patentee against such joint inventor, still the jury may give merely nominal damages. Reutgen v. Kanowrs, 1 Wash. C. C. 168; s. c. 1 Robb 1.

An infringement, by a patentee, of the exclusive right conferred upon a grantee, is no defence to an action by the patentee to recover the license fee which the grantee stipulated to pay for each machine sold by him. Birdsall v. Perego, 5 Blatch. 251.

Courts are called upon only to decide questions that are before them. A judge, sometimes, in giving an opinion, uses language which, although it is always entitled to consideration and respect, yet, in reference to questions that were not before the court, and the decision of which was not necessary to the decision of the questions before it, is not of binding authority. Day v. Stillman, 1 Fish. 487.

The judges of the circuit courts ought not to hold themselves bound and the rights of parties concluded by the language of a judge of the Supreme court, unless such language was strictly applicable to the case then before the court. Day v. Union Rubber Co., 20 How. 216; s. c. 3 Blatch. 488.

So far as principles involving the validity of a patent have been settled by the decisions upon it in other courts, they will be regarded as final and authoritative. Goodyear v. Berry, 3 Fish. 439; s. c. 2 Bond 189.

A defective notice does not afford a foundation for a motion by the defendant for the withdrawal of a juror, on the ground of surprise arising out of the ruling of the court in respect to the notice and the evidence offered under it, and under any circumstances it is a matter resting altogether in the discretion of the court. Silsby v. Foote, 14 How. 218; s. c. 1 Blatch. 445.

The court has no power to order a peremptory nonsuit against the will of the plaintiff. Silsby v. Foote, 14 How. 218; s. c. 1 Blatch. 445.

If a juror becomes ill after the plaintiff's counsel begins his opening address, before any evidence is given, he may be discharged from the panel, and the court may treat such discharge as simply creating a vacancy on the panel, and may proceed to fill it in the usual way by having a twelfth juror drawn and sworn. This practice must be confined to cases where it is apparent that the party objecting receives no injury. Silsby v. Foote, 14 How. 218; s. c. 1 Blatch. 445.

If the jury disagree and are discharged, the case can not be tried again at the same term by a new jury selected from the residue of the panel, but must go over to await another venire. Wilson v. Barnum, 2 Fish. 635; s. c. 1 Wall. Jr. 347; 8 How. 258; s. c. 2 Robb 749.

A special verdict is sufficient if the court can collect the point in issue out of it, although it does not in terms find the issue joined by the parties. Stearns v. Barrett, 1 Mason 153; s. c. 1 Robb 97.

When the verdict is not expressed substantially in the terms of the issue, the case ought to be extremely clear that should induce a court to make it the ground of a final judgment. Stearns v. Barrett, 1 Mason 153; s. c. 1 Robb 97.

Where there is a material repugnancy in the verdict it is not competent

for the court to reject either part of the finding, for it is utterly impossible for the court to decide which is the truth of the case, and even if it could, there is no authority to substitute its own opinion for that of the jury. In such a case the repugnancy will be fatal. A verdict which finds two inconsistent material facts is void, and can not be the foundation for a legal judgment. Stearns v. Barrett, 1 Mason 153; s. c. 1 Robb 97.

The right of the plaintiff to costs follows from a verdict in his favor for any amount of damages, whether nominal or compensatory, and without any reference to the action of the court in adjudging an increase of damages. Merchant v. Lewis, 1 Bond 172.

Arrest of Judgment.

It is not a sufficient ground to support a motion in arrest of judgment, that the declaration does not set forth the act complained of as contrary to the statute. This is not necessary where damages are sought for on account of an injury done. Parker v. Haworth, 4 McLean 370; s. c. 2 Robb 725.

A motion in arrest of judgment ought properly to be heard after the motion for a new trial, which, if granted, might supersede the other motion. Pitts v. Whitman, 2 Story 609; s. c. 2 Robb 189.

New Trial.

If in the hurry of a trial, a ruling of the court in admitting evidence is erroneous, but afterwards becomes immaterial or unnecessary in consequence of other evidence, a new trial will not be granted. Allen v. Blunt, 2 W. & M. 121; s. c. 2 Robb 530.

If the error consists in an instruction in regard to the measure of damages, the plaintiff may avoid a new trial by consenting that the verdict be reduced to nominal damages. Cowing v. Rumsey. 4 Fish. 275; s. c. 8 Blatch. 36.

A new trial should not be granted for a cause existing at the trial, but which was not stated or excepted to then. The more especially is this so when any wrong or misleading of the jury was likely to flow from the objection not being made. Allen v. Blunt, 2 W. & M. 121; s. c. 2 Robb 530.

