that the patentee held a patent that was apparently good on the record. In a preceding action to recover the price agreed to be paid for the use of a patent that was void on the record, the decision was against the plaintiff. It was a decision of Lord Kenyon, C. J. and Ashhurst, Buller and Grose, Justices, in an action of covenant on articles of agreement. It appeared that the plaintiffs, who were assignees of a patent for a machine to be fixed to a

11 Taylor v. Hare, 4 B. & P. 260.

F

common stocking-frame, for making a sort of net or
open work, called point net, had agreed that the de-
fendant might use one stocking-frame with their pa-
tent affixed thereto, in case the same should be
worked only in the manner described in the specifi-
cation; and that the defendant had covenanted not
to use any of the patent machines, or any machines.
resembling the same, except the stocking-frame and
machine so allowed to be used by him. The action.
was brought for a breach of this covenant. The de-
fendant pleaded in bar that the specification was not
enrolled in time, that the invention was not a new
invention, and that the original patentee was not the
inventor. The plaintiffs demurred, and contended
that he was estopped by his deed from putting those
matters in issue. Lord Kenyon. "It is said that
the defendant is estopped in point of law from saying
that the plaintiffs had no privilege to confer; but the
doctrine of estoppel is not applicable here. The per-
son supposed to be estopped is the very person who
has been cheated and imposed upon. This does not
resemble the case of landlord and tenant; for the
tenant is not, at all events, estopped to deny the land-
lord's title; the estoppel only exists during the con-
tinuance of his occupation; and if he be ousted by a
title paramount, he may plead it."
may plead it." Buller J. "If
the plaintiffs had the exclusive right to the machine,
they might convey it to any other person. It is now
discovered that they had no such right; and there-

fore the defendant has not the consideration for which he entered into his covenant; and notwithstanding which they say he is still bound." Judgment, for the defendant.12

The distinctions between these two cases are, that in one, the agreed price for the use of the machine was sought to be recovered; in the other, the agreed price having been paid, was sought to be recovered back; and in the first case the record showed a prima facie good title in the party agreeing to let the use of the machine; in the latter, it did not show such a title. In both cases the party professing to be the proprietor of the patent, thought himself entitled to it; there appears, therefore, not to have been any intentional fraud in either contract.

The question of fraud, and the fact of possession being out of the case, it is obvious that various other considerations might have an influence in determining the decision between parties to a sale of this description. The payment may have been under a judgment, as in some instances, under Oliver Evans's patent for the hopperboy, which was eventually adjudged to be bad; or a settlement may have been made between the parties with a full, or at least an equal knowledge, of the facts. In general, after payment, the presumptions seem to be in favor of the party to whom the payment is made.

12 Hayne v. Maltby, 3 T. R. 438.

A patent right, like property of every other description, is liable to be assigned, not only by the agreement of the proprietor, but also by the operation of law independently of any voluntary act of the proprietor for this particular purpose. An instance of this has already been mentioned in the transfer of the right to the executors or administrators, or to the legatee of the proprietor in case of his decease, in the same manner as any other personal property.

In virtue of a general assignment under a bankrupt or insolvent law, of all the property of a proprietor of a patent right, or a share in one, his interest will be transferred with his other property to the assignees for the benefit of his creditors. Of the application of this doctrine to the interest held under a patent issued before such general assignment is made, there is no doubt, and it is unnecessary to cite cases, or to go into any discussions on this point.

The only question in relation to this subject that needs to be considered, is, whether any interest is transferred under such. an assignment in an invention for which a patent has not been granted at the time of the assignment being made. It is held under the English bankrupt law that where a bankrupt, after the act of bankruptcy, and after the assignment of his effects by the commissioners of bankruptcy, but before his final discharge, takes out a patent, his

interest in that patent may be disposed of for the benefit of his creditors.13

The patent will stand upon the same footing as any other acquisition in the mean time, between the assignment and his final discharge; as a legacy, for instance, or inheritance." If the bankrupt's earnings and acquisitions from the time of his assignment belong to himself, a patent obtained by him would fall under the same rule. It will depend upon the provisions or construction of the particular bankrupt law what will pass to the assignees for the benefit of the creditors.

By the case above mentioned under the English bankrupt law, one Koops had become bankrupt, and a commission of bankruptcy had issued against him. Eleven months after he was declared bankrupt, he obtained a patent for making paper out of straw and other cheap materials. It seems, from the case, though not distinctly stated, that at the time of Koops's bankruptcy, he had an establishment for carrying on the manufacture of this sort of paper, which manufactory would, of course, pass under the assignment to his creditors. After obtaining his patent, he entered into a composition with a greater part of his

13 Hesse v. Stevenson, Gods. Pat. 165.

14 See cases Chitty's Index to Equity Reports, vol. 1, p. 146, art. Bankruptcy, xi. 2.