Page:Federal Reporter, 1st Series, Volume 7.djvu/359

 UNION MET. CARTPaDGE CO.. ?;. U. S. CARTBIDGB 00. 347 �include it. This is the idea shortly expressed by Judge Shep- ley, and I do not see any necessary conuict between it and the decision of the supreme court. �The newly-discovered evidence, tending to show that one Goldmark invented a similar machine before Allen's invention, does not satisfy me that he had reaehed a practical resuit earlier than the actual time of the Allen invention. Mr. Jus- tice Clifford intimated at the trial that it had not satisaed him. �There was some evidence before Judge Shepley that the �defendants had bought five machines of the former owners of �the patent, and he said : �" If they have only repairod and perfected these machines the use of these machines ia not an infringement. But the purchase of these ma- chines would not, as contended by the defendants, authorize the use of five machines embracing the patented invention, unless they are the identical machines so purchased. The facts with regard to the estent of the in- fringement can only be determined on the coming in of the master's report. The injunction ■will be so modified as not to enjoin the use of the original flve machines used l)y the defendants until the coming in of the master's report." 11 O. G. 1113. �At this hearing the evidence conceming these five machines is much more complete than it was at the former trial. It is proved to my satisfaction that Forehand and Wadsworth were sons-in-law and partners of Ethan Allen, having an interest of one-third; that they bought of him one-third of this pat- ent; that under the name and as surviving partners of Ethan Allen & Co. they conveyed all their right in the pat- ent to the complainants in 1871, by an indenture or bipartite agreement containiug this stipulation : �" The parties of the flrst part [Ethan Allen & Co. ] hereby agree to sell, transfer, and assign all their right, title, and interest in a patent forhead- ing cartridge shells to the parties of the second part, for the sum of $7,500. The parties of the tirst part reserve to themsclves the right to manufacture machines under said patent, and to have the use of the same, without paying royalty thereon, but not to dispose of any machine, or macliiues, to any other party, without the consent of the party of the second part, in writing." �After this assignment was made, Forehand & Wadsworth sold out all their machinery, tools, and fixtures to the defend- ��� �