If a party chooses to carry a question to the jury, he can not complain on that ground, and ask for a new trial, when the verdict is against him. Silsby v. Foote, 14 How. 218; s. c. 1 Blatch. 445.

In order to justify the granting of a new trial, it must be so clearly shown that the verdict is against the weight of evidence as to raise a strong presumption that the jury either wantonly abused their powers or made some inadvertent mistake. Aiken v. Bemis, 3 W. & M. 348; s. c. 2 Robb 644; Johnson v. Root, 2 Fish. 291; s. c. 2 Cliff. 108; Bray v. Hartshorn, 1 Cliff. 538.

Although the verdict of a jury is of less weight in patent cases than in other civil causes, yet it will not be set aside unless they were palpably mistaken, and the weight of the evidence was decidedly against the verdict. Roberts v. Schuyler, 12 Blatch. 444; s. c. 2 Ban & Ard. 5.

If the verdict is decidedly against the evidence in the cause, it will be set aside. Wilson v. James, 3 Blatch. 227.

It must be a very aggravated and oppressive case where the court would feel justified in setting up its own opinion, even if decidedly different from that of the jury, as to the true amount of damages, and award a new trial on that ground. Allen v. Blunt, 2 W. & M. 121; s. c. 2 Robb 530; Alden v. Dewey, 1 Story 336; s. c. 2 Robb 17; Whitney v. Emmett, Bald. 303; s. c. 1 Robb 567; Aiken v. Bemis, 3 W. & M. 348; s. c. 2 Robb 614; Stimpson v. Railroads, 1 Wall. Jr. 164; s. c. 2 Robb 595.

Error in awarding excessive damages may sometimes be obviated by allowing the prevailing party to remit the excess, and that course is frequently adopted in cases where the court is satisfied that the error has resulted from oversight or mere inadvertence; but where the finding is not only contrary to the evidence, but in direct contravention of the charge of the court, the error can not in general be remedied in that way. Johnson v. Root, 2 Fish. 291; s. c. 2 Cliff. 108.

Irregularity on the part of the party charged, or of the jury, must be satisfactorily proved, in order to lay the foundation for the interposition of the court; but when the irregular conduct is established, it is not necessary that it should certainly appear that it influenced the jury. In that state of the case it is sufficient that the irregularity appears to be of such a character that it might have affected the impartiality of the proceedings. Johnson v. Root, 2 Fish. 291; s. c. 2 Cliff. 108.

It is not necessary that the attempt to influence the jurors should be made by one of the parties, nor even by his agent. It is sufficient if it clearly appear that it was done in his behalf. Johnson v. Root, 2 Fish. 291; s. c. 2 Cliff. 108.

It is never necessary to show that the misconduct controlled or determined the verdict, provided it was of a character that it might have had an undue influence. Johnson v. Root, 2 Fish. 291; s. c. 2 Cliff. 108.

A new trial will not be granted upon the discovery of new evidence, if the information might have been obtained by the use of reasonable diligence. Washburn v. Gould, 3 Story 122; s. c. 2 Robb 206.

If a party, by the use of ordinary diligence, could have obtained full evidence to any point which could properly sustain his defence, there is no reason for granting him a new trial merely because he could, upon further reflection and further lights, make a fuller and better defence. Ames v. Howard, 1 Sum. 482; s. c. 1 Robb 689.

A new trial will not be granted upon the discovery of new evidence, if the information was within the reach of the party before the trial was concluded. Washburn v. Gould, 3 Story 122; s. c. 2 Robb 206.

A new trial is never granted upon the discovery of mere cumulative evidence, where there is no other ground of objection to the verdict. Ames v. Howard, 1 Sum. 482; s. c. 1 Robb 689.

If the new evidence is to subordinate points and particular facts not before agitated, it is not cumulative, although the general subject was discussed. Aiken v. Bemis, 3 W. & M. 348; s. c. 2 Robb 644.

When a new trial is granted for newly discovered evidence, the terms usually are that the costs of the former trial be first paid. Aiken v. Bemis, 3 W. & M. 348; s. c. 2 Robb 644.

Depositions to be used on a motion for a new trial may always without a special order be ex parte. Aiken v. Bemis, 3 W. & M. 348; s. c. 2 Robb 644.

If counter affidavits offered by the adverse party go to establish strong cumulative proofs the other way, the court will always decline to interfere with the verdict, because it will not undertake to measure the weight of the new testimony upon either side, or send the parties again to a litigation upon the chances of a verdict upon new conflicting evidence. Ames v. Howard, 1 Sum. 482; s. c. 1 Robb 689.

