1819. Philadelphia. | BELLAS against HAYS. IN ERROR. December. ment under of the THIS was a writ of error to the Court of Common An agree. Pleas of Northampton county, in an action of covenant me brought by Hays against Bellas, in which there was a ver- defendant, is dict and judgment for the plaintiff for 900 dollars. evidence on own name, it The declaration recited, that by articles of agreement other contracmade the 8th July, 1814, between James Hays of Easton, ting party is a third person Pennsylvania, of the one part, and Hugh Bellas of Sunbury, whose authoriPennsylvania, of the other, it was witnessed, that the plain- the plaintiff is tiff, for 1000 dollars, viz. 100 dollars paid at the execution not shewn. If an agent of the said articles to Henry L. Clark, agent of the plaintiff, sign and seal a 100 dollars on receiving the final patent deed, hereinafter deed in his mentioned, and 800 dollars, in 18 months from the delivery does not bind his principal, of the said deed, with interest from the end of 12 of the said though the 18 months, did by the said agreement, grant, bargain, sell, deed purports assign, and transfer to the defendant, the patent right of between the Phares Bernard's steam still and water boiler, for the county the principal heretofore Northumberland, in Pennsylvania, now Northum- by such agent: nor will any confirmation to be made defendant and by such principal short of sealing the deed render him liable upon it. In such case as the one party is not bound, so neither is the other. It seems that a party would not be bound by the purchase of a patent right, who had supposed it to be valid, when in fact it was invalid: but such misconception cannot be taken advantage of by the defendant, where the equity is not spread on the record, but issue is taken on a want of consideration coupled with fraud. On an issue on the validity of a patent right, the Judge is bound to instruct the jury on the validity of conflicting patents, in a suit by a vendor against a vendee of such patent right, though all the parties interested in those patents are not before the Court. Where a vendor of a patent right agreed " to complete and perfect a conveyance by deeds duly executed and acknowledged, and as soon as practicable forwarded" to the vendee, the conveyance must be executed and acknowledged as well as forwarded, as soon as practicable after the agreement, and any acquiescence by the defendant, dispensing with such performance, must be specially set forth in the pleadings. Time, generally speaking, is not essential in equity: but considerable delay, where it is not accounted for, is considered as abandonment: or where it diminishes the value of the thing contracted for, is material. A conveyance of an exclusive right to one and his assigns, to fabricate and use a patented invention within a certain district, conveys the right to vend the same, without express words to that effect. Where the issue joined, was, whether the plaintiff had a patent right, dated 17th November, 1810, for "a steam still and water boiler," evidence of a patent, dated 16th January, 1811, for “ water boiler and steam still," is inadmissible. a The Court are bound to instruct the jury, on points proposed by counsel on the trial, relevant to the issue, though they are not noticed in the argument; but they may regulate the practico otherwise, by rule of Court. 5 SR 427 26 SC $319 V. HAYS. 1819. berland, Union, and Columbia counties, to him the said dePhiladelphia, fendant, his heirs, and assigns forever; and the said James BELLAS did further agree by the same articles, to complete and perfect the said conveyance by deeds duly executed and acknowledged, and as soon as practicable, forwarded to the said Hugh. And the said Hugh, did covenant by the said articles, upon receiving the said final and complete deed, to pay the said 100 dollars, and to execute a bond for the 800 dollars, payable in 18 months from the date, with interest after 12 of the said 18 months, &c. And the said James, in fact saith, that he did, on the 11th October, 1815, at, &c., complete and perfect the conveyance of the said patent right of Phares Bernard's steam still and water boiler, for the said counties, and did, as soon as practicable afterwards, viz., on the 11th October, 1815, tender the said deed, &c.; and though the plaintiff hath kept and performed all, &c. yet said defendant hath not paid the said 100 dollars, nor given the bond, for payment of the 800 dollars in 18 months from date of the deed, with interest after 12 months, &c.; and the defendant hath not kept his covenant, but hath broken the same, &c., to the plaintiff's damage, 1200 dollars. The defendant craved oyer of the articles of agreement, which were as follows: "This agreement between James Hays, esq. of Easton, Pennsylvania, by his agent Henry L. Clark, of the one part, and Hugh Bellas, of Sunbury, Pennsylvania, of the other part, witnesses, that the said James Hays, for the consideration of 1000 dollars, viz. 100 dollars now paid to the said agent, 100 dollars payable on receiving the final patent deed, and 800 dollars to be paid in 18 months from the delivery of the patent deed aforesaid, with interest commencing at the end of 12 of the said 18 months; he, the said James, has granted, bargained, sold, assigned, and transferred, and does hereby grant, bargain, sell, assign, and transfer to the said Hugh, the patent right of Phares Bernard's steam still and water boiler, for the county heretofore Northumberland in Pennsylvania, now Northumberland, Union, and Columbia counties, to him the said Hugh, his heirs and assigns, for ever. And further the said James agrees to complete and perfect this conveyance by deeds duly executed and acknowledged, and as soon as practicable, forwarded to the said Hugh: and the said Hugh covenants, upon receiving the said final and complete deed, 1819. to pay the second 100 dollars, and then to execute a good Philadelphia. and sufficient bond to the said James Hays, for payment of BELLAS the residuary 800 dollars, in 18 months from the date, with interest after 12 months, as aforesaid. HUGH BELLAS. [seal.] Witness, H. ALWARD. HENRY L. CLARK. [seal.] "July 8th, 1814, the day of the execution of the preceding agreement, received from Hugh Bellas, the first payment therein mentioned, of one hundred dollars, for James Hays above mentioned. Witness, H. ALWARD. HENRY L. CLARK" The defendant pleaded, non est factum, covenants performed, and payment, with leave to add, alter, amend, and expunge, and leave to give the special matter in evidence. He also specially pleaded four pleas, in substance as follows: 1. That the plaintiff was not party to, or bound by the said agreement; Clark had no authority. 