proceedings and decree, without reference to the evidence. 2. It is error to insert in the bill the evidence taken in the original cause. 3. The decision of the court below cannot be reviewed upon the facts. 4. A general demurrer must be overruled, if the pleading demurred to contains any good ground to support it. 5. The granting of a rehearing or of a temporary injunction, is always in the sound discretion of the court and, therefore, granting or refusing it furnishes no ground of appeal. 6. A bankrupt is not a necessary party to a bill filed by his assignee in bankruptcy, to set aside a conveyance of his, as fraudulent to creditors. [No. 52.] granting of a rehearing is always in the sound discretion of the court and, therefore, granting or refusing it furnishes no ground of appeal Steines v. Franklin Co., 14 Wall., 15, 20 L. ed., 846. The granting or dissolution of a tem porary injunction stands on the same footing. The granting of a permanent injunction is part of the final decree, and abides the fate of the decree itself. And as to the finding of the is sues for the complainant, that, as we have seen, is not a matter that can be examined on a bill of review. The only assignment, therefore, which we can recognize, is the general one, that the court erred in sustaining the demurrer to Submitted Oct. 25, 1877. Decided Nov. 5, 1877. the bill of review, and entering a decree for the Appeal from the Circuit Court of the United States for the Southern District of Illinois. The case is stated by the court. complainant. We must look, then, at the bill of review, and see whether it points out and demonstrates any substantial error in the pleadings, proceedings, or decree, supposing the issues of fact to Messrs. Thomas J. Henderson, Jno. M. have been properly passed upon by the court. Mr. Justice Bradley delivered the opinion of the court: This is an appeal from a decree sustaining a demurrer to a bill of review, and dismissing the bill, the effect of which is to leave the decree in the original cause in full force and effect. The only questions open for examination on this appeal are such as were open on the bill of review, and these, as shown in Whiting v. Bk., 13 Pet., 6, and Putnam v. Day, 22 Wall., 60, 22 L. ed., 764, were only such as arose upon the pleadings, proceedings and decree, without reference to the evidence in the cause. The decision of the court upon the issues of fact, so far as they depend upon the proofs, are conclusive on a bill of review. It was error, therefore, to insert in the bill, as was done in this case, the evidence taken in the original cause. Had this error been specially assigned, the demurrer might have been sustained on that ground alone, or the evidence might have been stricken out of the bill as surplusage, on motion. But as the demurrer was a general one, if the bill of review showed any substantial error in 100] the record, the demurrer should have been overruled, and the original decree should have been opened or reversed. 2 Smith, Ch. Pr., 56, 63. A general demurrer must be overruled if the pleading demurred to contain any good ground to support it. It was the duty of the court below, therefore, to inquire whether the record, exclusive of the evidence, contained any substantial error pointed out by the bill of review. 2 Smith, Ch. Pr., 57. The result to which the court came was that no such error existed; and, therefore, the demurrer was sustained and the bill of review was dismissed. The errors assigned to this decree are five: (1) Because the court sustained the demurrer; (2) because it entered a decree for the complainant; (3) because it overruled a petition for a rehearing; (4) because it found the issues for the complainant; (5) because it overruled a motion to dissolve the injunction. The last three assignments are totally inadmissibie. The NOTE.-Bill of review: nature of; when may be brought; who may maintain; time within which: what it should contain. See note to Bk. of U. S. v. Ritchie, 8 L. ed. U. S., 890. In order to understand the force and effect of this bill, however, it will be necessary to state the nature and objects of the original suit. The bill in the original cause was filed on the 20th of March, 1872, by Harvey, the present appellee, as assignee in bankruptcy of one Isaac Fitzgerrel, against Titus Buffington, the appellant, to set aside a conveyance of real and personal property made by the bankrupt to Buffington on the 30th day of December, [101 1867. It is alleged that this conveyance was made by the bankrupt in contemplation of irsolvency, to put his property out of his hands, so as to hinder and delay his creditors, and to defeat the operation of the Bankrupt Law; that it was a pretended sale, without any real consideration, though Buffington's notes were given therefor at long dates; and various circumstances with regard to the bankrupt remaining in possession of the property and using and disposing of it as his own, are detailed as evidence of the fraudulent intent. To this bill the defendant filed an answer, in which he insisted on the bona fides of the transaction, endeavored to explain the circumstances charged in the bill as evidence of fraud, and alleged that, on a petition to have Fitzgerrel declared a bankrupt, an