ROSS v. CITY OF FT. WAYNE, 64 F. 1006

WOODS, Circuit Judge. The court did not overlook the question of the insufficiency of'the bill for the failure to aver that the alleged invention had not been “patented or described in any printed publication in this or in any foreign country.” The court below had declared the bill amendable in that respect, as it clearly was, if defective, and we deemed it an immaterial question. If we had considered it, and had conn; to one conclusion or the other, our decision upon the appeal would have been (he same.

The question upon which the judgment of the court below turned was the question which we deemed it important, to decide. We do not think it necessary to consider minutely whether the. bill was defective in particulars which were amendable.

Now, as before, our opinion is that the facts stated in the bill made “a case for equitable relief.” But finally it is urged that the logical effect of our conclusion is “to set aside the doctrine of maintenance and its effects, and to open wide a door to what have heretofore been considered undesirable practices.” The case comes from Indiana, where, as elsewhere in this country, the doctrines of the common law in respect to maintenance are not in full force. Stotsenburg v. Marks, 79 Ind. 193, and cases cited; Allen v. Frazee, 85 Ind. 283; Board of Com'rs v. Jameson, 86 Ind. 154; Burnes v. Scott, 117 U.

S. 582, 6 Sup. Ct. 865. In Board of Com’rs v. Jameson, it is said: It is clear, however, that the rule does not and cannot prevail in this si ate in its full extent since the Code of 1852, for it makes radical changes in the common-law rule upon the subject of assignment of ehoses in action. The common-law rule is limited in its operation by several provisions of the Code, but, we deem it unnecessary Co notice them. Many of the courts where the Code system prevails have denied Its force altogether, and the tendency of modern decisions in America is to restrict, rather than enlarge, the operation of the rule.

Mathewson v. Fitch, 22 Cal. 86; Cain v. Monroe, 23 Ga. 82; Allard v. Lamirande, 29 Wis. 502; Bentinck v. Franklin, 38 Tex. 458: Roberts v. Cooper, 20 How. 467; Stoever v. Whitman, 6 Bin. 416; Coughlin v. Railroad Co., 71 N. Y. 448; Orr v. Tanner, 17 Am. Law Reg. (N. S.) 759. The rulo has often been criticized by the English courts; even as early as Master v. Miller, 4 Term R. 320 (vide page 840), unfavorable criticism was made. But our decisions, as we have setae, declare the rule to be In force in this stale, although the extent, to which it prevails has not been defined.

It may, however, be safely assumed that the rule Is narrowed, rather than extended, since to hold otherwise would be to oppose the letter and spirit of our Code, as well as the general principles of what. Austin calls our “judge-made law.” Patterson v. Nixon, 79 Ind. 251. Besides, it appears in ibis ease tlia t Boss had an interest with Walker in the patent and in the cause of action when the suit was commenced, and it was therefore not forbidden him by the law of maintenance, however broadly applied, to acquire the title and interest of Walker pending the suit. Petition denied at cost of appellee.