Page:Federal Reporter, 1st Series, Volume 9.djvu/170

 CONSOLIDATED MIDDLINGS PUSIFIEE 00. V. GUILDEB. 155 �before a master in tHe court of chancery of New Jersey, tending to show that, although the patent to Morse antedated the lUingworth patent on which the suit was brought, the invention of the latter was in fact perfeeted several weeks before the actual sealing of the com- plete specifications of Morse* and elaimed that, under the rule, he was entitled to use such affidavits in reply to the afl&davits of the defendants on the complainant's motion. But' this is not allowable. Such a practice would often resuit in determining what seems to be the vital question of a cause i;pon ex parte affidavits. �The complainant must wait for his injonction until the final hear- ing, when the court will be better able upon the proofs to ascertain the facts. The injunction is refused. ���Consolidated Middlings Purifier Co. v. Guildeb. (Uircuit Court, D. Minnesota. October, 1881.) �1. Letters Patent — Assignment — Bstoppel. �An assigner of a patent, who had agreed to stop manufacturing the patented machines and had pald a license fee, agreed upon, to his assignee for th6 privilege of selliug machines he had on hand, is estopped from denying its validity, in a suit against him hy the assignee for its infringement, by man- ufacture and sale under letters patent issued subsequently to the assignment. �2. Samb — Middlings Pubipiers. �Beissue Ko. 8,386, and letterg patent Ko. 225,218, are substantially for tha same machine. �R. Mason and J. B. e W. H. Sanhom, for complainant. �Shaw, Levi & Cray and R. C. Benton, for defendant. �Nelson, D. J. A motion is made upon bill and affidavits for a pre- liminary injunction pendente lite. The defendant resista the appli- cation upon affidavits, and since the notice of motion an answer is filed, which, under the rule, is used upon the hearing as an affidavit with the others presented. The bill is filed for an account, and to recover damages for an infringement of certain letters patent granted for improvements in purifying and dressing middlings, and owned by the complainant, and a permanent injunction is prayed for. The bill of complaint sets up several patents, and charges the defendant with infringing each of them. �The complainant on May 29, 1879, purchased and took an assign- ment of all patents owned by defendant, among them reissue No. 8,386, under the following circuttistanceB : ��� �