COGHLA,.N t7. SOUTH CAROLINA R. CO.
317
is made to the proper person, in legal tender; that it is absolute, not clogged with any condition; and. that it continuous,-that is to say I he must always be prepared to complete the tender and produce the money. Fishburne v. Sanders, 1 Nott & M. 243; Black v. Rose, 14 S. C. 278; 5 Rob. Pro 947, 948; Bissell v. Heyward, 96 U. S. 587. No suit having been commenced, the acceptance on the part of him who is to receive is necessary to the full discharge of the party tendering. If this be withheld, the latter having done everything in his power, must retain his money, and need only keep himself in readiness to fulfill his tender if the other party changes his mind. 5 Rob. Pro 947; Dobie V. Larkan, 32 Eng. Law & Eq. 50l. But when an action has already been commenced and is pending, if the defendant be disposed to admit the demand in part, it not only necessary that he should offer to pay the amount admitted in the same way as the tender before suit should be made, but he must go further, and either pay the sum admitted into court, or, at the least, offer to submit to a judgment for that sum. This is the rule in the common-law courts. Even when a tender before suit has been made, the plea of the tender must be accompanied by an offer to pay the money into court. 1 Tidd, Pro 540; 5 Rob. Pro 949, 950; Civil Code Proc. S. C. § 265, subd. 5. It commends itself to this court. The reason for the practice is clear. A tender before suit cannot possibly be made complete if not accepted. There is no way of compelling the acceptance. An offer to pay, pending a suit, can be made complete by the action of the courts ordering the money paid in. The court, in this, represents both parties, and its orders bind the plaintiff as well as the defendant. The money paid in is for the plaintiff, and the possession of it cannot be resumed by the debtor. In the further prosecution of the case that much is stricken from the record, whether the plaintiff takes out the money or not. Black V. Rose, 14 S. C. 278. Or, as stated in Boyden V. Moo-re, 5 Mass. 367: ",The bringing of money into court is a practice adopted to relieve the defendant against an unexpected suit, for money which he is willing to pay, but which he has not tendered to the plaintiff before the commencement of the suit. After the defendant had brought in as much money as he thinks proper, and the plaintiff has refused to receive it in satisfaction. the defendant is entitled to have the same considered as a payment made on the day on which it was brought." In the present case the defendant simply offered to pay the money, and, when it was refused, was content to do nothing more. The offer cannot avail it as if it were a tender.
818
, FEDERAL RlllPORTER.
'PUETZ,
Jr.,
".BRANSFORD.
BRANSFORD
v.
PUETZ,
Jr.
«(]i'rcuil Oourt, E. D. Mi880Uri. E. D. September 80, 1887.) 1. PATENTS FOR INVENTIONS-ASSIGNMENT-JURISDICTION OF FEDERAL COURTS.
Plaintiff ass 1gned to defendant one-third of the right to an invention. The divided the application for the patent into three applications for ,as many-inventions. T,he question in issue was whether this subdivision of the chums divested defendant of his interest in one 'of the patents issued. Held, that this was a question purely of patent law of which the circuit conrt of the ,United States had jurisdl!Jtion. In an, action by plaintiff for infringement of 8, patent, a cross-bill by defendant, asking tbat plaintiff be compelled to assign to him a one-third inter· est in the invention to which he laid claim, is not germane to a defense. The matter should be made the subject of demurrer to the complaint, or other appropriate form of d'efense. In an action for an of an interest in a patent, defendant pleaded a former suit in bar. Plamtiff claimed the former suit decided the question of an interest in the invention, and not the question of an interest in the patent. It appeared that in the former suit it was alleged in the bill, and denied in the ,answer, that plaintiff was" the sole and exclusive owner of the patent," and the decree was in terms to the same effect. Held, that the plea in bar was a good plea.
2.
SAllE-SUIT FOR INFRINGEMENT-PLEADING.
8.
SAME-SUIT FOR INFRINGEMENT-FORMER ADJUDICATION.
Motion for Rehearing and Plea in Bar. See 31 Fed. Rep. 458. Geo. H. Knight, for Tillman Puetz. Paul BakeweU. for George W. Bransford. MILLER, Justice, (oraUy.) In this case the application {or a rehearing in the matter of the decree on the cross-bill in the original suit has been considered by us, and I have myself particularly examined the pleadin/2:s with reference to the main ground urged for a rehearing, and that is that it is founded on a contract simply, (and not involving the patent laws of the United States, so as to give the circuit court jurisdiction without regard to citizenship.) It is'true that the cross-bill sets out that there was an assignment by the plaintiff in the original bill, to the defendant, of an interest in the invention before the patent issued. If it were simply a question on the validity of the contract, or on its enforcement as a for an assignment of the invention, the objection might be good. But while the plaintiff in the cross-bill sets out the assignment of the interest in that invention to himself. the answer of the other party admits that assignment, and there is no issue at all on the question of the validity of the assignment, and of its being capable of enforcement, but the issue that was made is, and the question decided by the court is, that the application so made was for the invention which was assigned. The patent-office required it to be divided into two or three applications for as many different inventions, and the question that the court decided, and the only i3ne on which testimony was taken, was whether this proceeding of the