injunction had been issued against the defendant in April, 1868, prohibiting him from selling or disposing of the goods, but was afterwards dissolved, and he supposed the question of his title was settled. This answer being excepted to, a second and third answer were filed by the defendant, going more into detail of the circumstances of his connection with the property, and stating that the injunction against him was dissolved after a full hearing in June Term, 1868. The plaintiff filed a general replication, the cause went to proofs, and a large amount of A final decree was made evidence was taken. on the 3d of February, 1873, by which the conveyances in question were set aside and vacated, and the defendant was directed to deliver up possession of the lands, and to pay the sum of $3,891.88 to the assignee, besides costs. A motion was made for a rehearing, and was refused, and the bill of review was filed in October, 1873. As before stated, this bill not only sets forth the pleadings, proceedings, and decree in the original suit, but all the evidence taken therein. The only errors assigned in the bill relate to the facts as supposed to be evinced by the evidence. After stating the pleadings, evidence and de- | the bill is a pure bill of review, containing no cree, the bill proceeds thus: "Your orator would further represent unto Your Honor that he believes that there is manifest error in finding the issues for the complainant on the foregoing evidence; that said evidence is insufficient to sustain the said decree 102] because of want of proof to sustain *the bill, and that the bill should have been dismissed; also, because the evidence shows that more than two years had elapsed from the making of the deed and before the bill was filed, and that, therefore, by the Statute of Limitations, the bill could not be sustained. And your orator would further assign for error the fact that the decree in this cause made gives a judgment against the defendant for a larger sum of money by over $1,000 than there are debts proven against the bankrupt. Also, the fact, shown by the evidence of Barkley and Forth, that they had known Fitzgerrel for more than ten years, and that they had no reason to suppose that he was insolvent or contemplated insolvency, corroborating the evidence of Buffington, that he had no reasonable cause to believe the said Fitzgerrel to be insolvent when he purchased the property." These are all the errors assigned in the bill. A bare statement of them is enough to show that the bill of review was totally misconceived. It attempted to review the decision of the court solely upon the facts as evinced by the evidence, which, as we have seen, is entirely inadmissible on such a bill. new matter, such as an allegation of newly discovered evidence, or anything else of an original character admissible in such a bill. What we have said is specially applicable to the case before us. Bills containing new matter, of course, are in the nature of original bills, so far forth as such new matter is concerned, and admit of an answer and a replication, and proceedings appertaining to an issue of fact; but only as it relates to the truth and sufficiency of such new matter, and the propriety of its admission for the purpose of opening the decree in the original cause. If decided to be founded in fact, sufficient to affect the decree, and properly admissible, the original decree will be opened and, if necessary, a new hearing had; but if not so found, the bill of review will be dismissed and the original decree will stand. But even in this case, as well as in that of a pure bill of review, the evidence in the original cause cannot be discussed for the purpose of questioning the propriety of the original decree as based on such evidence. It can only be adverted to, if at all, for the purpose of showing the relevancy and bearing of the new matter sought to be introduced into the cause. The decree of the Circuit Court is affirmed, with costs. *THE PHOENIX INSURANCE COM- [171 PANY OF BROOKLYN, Plff. in Err., V. WILLIAM H. LANIER and WILLIAM M. (See S. C., Reporter's ed., 171-173.) Bill of exceptions-exception, how certified. 1. There is but one mode of bringing upon the record and making a part of it, the rulings of a judge during the progress of a trial, or his charge to the jury, and that is, by a bill of exceptions. The appellant, in his brief, insists upon the lapse of more than two years after the cause of action accrued before the original bill was filed. relying upon the period of limitation prescribed in the 2d section of the Bankrupt Law. R. S., 5057. But the record does not show, independently of the evidence (and we do not know that it appears even by that), when the cause of action did accrue. The bill shows, it is true, that the conveyance alleged to be fraudulent was made in December, 1867, and the bill was not filed till March, 1872; but that is not decisive of the question. The cause of action does not accrue to the assignee until his appointment; and when the assignee in this case was appointed does not appear. The bill says that the Argued Oct. 24, 25, 1877. Decided Nov. 5, present assignee was appointed in 1871, which is within the time of limitation. If there was a prior assignee, the