inventor then had a right to obtain, because it requested that the patent might issue to the assignee, there was no sound reason for restraining the assignment to the inchoate interest and requiring a further transfer of the patent. In the present case the patent had been allowed and ordered to issue before the assignment was made, and the assignment refers to that fact and to the fact that the purchase is of all the right, title, and interest of Heath in the invention "in consequence of the grant of letters patent therefor." The defendant does not set up any right derived from Decker. Under the above decision it must be held that when the patent issued to Heath the legal right to the property it created became vested in the company on the recording of the assignment to them. The plaintiff is entitled to the usual interlocutory decree for an account and a perpetual injunction. [United States Circuit Court-Northern District of New York.] THE METAL STAMPING COMPANY v. CRANDALL. Decided October Term, 1880. 18 O. G., 1531. 1. A bill of revivor will not lie when filed by the assignee of the original complainant, as the right to file such a bill is confined to cases of representation of the party deceased by the mere operation of law. 2. In case of the death of an original complainant and assignor the proper course for the assignee is to file a supplemental bill. 3. The bill of an unincorporated company should be prosecuted in the names of the individual partners, and not in the name of the company. Mr. A. v. Briesen for the complainant. Mr. R. H. Duell, Mr. George W. Hay, and Mr. Charles H. Duell for the defendant. WALLACE, J.: This cause comes here upon the bill of revivor filed by the complainants, the plea of the defendant, the replication of the complainant, and the proofs taken under the issue thus raised. The original bill. was filed by Charles Schuessler, March 24, 1879, to restrain the infringement of letters patent for an "improvement in buckle-fastenings," originally issued to Robert Meyers on the 29th day of January, 1867, assigned by him to Schuessler, May 8, 1874, and reissued to Schuessler, as assignee of Meyers, May 23, 1876. There was an answer and replication in the original suit, and proofs were taken therein; but before a hearing, and on the 6th day of September, 1879, Schuessler died. The proofs show that March 16, 1874, Schuessler and one Walters entered into an agreement to become partners under the name of the Metal Stamping Company, by which, among other things, they agreed that all inventions or improvements made by either party, or for which either party should obtain letters patent, should be owned by the parties jointly and equally. November 27, 1877, one Loercher was by articles of agreement admitted as a partner into the firm of the Metal Stamping Company, the agreement reciting that Loercher was to have a fifth interest in the assets and business of the firm as manufacturers under various letters patent, including the Meyers reissued letters patent. By a further agreement made between the partners August 13, 1879, Schuessler transferred to the Metal Stamping Company the sole and exclusive right and privilege to manufacture, use, and sell the invention and improvement described in the letters patent during the life of the partnership, and the agreement of transfer also provided that upon the dissolution or extinction of the partnership the letters patent should only be assigned by the joint signatures of the partners or their legal representatives. It thus appears that when the original bill was filed Schuessler held the legal title to the patent in question; but the equitable title to the patent and the right to recover for damages by reason of its infringement since its assignment to Schuessler was in the Metal Stamping Company, and by the instrument of August 13, 1879, the legal title to the patent became vested in the Metal Stamping Company, because after that nothing remained in Schuessler which he could transfer without the participation of the other members of the firm. The case thus presents the single question whether a bill of revivor will lie to introduce the Metal Stamping Company into the controversy, and I am of opinion that it will not, because the complainant's interests have not been acquired by the death of Schuessler, but by the transfers and agreements made between him and the complainants. After the complainants acquired the legal title to the patent they were in a posi tion to file a supplemental bill. Story Eq. Pl., sec. 346. The right to file a bill of revivor is confined to cases of representation of the party deceased by the mere appointment and operation of law. Story Eq. Pl., sec. 354. On the other hand there may be a priority of right and title under the deceased by a transfer or conveyance of that right to a person who is not in by mere operation of law, and is not the heir or personal representative of the deceased, and in such a case a bill of revivor will not lie. 2 Barb. Ch. Practice, 51. It is proper to suggest that as the Metal Stamping Company is not a corporation, but the name of a partnership, neither a bill of revivor nor a supplemental bill can be prosecuted except in the names of the individual partners. This point has not been raised, but should not be overlooked if further proceedings are taken. Judgment is ordered for the defendant upon the plea. [United States Circuit Court-Southern District of New York.] MILLER ET AL v. BUCHANAN ET AL. Decided August 21, 1880. 18 O. G., 1532. Messrs. Hatch & Stem for the plaintiffs. BLATCHFORD, J.: The first exception specifies that the matter excepted to is impertinent, not that it is scandalous. The bill alleges that the decision in the suit against Force was made "after full consideration." The answer denies that it was made after full consideration, and then proceeds to allege that it was, "on the contrary," made under certain alleged circumstances, which, if proved, would go to show that it was not made after full consideration; but there is nothing in the circumstances alleged which make the allegation scandalous, or which contains any imputation on the court. The matter excepted to is neither impertinent nor scandalous. The second exception is for insufficiency, and seems to be based on the idea that while the bill alleges substantially that the defendants have used the process claimed in the first claim of the patent the answer does not specifically deny that allegation; but the answer expressly denies that the defendants have practiced the invention described in the first claim. The exceptions are overruled, with costs. INDEX Court cases are designated by an asterisk (*)—Decisions of the Secretary of the Interior by a dag- ABANDONMENT. See Construction of Statutes, 8, 9; Diligence, 3; Practice in the Pat- 1. If an inventor abandons or forgets his invention before its public use, it may 2. The question of abandonment is not one of mere mental operation. Proof of a 3. A mere delay of two years in the application for a patent is not evidence of 4. An inventor may abandon or forget his invention, and then resume or recall it 5. Where an applicant describes and claims a preferred species, but his application 6. An application filed April 5, 1845, and withdrawn by applicant, together with a 7. Where an interference is dissolved by the Commissioner, and both interfering ABANDONMENT-Continued. made to procure a re-examination of the old application, or to renew it, for a 9. The action of the Commissioner of Patents in granting a patent, under section 11. Abandonment may occur as well after an application has been made and re- 13. The rule of the Patent Office that an application rejected, or not prosecuted 14. In both the courts and the office abandonment is an ill-favored finding, and ABANDONED APPLICATION. See Abandonment. 1. An abandoned or rejected application is not a public document; and if a refer- ABANDONED EXPERIMENTS. See Delay 1; Experiments. 1. Unsuccessful and abandoned experiments cannot avail to invalidate a patent to 3. A patent will not be defeated by evidence of prior similar devices which were ACQUIESCENCE. See Injunction, 22; Priority of Invention, 8. AFFIDAVITS. See Evidence, 1; Ex parte Cases, 1; Injunction, 17; Interferences, 3; Practice in the Courts, 1; Practice in the Patent Office, 1, 2, 10, 11, 14; Presump- |