Gilman & Clough, for plaintiff.

W. P. Warner, for defendant.

NELSON, D. J. This action is brought by the plaintiff, Wann, against defendant, Kelly, to recover money paid to the latter for the plaintiff's use. The facts developed are

these: The plaintiff and defendant and E. B. Gibbs agreed to engage in a speculation by the sale and purchase, or purchase and sale, it is immaterial which, of 300 shares of Northern Pacific Railroad stock on their joint account, each to be interested to the extent of 100 shares. The transaction was determined upon and agreed to by the parties in the belief that the stock would depreciate in the market, and by "selling short" they would be able in the future to purchase so as to make a profit upon the whole transaction, called by stockjobbers "the deal."

The plaintiff alleges it was agreed that Kelly should manage the speculation, and through his broker in New York sell 300 shares Northern Pacific Railroad stock, which was done November 8 and 11, 1879, and afterwards, when a depreciation in the price of the stock reached two points, or two dollars per share, he should order the broker to purchase 300 shares of the stock, and thus close the venture, and pay over to each his proportion of the profits.

The evidence shows very clearly that the arrangement contemplated, in fact, no contract of actual sale or purchase; but, on the contrary, the intention and design was that, as between themselves and the party with whom they dealt, all differences in the price of the stock, at the time of the supposed contracts, should be paid by one party to the other as performance and satisfaction thereof. There were no actual bargains for the sale of the actual stock, but mere bets or wagers on the future price,-gambling transactions on the chance of future rise or fall. Kelly claims the "deal" closed November 19, 1879, when there was a depreciation of two or more points, showing a profit of $647, and that he has paid the plaintiff his portion, one-third of that amount. Wann admits the receipt of $215.66, but claims that the "deal" was

not closed until November 22, 1879, when Kelly actually realized and received a profit of $2,000, and that he is enti tled to one-third of this amount, which Kelly received for him. The broker in New York did not close up the speculation unti! November 22d, as appears by his statement rendered Kelly, for whom he acted, and the only person known to him in the business, at which time the profit realized was the sum before stated. Kelly further claims that he was authorized by his arrangement, which was agreed to by Gibbs and plaintiff, to carry the "deal" on his own account, if he desired to, after a decline of two points, by paying each of them the profits resulting from such decline, and could close them out in that way. This is not the arrangement disclosed by the evidence. It was not possible to close up the transaction with Wann and Gibbs, unless by their consent, until he notified the New York broker to close the "deal," and that he would take the profit which resulted from the speculation at the time, whether the decline was two or more points. As the broker did not close the "deal" until November 22, 1879, if the plaintiff is entitled to recover anything, it will be upon the basis of the profit paid Kelly then. The testimony of Kelly shows that the three parties were interested to the extent of one-third each in the venture, and the statement rendered Wann purports to be based upon the close of the "deal" by the New York broker, November 19th. Kelly thought he could carry the speculation for his own benefit, and at his own risk, after a profit of two points was reached, but the arrangement, as testified to by all the parties to it, would not permit him to do so.

It is urged by Kelly that the business in which the parties engaged was contrary to public policy and illegal, and therefore he can retain all the profit which resulted therefrom without recognizing his associates jointly interested, and that a court will not enforce the plaintiff's claim. Such is not the law. The agreement between the parties related to a single transaction, and when the business closed, and Kelly received the profits, he was in duty bound to pay over to the plaintiff his part of it.

If the speculation was contrary to public policy and illegal, it had been closed, wound up, and the illegal object of it had been accomplished.

It is settled by the United States supreme court (McBlair v. Gibbes, 17 How. 237; Brooks v. Martin, 2 Wall. 70, and authorities cited) that when the illegal contract is completed, and money has been received by a joint owner by force of the illegal contract, he will not be permitted to retain it, and cannot protect himself by setting up the illegality of the transaction in which it was paid him, but must account to his associates.

It is also urged by the defendant that plaintiff, if entitled to a share of the profit, can only enforce his claim in equity. I think an action at law gives adequate relief. The parties were engaged in a single venture, and the defendant, having appropriated the proceeds to his own use, made himself a debtor to the plaintiff. Judgment will be entered in favor of the plaintiff for $451, and interest from November 22, 1879. The amount being less than $500, costs must be paid by the plaintiff.

MCKAY, Trustee, etc., v. DIBert.'

(Circuit Court, D. New Jersey. January 11, 1881.)

1. PATENTS-INFRINGEMENT-PROVISIONAL INJUNCTION.

Where complainant has for a number of years been in the extensive and undisputed use of patents, and during all that period there has been a public acquiescence in the monopoly, a provisional injunction to restrain infringement will be granted, unless some special facts appear to take it out of the general rule.

