year v. Day, 1 Blatch. 565; Blanchard v. Sprague, 1 Cliff. 288; Wilson v. Sandford, 10 How. 99; Goodyear v. Union Rubber Co., 4 Blatch. 63; Magic Ruffle Co. v. Elm City Co., 13 Blatch. 151; s. c. 8 O. G. 773 ; s. c. 2 Ban & Ard. 152; Albright v. Teas, 23 O. G. 829; s. c. 106 U. S. 613; s. c. 13 Fed. Rep. 406; Ingalls v. Tice, 14 Fed. Rep. 352; Hartell v. Tilghman, 99 U. S. 547; Adams v. Meyrose, 7 Fed. Rep. 208; s. c. 2 McCrary 360; Kelly v. Porter, 8 Saw. 482.

The jurisdiction of the circuit court under this section does not extend to a controversy which arises under a contract concerning a patent to be subsequently obtained, rather than under the patent law itself. Nesmith v. Calvert, 1 W. & M. 34; s. c. 2 Robb 311; Brooks v. Stolley, 3 McLean 523; s. c. 2 Robb 281; Smith v. Standard L. M. Co., 22 O. G. 587.

If an infringement is proved jurisdiction is conferred, and having power to protect the rights of a party under a patent, the court will take cognizance of other matters as incidental to the infringement. Hence the court has jurisdiction if the defendant has forfeited his right under a license. Bloomer v. Gilpin, 4 Fish. 50; Brooks v. Stolley, 3 McLean 523; s. c. 2 Robb 281.

A bill to determine the meaning of a license to the complainant, or to ascertain whether the defendant has done an act upon which the right to a reduction of the license fee arises, and thereupon to decree that the complainant is only bound to pay the reduced rent, can not be sustained. An apprehension that the defendant under a condition in the license will deny the right of the complainant to use the licensed invention, or that the defendant threatens to give notice of his election to terminate the license, will not justify an application to a court of equity. Florence Co. v. Singer Co., 4 Fish. 329; s. c. 8 Blatch. 113.

Jurisdiction is not controlled solely by the pleadings, but the case itself must be one within the cognizance of the court where the suit is brought. Where it appears at the trial that there is no question involved in the case which it is competent for the court to decide under the pleadings, the case will be dismissed, notwithstanding the allegations of the bill may be sufficient to anthorize the court to take cognizance of the suit. Blanchard v. Sprague, 1 Cliff. 288.

If a patentee sells the thing patented to a purchaser in violation of the license, the licensee can not maintain a bill in equity against the patentee and purchaser in the circuit court, without regard to the citizenship of the parties, for his rights arise under contract. Hill v. Whitcomb, 1 Holmes 317; s. c. 5 0. G. 430; s. c. 1 Ban & Ard. 34.

If the parties are citizens of the same State, the circuit court has no jurisdiction over a bill to obtain the cancellation of a license on account of the invalidity of the patent. Merserole v. Union Collar Co., 3 Fish. 483; s. c. 6 Blatch. 356.

If the parties are citizens of the same State, the circuit court can not entertain a bill to compel the specific performance of a contract to assign a patent. Burr v. Gregory, 2 Paine 426; Perry v. Littlefield, 17 O. G. 51; s. c. 17 Blatch. 272; s. c. 18 O. G. 571; s. c. 4 Ban & Ard. 624; s. c. 2 Fed. Rep. 464.

The mere fact that a bill prays for an account of the profits, in asking for a specific performance, will not give the court jurisdiction. Burr v. Gregory, 2 Paine 426.

A judgment creditor can not file a bill in the circuit court to reach a patent owned by the debtor if both parties are citizens of the same State. Ryan v. Lee, 10 Fed. Rep. 917.

A junior patentee can not maintain an action against a prior patentee for the purpose of obtaining an adjudication that his patent does not conflict with the prior patent. Celluloid Manuf. Co. v. Goodyear D. V. Co.,

13 Blatch. 375; s. c. 10 O. G. 41; s. c. 2 Ban & Ard. 334.

The circuit court has no jurisdiction over any proceeding to vacate a patent and declare it null ab initio, upon the ground of false suggestion, or the ground that the government has undertaken to grant that which by law it can not grant. Att. General v. Rumford Works, 9 O. G. 1062;

s. c. 2 Ban & Ard. 298.

The attorney general has no authority, as such and in his own name, to file an information or commence proceedings by bill in equity to annul a patent. Att. General v. Rumford Works, 9 O. G. 1062; s. c. 2 Ban & Ard. 298.

