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infringement. If the corporation is alone liable in such a case, then crafty and dishonest men may often manage to divide the spoils of infringement, and leave nothing but an insolvent or dormant corporation to be sued by the patentee. It would evidently be a reproach to our laws if such a scheme could be made to work. Whoever attempts to defend the legal safety of such a mode of reaping the harvest of another, should have his attention called to the following sentence, written by Justice CAMPBELL, and approved by the Supreme Court, and worthy to be quoted in every lawbook, and remembered by every man. “It is certainly true that the law will strip a corporation or individual of every disguise, and enforce a responsibility according to the very right, in despite of their artifices." ;

Where the action of a board of directors in ordering an infringement results from the votes of a majority only, the relations of the minority voters to the resulting infringement must be different from that of the others. The members of the minority ought not, in such a case, to be held liable for the action of the board, or for its results, unless they afterward adopt it by ratification. Where an infringement is ordered by a quorum of a board of directors, in the absence of the residue, the residue will be free from common law liability for the wrong unless they afterward ratify it, or unless they are chargeable with such gross non-attendance upon the meetings of the board as justly causes them to be held responsible for whatever is done by their colleagues in their absence. The mere fact of being a director in a corporation is not sufficient to render a person liable at common law for any tort committed by that corporation or its managers or agents.'

$ 415. But there is a statutory liability in such cases as those which we are considering. Most of the States have statutes which provide that, under various circumstances

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York and Maryland Line Railroad Co. v. Winans, 17 Howard, 40,

? Arthur 0. Griswold, 55 New York, 406, 1874.

therein specified, the officers, directors, or stockholders of a corporation shall be personally liable for its debts or liabilities. Section 721 of the Revised Statutes of the United States provides that “The laws of the several States, except where the Constitution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law, in cases where they apply.” Under this section of the Revised Statutes, these laws of the States will probably have the same effect in a patent suit in a United States court, that they would have in any action of trespass on the case in a State court.' Such of the State statutes referred to as make stockholders, officers, or directors responsible for the “liabilities” of their corporations are clearly broad enough to cover liabilities arising out of infringements of patents. Indeed Justice STORY decided that such liabilities were covered by the word “debts” in such a statute.” In most of the States the statutory individual liability of officers, directors, and stockholders of corporations is more limited than it was in Massachusetts when Justice STORY made that decision. It is outside the scope of this text-book to set forth the details of the State statutes which bear upon the point. It will frequently happen that the controlling legislative edicts which relate to the matter will be found in the special charters of particular corporations, rather than in the general statutes of the several States. The general principle which runs through all such laws seems to be that where a corporation is so managed that it cannot be made to respond to lawful claims based on its contracts or torts, those officers or directors who caused that inability, or those officers,

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McCluny o. Silliman, 3 Peters, 270, 1830 ; McNeil v. Holbrook, 12 Peters, 84, 1838; Vance o. Campbell, 1 Black, 427, 1861; Haussknecht o. Claypool, 1 Black, 431, 1861; Wright, D. Bales, 2 Black, 535, 1862; Leffing. well o. Warren, 2 Black, 599, 1862; Hanger 0. Abbott, 6 Wallace, 537,

1867; Parker 0. Hall, 2 Fisher, 62, 1857; Parker o. Hawk, 2 Fisher, 58, 1857; Rich o. Ricketts. 7 Blatch. 230, 1870; Hayden o. Oriental Mills, 15 Fed. Rep. 605, 1883.

? Carver o. Mfg. Co. 2 Story, 448, 1843.

directors, or stockholders who profited thereby, shall be made to respond in its place.

$ 416. A consolidated corporation is liable to actions in equity for infringements committed before the consolidation, by each of its constituents, if the property and franchises which the consolidated corporation acquired from that constituent, were of sufficient value, over and above all paramount claims, to equal the profits or damages sought to be recovered in such actions. This proposition results from the fact that equity regards the property of a corporation as held in trust for the payment of its debts, and recognizes the right of creditors to pursue that property into whosesoever possession it may be transferred, unless it has passed into the hands of a bona fide purchaser.'

The liability of consolidated corporations to actions at law, for infringements committed by their constituent corporations, before the consolidation, is a matter which does not rest on common law principles, so much as upon the statutes of the States wherein those consolidated corporations came into being, or upon the private Acts which authorized the consolidations, or upon the charters of the constituent or of the consolidated companies. Whenever occasion arises to hold a consolidated corporation liable to an action at law for such a cause, a proper authority for so doing can probably always be found in one or another of these sources.