2. SAME SEPARATE PATENTS FOR MACHINE, PROCESS AND PRODUCT-EXPIRATION OF ONE, OTHERS STILL EXISTING.

Where, under the acts of July 4, 1836, and March 3, 1839, a patent was taken out for a machine for the manufacture of a specific article, and subsequently, and within two years, patents were applied for and granted for the process of manufacturing such article, and also for the product of such process as a new article of manufacture, held, that the patents for the process and product did not terminate with the *Reported by Homer C. Eller, Esq., of the St. Paul bar.

expiration of the patent for the mechanism by which such process was carried on and such products produced, although such mechanism might be of no value except to carry on such patent process and manufacture such patent product.

3. SAME-PATENTS FOR MACHINE AND PRODUCT-PATENTS Nos. 20,775, 29,561, 29,562, AND RE-ISSUE 9,043.

July 6, 1858, patent No. 20,775 was granted for "improvement in sewing machines" for sewing boot and shoe soles. August 14, 1860, two separate patents were granted to the same patentee,-No. 29,561 for improvement in the construction of boots and shoes, and No. 29,562 for improvement in boots and shoes; the first of the two last named being for the process by which the machine covered by patent No. 20,775 manufactured the shoes, and the second for the result or product of such process. Before their expiration they were all extended, the machine patent for seven years from July 6, 1872, and the process and product patents for seven years from August 14, 1874. The process patent extended (No. 29,561) was afterwards surrendered, and re-issue No. 9,043 issued for the unexpired term. Held, that the right of the public to use the machine patent upon the expiration of the extended letters thereon did not carry with it a right to use it for the manufacture of shoes covered by the process or product patents during their unexpired term, though nothing could be manufactured with such machine except the patented product.

4. SAME EMBRACING IMPROVEMENTS IN ONE OR MORE PATENTS-DISCRETION OF COMMISSIONER.

Whether a given invention or improvement shall be embraced in one, two, or more separate letters patent is in the discretion of the commissioner of patents, and courts have no absolute control over such discretion.

Bennett v. Fowler, 8 Wall. 445.

James J. Storrow, Elias Merwin, James J. Meyers, and Wm. L. Dayton, for complainant.

George Harding and James Buchanan, for defendant.

NIXON, D. J. This is a motion for a preliminary injunction. It seems that the complainant, as trustee of the McKay Sewing Machine Company, has been in the extensive and undisputed use of three several patents for many years past, and that, during all this time, there has been a public acquiescence in the monopoly. Under these circumstances a provisional injunction should be granted, unless some facts appear which take the case out of the ordinary rule. The defendant claims that such facts exist.

The first of complainant's patents, numbered 20,775, was issued to Lyman R. Blake, his assignor, on the sixth of July,

1858, for "improvement in sewing machines." This was a machine patent, and it claimed the invention of an improved machine for sewing the sole on a boot or shoe. After it was issued, to-wit, on the twenty-eighth of June, 1859, the same inventor applied for another letters patent, claiming (1) the. process of uniting the soles and vamps of boots or shoes by the use of the said machine, and (2) the boot or shoe as a new article of manufacture made under the said process. Being advised by the commissioner of patents that he must erase or withdraw one of these claims, as he could not combine in the same application claims both for the process and the product, he withdrew the specifications and claim for a new article of manufacture, and afterwards put in a separate application for the same.

On the fourteenth of August, 1860, two separate patents were granted to him-one, numbered 29,561, for a new and useful improvement in the construction of boots and shoes; and the other, numbered 29,562, for a new and useful improvement in boots and shoes,-the first being for the process by which the machine constructed the shoes, and the second for the product or result of the process. Before the expiration of the first grants these patents were severally extended by the commissioner, according to the provisions of the act of July 8, 1870, (Rev. St. §§ 4924-7,)—the machine patent being extended June 22, 1872, for seven years from July 6, 1872; and the process and product patents, on the thirteenth of August, 1874, for seven years from the fourteenth day of the same month and year. The original extended letters patent, No. 29,561, having been surrendered to the commissioner, the same were re-issued to the complainant on amended specification and claims, on the thirteenth of January, 1880, and were numbered re-issue 9,043 for the residue of the extended term.

The bill of complaint charges that the defendant, on or about the fifteenth of March, 1880, procured two machines for sewing the soles of boots and shoes to their vamps or uppers, according to the process patented to said Blake by the patent of August 14, 1860, re-issued as No. 9,043, which