time of his appointment is not shown. Besides, the defendant did not set up the Statute of Limitations in his answer. We hear of this defense for the first time in the bill of review. The appellant also insists that the original 103] bill was defective *for want of parties in not making the bankrupt a party. This objection is not even made in the bill of review, and was not made in the original cause; and, if it had been made, in our judgment it would not have been a valid objection. The bankrupt had no interest to be affected except what was represented by his assignee in bankruptcy, who brought the suit. As to the bankrupt himself, the conveyance was good; if set aside, it could only benefit his creditors. He could not gain or lose, whichever way it might be decided. To avoid misapprehension in what we have said with regard to the proceedings on a bill of review, it will be observed that in this case 2. The exception must be certified or allowed, as judge that certifies or allows it. well as filed, and it is the signature or seal of the [No. 43.] 1877. In Error to the Circuit Court of the United States for the Southern District of Georgia. The case is sufficiently stated by the court. Messrs. P. Phillips and W. H. Phillips, for plaintiff in error. Messrs. Julian Hartridge and Rufus E. Lester, for defendant in error. Mr. Justice Strong delivered the opinion of the court: After careful consideration, we are all of opinion that the record contains nothing upon which the assignments of error can be based. The plaintiff in error complains that certain evidence was improperly admitted, and that incorrect instruction was given to the jury; but the record does not show that any exception was saved to the admission of evidence or to the charge of the court. No bill of exceptions appears to have been made up or signed. It is true that in the transcript sent up to us it is stated that at the trial objection was made to the reception of certain testimony of witnesses, that the objection was overruled, and that the defendant then and there excepted to such ruling of the court, and assigned error thereon. So the transcript states that the Judge gave substantially certain instruction to the jury, and adds, "To which portion of said charge said defendant then and there excepted, and assigned the same as error." But, even if the facts occurred as certified by the clerk, his statment that they occurred does not bring them upon the record so as to make them the subject of review. There is but one mode of bringing upon the record and making a part of it the rulings of a judge during the progress of a trial, or his charge to the jury, and that is by a bill of exceptions allowed and sealed or sigued by the judge. It is true that in the hurry of the trial the bill is not often reduced to form and sealed or signed. Generally an exception is only noted 172] by the judge at the time claimed, and it is subsequently drawn up; but it is not a bill of exceptions until it has been sealed, or, as is now sufficient, signed. The sealing or signature of the judge is essential for its authentication; and it has been ruled that the judge's notes do not constitute a bill of exceptions. They are but memoranda from which a formal bill may afterwards be drawn up and sealed. Pomeroy v. Bk., 1 Wall., 592, 17 L. ed., 638. There it was said, "When exceptions are taken to the ruling of the court, in the course of a trial, to the jury, such an entry is frequently made in the minutes of the case, or of the presiding justice, as evidence of the fact, and as a means of preserving the rights of the party in case the verdict should be against him, and he should desire to have the case re-examined in the appellate tribunal; but it was never supposed that such an entry could be of any benefit to the party unless he seasonably availed himself of the right to reduce the same to writing, and took proper measures to have the bill of exceptions sealed by the judge presiding at the trial, or, in other words, such an entry in the minutes can only be regarded as evidence of the right of the party seasonably to demand a bill of exceptions; but it is not the same thing, and it has never been so considered in the Federal Courts. And again: "Unless an exception is reduced to writing and sealed by the judge, it is not a bill of exceptions, within the meaning of the statute authorizing it, and it does not become part of the reord." No such bill is found in the present case. Where the memoranda of exceptions appearing in the transcript came from does not appear. They are not even stated to be on the minutes or the Judge's notes. The verdict was returned, and the judgment was signed on the 14th of November, 1874. 