Page:Federal Reporter, 1st Series, Volume 9.djvu/594

 N. T., ETC., COFFEB P0LI8HING CO. U. N. i. COFFEE POLISHING 00. 579 �under which the bill is filed is found in section 866, Hev. St., where it is provided that "any circuit court, upon application to it as a court of equity, may, according to the usages of chancery, direct dep- ositions to be taken in perpetuam rei memoriam, if they relate to any matters that may be cognizable in any court of the United States. " �The allegations of the bill, which are material on the present occa- sion, are these : �That the complainant has been and still is using, in the city of New York, a certain process, to the use of which the defendant claims the exclusive right under letters patent of the United States; that such letters patent are void for want of novelty; that in case suit shall be brought by the defendant against the plaintifE for infringement of the said, patent the plaintifE relies, forits defence, upon the testimony of William iiTewell; that said Newell had himself made public use in the United States of the said process for upwards of 12 years before the said patent was issued ; that said Newell is up wards of 90 years of age; that the defendant has neglected, and still neglects, to bring i suit against the plaintifE for its infringement of said patent, and the plain- tifl is unable to bring its rights to a judicial determination. �In support of the demurrer to this bill it is first contended that the proceeding is vain because the deposition, if taken, will ne ver be admissible in evidence in the suit which the complainants fear. This position is supposed to be sustained by the provision in the Revised Statutea, § 867, where it is provided that "any court of the United States may, in its discretion, admit in evidence, in any causa before it, any deposition taken in perpetiMm rei memoriam, which would be admissible in a court of the state wherein such cause is pending according to the laws thereof." But the effect of the provis- ion last quoted is misunderstood by the defendant. The provision is intended to permit the courts of the United States to admit in evi- dence testimony perpetuated according to the laws of the state, and in nowise relates to testimony perpetuated by direction of a circuit court of the United States in pursuance of the statute of the United States under which this bill is filed, Testimony so perpetuated is admissible in evidence in accordance with the usages and practice of courts of the United States, and by virtue of section 866, but not by virtue of section 867. The object of the bill is, therefore, legitimate, and the proceeding not vain. �The next ground taken in support of the demurrer is that the bill does not show a necessity for perpetuating the testimony of the wit- ness in order to preserve the plaintiff's rights, inasmuch as, upon the facts stated in the bill, it would be the duty of the attorney general, upon the application of the plaintifi, to institute a proceeding in the. ��� �