$ 417. A plurality of patents may be sued upon in one action, where the inventions covered by those patents, are embodied in one infringing process, machine, manufacture, or composition of matter;' but not otherwise. But any

Sayles v. The Lake Shore and Mfg. Co. o. Railroad Co. 15 Blatch. Michigan Southern Railway Co. 444, 1879; Gamewell Fire-Alarm Manuscript, 1878.

Telegraph Co. v. Chillicothe, 7 Fed. ? Mumma v. Potomac Co. 8 Peters, Rep. 351, 1881; Nellis v. Mfg. Co. 13 286, 1834 ; Curran v. Arkansas, 15 Fed. Rep. 451, 1882; Lilliendahl 0. Howard, 311, 1853; Railroad Co. v. Detwiller, 18 Fed. Rep. 177, 1883 ; Howard, 7 Wallace, 409, 1868. Consolidated Electric Light Co. o.

Seymour v. Osborne, 11 Wallace, Electric Light Co. 20 Fed. Rep. 502, 516, 1870; Bates v. Coe, 98 U. S. 48, 1884; Griffith o. Segar, 29 Fed. Rep. 1878; Nourse v. Allen, 3 Fisher, 63, 707, 1887. 1859; Gillespie v. Cummings, 3 + Nellis 0. McLanahan, 6 Fisher, Sawyer, 259, 1874; Horman Patent 286, 1873; Hayes v. Dayton. 8 FC.

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action based on alleged infringement, in one process or thing, of a plurality of patents, may be sustained by evidence that one of those patents was so infringed, though the others were not;' and an action brought for alleged unlawful making, using and selling may be sustained by evidence of either of those three sorts of infringement.' So also, an action may be based on infringement committed during the first term, and on infringement committed during an extended term, of any patent, and may be sustained on proof of either or both of those infringements. And several actions may be based on several infringements of the same patent, committed at different times by the same infringer.

Rep. 702, 1880; Barney v. Peck 16 Fed. Rep. 413, 1883; Hayes v. Bickelhoupt, 23 Fed. Rep. 184, 1885; Hu

itary Depot, 34 Fed. Rep. 752, 1888.

1 Matthews v. Mfg. Co. 18 Blatch.

86, 1880.

? Locomotive Truck Co. 0. Railway Co. 10 Blatch. 293, 1872.

3 Roemer Neumann, 23 Fed. Rep. 447, 1885.

ber o.

CHAPTER XVIII.

ACTIONS AT LAW.

418. Actions of trespass on the case. 419. The question of the propriety

of actions of assumpsit for infringements of patents, consid

ered in the light of precedents. 420. Considered in the light of ex

pediency. 421. Forms of civil actions pre

scribed by State codes and statutes where applicable to

patent cases. 422. Declarations in trespass on the

case.

423. The statement of the right of

action, in respect of the inven

tor.

424. In respect of the novelty and

utility of the invention. 425. In respect of the absence of

public use or sale more than two years before application for

a patent. 426. In respect of the patentee,

where he is another than the

inventor. 427. In respect of the application

for the patent. 428. In respect of the letters patent. 429. In respect of a reissue. 430. In respect of a disclaimer. 431. In respect of an extension. 432. In respect of the plaintiff's

title. 433. In respect of profert. 434. In respect of infringement.

435. In respect of the time of in

fringement. 436. In respect of the damages. 437. The conclusion of the declara

tion. 438. Substantial and not technical

accuracy required in declara

tions. 439. Dilatory pleas. 440. Twenty-seven defences plead

able in bar in patent actions. 441. The twenty-seven defences re

viewed in respect of their na

tures and effects. 442. Special pleading. 443. The general issue accompanied

by a statutory notice of special

matter. 444. Notices of special matter. 445. Defences based on facts of

which courts take judicial no.

tice, need not be pleaded. 446. The first and second defences. 447. The third defence. 448. The fourth defence. 449. The fifth and six defences. 450. The seventh defence. 451. The eighth defence. 452. The ninth and tenth defences. 453. The eleventh defence. 454. The twelfth defence. 455. The thirteenth defence. 456. The fourteenth defence. 457. The fifteenth defence 458. The sixteenth defence.

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