Opinion of the Court.

"First. That for the purpose of deceiving the public the description and specification filed by the patentee in the Patent Office was made to contain less than the whole truth relative to his invention or discovery, or more than is necessary to produce the desired effect; or,

"Second. That he had surreptitiously or unjustly obtained the patent for that which was in fact invented by another, who was using reasonable diligence in adapting and perfecting the same; or,

"Third. That it had been patented or described in some printed publication prior to his supposed invention or discovery thereof; or,

"Fourth. That he was not the original and first inventor or discoverer of any material and substantial part of the thing patented; or,

"Fifth. That it had been in public use or on sale in this country for more than two years before his application for a patent, or had been abandoned to the public."

Prior to the year 1836, from the earliest enactments of patent law, certain provisions had been incorporated in that law authorizing a scire facias to issue to declare a patent void for want of invention by the patentee, and other matters, which, though instituted by a private individual, was under the control of the official attorneys of the government. This was repealed by the act of 1836, which may be said to be the first real and successful organization of the Patent Office and the system of patent law in the United States. The law on this subject was revised by the act of Congress of July 8, 1870, 16 Stat. 198, and the Revised Statutes of the United States, from which § 4920 is quoted, contain the language applicable to this subject.

The statute of 1836 repealed the provision for a scire facias. It is now argued that the repeal of this provision, together with the enactment of the provision of § 4920, shows that the only remedy for the improvident issuing of a patent is to be found in the language of that section. These clauses, while they do not in any general form declare that a person sued for an infringement of a patent may set up as a defence that it was

Opinion of the Court.

procured by fraud or deceit, do in effect specify various acts of fraud which the infringer may rely upon as a defence to a suit against him founded upon that instrument. It is, therefore, urged that because each individual affected by the monopoly of the patent is at liberty, when he is sued for using it without license or authority, to set up these defences, the remedy which the United States has under the principles we have attempted to sustain, is superseded by that fact. But a consideration of the nature and effect of these different modes of proceeding in regard to the patent will show that no such purpose can be inferred from these clauses of the act of Congress.

In the first place, the right given to the infringer to make this defence is a right given to him personally, and to him alone, and the effect of a successful defence of this character by one infringer is simply to establish the fact that, as between him and the patentee, no right of action exists for the reasons set up in such defence. But the patentee is not prevented by any such decision from suing a hundred other infringers, if so many there be, and putting each of them to an expensive defence, in which they all, or some of them, may be defeated and compelled to pay because they are not in possession of the evidence on which the other infringer succeeded in establishing his defence. On the other hand, the suit of the government, if successful, declares the patent void, sets it aside as of no force, vacates it or recalls it, and puts an end to all suits which the patentee can bring against anybody. It opens to the entire world the use of the invention or discovery in regard to which the patentee had asserted a monopoly.

This broad and conclusive effect of a decree of the court, in a suit of that character brought by the United States, is so widely different, so much more beneficial, and is pursued under circumstances so much more likely to secure complete justice, than any defence which can be made by an individual infringer, that it is impossible to suppose that Congress, in granting this right to the individual, intended to supersede or take away the more enlarged remedy of the government. Some of these specifications of grounds of defence are not

Opinion of the Court.

such as would ordinarily be sufficient in a court of equity to set aside the patent, as "that it had been in public use or on sale in this country for more than two years," or "that it had been patented or described in some printed publication prior to his supposed invention or discovery thereof." It is unnecessary to decide whether these grounds now would be sufficient cause for setting aside a patent in a suit by the United States, but they are not of that general character which would give a court of equity jurisdiction to do that, except as it may be said they are now parts of the general system of the patent law.

A question almost identical with this was made in the House of Peers in the case of The King v. Butler, 3 Levinz, 220, as to whether the judgment obtained by the king in the Court of Chancery repealed the grant to Butler. It was answered by the judges to some of the objections that "it was not unusual for the King to have his remedy, as well as the subject also; as for batteries, trespasses, etc., the King has a remedy by information and indictment, and the party grieved by his action."

