Page:Federal Reporter, 1st Series, Volume 10.djvu/296

 .284 FEDERAL SEPOETEB. �not taken, but the fact was an obvions one, and the point was un- doubtedly considered untenable. �So where the patent had expired before suit was brought, or the delcndant had died before or during suit, and there were no circum- btances which authorized an injunction against his executer. Howes Y. Nute, 4 Fish. 263 ; American Wood Paper Co. v. Glen's Falls Paper Co. 8 Blatchf. 513 ; McComb v. Beard, 10 Blatchf. 350 ; Smith v. Baker, 5 0. G. 496 ; Atterbury v. Glll, 13 0. G. 276. �In Draper v. Hudson, 1 Holmes, 208, Judge Shepley refused an aeeount because an injunction could not be granted, but he cited none of the foregoing cases, and evidently overlooked the decision of Mr. Justice Clifford and myself in Hoives v. Nute, 4 Fish. 263. As an authority in this court, therefore, his decision is not binding. It was made upon the supposed authority of Stevens v. Gladdiiuj, 17 How. 447, which, when careiully examined, is fouud not to decide this point. An injunction having been ordered in that case, an account was given as incident thereto; but it was not, and, under the faets, could not be, decided that an account could never be ordered except- ing as incident to an injunction. �The question has lately been revived, and two judges have refused to sustain a bill after the expiration of the patent. Vaughan y. Cent. P. R. Co. 4 Sawy. 280; Sayles v. Richnond, etc., R. Co. 11 Chi. Leg. N. 281. Two other judges, one of whom has had very great expe- rience in patent causes, have upheld the equitable jurisdiction. Vaughany. East Teiin., etc., R. Co. 9 Chi. Leg. N. 255; 11 0. G. 789; Gordon Y. Anthony, before Blatchford, J., April, 1879, an extract from whose judgment has bcen handed me. 16 Blatchf. 234. �In the absence of a decision by the supreme court, I follow what I consider the preponderance of authority in the circuit courts. �The statute of February 15, 1819, (3 St. 481,) gave to the circuit courts of the United States "original cognizance, as well in equity as at law, of all actions, suits, and controversies" arising under the pat- ent laws. To this broad grant is added an express power to grant injunctions according to the course of courts of eqnity. This law was re-enacted in the two general acts revising and remodelling the patent law. Statute July 4, 1836, § 17, (5 St. 124;) and July 8, 1870, § 55, (16 St. 206.) This case arises under the law of 1870, and I have therefore no occasion to consider the eliect of the provis- ions of the Revised Statutes upon this subject, though I should be Burprised to find that they had ehanged the law. �I do not see how it is possible to contend that this compreheusive ��� �