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gia had made a tender of the notes to the plain- 1825. tiffs, which had been refused. This is wholly

.S. Bank inconsistent with the notion that they had agreed' to take them back, or to treat the previous credit Bank of

Georgia. as a nullity. Assuming, therefore, that the Cashier had a general or special authority for the purpose of extinguishing the rights of the plaintiffs, growing out of the prior transactions, (which is not established in proof,) it is sufficient to say, that it is not shown that he exercised such an authority. And the case of Levy v. The Bank of the United States affords a very strong argument, that a waiver, without some new consideration, upon a sudden disclosure, and under a mistake of legal rights, ought not to be conclusive to the prejudice of the party, where, upon farther reflection, he refuses to acquiesce in it. The subsequent letter of the 25th of March, demonstrates, that the intention of waiving the rights of the bank, if ever entertained, had been at that time entirely abandoned.

The letter from the Huntsville Bank, of the 4th of May, cannot vary the legal result. What might be the rights of the plaintiffs against that bank, in case of an unsuccessful issue of the present cause, it is unnecessary to determine. The contract, whatever it may be, is res inter alios acta, from which the defendants cannot, and ought not to derive any advantage.

It only remains to add, that if the plaintiffs are entitled to recover the principal, they are entitled to interest from the time of instituting the suit.

1825. Upon the whole, it is the opinion of the Court,

that the Circuit Court erred in refusing the first Keplinger v. and third instructions prayed for by the plaintiffs; 18. and for these errors the judgment must be re

versed, with directions to award a venire facias de novo. On the second instruction asked by the plaintiffs, it is unnecessary to express any opinion.

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A., having obtained a patent for a new and useful improvement, to

wit, a machine for making watch chains, brought an action, under the 3d section of the Patent Act of 1800, c. 179. (xxvi.) for a violation of his patent right against B.; and on the trial, an agreement was proved, made by the defendant with C., to purchase of him all the watch chains, not exceeding five gross a week, which he might be able to manufacture within six months, and an agreement on the part of C. to devote his whole time and attention to the manufacture of the watch chains, and not to sell or dispose of any of them, so as to interfere with the exclusive privilege secured to the defendant of purchasing the whole quantity which it might be practicable for C. to make: And it was proved that the machine used by C. with the knowledge and consent of the defendant in the manufacture, was the same with that invented by the plaintiff, and that all the watch chains thus made by C. were delivered to the defendant according to the contract. Held, that if the contract was real and not colourable, and if the defendant had no other connexion with C. than that which grew out of the contract, it did not amount to a breach of the plaintiff's patent right.

Such a contract, connected with evidence from which the jury might 1825.

legally infer, either that the machine wbich was to be employed in the manufacture of the patented article was owned wholly or in Keplinger part by the defendant, or that it was hired to the defendant for six - V. . months, under colour of a sale of the articles to be manufactured with it, and with intent to invade the plaintiff's patent right, would amount to a breach of his right.

De Young.

ERROR to the Circuit Court of Maryland.

This cause was argued by Mr. Webster and March 15th. Mr. Sergeant, for the plaintiff, and by the Attorney General, for the defendant.

Mr. Justice WASHINGTON delivered the opinion March 17th. of the Court.

This was a suit commenced by the plaintiff, Keplinger, in the Fourth Circuit for the District of Maryland, against the defendant, for the violation of the plaintiff's patent right, secured to him according to law, in a certain new and useful improvement, to wit, a machine for making watch chains, &c. The third count in the declaration, upon which alone this cause has been argued, is in the usual form, charging the defendant with having unlawfully used the said improvement without the consent of the plaintiff first had and obtained in writing. The defendant pleaded the general issue, and gave notice to the plaintiff that he should deny that the exclusive right of using the improvement mentioned in the declaration, was vested in the plaintiff, or that he was the original and first inventor of the said improvement, and that he should give evidence to establish those facts.

De

1825. At the trial, the plaintiff read in evidence the

letters patent duly granted, bearing date the 4th Keplinger *v. of May, 1820, and proved, that he was the true ung. and original inventor of the machine specified in

the patent, and that the defendant, together with John Hatch and John C. Kirkner, did use the said machine in the making of watch-chains from steel, from the 4th of May till some time in the month of December, 1820.

The defendant, in order to prove that any concern or connexion which he had with the said Hatch and Kirkner, in the making of watchchains, by means of the said machine, was merely as a purchaser of watch-chains from them under the following contract, produced and gave the same in evidence. The agreement referred to, bearing date the 3d of May, 1820, is between M. De Young, and J. Hatch and J. Kirkner, and witnesses, “ that the said Hatch and Kirkner do hereby engage and obligate themselves to manufacture and deliver to M. De Young, or at his store in said city, not less than three gross, but as many as five gross, of wire watch chains, agreeably to a sample to be deposited with T. Barly, (if practicable to manufacture so many,) in each week, from the date hereof, for the term of six months, one half of which number to be with turned slides, and the other half wire slides ; the whole number to be four strands, if the said De Young so choose ; but he is to have the privilege of directing the description to be furnished, that is to say, what number of four, five, six, or eight strands; the prices of

which to be as follows: four strands, two dollars 1825. per dozen; six strands, two dollars sixty-six cents

Keplinger and two thirds per dozen, and eight strands at the rate of three dollars thirty-three cents per

De Young. dozen ; said Hatch & Kirkner to devote their whole time and attention to said manufactory, and neither to sell, barter, nor dispose of, in any manner, or way, or means whatever, of any goods of the description herein before described, or which may, in any manner or way whatsoever, interfere with the exclusive privilege herein before granted, but will faithfully manufacture for said De Young, and none other, as far as five gross of chains per week, if practicable, and not less than three gross per week, at the prices herein before stipulated, and payable as follows: one half in cash at the end of every week, for the total number delivered within the week, and the other half in said De Young's promissory note, payable at sixty days from the date thereof. And the said De Young, on his part, doth hereby promise to receive from the said Hatch & Kirkner, such quantity of watch-chains answering the description of the sample, as it may be in their power to manufacture, not exceeding five gross per week, reserving to himself the privilege of directing what proportion thereof shall be four, six, or eight strands, and pay for the same weekly in the following manner, viz. the one half amount of week's delivery in cash, the other half in a note at sixty days, the same to be settled for weekly, in manner aforesaid, if required.”

The defendant also gave evidence to prove
Vol. X.

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