'The transcript exhibits a paper dated November 19, 1874, called an assignment of error, signed by the attorney of the Insurance Company, and filed on that day, setting forth that in the foregoing record and proceedings various errors appeared, and describing them. The paper appears to have been served on the plaintiff's attorney, and on the same day it was indorsed "Exceptions overruled. John Erskine, Judge." For what purpose the paper was prepared does not clearly appear. Perhaps it was in aid of a motion *for a new trial, or it [173 was intended as preparation for a writ of error; probably the latter. But it is impossible to regard it as a bill of exceptions taken or noted at the trial. It refers to no exceptions then taken. On the contrary, while it refers to objections alleged to have been made at the trial, and assigns overruling them as error, it states that the defendant now (Nov. 19) assigns the same as error, and excepts thereto. We find nothing in the Code of Georgia that aids the plaintiffs in error. The only provision that is of any importance as bearing upon the subject is the following: "At any stage of the cause either party may file his exception, and, if the same be certified or allowed, it shall be entered of record in the cause; and should the case, at its final determination, be carried by writ of error to the Supreme Court, error may be assigned upon such bill of exceptions." This does not differ substantially from the provisions of the Statute of Westminster, 13 Edw. I., ch. 31. The exception must be certified or allowed as well as filed, and it is the signature or seal of the judge that certifies or allows it. We are, therefore, reluctantly brought to the conclusion that the record of this case exhibits nothing that justifies the assignments of error, and the judgment must be affirmed. WILLIAM ROEMER, Appt., EDWARD SIMON et al. (See S. C., Reporter's ed., 214-221.) Roemer's patent-amendment of answer. 1. The evidence in this case shows that William Roemer's patent for improvement in traveling bags was known and used extensively by others in this country, before the invention or discovery made by the patentee. 2. Where due notice was given in the answer, that the invention had been previously invented and used by and was known to certain persons therein named, other witnesses may be examined upon that subject if no objection be made, and the court may give leave to insert their names and residences in the answer nunc pro tunc. [No. 40.] Argued Oct. 23, 1877. Decided Nov. 5, 1877. Appeal from the Circuit Court of the United States for the District of New Jersey. This was a suit in equity, brought in the court below by the appellant against the appellees, for the alleged infringement of letters patent granted to Roemer for an improvement in traveling bags. The case is stated by the court. Messrs. Arthur V. Briesen, Jonathan Marshall and A. G. Riddle, for appellant. Mr. Frederic H. Betts, for appellees. Mr. Justice Clifford delivered the opinion of the court: Patentees or assignees in a suit for infringement, where the patent described in the bill of complaint is introduced in evidence, are presumed to be the original and first inventors of the described improvement; and, if they have proved the alleged infringement, the burden of proof is cast upon the respondents to show that the patent is invalid, unless the patent is materially defective in form. Parties defendants sued as infringers are not | tain firm therein mentioned without the conallowed, in an action at law, to set up the de- sent of the complainant, his executors, adminfense of a prior invention, knowledge, or use istrators, or assigns." They did not agree not of the thing patented, unless they have given to manufacture or use the thing patented in notice of such defense in writing thirty days the complainant's patent. Instead of that, the before the trial, and have stated in that notice charge in the bill of complaint is that the re"The names of the patentees and the dates of spondents have manufactured and sold to oththeir patents alleged to have been invented, ers large quantities of traveling bags in violaand the names and residences of the persons al- tion of the complainant's rights and privileges leged to have invented or to have had the prior under his letters patent. Attempt is made to knowledge of the thing patented, and where show that the clasp or catch manufactured by and by whom it had been used." 16 Stat. at the firm, referred to in the agreement, is the L., 208; R. S., sec. 4920; Seymour v. Os- same as that of the, complainant; but that is a borne, 11 Wall., 516, 539, 20 L. ed., 33, 37; question of fact open to controversy, which is Blanchard v. Putnam, 8 Wall., 420, 19 L. ed., sufficient to show that the agreement does not 433. work an estoppel, as supposed by the respondents. Curt. Pat., 4th ed., sec. 217. Since the passage of the Act of the 8th of July, 1870, the regulation in equity suits is that defenses such as are described in section 61 of that Act "May be pleaded in any equity suit for relief against an alleged infringement, and that proof of the same may be given upon like notice in the answer of the respondent, and with like effect." 