A party who moves for a new trial upon the ground of the discovery of new evidence can not put in new rebutting evidence to the affidavits of the adverse party, offered in reply to those first offered by himself. He must present his whole case at once to the court, and not lead it on through a series of confirming and rebutting proofs, thus protracting the cause to an unreasonable extent. Ames v. Howard, 1 Sum. 482; s. c. 1 Robb 629.

SEC. 4921. The several courts vested with jurisdiction of cases arising under the patent laws shall have power to grant injunctions according to the course and principles of courts of equity, to prevent the violation of any right secured by patent, on such terms as the court may deem reasonable; and upon a decree being rendered in any such case for an infringement, the complainant shall be entitled to recover, in addition to the profits to be accounted for by the defendant, the damages the complainant has sustained thereby; and the court shall assess the same or cause the same to be assessed under its direction. the court shall have the same power to increase such damages, in its discretion, as is given to increase the damages found by verdicts in actions in the nature of actions of trespass upon the case.

Statute Revised-July 8, 1870, ch. 230, 55, 16 Stat. 206.

And

Prior Statutes-February 15, 1819, ch. 19, ? 1, 3 Stat. 481.-July 4, 1836, ch. 357, 216, 5 Stat. 123.

Parties.

A contract for the purchase of any portion of the patent right may be good between the parties as a license, and enforced as such in the courts

of justice; but the legal right in the monopoly remains in the patentee, and he alone can maintain an action against a third party who commits an infringement upon it. Gayler v. Wilder, 10 How. 477; Sanford v. Messer, 5 Fish. 411; s. c. 1 Holmes 149; 2 O. G. 470; Blanchard v. Eldridge, 1 Wall. Jr. 337; s. c. 2 Robb 737.

A patentee who has granted a license to make and vend the thing patented within a certain territory, in consideration of the payment of a certain sum for each article so manufactured and sold, reserving to himself the right to sell the thing patented within the territory, is a party aggrieved, and may proceed in equity for the protection of his rights. Hussey v. Whiteley, 2 Fish. 120; s. c. 1 Bond 407.

Although a patentee has granted a license to another giving him the exclusive right to use the invention for a limited period, yet he may file a bill against an infringer. Still v. Reading, 20 O. G. 1025; s. c. 9 Fed. Rep. 40.

A person who holds the legal title to the patent may maintain a bill in equity, and the fact that others claim an interest therein constitutes no defence of which an infringer can take advantage. Graham v. McCormick, 21 O. G. 1533; s. c. 10 Biss. 39; s. c. 5 Ban & Ard. 244; s. c. 11 Fed. Rep. 859; Graham v. Geneva L. C. Manuf. Co., 21 O. G. 1536 ; s. c. 11 Fed. Rep. 138.

Although a person holds the title in trust, yet he has sufficient interest to maintain a bill in equity. Campbell v. James, 18 O. G. 979; s. c. 17 Blatch. 43; s. c. 4 Ban & Ard. 456.

A party who holds the legal title and has an interest in the damages to be recovered for an infringement, is a necessary party. North v. Kershaw, 4 Blatch. 70.

If the patentee owns the patent he is entitled to recover the profits, although he has a partner. Sargent v. Yale Lock Manuf. Co., 17 O. G. 105; s. c. 17 Blatch. 244; s. c. 4 Ban & Ard. 574.

If a member of a firm which owns a patent dies, the surviving partners may sue for an infringement. Loercher v. Crandal, 21 O. G. 863; s. c. 11 Fed. Rep. 872.

If the State laws permit a feme covert to own property as if she were a feme sole, she may bring an action for the infringement of a patent in her own name without joining her husband. Lorillard v. Standard Oil Co., 17 O. G. 1507; s. c. 18 Blatch. 199; s. c. 5 Ban & Ard. 432; s. c. 2 Fed. Rep. 902; Fetter v. Newhall, 17 Fed. Rep. 841; s. c. 25 O. G. 502.

A patentee can not delegate to another the right to bring a suit in the name of the latter when the suit is not in any way for the benefit of such other person. Goldsmith v. Am. P. C. Co., 18 O. G. 192; s. c. 18 Blatch. 82; s. c. 5 Ban & Ard. 300.

If a person has the right to bring a suit in the name of another he need not obtain his consent or signature to each suit. Bassett v. Malone, 11 Fed. Rep. 801.

If an assignment transfer the right to damages for prior infringements the assignee may maintain a suit in equity to recover the same. Hamil