1 Colo. L. Rep. 542 | U.S. Circuit Court for the District of Eastern Missouri | 1881
(orally). We have considered the case of Miller et al. v. The Liggett & Myers Tobacco Company et al., so far as the question of estoppel is concerned. The suit is brought to determine the validity of certain letters patent belonging to these plaintiffs. The same question was involved in
I think that a party who contributes money for the purpose of employing counsel and carrying on a litigation, under a contract with a party to the record, must, of necessity, be held to have the right to take such action in the case as will protect his own interest in it. As, for example, suppose there is a case which is understood to be a test case, involving the validity of a patent, or anything else, against a particular individual, but involving a subject matter concerning which a large number of other persons are equally interested with the particular defendant in that case, and suppose all the parties who are interested, or a number of them, come together, enter into a contract that they will raise a fund to carry on that litigation; that they will unite for the purpose of employing counsel, and combine to carry it on in the name of the party to the record, it seems to me that the persons who, under
Mr. Boyd: If your Honor will pardon me; in regard to the course which your Honor suggests, there is one practical difficulty, which may render it impossible for us to get our rights there, and that is this: Your Honor very well knows, that in these motions for re-hearing, it is necessary that the parties should show and satisfy the court, that /as soon as the evidence came to their notice, it was brought there by a motion for rehearing. Now, as a matter of fact, this evidence did not come to the knowledge of any party until after that decree was rendered; but, as your Honor will see, since this answer was set up, nearly a year’s time has elapsed. My object in bringing it in this way, and not making a motion there, was, that I supposed it would be fairer to the other side that, instead of going before that Court on ex parte affidavits for a re-hearing, we might take the testimony, giving them the right of cross-examination, and that they might have the like right to introduce evidence to meet this new matter. Therefore, if it should turn out that His Honor Judge Baxter should hold that, inasmuch as this time has elapsed, and this excuse which I now present should not be held by him to be sufficient to introduce this new testimony, and that case were appealed, it would go to the Supreme Court without this new testimony, which, we think, is vital, and, as to which, there was not even a hint or suggestion in the record, as it now stands before Judge Baxter.
Judge McCrary: We will, of course, be just as much at liberty, after you have settled that case, to act on this as we are now, so that you waive nothing in that respect. I say that the principal question in the case, or one very important question, is, as to the patentability of this particular improvement, and that you have fairly and fully raised, as I understand, in the case decided by Judge Baxter.
Mr. Boyd: Not as fully as it is now raised, because there is this proof of a prior use, which went to the whole extent.
Judge Treat: It is not a question as to use, but as to patenta-
Mr. Boyd: Yes, sir; but still we do not like to go to the Supreme Court simply upon that, inasmuch as, since that time, we have found this evidence, which, we think, even if it was patentable, shows a prior use. I propose, then, to make a motion for re-hearing there, as your Honor suggests.
Judge McCrary: I think that will be the proper way to proceed.