Fisher v. Consolidated Amador Mine

U.S. Circuit Court

Fisher v. Consolidated Amador Mine

25 F. 201, 1885 U.S. App. LEXIS 2238

DecidedSeptember 7, 1885

StatusPublished

This text of 25 F. 201 (Fisher v. Consolidated Amador Mine) is published on Counsel Stack Legal Research, covering United States Circuit Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fisher v. Consolidated Amador Mine, 25 F. 201, 1885 U.S. App. LEXIS 2238 (uscirct 1885).

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Opinion

Sawyer, J.

This is a demurrer to a special answer.. The action is brought to recover damages for the unlawful use of certain hydraulic machines, which are alleged to infringe upon reissued letters patent No. 8,876, owned by plaintiffs. 'The answer sets up that the same plaintiffs had previously brought suit in equity against one Hos-kins, to recover the profits resulting from an infringement of the patent by Hoskins in manufacturing and selling machines constructed [202]*202according to the specifications of the patent; that a decree had been rendered in that case in favor of plaintiffs, and against Hoskins, and, upon an accounting 'had, the sum of $16,465.33 had been awarded to plaintiffs as the profits realized by Hoskins from manufacturing and selling said machines. The answer further alleges that the particular machines used by the defendant, and for the use of which the present action is brought, were purchased by defendant from Hos-kins, and that the profits of their manufacture and sale had been included in the decree against Hoskins, and' that, therefore, the plaintiffs had received satisfaction for the said machines, and defendant was not liable to plaintiffs for using the same. But the answer nowhere alleges that the Hoskins decree has ever been satisfied by payment or otherwise. In order to be a defense it must allege that said decree has been paid, or. otherwise satisfied, as well as that .the accounting against Hoskins included the machines in question. In the absence of such allegation the answer does not state a defense. Gilbert & B. Manuf’g Co. v. Bussing, 1 Ban. & A. 621; Birdsell v. Shaliol, 112 U. S. 485; S. C. 5 Sup. Ct. Rep. 244; Steam Stone-cutter Co. v. Sheldons, 21 Fed. Rep. 875; Walk. Pat. § 314. It follows, therefore, that the demurrer must be sustained; and it is so ordered.

If the defendant desires, it can have time to amend, though I cannot see that it can properly amend unless it can truthfully state that the decree has been satisfied, and I have good reason to know that it has not been satisfied.

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Sawyer, J.

This is a demurrer to a special answer.. The action is brought to recover damages for the unlawful use of certain hydraulic machines, which are alleged to infringe upon reissued letters patent No. 8,876, owned by plaintiffs. 'The answer sets up that the same plaintiffs had previously brought suit in equity against one Hos-kins, to recover the profits resulting from an infringement of the patent by Hoskins in manufacturing and selling machines constructed [202]*202according to the specifications of the patent; that a decree had been rendered in that case in favor of plaintiffs, and against Hoskins, and, upon an accounting 'had, the sum of $16,465.33 had been awarded to plaintiffs as the profits realized by Hoskins from manufacturing and selling said machines. The answer further alleges that the particular machines used by the defendant, and for the use of which the present action is brought, were purchased by defendant from Hos-kins, and that the profits of their manufacture and sale had been included in the decree against Hoskins, and' that, therefore, the plaintiffs had received satisfaction for the said machines, and defendant was not liable to plaintiffs for using the same. But the answer nowhere alleges that the Hoskins decree has ever been satisfied by payment or otherwise. In order to be a defense it must allege that said decree has been paid, or. otherwise satisfied, as well as that .the accounting against Hoskins included the machines in question. In the absence of such allegation the answer does not state a defense. Gilbert & B. Manuf’g Co. v. Bussing, 1 Ban. & A. 621; Birdsell v. Shaliol, 112 U. S. 485; S. C. 5 Sup. Ct. Rep. 244; Steam Stone-cutter Co. v. Sheldons, 21 Fed. Rep. 875; Walk. Pat. § 314. It follows, therefore, that the demurrer must be sustained; and it is so ordered.

If the defendant desires, it can have time to amend, though I cannot see that it can properly amend unless it can truthfully state that the decree has been satisfied, and I have good reason to know that it has not been satisfied.

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Bluebook (online)

25 F. 201, 1885 U.S. App. LEXIS 2238, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fisher-v-consolidated-amador-mine-uscirct-1885.

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