Robinson v. Kilbreth. ceeds of the new bill was the money of John B. Guthrie, the payee, and he had a right to apply it according to his own pleasure. Guthrie swears that he raised the money, and paid the bill, which, as before remarked, put an end to its vitality as a negotiable instrument. But it is insisted by defendant's counsel that if he has not a right of set-off, under the bill of August 28, 1852, his claim for money paid for the use of the plaintiff, in taking up the $2,000 bill of the 1st of December is sustained. John B. Guthrie was the drawer of this latter bill; Kilbreth, the acceptor, and the plaintiff, an indorser. Guthrie negotiated it at a bank in Pittsburg; it was transmitted to the Trust Company, at Cincinnati, for collection, and there paid by Kilbreth as acceptor. He accepted the bill at the request and for the accommodation of Guthrie. As acceptor, he was bound to pay the bill at maturity, and in doing so, merely discharged a plain legal obligation. I can not perceive on what principle, under these circumstances, the law can imply a request by Robinson which subjected him to a liability to indemnify Kilbreth. They did not occupy the position of joint sureties, but each was independently liable in the order in which their names appeared on the bill. If Kilbreth had refused payment as acceptor, and the bill had been protested for non-payment, and afterward paid by Robinson as indorser, the authorities before referred to are clear to the effect that the indorser could sue the acceptor, and recover the whole sum so paid. If such is the law, it negatives the right of the defendant in this suit to recover on his claim of set-off, for money paid. 1 Parsons on Notes and Bills, 327. It is not material to decide whether Kilbreth has a right, as against Guthrie, to recover the sum paid. As the drawer of the bill, at whose request and for whose accommodation he accepted, there can be no doubt Kilbreth has a remedy as against Guthrie. The cases and authorities cited before seem clearly to sustain this position. And such being the Potter v. Muller. law, it results by fair implication that Kilbreth has no claim as against Robinson, the indorser. In his work on bills of exchange, on the subject of the liabilities of an acceptor, Judge Story says, upon payment of the bill, he has no right of recourse against any of the prior parties, unless he is an accommodation acceptor on their account, and at their request. Sec. 263. The same principle is distinctly stated in section 410. In this case, as there is no pretense that Kilbreth accepted the bill at the request and for the accommodation of Robinson, the doctrine above stated has a direct application. In conclusion, as in my judgment, there are no facts in this case withdrawing the question of the rights and liabilities of the parties, from the operation of the strict principles of commercial law as applicable to negotiable paper, I am led to the result that the plaintiff is entitled to recover on the $1,000 bill paid by him, with interest from the date of the payment. (CIRCUIT COURT.) ORLANDO B. POTTER ET AL v. ANTON MULLER. Whether a defendant, who has been enjoined from infringing a patent by manufacturing or selling the infringing article, continues to sell in his own right, or as the agent of another, he is equally guilty of a contempt, and is liable to attachment. THIS was a motion for an attachment. The defendant had been enjoined (Potter v. Muller, 2 Fisher, 465), from infringing the patents of Allen B. Wilson for improvements in sewing machines; the machine in question having a wheel feed, in imitation of the Singer machine. He continued to sell machines after the service of the injunction, alleging that he had disposed of his establishment to his brother, and Potter v. Muller. that he made sales, not in his own right, but as the mere agent or employe of his brother. S. S. Fisher, for the motion. G. E. Pugh, contra. OPINION OF THE COURT: I will state very briefly the grounds upon which I base my action in this case. Originally there was a bill in the name of O. B. Potter against the defendant, Anton Muller, charging an infringement in the manufacture and sale of sewing machines. The question of the validity of the patent and the novelty of the invention, as well as the question of infringement, were decided by the court on a motion to dissolve the injunction which had been previously ordered. That motion was very fully argued, and the court had no doubt at all that the complainant had fully made out his case, establishing the validity of his patent, and proving the infringement on the part of the defendant. The court, therefore, without hesitation, refused to dissolve the injunction, and made it perpetual. Subsequent to this decision, but before the present term, there was an application for a rule against this defendant to show cause why he should not be attached for a violation of that injunction; and, upon a return of the rule and hearing, the court adjudged the defendant to pay a small fine of only twenty-five dollars and costs, with the admonition, however, that, if there was a repetition of the offense, he would be visited with a severe penalty. At the present term, the application has been made and granted for an attachment against the defendant for a second violation of the injunction. The defendant has appeared, and has filed answers to the interrogatories that were propounded to him. The question now to be decided by the court is, whether he has violated the injunction and incurred a second penalty? The present application for an Potter v. Muller. attachment is predicated upon the affidavit of James W. Harnden, who swears, in substance, that some time in the early part of the present month he went to the manufacturing establishment of this defendant, and, after some conversation and negotiation, the defendant being present with his brother, he made a purchase of one of these sewing machines, which, it is distinctly admitted in the answer of the defendant himself, was a machine in violation of the plaintiff's patent. The affiant, Harnden, states, in substance, that this defendant avowed himself as acting as the agent of his brother, Willliam Muller, stating to him that be sold out the establishment to his hands, and he was acting as agent only. It appeared, however, that in the sale of the machine, the defendant was not only present, but took an active part in the transaction, and although he avowed that his brother, William Muller, was the party interested, it is to be remarked that it does not appear that there was any bona fide sale or transfer of this manufacturing establishment by the defendant to his brother. Indeed, it appears from his own statement that if there was any sale or transfer, it was entirely without consideration; that his brother paid nothing for the manufactory, or for the use of the tools. Now, the only question is, whether this is a bona fide transaction, or whether it is a mere subterfuge, to evade responsibility and liability under the injunction that had been granted. One of the two propositions is undoubtedly true-either that this defendant was still the legal owner of that establishment, or, if he was not, he was the agent of the parties who were the owners. Harnden, in his affidavit, states that he avowed himself to be acting as the agent. In either case, if there has been a sale of the machine, that is an infringement of the patent and in violation of the injunction. This defendant is clearly liable whether he was, in fact, the owner of the establishment, or whether he acted as the agent of another party, as the injunction, in its terms, applies to and reaches the Potter v. Muller. defendant himself, acting in any capacity, and all agents, employes, or servants. I have no doubt at all that this pretended arrangement between this defendant and his brother was simply evasive, and, I must think, a very clumsy subterfuge to evade liability. If he was the owner of the concern (which appears most probable to the court, notwithstanding the pretended transfer), then he was liable. If he was acting as the agent of another party, he was liable also. I am very clear, therefore, from the facts as they are before the court, that this party has violated the injunction, and it has been done under circumstances of aggravation. When this party was before the court at a previous term, he was admonished by the court that he incurred great liability in contemning the process and authority of the court; but there was some reason, at that time, to suppose that the defendant might have acted under some misapprehension in regard to the issuing of the injunction and its effect and operation upon him, and as he was a foreigner, the court, inclined to be as lenient as possible under the circumstances, adjudged a merely nominal fine against him. It now appears that he has again violated this injunction without any excuse, and, certainly, with a full knowledge not only of its existence, but also of its effect and operation; and, under the circumstances of the case, it appears to be the imperative duty of the court to visit this party with a more severe punishment than was adjudged to him on the previous occasion. I do not know what may be the views of the defendant in regard to his liability to obey the laws and respect the authority of the government. It is possible that, being a foreigner, and having come from a government of despotism to a land of freedom, liberty, and equality, he supposes that our institutions guarantee to him the right of doing as he pleases, without reference to law and the rights of others. That may be his conception of true liberty; but it is a great mistake, and foreigners should know that it is |