The circuit court may have jurisdiction over a controversy on account of the residence of the defendant, even if it has not on account of the subject. Nesmith v. Calvert, 1 W. & M. 34; s. c. 2 Robb 311.

If the parties are citizens of different States, and the amount claimed and in controversy exceeds five hundred dollars, the court has jurisdiction over a claim arising from a contract. Bloomer v. Gilpin, 4 Fish. 50. If the circuit court in a patent case has jurisdiction over the subjectmatter and parties, the correctness of the decree can not be called in question collaterally. Allen v. Blunt, 1 Blatch. 480.

Copyright.

A court of equity has jurisdiction of a bill for an infringement of a copyright, although there is a remedy at law, for that is less appropriate, efficient and ample. Pierpont v. Fowle, 2 W. & M. 23.

The title of the complainant and the infringement may be adjudicated in a court of equity, without having been first determined at law. Farmer v. Calvert Publishing Co., 1 Flippin 228; s. c. 5 A. L. T. 168.

A court of equity has no jurisdiction to enforce penalties and forfeitures incurred under the statute relating to copyrights. Stevens v. Gladding, 17 How. 447; Stevens v. Cady, 2 Curt. 200.

If the controversy in regard to a copyright arises out of a contract, and not under the statute, the circuit court has no jurisdiction over it. Pulte v. Derby, 5 McLean 328; Little v. Hall, 18 How. 165.

The circuit court has no jurisdiction of a bill in equity to protect the rights of an author at common law, where both parties are citizens of the same State. Boucicault v. Hart, 13 Blatch. 47.

If a party agrees to prepare a manuscript ready for printing but afterwards refuses to deliver it, and takes a copyright in his own name, a bill

to enjoin a publication of the manuscript or an assignment of the copyright can not be maintained in the circuit court if both parties are citizens of the same State. Haworth v. Nystrom, 8 W. N. 204.

A bill cannot be maintained in equity to recover damages as well as profits for the infringement of a copyright. Chapman v. Ferry, 8 Saw. 191; s. c. 12 Fed. Rep. 693.

The circuit court has jurisdiction of an action for an infringement of a trademark which has been registered under an act of Congress, without regard to the amount in controversy or the citizenship of the parties. Duwel v. Bohmer, 2 Flippin 168; s. c. 14 O. G. 270.

CHAPTER ELEVEN.

SEC. 699. A writ of error may be allowed to review any final judgment at law, and an appeal shall be allowed from any final decree in equity hereinafter mentioned, without regard to the sum or value in dispute.

First. Any final judgment at law or final decree in equity of any circuit court or of any district court acting as a circuit court, or of the Supreme Court of the District of Columbia, or of any territory, in any case touching patent rights or copyrights.

Statute Revised-July 8, 1870, ch. 230, §§ 56, 107, 16 Stat. 207, 215.

Prior Statutes-Feb. 15, 1819, ch. 19, § 1, 3 Stat. 181.-July 4, 1836, ch. 357, § 16, 5 Stat. 123.-Feb. 18, 1861, ch. 37, § 1, 12 Stat. 130.

General Principles.

An appeal or writ of error is allowed to all parties, without regard to the sum in controversy. Philip v. Nock, 13 Wall. 185.

Whenever a contract is made in relation to patents, which is not provided for and regulated by Congress, the parties, if any dispute arises, stand upon the same ground with other litigants as to the right of appeal, and the decree cannot be revised unless the matter in dispute exceeds five thousand dollars. Wilson v. Sandford, 10 How. 99.

Citation.

A citation signed by the clerk and not by the judge is irregular. Chaffee v. Hayward, 20 How. 208.

An appearance of the defendant in error without making a motion to dismiss during the first term is a waiver of any irregularity in the citation, and is an admission that he has received notice to appear to the writ of error. Chaffee v. Hayward, 20 How. 208.

The absence of counsel is no excuse for the omission to move to dismiss the writ of error. Chaffee v. Hayward, 20 How. 208.

If the defendant in error appears in the Supreme Court, and pleads to entitle him to appear by counsel and argue the cause, it is too late after the case has been remanded to the circuit court to raise the objection that no writ of error was sued out to remove the record into the Supreme Court, and that the judgment is, therefore, still in force and unreversed. It will be presumed that all formal objections, and particularly one to the want of a writ, were waived by consent of parties. Evans v. Eaton, 3 Wash. C. C. 443; s. c. 7 Wheat. 356; s. c. 1 Robb 193, 336.

If the defendant in error does not elect to have the writ of error dismissed on account of the failure of the plaintiff to appear, but files an argument, the court will decide the case. New York v. Ransom, 1 Fish. 252; s. c. 23 How. 487.

