1851. FOWLER V. SWIFT. Nov. Term, note to the plaintiff, and that said Shookman was, in consideration thereof, the debtor to that amount of said plaintiff, the judgment below would be right. 1 Chit. Pl. 16. Perhaps, the mutual agreement mentioned might have been consummated without a meeting of the three together; but such an agreement it was necessary to prove in this case. Such an agreement cannot be inferred from the evidence. Per Curiam. The judgment is reversed with costs. Cause remanded, &c. D. D. Pratt, for the plaintiff. Thursday, FOWLER . SWIFT. In a suit upon a note given for the transfer of an interest in a patent, the questions whether a fraud was practiced or a warranty made at the time of the transfer, and, if either was done, what was the value of the right transferred, are for the decision of the jury; and their verdict will not be set aside where it is not clearly shown to be unauthorized by the evidence. APPEAL from the St. Joseph Circuit Court. PERKINS, J.-Debt upon a promissory note by Jason Swift, the payee, against Fowler and Garrison, the makers. There was a return of not found, and a suggestion accordingly, as to Garrison. The general issue was pleaded by Fowler. The cause was tried by a jury and the plaintiff had a verdict and judgment. The Court refused a new trial. The cause is here upon the evidence. The plaintiff introduced his note as follows, and rested: "$125.00. One year from date, for value received, we promise to pay Jason Swift, or bearer, one hundred and twenty-five dollars, waiving all appraisement and stay laws; dated South Bend, July 16, 1849. John Fowler, Lewis Garrison." The defendant proved that the note was given for a part of the consideration of the transfer, on the 23d of 1851. FOWLER October, 1849, to said Fowler and Garrison, by said Swift, Nov. Term, of the exclusive right to make, use, and sell, in Laporte county, Indiana, Harkness's patent grain-rake; and sought to establish a want or failure of consideration, and fraud, in the sale. It was proved that on the 16th of July, 1849, Swift sold to one Rose the right to sell twenty of said rakes in Laporte county. Rose testified that the year previous he purchased one of the rakes and used it. It worked well; was easily worked by a boy sixteen years old; one hand with the rake could keep up with a cradler. The next year it did not do as well, straw was so short; it would not do clean work where straw was short; the rakes are made at a cost of one dallar apiece and sold at three dollars apiece. Welch had made three rakes, under the patent, for defendant; had seen them operate; when the grain was of the right length they worked well; had peddled the rakes, sold eleven, and did not make much over expenses; in short straw they were unprofitable, but in a common season they would do pretty well; all who purchased, whose wheat was the ordinary height, were well satisfied with the rake. Murphy was present when plaintiff sold the right to Fowler and Garrison. Plaintiff told them that these rakes would save one-third of the labor, and work a great deal faster than the common rake; that a boy, from twelve to fourteen years old, could, with one of them, keep up with a cradler; had seen one of these rakes that worked well, and others that did not-would not, if straw was too short or too long. Tutt says the rake will do well on smooth ground, not on rough. His farm is rough; hands preferred the common rake, and did cleaner work with it; one good hand with the common rake will keep up with a cradler. Norton had tried to sell the rakes, but nobody would buy. Shank had seen these rakes operate. They wasted more grain than the common rake. SWIFT. Nov. Term, 1851. ROBERTSON V. The rakes are made to work on wheels two and a half feet in diameter, with axletrees five feet long. On this evidence, after argument of counsel, and under THOMPSON. instructions from the Court, not objected to and not upon the record, the jury found a verdict for the plaintiff of 95 dollars debt, and 1 dollar and 20 cents damages; and the Court below refused a new trial and gave judgment accordingly. The questions, whether there was fraud, or a warranty, in the sale of the right in question, and, if either, what was the value of the right sold, were for the jury on the trial; and, we think, upon the evidence, we cannot say that the Court below erred in refusing to set aside their verdict. See Hardesty v. Smith, at the present term of this Court (1), and Kernodle v. Hunt, 4 Blackf. 57 (2). Per Curiam.