The argument need not be further extended. There is nothing in these provisions expressing an intention of limiting the power of the government of the United States to get rid of a patent obtained from it by fraud and deceit. And although the legislature may have given to private individuals a more limited form of relief, by way of defence to an action by the patentee, we think the argument that this was intended to supersede the affirmative relief to which the United States is entitled, to obtain a cancellation or vacation of an instrument obtained from it by fraud, an instrument which affects the whole public whose protection from such a fraud is eminently the duty of the United States, is not sound.

The decree of the Circuit Court dismissing the bill of plaintiff is reversed, and the case remanded to that court, with directions to overrule the demurrer, with leave to defend ants to plead or answer, or both, within a time to be fixed by that court.

MR. JUSTICE GRAY was not present at the argument and took no part in the decision of this case.

Statement of the Case.

JOHNSON v. CHRISTIAN.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF ARKANSAS.

No. 15. Submitted October 12, 1888. -Decided November 5, 1888.

When a person, who has been in the babit of dealing with an agent, has no knowledge of the revocation of his authority, he is justified in acting upon the presumption of its continuance.

A court of equity will not enjoin a judgment at law, unless it is shown that the complainant was prevented from resorting to a legal defence by fraud or unavoidable accident, without fault or negligence on his part; but it will do so if the matters set up in the bill, as a ground of relief, constitute equities as a defence in the action at law.

In the United States courts a recovery in ejectment can be had upon the strict legal title only, and a court of law will not uphold or enforce an equitable title to land as a defence in such action.

On the only issue of fact raised by the pleadings, the allegations of the bill are sustained by the proof.

THIS was a suit in equity brought in the United States Circuit Court in 1883 by the appellees, George Christian and Jerry Stuart, against the appellant, Joel Johnson, praying an injunction to restrain him from enforcing a judgment in ejectment which he obtained in that court against said appellees, for the recovery of certain lands in their possession, and to quiet their title to said lands against the claims of said appellant.

The bill alleged that one Julia J. Johnson, on the 8th day of March, 1871, as guardian of appellant, then a minor, loaned through her agent, Lycurgus L. Johnson, to one James F. Robinson, out of the funds of said appellant, $9387.95, for which said James F. Robinson delivered to said Lycurgus L. Johnson notes for the amount, payable to Mrs. Julia J. Johnson, as guardian; and to secure said loan executed to Johnson a deed of trust conveying to him, as trustee, for said Julia J. Johnson, as guardian for appellant, certain lands therein described, with the usual power of sale upon failure to pay the aforesaid notes when due; that after this transaction the said appellees bargained for and purchased from Robinson a tract

Statement of the Case.

of 500 acres, being part of the land conveyed by the aforesaid trust deed, the said complainants agreeing to pay therefor 120 bales of cotton, which they averred to be a fair and adequate consideration, and the full value of the lands.

The bill further alleged that the said purchase was made with the full knowledge and consent of the said Lycurgus L. Johnson, who, in his capacity as said trustee and also as general agent of the said Julia J. Johnson, as guardian aforesaid, agreed and contracted that if the complainants would pay over to the said Julia J. Johnson the price agreed to be paid for said lands according to the terms of the purchase from Robinson as above stated, the amount should be credited on the debt of Robinson, and the said tract purchased by them should be released from the deed of trust. That this contract and agreement of her said trustee and agent was ratified and confirmed by the said Julia J. Johnson, as guardian, who received the entire consideration agreed by them to be paid for said land, with a full knowledge of and acquiescence in said contract and agreement. That the said complainants had, in accordance with the stipulations and requirements of said trustee and agent, paid over the price agreed for said 500 acres of land, every dollar of the proceeds of which had gone to said Julia J. Johnson, as guardian of appellant, who had since then become of age.

The complainants further stated, that afterward, the said Lycurgus L. Johnson having departed this life, his administrators advertised and sold, under the deed of trust, all the lands mentioned therein, including the said tract of 500 acres bought and paid for by complainants; and that they were bought in by the defendant, Joel Johnson, who was then of lawful age. That afterwards said defendant, claiming by virtue of said sale and purchase, instituted his suit in ejectment on the law side of the court, and that the complainants not being admitted to interpose in said ejectment suit their equitable defence to the same, he did at the term 188 obtain a judgment

in ejectment against them, and now seeks to oust them of the possession of said lands by writ of possession founded on said judgment.