Bill of Exceptions.

The bill of exceptions affords the only means of ascertaining the precise state of facts on which an instruction was given. Whether the report of the evidence as set forth in the bill of exceptions may or may not be incomplete or imperfectly stated, can not be known in an appellate court. Bills of exception, when properly taken and duly allowed, become a part of the record, and as such can not be contradicted. Chaffee v. Boston Belting Co., 22 How. 217.

The Supreme Court can not notice the rules of the inferior courts, unless they are made a part of the bill of exceptions. Packet Co. v. Sickles, 19 Wall. 611.

Exceptions to Evidence.

If no exception is taken to the competency or sufficiency of evidence, either generally or for any particular purpose, there is no necessity for putting any portion of it in the bill of exceptions, when the opinion of the court presents a general principle of law. Pennock v. Dialogue, 2 Pet. 1; s. c. 4 Wash. C. C. 538; s. c. 1 Robb 466, 542.

If a witness is rejected as incompetent, and the facts which the witness offered to prove are not stated in the bill of exceptions, the exception can not be disregarded upon the idea that the testimony could not have been material or could not have changed the result of the verdict. Vance v. Campbell, 1 Fish. 483; s. c. 1 Black 427.

Parties are not at liberty to desert the purpose stated by them, and to show the pertinency or relevancy of the evidence for any other purpose not then suggested to the court. Phila. & Trenton R. R. Co. v. Stimpson, 14 Pet. 448; s. c. 2 Robb 46.

It is incumbent on those who insist upon the right to put particular questions to a witness, to establish that right beyond any reasonable doubt, for the very purpose stated by them. Phila. & Trenton R. R. Co. v. Stimpson, 14 Pet. 448; s. c. 2 Robb 46; Blanchard v. Putnam, 3 Fish. 186; s. c. 8 Wall. 420; s. c. 2 Bond 84.

It is incumbent on the party objecting to the ruling to show his right to introduce the rejected evidence. Silsby v. Foote, 14 How. 218; s. c. 1 Blatch. 445.

A party is not deprived of any right if a paper was not legal evidence upon the particular point for which alone it was offered, or if its reception, accompanied by proper instructions to the jury concerning its legal effect, must necessarily have assisted the opposite party. Silsby v. Foote, 14 How. 218; s. c. 1 Blatch. 445.

If a party is not deprived of any right by the rejection of evidence, it is not cause for reversing a judgment that an erroneous reason was assigned for rejecting it. Silsby v. Foote, 14 How. 218; s. c. 1 Blatch. 445.

Exceptions to Instructions.

The exceptions to the charge of the court should be to the points ruled by the court, and not to the charge as published at length. Stimpson v. West Chester R. R. Co., 4 How. 380; s. c. 2 Robb 335.

An omission of the court to instruct the jury upon particular points is not a ground for a bill of exceptions. Allen v. Blunt, 2 W. & M. 121;

s. c. 2 Robb 530.

A direction to the jury to render a verdict in favor of the defendant is only proper where it is entirely clear that the plaintiff can not recover. Klein v. Russell, 19 Wall. 433.

It is no ground of reversal that the court below omitted to give directions to the jury upon any points of law which mig it ise in the cause, where it was not requested by either party at the tria. It is sufficient that the court has given no erroneous directions. If either party deems any point presented by the evidence to be omitted in the charge, it is competent for such party to require an opinion from the court upon that point. If he does not, it is a waiver of it. The court can not be presumed to do more in ordinary cases than to express its opinion upon the questions which the parties themselves have raised at the trial. Pennock v. Dialogue, 2 Pet. 1; s. c. 4 Wash. C. C. 538; s. c. 1 Robb 466, 542.

The substance only of the charge is to be examined, and if it appears upon the whole that the law was justly expounded to the jury, general expressions which may need and would receive qualification if they were the direct point in judgment, are to be understood in such restricted sense. Evans v. Eaton, 7 Wheat. 356; s. c. 3 Wash. C. C. 413; s. c. 1 Robb 193, 336.

It is clearly error for the court in its instruction to the jury to assume a material fact as proved, of which there is no evidence in the case, and when the finding of the jury accords with the theory of the instruction thus assumed without evidence, the error is of a character to deserve correction. Chaffee v. Boston Belting Co., 22 How. 217.

It is unnecessary and inconvenient to spread the charge in extenso upon the record. Evans v. Eaton, 7 Wheat. 356; s. c. 3 Wash. C. C. 443; s. c. 1 Robb 193, 336.