16 Stat. at L., 208. Much reference to the specification is unnecessary, as the *defense, that the respond- [217 ents have not infringed the supposed invention, is not pressed in the argument for the appellee. My invention, says the patentee, consists in the application of two staples or clamps, one at or near each end, to the frame of a traveling bag in such a manner that when the bag is packed full the staples or clamps shall fasten the ends or corners together. In the same connection he also describes a mode of fastening the staples or clamps to the frame of the bag by a strap which passes over the center of each staple; and he adds, that the staple or clamp "is made of strong iron turned down at each end." Sufficient description is given of the staple or clamp; but the strap is not described, except by being exhibited in the drawings. Service was made; and the respondents appeared and filed an answer, in which they deny that they have ever in any way infringed the letters patent described in the bill of complaint; and they also set up several other defenses, as follows: (1) That the specification filed in the Patent Office contains less than the whole truth relative to the invention, or more than is necessary to produce the described effect. (2) That the patent was surreptitiously and unjustly obtained for that which was in fact invented by another. (3) That the alleged invention had been patented prior to the supposed invention by the complainant. (4) That the alleged in216] vention had been described in *a certain publication prior to the alleged invention by the patentee. (5) That the complainant was not the original and first inventor of the supposed improvement; that the same had been previously invented and known and used by the persons named in the answer, and by many other persons whose names are unknown to the respondents, which, when discovered, the respondents pray leave to insert and set forth inspection of the specification that the real inventhe answer. Proofs were taken on both sides; and the parties went to hearing upon bill, answer, replication, and the proofs exhibited in the record. Both parties were fully heard; and the court entered a decree in favor of the respondents, dismissing the bill of complaint; and the complainant appealed to this court. Three errors are assigned, in substance and effect as follows: (1) That the court did not give due effect to the agreement between the parties which was introduced in evidence by the complainant. (2) That the evidence introduced by the respondents, to prove use and knowledge of the thing patented prior to the patent granted to the complainant, was insufficient to establish that defense. (3) That the court erred in admitting evidence to prove such prior use and knowledge, of which no notice had been given in the answer. Questions not involved in the assignment of errors will be passed over without examination. 1. By the articles of agreement, the respondents agree that "They will not manufacture or use the clasp or catch manufactured by a cer Clamps, the patentee admits, have before been applied to small and fancy bags instead of a lock at or near the center of the frame, and therefore he does not claim the application of clamps or staples broadly; but, says the patenttee, what I claim as my invention and desire to secure by letters patent is a frame for traveling bags having staples and straps, meaning the described staple and strap adjusted at the top thereof, relieving the lock from strain, as combined, arranged, and described. Suffice it to say, that it is obvious from an in tion, if any, is in the staples or clamps, and perhaps in the arrangement of two of them at the top of the frame. Doubtless one method of arrangement may be better than another; but the particular method of attachment to the frame cannot be very material, as any mechanic, if furnished with the clamps, could affix the device in various equivalent ways. Five witnesses admitted to be credible were examined by the respondents, whose testimony clearly shows that the thing patented had been previously known and used very extensively in this country by the persons named in the answer and by many others. Exclusive rights of the kind are granted only to inventors or discoverers of some new and useful art, machine, manufacture, or composition of matter, or some new and useful improvement thereof; and the law is well settled that nothing short of invention or dis- [218 covery will support a patent for any such alleged new and useful improvement. Certain other important conditions are also annexed to the exercise of the right to obtain such a muniment of title for such an invention or discovery; as. for example: the improvement must not only be new and useful, but it must be one not known or used by others in this country and not patented or described before the invention or discovery in any printed publication in this or any foreign country, and must not have been in public use or on sale more than two years prior to the application for a patent. 16 Stat. at L., 201; R. S., sec. 4886; Collar Co. v. Van Dusen, 23 Wall., 531, 23 L. ed., 128; Dunbar v. Meyers, [ante, 34]. Antecedent patents here or elsewhere are not set up in the answer; and it is clear that proof of prior use in a foreign country will not supersede a patent granted here, unless the alleged invention was patented in some foreign country. Proof of such foreign manufacture and use, if known to the applicant for a patent, may be evidence tending to show that he is not the inventor of the alleged new improvement; but it is not sufficient to supersede the patent if he did not borrow his supposed invention from that source, unless the foreign inventor obtained a patent for his improvement, or the same was described in some printed publication. Doubt upon that subject cannot be entertained; but it is equally clear, that if the alleged improvement had been previously patented here or in a foreign country, or if it had been previously known or used by others in this country, or if it had been in public use or on sale for more than two years prior to his application for a patent, the letters patent cannot be sustained. 