Page:Federal Reporter, 1st Series, Volume 7.djvu/887

 UNITED STATBS STAMPINO 00. ». JBWBTT. S75 �lactory. Not a Weber cuspidor shown to have been made before the Chicago fire of 1871 is produoed. The Nolton cub- pidor is not one. �The alleged prior invention of Musgrove was held, in the King case, to have been an abandoned experiment, and it was not a loaded cuspidor. Musgrove himself took a license under the Heath patent. He did not, when sued, set up what he did as any prior invention, Tae suggestion by the de- fendant that all Heath did was to put Topham'B weight intb MuBgrove's structure, is based on the fact that it is now shown that Topham made bis papier mache loaded spittoon in the sununer of 1869. But Musgrove's structure never became, in his hands, a perfected structure. The reasons why Heath's invention is to be regarded as patentable, notwith- Btandiug all that was done before by Topham and all otheirs in the way of perfected inventions, were fully set forth in the decision of this court in the King suit. �Another defence nrged in this case is that as Ingersoll sned the Tumers, and the Turners set up the Topham patent as prior, and bad a license under it, and succeeded in the suit, and Jewett & Sons now have a license under the Topham patent, the plaintiff cannot prevail in this suit, on the ground that it is bound in the decree in the Tumer suit, because Topham was privy to the Tumers. This view is based on the allegation that Topham was really the defend- ant in the Tumer suit, and that Topham, and, through him, Jewett & Sons, in this suit, would have been bound by the decree in the Tumer suit, if the decree therein had been for the plaintiff. But it is very clear that Topham was not, in a legal sense, a party or a privy in the Tumer suit. Topham 's license to the Turners contained no obligation on his part to indemnify them, or^to defend suits against them. He after- wards volunteered to pay the expense of defending them in the Ingersoll suit, and did pay it. He was not, and did not, become in any way responsible for any recovery against them in that suit. Clearly, under such circumstances, a decree against the Tumers in that suit would not have availed to prevent Jewett & Sons from setting up in this suit a defence ��� �