Page:Federal Reporter, 1st Series, Volume 7.djvu/104

 92 FEDEBAIi REPORTER. �pating the process, was introduced in this case by both sides, and the case set down for final hearing. �Stem e Peck, Beattie e Winchester, and George Harding, for complainants. �Samuel S. Boyd, for defendant. �McCrary, C. J. We have considered the case oi Miller v. The lAggett 4 Myers Tobacco Co. so far as the question of estoppel is concerned. The suit is brought to determine the vaiidity of certain letters patent belonging to these plaintiffs. The'sarlie qde'stion was involv'ed in the case of Miller y. Foree, tried in the district of Kentucky, in which there was a decree sustaining the vaiidity of the patent in so far as the first claim is concerned, and. as the patentee bas waived any- thing beyond that daim, that decree sustains the daim of the vaiidity of tHe patent, so far as it is involved in this liti- gation., The Liggett & Myers Tobacco Company was net a party to the record in that case, and the question is whether it was privy to that proceeding, in such a sense as to be bound by it and estopped by the decree. The rule upon the subject of estoppel is, of course, well understood by counsel. It is, to state it generally, that parties and privies are eon- cluded by the judgment. But I am of the opinion that a per- Bon, to be concluded by a judgment, must be privy to the proceeding in such a' sense that he may control the litigation in So far as making motions in the case, offering evidence, cross-examining witnesses, or taking an appeal is concerned ; that is, it is not reasonable to say that a raan shall be bound by an adjudication, uniess he bas all the ordinary rights of a litigant with respect to the adjudication. �The question, therefore, is whether it appears, from the proof before us in this case, that the Liggett & Myers To- bacco Company had the authority to control that litigation, within the sense of the rule as I have explained it, and also whether they have now the right to go into that court, and, if the time is not out, move for a rehearing, or for an appeal, if there bas been a final decree, and, if there bas not been a final decree, whether they have the right, when one is ren- dered, to appear there and take an appeal. I think that a ��� �