16 Stat. at L., 201. Competent proof of a prior patent anywhere is entirely wanting, nor is there any satisfactory evidence that the invention was previously described in any printed publication; but the evidence shows, beyond any reasonable doubt, that the thing patented was known and used extensively by others in this country before the invention or discovery made by the patentee, as set forth and described in the bill of complaint. Such was the finding of the court below; and the evidence is so full to the point, and is so fully set forth in the record and in 219] the opinion *delivered in the circuit court, that it is not necessary to reproduce it in the present opinion. Suppose that is so; still it is insisted by the complainant that the testimony of two of the witnesses should have been excluded, because their names and residences were not set forth in the answer as persons alleged to have had a prior knowledge of the thing patented. Written notice of the names of the witnesses intended to be called by the defendant or respondent to prove such a defense is not required by the Act of Congress. Instead of that, the requirement is that the defendant party shall state the names of the patentees, and the dates of their patents and when granted, and "The names and residences of the persons alleged to have invented or to have had the prior knowledge of the thing patented, and where and by whom it had been used." 16 Stat. at L., 208. Notice of the kind is required, in order to guard the moving party from being surprised at the trial by a defense of a nature which he could not be presumed to know or be prepared to meet and, to prevent such consequences, the defendant or respondent is required to state "The names and residences of the persons al leged to have previously invented the improvement, or to have the prior knowledge of the thing patented, and where and by whom it had been used." Teese v. Huntingdon, 23 How., 2, 16 L. ed., 479. Prior use and knowledge of the thing patented may be pleaded as a defense to a suit for infringement; but the respondent cannot be allowed to give evidence to support such defense, if seasonable objection be made, unless it appears that he gave notice in his answer of the names and residences of the persons alleged to have had such prior knowledge of the thing patented. Blanchard v. Putnam, 8 Wall., 420, 19 L. ed., 433. Seasonable objection was made in that case by the plaintiff, the suit being an action at law, and the court held that the evidence was not admissible without an antecedent compliance with the conditions of the Patent Act; but the case before the court is clearly distinguished from that in several particulars. Due notice was given in the answer that the invention and every material and substantial part thereof had been previously *invented and used by [220 and was known to certain persons therein named, twelve in all; and the respondents in due form stated the names and residences of the persons alleged to have had such prior knowledge, and where and by whom the invention had been used. Superadded to that, they also alleged that the supposed invention had previously been known to and used by many other persons. to the respondents unknown; and they prayed leave, as before remarked, that, when discovered, they might be permitted to insert and set forth their names in the answer. Pursuant to that reservation, two witnesses were examined upon that subject by the respondents, without objection; nor does the record, irrespective of the opinion of the court, show that any objection to the admissibility of the evidence was ever made. Previous notice of the examination of those two witnesses, it seems, was not given; but the presiding Justice states that, if seasonable objection had been made, the evidence would have been excluded. None such was made; and it is well settled law that the failure to interpose any such objection before the final hearing is a waiver of the required notice in an equity suit. Brown v. Hall, 6 Blatchf., 405. Explicit notice was given in the answer, that such a defense would be made, and that leave to amend the answer would be asked in case the names and residences of other persons having like knowledge in that regard should be discovered; and, when such a discovery was made. the respondents in due form applied to the court for leave to insert their names and residences in the answer. Viewed in the light of these circumstances, we are all of the opinion. that it was clearly competent to allow the proposed amendment. Teese v. Huhtingdon [supra]. Authority to grant the amendment being established, it follows that the court might properly allow it to be entered nunc pro tunc, as originally prayed in the answer. Due notice was there given that such defense would be made, and that the respondents would move to insert the names and residences of other persons when discovered. Such notice prevented sur |