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Magee v. Denton.

on the question being presented to him, also refused to strike the increase from the assessment; that the assessor consented to submit the matter to the Commissioner of Internal Revenue, and the case was presented to him, in an argument, by the counsel for the plaintiff, the question before both the assessor and the Commissioner having been understood to be, whether a stockholder of an incorporated company, which had made profits during the year 1862, and had expended such profits in repairs or improvements, or in the purchase of stock or other property, instead of making dividends to its stockholders, could be taxed for his share of such profits, as part of his income for that year; and that the Commissioner decided the question in the affirmative, and the assessor refused to strike the increase made by the assistant assessor from the assessment, but returned the original assessment to the Collector without modification. The bill was filed against the Collector, the assessor, and the assistant assessor.

HALL, J. In the view I take of this case, the motion for an injunction must be denied, without reaching the question of the original liability of the plaintiff to be assessed for such profits of the company as had not been embraced in any dividend declared by it.

If the plaintiff's counsel is correct in the position that the profits of an incorporated company, itself an artificial person, are not, in the contemplation of the Act of Congress, a portion of the gains, profits, or income of the stockholders, until they are distributed as dividends, or embraced in a dividend declared by the managers of the corporation, I think it quite clear that, when a dividend has been declared and has become payable, the mere omission of the stockholder to obtain or receive the dividend subject to his call, would not excuse him from embracing the amount of such dividend in his statement of his taxable income for the year. The bill does not show that no dividend had been declared; and that fact should have been directly and explicitly stated, in order to entitle the plaintiff to an injunction. The bill, in regard to this point,

Magee v. Denton.

only states that the plaintiff, during the year 1862, never received anything from said incorporated company by way of dividends on his shares, or otherwise. This statement is not necessarily untrue, even if the dividends actually declared on the plaintiff's stock during that year amounted to the sum of $30,000.

Another objection is, that the plaintiff had a perfect remedy under the statute, and failed to avail himself of that remedy, and that no reason for such failure, of a character to give a Court of Equity jurisdiction to relieve him, appears on the face of the bill. The wrongful act, if any, of which the plaintiff complains, is the addition of $30,000 made to his income statement by the assistant assessor. If this has not been made in such form and mode as to give the legal right to levy and collect the tax therefor, that objection must be urged in a Court of law and not in a Court of Equity. If made in legal form, the Act of Congress gives the right of appealing to the assessor, and provides, in substance (section 93), that if the list or return of any party shall have been increased by the assistant assessor, he or she may be permitted to declare, under oath or affirmation, in the form and manner to be prescribed by the Commissioner of Internal Revenue, the amount of his or her annual income liable to be assessed under the Act, and that the same so declared shall be the sum upon which duties are to be assessed and collected. In the view that the plaintiff's counsel takes of this case, the plaintiff could have made the oath thus required, or rather which the law thus permitted him to make, and, if the assessor had refused to strike the wrongful increase from the assessment, the plaintiff could have had his remedy. As the assessor had no discretion, and would have been bound, on the presentation of such an oath, to strike the addition from the assessment, it is probable that the plaintiff might have had a remedy at law by mandamus, if the assessor had refused to perform the duty; and it is certain that, if he would have had no remedy at law, he would have had one in Equity. The right to make this oath, and thus to become entitled to have the assessment corrected, must be fatal

Magee v. Denton.

to the plaintiff's prayer for relief in this suit, unless his neglect to make such oath be excused by some allegation of fraud, accident, or mistake, giving jurisdiction to a Court of Equity. It is like the case of a defendant in a suit at law, who has neglected to appear and establish a legal defence in that suit, when he had an opportunity to do so, and has then resorted to a Court of Equity to set aside the judgment.

It was suggested, on the argument, that the making of the oath prescribed by the 93d section would not have changed the aspect of the case, because the making of it would have been but the reiteration of the oath already taken and furnished to the assistant assessor, and because, on the ground assumed by the assessor and by the Commissioner of Internal Revenue, the assessor would still have refused to strike the increase made by the assistant assessor from the assessment against the plaintiff. It is true, that the plaintiff's oath, verifying the statement first delivered by him to the assistant assessor, contained nearly, if not precisely, the oath prescribed by the 93d section; but the oath then made and delivered was, it is said, not required by the statute, and, if so, perjury could not have been assigned upon it, even if it had been wilfully false; but, whether that be so or not, as the Act of Congress requires this oath after the increase has been made by the assistant assessor, and after the attention of the party has been called to such increase, and he has had an opportunity to inquire upon what grounds such increase was made, it is clear that the oath previously taken cannot be made available for the purposes for which the oath prescribed in section 93 is to be made.

