16
FEDEl'tAl.
vol. 49.
a copyright for his description does not prevent others from describing the same art in their OWI11anguage·.. The copyright book is sacred, but not the subject of which it treats. If the delEmdants have described the complainant'ss)istllm they have not offended, for that reason only, against the copyright law. If they have copied complainant's book they have offended against that law. As the complainant has no right to fl, monopoly of the art of short-hand writing, because he has written a bookexplanatO,ry of th.a,t art as developed by him, and as*ere is insufficient proof to show that the defendants' have copied the complainant's book, considered apart from complainant's system, it follows that the exceptions disputing the master's conclusion of law must bo .overruled motion for a. preliminary injunction denied. and
REID·. v MCCALLISTER
d tw.
(Ctrcw£t Cowrt, D. Oregon. April 24, 1885.)
In a suit to enforoe the lien of a mortgage against a husband and wife, the wife answered,admitting that she signed the instrument, .but only upon the false and , framl,ulent representations of the oomplainant's agent, who obtained her signature and'acknowledgment, and that she was ignorant, and unable to read. A /i{eneral replica,tion was filed, and cause was heard on the pleadings alone. Held, that the allegations of fraud were'not DeW matter in avoidance. but were responsive to the bill,., and were suOicient to ptovethat the wife did not execute the mortgage.
AS EVIDENOB-MORTGAGE PROOURED BY FRAUD.
In EqUity. . Bill by William Reid to' foreclose a. mortgage against Hardin McOallister and Julia McCallister, his wife. Heard on the pleadings without other evidence.. ' Bill dismissed. Ellis Go' Hughes, for plaintiff. Henry Ach,for defendallt Julia McCallister. DEADY, District Judge. This suit is brou/il;ht to enforce the lien of a mortgage executed by the defendants on November 25, 1879, on 408 acres of land in Marion county, as a security for a loan of $7,000, to the defendant Hardin McCallister, the husband of the defendant Julia. McCallister. The bill was taken for confessed as against the former, but the wife answered) alleging that one.-half the premises belonged to her, and admittingthat she. signed . the instrument, but only upon the false and fraudulent representation of the plaintiff's agent, who obtained her sigof the same; that the nature thereto and took her .mortgage did not include her portion of the premises, but only that of her husband; and that she was an ignorant woman, and unable to read or write. , ,To this answer therewas a general replication, and afterwards the case was heard on the pleadings) without any evidence other than that con:iained therein.
DOBSON V·. GRAHAM.
17
The answer, so far as it is responsive to the bill, is evidence for the defendant making it; but if defendant, by his answer, admits afact alleged in the bill, tpen sets up another matter in avoidance therpof, this matter in avoidance is not responsive to the bill, and his answer is not evidence of it. Clarke Y. White, 12 Pet. 190; Tilghman v. Tilghman, Baldw.194; Randall v. Phupips, 3 ,Mason, 383; McCQy v. Rhodes, 11 How. 140; Hart v. Ten Eyck, 2· Johns. Ch. 87. In this connection matter in avoidaQce is something subsequent to and distinct from or dehors the fact admitted ; but, if the admission and avoidance constitute one single fact or transaction, the answer is evi.;lence of both.. Hart, v. Eyck, supra, 88, and note. . 'J,'he plp,a of non est factum the execution of the deed by the defendant, puts the fact of execution in. issue, and it you may prove, because comprehended in it, that the defendant was imposed put her name to paper under an erroneous impresiliol) upon., as to its. character or contents. Van Valkenburghv.Rouk, 12 Johns. 338; 2 Green}, Ev. § 246; PI. '519; 2 Phil. Ev. 148. And so here the answer' is C:OIApetent, and, until contradicted, sufficient evidence that the defendant put her to this instrument ,under an entirely erroneous impression of its contents, which impression was designedly produced .by the false representations .of the plaintiff's agent. premises is that the defendant Julia The only cpnclusion from did not execute the mortgage, so far as her portion of the concerned, and, as to that, the bill must be dismissed.
ren
in the answer to the contrary, which was done, and a decree gh'en enforcing the.lien of the mortgage upon the property of the defendant Julia McCallister. '
to provetbedue execution of the mortgage, notWithstanding the averment
Afterwards tbe plaintiff bad leave to reinstate the case, and take testimony
DOBSON fl. GRAHAM.'
(Oircuft Oour.t, E. D.
Pennsylvania.
Jnne 27, 1889.)
L
Drsoom'r-SllORIlT8 OF MANUFACTURE.
Workmen pledged to secrecy, and employed in a factory in which the lmelDllI8la conducted in private, to secure the secrecy of the machinery and methods of manufacture, will not be compelled, in a suit against their employer, to answer interrogatories, and describe the peculiarities of his machinery, where no evidence has been introduced to show that the secrets of the defendant were used to conceal an invasion of complainant's rights.
2.
PATENTS FOR INVENTIONS-PRESUMPTION OF INFRINGllMllNT.
No presumption of infringement of complainant's patent by defendant arises from the fact that the workmen who constructed complainant's machinery were employed to erect defendant's machinery. will not be granted an inspection of machinery of defendant kept. In secret, and claimed to embody important secrets, when complainant produces no evidence tending to show that it infringes his patents. by Mark Wilks Collet, Esq., of the Philadelphia bar.
8.
SAME-INSPEOTION OF DEFENDANT'S MAOHINERY.
1 Reported
v,49F.no.1-2