Page:Federal Reporter, 1st Series, Volume 3.djvu/907

 99B FEI)EBiIi_,REPORTER. �^lay was well known before, and the process made no change in its properties or qualiiy, When baled it could be more conveniently handled, aS'Common hay could be, Langdon V. De GrQot, 1 Paine, 20^; Alcott v. Young, 16 0. G. 403. But it is argued for the oralors, that they are entitled to have the patent treated as valid, as against the defendants, whether it is valid generally or not, and this claim seems worthy of consideration. Every seller of personal property impliedly warrants that hehas title to and right to sell what he assumeS' to sell. His undertaking to sell includes an undertaking to thatetfect. 2 Black. Com. 451; Long on Sales, (Eaud's. Ed.) 203 ; Defreeze v. Trumptcr, 1 John. 274 ; Coolidge v. Brigham, 1 Met. (Mass.) 547. In Heermance v. Vernoy, 6 John. 5, it was held that a sale of a millstone of a bark mill to a tan- nery as personal property, which might belong to the realty and not pasa by such a sale, implied a warranty of title to it as personal ty; and in Hannum v. Richardson, 48 Vt. 508, that a sale of a negotiable note, although indorsed without recourse, involved a warranty that it was a genuine note due the seller. It is urged strenuously in behalf of the defend- ants that these principles do not apply to sales of patent- rights, on account of their incorporeal nature and the inter- ests to the public. In Medina v. Stoaghton, 1 Salk. 210, Lord Coït is reported to, have said that such a warranty was implied upon a sale by one in possession and not by one not having possession ; but this saying is doubted, and the distinc- toin denied by Mr. Justice BuUer in Pasley v. Freeman, 3 T. E. 51. But if possession should be material, the defendants appear to bave claimed and had the exclusive right to this invention, and to have sold and conveyed ail the right pos- eessed by them. The nature of the right covered by letters patent, does not seem to be such that a warranty of the right cannot be implied. The patent purports to grant the right to exclude ail others from practicing the invention. It adds nothing to the right of the owner to practice it. This exclu- sive right is property recognized and protected by law. Cam- meyer v. Newton, 94 U. S. 225. Whosoever assumes tq sell a patent assumes to sell that property, and assumes that he had ����