2. That the defendant was induced to execute the said articles by fraud of the plaintiff and his agent Clark, in asserting that they had power to convey to the defendant, the patent right of Phares Bernard, mentioned in the said articles, when they had no such power. 3. That the defendant executed the said articles by fraud of the plaintiff and his agent Clark, in asserting, that Bernard was the inventor, that the invention was new and useful, and that the right to it for Northumberland, Union, and Columbia, was vested in the plaintiff. 4. That, generally, there was fraud on the part of the plaintiff and the said agent, inducing the defendant to execute the said articles: and no consideration or value was received by the defendant. Replications to the first pleas, concluding to the country and issue. To the 1st special plea-that Clark had authority from Hays, and Hays was party to, and bound by the said articles; concluding to the country. 2d. That Phares Bernard, on the 17th November, 1810, obtained letters patent for a new and useful improvement; V. HAYS. 1819. being a steam still and water boiler, &c., that the right of it, Philadelphia. by sundry legal assignments, was vested in the plaintiff, for BELLAS the counties of Northumberland, Union, and Columbia; and the plaintiff and his said agent, on the 8th July, 1814, and before, had full power to grant and transfer the right to the defendant. No fraud; and prayed judgment. V. HAYS. 3d. That Bernard, on the 17th November, 1810, obtained letters patent for a new and useful improvement, being a steam still and water boiler, granting him, according to law, the right. That the said Phares Bernard, was the inventor, and that the said invention was new and useful. That Bernard, by law, and letters patent, had duly obtained the full and exclusive right. That this, by sundry legal acts and conveyances, was vested in the plaintiff, and his said agent Clark, for the said three counties-and no fraud-and prayed judgment, &c. 4th. That the defendant did receive, at the making of the said articles, a good and valuable consideration in law-and no fraud-concluding to the country. Rejoinders-Issues upon the 1st and 4th replications— And specially negativing (in support of the 2d and 3d special pleas,) the 2d and 3d replications, and concluding to the country; upon which issues were joined. Notice of the special matter was also given. On the trial, the plaintiff gave in evidence an exemplification of letters patent, to Phares Bernard, for his steam still and water boiler, with a specification, dated 7th November, 1810, and conveyances from Bernard to Stinson Demund on the 7th September, 1812, and from Demund to the plaintiff, on the 12th December, 1812. He also proved, that he had, under the articles of agreement, transmitted to the defendant, a deed, dated 23d July, 1814, which the defendant returned, because it did not properly specify the three counties of Northumberland, Union, and Columbia. On the 11th October, 1815, the plaintiff tendered to the defendant, another deed, dated on that day, reciting the conveyances above mentioned, and correcting the error in the former deed, but the defendant refused to accept it. This deed conveyed to the defendant, his executors, administrators, and assigns, the BELLAS v. HAYS. exclusive right to use the steam still and water boiler, in the 1819. three counties of Northumberland, Union, and Columbia, but Philadelphia. did not convey the right to vend the same. The writ issued against the defendant in this case, on the 11th October, 1815, immediately after the tender and refusal of the last deed. It appeared, that the defendant had set up stills in January, 1814, on Bernard's plan, and used them up to the time of the trial, but was then about relinquishing them. The defendant, in support of his pleas, and under the notice of special matter, gave evidence to shew, that the plaintiff and Clark, had represented the plaintiff's invention as new and useful, whereas in fact it was neither. He produced an exemplification of letters patent, issued July 8th 1803, to Samuel Brown, Edward West, and Thomas West, for an improvement in distillation, by the application of steam, in wooden and other stills; the specification of which, they contended, embraced the principles of Bernard's alleged invention, and that they were used in the summer of 1814, in erecting stills in Columbia county by a person who threatened the defendant to bring suit against those using the invention under Bernard. It was proved by a certificate from the office of the Secretary of State of the United States, that the issuing of letters patent to Bernard, was at first objected to by Dr. Thornton, on account of their interference with Brown & Wests' patent; and that an indorsement to that effect appeared on Bernard's papers at Washington, on which he applied for a patent. The defendant also called a number of witnesses, to prove that Bernard's specification was imperfect and impracticable: that stills had been set up under his instructions by a number of persons, and were found to be more expensive and less productive than the ordinary ones; dangerous in their operation, and yielding spirit of a bad taste; on account of which, they had been generally abandoned after trial. In the course of the trial, bills of exceptions were taken by the defendant, to evidence offered by the plaintiff, on the following points. 1. The articles of agreement of the 18th July, 1814, the admission of which in evidence, was objected to by the de |