The grounds above stated are fatal to the application for an injunction; for an injunction ought not to be granted, in a case of this kind, unless the plaintiff's right is quite clear, and the granting of the injunction is necessary to protect and secure that right.

Hussey v. Bradley.


Traveling fees to a witness are allowable only to the extent a subpoena will run; that is, for any distance within the District, but for not exceeding one hundred miles from the place of trial, unless the distance is wholly within the Disirict. (Before NELSON and SHIPMAN, JJ., Southern District of New York, January 21st, 1863.)

In this case, which was a question of the taxation of costs, Shipman, J., with the concurrence of Mr. Justice Nelson, held, that traveling fees to a witness were allowable only to the extent a subpoena would run; that is, for any distance. within the District, but for not exceeding one hundred miles from the place of trial, unless the distance was wholly within the District.




In deciding upon an application for the reissue of Letters Patent, and upon the question whether the invention claimed in the reissue is the same invention which was intended to be patented on the original application, the Commissioner of Patents is not confined to the claims, nor even to the examination of the evidence furnished by the specification, models and drawings accompanying the original application, but any legal proof to show it to be the same invention should be received.

The decision of the Commissioner of Patents upon the question is prima facie evidence of such fact, and the subsequent inquiry, when the question is presented to a Court and a jury, is limited to the question of fraud in the surrender,

Even a statement, in an original patent, that a part is old, or a disclaimer of a

Hussey v. Bradley.

part, does not necessarily prevent such part from being claimed in a reissued patent, though it would have that effect if made advisedly, and not by inadvertence, accident, or mistake.

Letters Patent were granted to Obed Hussey, the inventor, August 7th, 1847, for " a new and useful improvement in reaping machines," and were reissued April 14th, 1857, in three reissues, granted to him, and numbered 449, 450, and 451. Reissue No. 450 was reissued June 21st, 1859, in two reissues, granted to him, and numbered 742 and 743. Reissue No. 743 was reissued February 28th, 1860, in a reissue, granted to him, and numbered 917: Held that reissues Nos. 449, 742, and 917 were properly granted, and cover only inventions made prior to, and intended to be patented under, the original application; that such inventions are new and useful and patentable; and that the inventor did not lose his right to a reissue by any laches, or any abandonment or dedication to the public of any of the inventions.

The invention covered by reissue No. 449 was not put on sale by the inventor, or with his consent, two years prior to his application for his patent. In ordinary cases of reissue, the action of the Commissioner of Patents has more than prima facie influence, when the question of identity of invention is brought up for judicial decision, and, in all cases, a Judge may well rely upon the Commissioner's decision, to dispel doubts, or confirm his own impressions, upon the question of identity of devices or inventions.

The prior use of an invention, under a defective patent, cannot take away the right to a reissue of it, or authorize the use of the invention by others, after the reissue.

A reissued patent is generally considered, except in respect to infringements prior to its issue, as if granted at the date of the original patent, and is made to take effect, in respect to subsequent infringements, as though it had been originally issued in its reissued form, even though the original patent was invalid.

Where H., a defendant in an Equity suit for the infringement of Letters Patent, was shown to have been merely a licensor to his co-defendant B., under patents owned by H., for improvements covered by those patents and embodied in the infringing machine, and it did not appear that H. had any other connection with, or derived any other profit from, the infringement by B., the bill was dismissed as to H., but without costs.

(Before NELSON and HALL, JJ., Northern District of New York, March 24th, 1863.)

THIS was a final hearing, on pleadings and proofs, in a suit for an injunction and account, founded on Letters Patent.

On the 31st of December, 1833, Obed Hussey obtained Letters Patent for "a machine for reaping and cutting all kinds of grain." In the specification, annexed to the patent, the machine was referred to as "a machine for reaping or cut

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