Page:Federal Reporter, 1st Series, Volume 3.djvu/151

 U44' FEDERAL REPORTER. �Philip W. Cross, for plaintiffs. �Kays e Coult, for defendant. �Nixon, D. J. This is an action for breach of covenant, brought originally in the circuit court of the county of Essex, New Jersey, and removed by the plaintiffs into this court under the provisions of the act of congress regulating the reinoval of causes, approved March 3, 1875. There was a general demurrer to the declaration filed in the court below, which the court, after argument, sustained, and leave was granted to the plaintiffs to amend. An amended declaration was thereupon filed, to which the defendant, after craving oyer of the writing or agreement mentioned in the declara- tion, again put in a demurrer, and the question to be deter- mined depends upon the nature and character of the contract on which the suit is brought. �The declaration in substance alleges that the defendant corporation was the owner of the two several patents, one for an improvement in treatiiig and moulding pyroxyline, and the other for making a certain valuable substance or com- pound known as celluloid, and, being such owners, on the tenth day of March, 1872, by a certain indenture between the defendant corporation of the one part and Charles M. The- berath, Jacob H. Theberath, George M. Drake, Samuel J. Coursen, Jr., and Martin M. Drake, of the other part, sealed with the seals of the respective parties, granted, conveyed, and made over to the plaintiffs, as well as to the said George M. Drake, Samuel J. Coursen, Jr., and Martin M. Drake, and to each of them, the full and exclusive right to use the said material within the United States for the purpose of its application to harness, carriage, and trunk trimmings, and for no other use or purpose whatever, as a license under the above-named letters patent, or any other United States letters patent, or parts of the same, or privileges that might then or thereafter be in the possession of the defendant corporation ; that the said defendant therein and thereby promised ànd agreed to prosecute, at their own cost and expense, every party unlawfuUy infringing said letters patent, or any one or parts of the same, in so far as said letters patent pertained ����