-The judgment is affirmed with 2 per cent. damages and costs. J. A. Liston, for the appellant. J. L. Jernegan, for the appellee. (1) Ante, p. 39. (2) The term “useful," as applied in the patent act, is used merely in contradistinction to what is frivolous or mischievous to society; and it is satisfied if the alleged invention is capable of use and is not injurious to the well-being, good policy, or sound morals of society. Lowell v. Lewis, 1 Mason, 186.-Bedford v. Hunt, Id. 303.-Kneass v. Schuylkill Bank, 4 Wash. 9, 12. ROBERTSON V. THOMPSON. A. residing in Jackson county, and B. in Clark county, were sued in assumpsit in the Jackson Circuit Court. Each was served with process in the county where he resided. The plaintiff, afterward, by leave of the Court, amended his writ and declaration by striking out the name of A. B. was then called and defaulted, and a jury was impanneled, which assessed the damages against him. The assessment was set aside, and, on the plaintiff's motion, another jury was called and a new assessment made, and judgment was rendered thereon. Held, that the leave to amend was properly granted. Held, also, that A. and B., when served ERROR to the Jackson Circuit Court. PERKINS, J.-John C. Thompson brought an action of assumpsit in the Jackson Circuit Court, at the February term, 1844, against Robert W. Moore and Harvey Robertson. Process was served on Moore in Jackson county, and upon Robertson in Clark county. The defendants appeared by attorney, and pleaded the general issue. The cause was continued from term to term, and the declaration amended. At the August term, 1846, the defendant, Moore, demurred to a part, and pleaded non assumpsit to a part, of the amended declaration. Afterwards, at the same term, the attorney of Robertson withdrew the appearance for him, and thereupon he was called and defaulted. After this was done, the plaintiff obtained leave of the Court and amended his proceedings, by striking from the writ and declaration the name of the defendant, Moore. A jury was then called, who assessed the damages against Robertson. The assessment was set aside, on motion of the plaintiff; another jury was called; and a new assessment made, upon which the Court rendered judgment. The evidence is not upon the record, nor are the instructions. The case is not briefed. The following is the assignment of errors: "Harvey Robertson v. John C. Thompson. The plaintiff, by his attorney, comes and says, in the foregoing record, proceedings, and final judgment, there is manifest error, in this, that final judgment was rendered against the plaintiff in error, by the Court below, whereas final judgment ought to have been rendered, by said Court, in said plaintiff's favor. And, in this, that said Court had no jurisdiction of the person of said plaintiff, no process having been served on him in Jackson county. And, in this, that said Court, after default against said plaintiff, Nov. Term, 1851. ROBERTSON V. THOMPSON. Thursday, 1851. Nov. Term, permitted defendant to amend his writ and declaration by striking out the name of Moore. And, in this, that said Court set aside the verdict of the jury and awarded a new venire." ROBERTSON V. THOMPSON. The first, being the general assignment of error, requires no remark, as there are special assignments. The second, as to the jurisdiction, we think not well grounded. Section 27, p. 674, of the R. S., enacts that, "when one or more of the defendants reside in any other county of this state than the one in which suit is instituted, process may issue to the sheriff, or other proper officer of that county, to be executed, and shall be returned to the Court from which it was issued; but no judgment shall be given against such defendant, unless a writ in the same suit shall have been executed on some resident defendant of the county where the suit was commenced." In the case before us, a writ was executed on a resident defendant to the suit, as instituted, and who might have been, so far as appears, legally included in the judgment. Both of the defendants having been, therefore, served with legal process, they were under the jurisdiction of the Court, and, for all purposes of legal procedure in the cause, were legally in Court. This being the case, it would seem that sections 98, 99, and 100, p. 685, of the R. S., must apply to the suit, and they authorized the amendment as made. No other construction would give the party the benefit of all these sections. This construction will. The third assignment of error is not valid. Henry v. The State Bank, at this term (1). Nor do we think the fourth is. We think the Court might, for good cause, which we must presume to have existed in this case, set aside an assessment of damages, made after a default on the part of the defendant, and award a new venire, on plaintiff's motion. Per Curiam.-The judgment is affirmed, with 2 per cent. damages, and costs. J. G. Marshall, for the plaintiff. |