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Goodyear v. Mathews.

If a patent be taken out for an entire machine, when the invention consists only of an improvement on such machine, it is said by the defendant's counsel that the whole patent is void. This, gentlemen, is not the opinion of the Court;" for although a patent be obtained for more than the improvement, the patentee is not entitled to more than his improvement, nor is he at liberty to make, use, or vend the original discovery, or to prosecute any person who shall use such original discovery without engrafting on it the improvement invented by the patentee, especially in a case like the present, where the application was for a patent for the invention of a new and useful improvement in moulds for casting metal buttons.

a See the cases of Whittemore v. Coulter, 1 Gal. Rep. 479.; Lowell . Lewis, 1 Mason's Rep.; Evans r. Eaton, 1 Peters C. C. Rep. 323, contra.

MEMORANDUM.

On the 18th of March, 1823, a vacancy occurred on the Bench of the Supreme Court of the United States, by the lamented death of the Honourable BROCKHOLST LIVINGSTON, one of the Associate Justices, and Presiding Judge of the Circuit Court in the Second Circuit. On the 9th of December of the same year, the Honourable SMITH THOMPSON was appointed his successor.

CIRCUIT COURT OF THE UNITED STATES.

NEW-YORK, SEPTEMBER TERM, 1823, AT NEW-YORK.

BEFORE

{

Hon. SMITH THOMPSON, Associate Justice of the Supreme

Court.
Hon. WILLIAM P. VAN NESS, District Judge.

THE UNITED STATES v. ROBERT TILLOTSON AND NICHOLAS

GOUVERNEUR.

Sureties are exonerated from their responsibility by any agreement, without

their consent, between the creditor and principal, which varies essentially the

terms of the contract. Such an agreement substituting tapia for brick, and altering the mode of estima

tion and price of labour in the construction of a sort, was held to discharge

the sureties. And it is immaterial whether such alterations be for the benefit or to the pre

judice of the principal. Where an agent of the War Department was empowered to make a contract,

which reserved no right of ratification to the Secretary, it was held complete

and binding without such ratification. One made a contract with the War Department to build a fort, in which it was

agreed that advances should be made, in part payment of the work, for materials delivered with the invoice at the fort, and pronounced by the engineer of proper quality, and at the end of each month for the work performed. Large advances having been made, the contract was assigned, and the assignee gave a bond with sureties to account for “ advances under and by virtue of the contract.” The sureties were held entitled to the benefit of all the limitations provided in the contract, and not answerable for advances made where such limitations were dispensed with, whether the advances were made before or after the making of the bond, the sureties not appearing to have known how such advances had been made.

United States v. Robert Tillotson.

The bond provided that the principal should account " for all such further ad

vances as might thereafter be made to facilitate the execution of the contract. This was held to mean such advances only as were provided for by the con

tract, and with the same limitations and restrictions. Advances made under such a contract are not a purchase of the materials de.

livered so as to vest the property in the United States, but it remaios un

changed, Where the contracting parties modify the contract so that the rights of the

obligur in some particulars are materially varied, it becomes a new contract

as it regards the sureties, to which their undertaking does not extend. Whether the death of the principal before the time for the completion of the

work had expired put an end to the contract above described and discharged

the sureries ? Quere. But it seems that they were discharged by the refusal of the War Department

to suffer the administrator of the principal to proceed to complete the work. Whether the appropriation by Congress of only 30,000 dollars to complete the

fort, when 690,000 dollars were required, authorized the contractor to suspend the work before the appropriation was exhausted, and discharged the sureties? Quere.

This was an action of debt on bond.

The bond declared on was executed by Samuel Hawkins, as principal, and the defendants as his sureties, on the end of November, 1819, and was in the penal sum of 150,000 dollars, with the following condition :

- Whereas the late Benjamin W. Hopkins, of the state of Vermont, did, on the 13th day of May, 1818, enter into a contract with General Joseph G. Swift, then chief engineer of the United States, well and truly to construct, or cause to be constructed, at such place, in the vicinity of Mobile Point, in the state of Alabama, as the United States, by any engineer, might direct, a fort, to be constituted of such walls, ditches, embankments, buildings, parts, and dimensions, as the said engineer might, from time to time, prescribe, and to construct the same of such materials and in such manner, as should be prescribed by such engineer, as by the said contract,

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