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Lee & Co. v. Chillicothe Branch Bank of Ohio.

used by an indorser, showing the specific purpose of the indorsement, and directing payment to be made to a particular person or for a special purpose; and that subsequent holders of the paper take it subject to the limitation imposed. That the words, credit my account, which precede the name of Scott in the indorsements under consideration, are within this principle, seems quite clear. It is true that among the many cases cited by counsel, there are none in which this precise form of words is used. But the principle is fully recognized, and these authorities are entitled to respect as giving it the highest judicial sanction. Without stopping to analyze the many cases referred to, in which indorsements have been held to be restrictive in their character, as suspending the further negotiability of commercial paper, the following instances may be briefly stated: Pay to my use: Pay to A. only. Pay the contents to the use of B. only. Pay the money to my servant for my use.

Carry this bill to the credit of A. The within must be credited to L. H. value in account. Pay to J. P., or order, for account of T. & W. Chitty on Bills, 176, 177; Byles on Bills, 121 (marginal paging); Edwards on Bills and Prom. Notes, 277, 278; Story on Bills, sec. 211; 2 Bur. 1227; Douglass, 637; 8 Taun. 100; 159 Com. L. 319; 3 Mass. 227; 5 Mass. 514.

As before intimated, the words, credit my account, can not be supposed to have been used without a meaning and a purpose. They were clearly intended as a naked authority to Ludlow to receive the proceeds of the bills, and credit them to the account of the Chillicothe Bank. This is their fair import; and that they were so intended by Scott can not be doubted. He is the cashier of an important banking institution, and may be presumed to be familiar with all the different ways of transferring negotiable paper. He is, without doubt, cognizant, not only of the form, but the legal effect of the various species of indorsements in use among bankers and commercial men. That he did not in

. tend the transfer of the paper to Ludlow to have the effect

Lee & Co. v. Chillicothe Branch Bank of Ohio.

of the usual indorsement, either in full or in blank, may be inferred from the fact that the words used negative such a purpose. Why adopt the words, credit my account, if the usual indorsement had been intended ? The words are equivalent to a direction to Ludlow to credit the proceeds to the Chillicothe Bank on account, instead of making an actual remittance of the funds. They are in effect, as if he had written: Pay the proceeds to the bank, by a credit of the amount to its account. If such had been the form of the indorsements, could there have been a possible doubt as to their meaning?

Although in the present posture of this case, the court can not notice the known course of business between Ohio banks and those in New York, or the business relations existing between the institution represented in that city by Ludlow, and the Chillicothe Branch Bank, yet it is not perhaps a strained inference from the words used by Scott, that there were existing accounts between them, and a balance due from the latter to the former, which was to be reduced or paid by the application of the proceeds of the bills in question. The transaction is susceptible of this view from the language in which the indorsements are couched. And thus viewed, it needs no argument to prove that it was decidedly in bad faith for Ludlow to use the paper for a purpose not in the contemplation of the indorser, and greatly to the hazard of the Chillicothe Bank. This, it is true, under ordinary circumstances, could not affect the rights of these plaintiffs without knowledge of the dishonest purpose of Ludlow in making the transfer. But the words of the indorsements to Ludlow, were sufficient to apprise the plaintiffs of the real character of the transaction, and operate as a notice to them that Ludlow had no authority to indorse the paper to them, so as to divert the proceeds from the object intended. I confess to some incredulity as to the good faith of the plaintiffs in this transaction. I am slow to believe that a banker or business man, of reasonable intelligence, with the qualified indorse

Lee & Co. v. Chillicothe Branch Bank of Ohio.

ment of Scott before him, would have taken this paper, with the hope or expectation that the Chillicothe Bank would be liable as an indorser, in case of non-payment by the drawers.

It would not be proper to indulge in any speculative remarks in regard to this transaction, as between Ludlow and the plaintiffs. There may be facts involved which will never be brought to the light of day, and which, if fully developed, would reveal great frauds. This consideration, however, can not influence or control the decision of the court, on the question before it. There seems to be enough, in the very vestibule of this case, to warrant the legal conclusion that these plaintiffs received the bills in question with full notice that Ludlow had no right to transfer them in any other sense, or for any other purpose than that indicated by the terms of the indorsements, and that they have no standing in court as indorsees, and no right of action on these bills. In the judgment of the court, therefore, these bills can not go in evidence to the jury.

As this view is decisive of the case, it is unnecessary to discuss the other objection presented by counsel, pamely: that the official character of Scott, as the cashier of the Chillicothe Branch Bank, does not appear in the bills, or by his indorsement, so as to create a legal liability in the bank as indorser. The point has been strenuously urged by counsel, but for the reason indicated, I give no opinion

upon it.

The plaintiffs were nonsuited.

Dodge v. Card.



It is in accordance with the practice and decisions of the court to refuse a

preliminary injunction if, upon the facts presented, there is a fair doubt

whether the defendant has infringed. The law is well settled that a patent for a combination of old things, applied

to produce a new and useful result, is not violated unless all the parts

or elements of the combination are used. When the plaintiffs' patent was for the combination of a flat, horizontal

iron plate in connection with a chamber or recess below the plate, and the defendant put horizontal plates into fire-places already provided with recesses which he had no agency in constructing: Held, that the question of infringement was so far doubted as to forbid the granting of an injunction.

This was a motion for a preliminary injunction to restrain defendant from infringing letters patent granted to Calvin Dodge for an “improvement in fire-places,” granted March 18, 1856, one-half of which was assigned to John B. Ryan. The disclaimer and claim of the patent were as follows:

“I do not claim the contracting of the vent or throat of the chimney, as that is well known as a device; but I do claim the use of a deep recess, A B C D, or chamber, placed back of the fire-basket, L, of the grate, and out of the reach of the draft, in combination with the horizontal covering F, over the recess and fire-basket, extending down below the mouth of the chimney, constructed and arranged substantially as hereinbefore described, for the purpose of consuming the smoke and causing the ignition of the gas, which would otherwise be lost, and thus increasing the amount of heat thrown into the room, and by the slow combustion of the fire effecting a great saving of fuel.”

The defendant had letters patent for an “improvement in fire-places,” dated April 17, 1860, which described an arched

Dodge v. Card.

deflecting plate to be placed over the fire-basket. He put up one of these plates in a fire-place where a recess back of the fire-basket had already been formed by the mason who built it. The complainants insisted that the defendant thus completed the combination patented to Dodge, by placing a horizontal cover over a deep recess, and that he was responsible for making the patented improvement.

G. M. Lee and S. S. Fisher, for complainants.

Curwen & Wright, for defendants.


The complainants have filed their bill, praying, among other things, for a provisional injunction to restrain the defendant from using or vending his improvement in chimney flues, as being an infringement of the rights of complainants, under a patent issued to the said Calvin Dodge, on March 18, 1856. They allege they are now the joint owners of the patent, and that the defendant is using and vending an improvement, substantially the same as that embraced in their patent.

The defendant has not put in his answer to the bill, but appears and resists the motion for an injunction on the grounds:

First. That the improvement patented to Dodge is not


Second. That he has not infringed his right under the patent.

It would not be proper, nor is it intended, in this prelim. inary motion, to decide definitely the merits of the controversy between these parties. The only question now to be considered is, whether the facts before the court are such as to warrant an order for an injunction. These facts are presented in the affidavits exhibited in connection with the patents granted to Dodge, and the defendant, Card, for their improvements. And in the brief statement of my views

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