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Opinion of the Court.

[43 App.

and the defendants are further restrained from doing any act to embarrass or hinder the plaintiffs otherwise than aforesaid. This appeal is taken by plaintiffs from that decree.

Mr. Henry E. Davis, Mr. F. Edward Mutchell, and Mr. John Ridout for the appellants.

Mr. Melville Church and Mr. W. C. Sullivan for the appellees.

Mr. Chief Justice SHEPARD delivered the opinion of the Court:

Evidence taken by plaintiffs tends to show that defendants Manchester and Spooner were employees of Engle to carry out and develop his inventive ideas. This is contradicted by them, and their claim is that they were partners of Engle in developing a new battery, and that the means were not disclosed by him, but discovered by them.

Engle refused to disclose the particular invention claimed by him, and directed his witnesses to refrain from disclosing the same when their depositions were taken. It is unimportant to analyze or review this evidence as the case turns upon the question of jurisdiction of the equity court. The Patent Office is a special and important department of the United States government, established by act of Congress under the Constitution, and the functions of the Commissioner are in great measure judicial.

At the time this bill was filed there were applications of the respective parties pending in that Office. If these disclose patentable inventions, the Commissioner is vested with full jurisdiction in an interference proceeding to determine the very question here involved.

The jurisdiction of this court over the Patent Office is appellate, and is confined to two classes of cases; first, where an application for a patent has been finally denied; second, when,

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Opinion of the Court.

in an interference case, priority of invention has been finally awarded. Re Frasch, 20 App. D. C. 298, 301.

The courts are invested with no power to interfere with or supervise the operation of the Office. Moore v. Heany, 34 App. D. C. 31.

It is true that sec. 4915, Revised Statutes, Comp. Stat. 1913, sec. 9460, confers jurisdiction in equity to entertain a bill after a final decision of the Commissioner to compel him to issue a patent, but this jurisdiction is limited to the case specified.

* *

As said by Mr. Justice Robb in Billings v. Field, 36 App. D. C. 16, 24, 25: "This situation demonstrates the futility of interference by a court having no general jurisdiction or control over the affairs of the Patent Office, with the regular and orderly trial of cases in that office, when the very questions raised in that court may be quite as expeditiously raised by appeal. Such a practice, if established, would still further complicate rather than simplify patent practice, and, we feel sure, add to the burdens of applicants, and delay instead of expedite final action. The statute has conferred jurisdiction upon this court to hear and determine appeals from the Patent Office. The only excuse, therefore, for invoking this common-law remedy, is that relief by appeal will be less efficient. We are fully convinced that an appeal will afford fully as speedy and adequate redress as will be accomplished by certiorari. If proceedings in the Patent Office are to be interrupted by certiorari when there is an equally adequate remedy by appeal, it is clear that an additional tribunal not contemplated by the statute, namely, the supreme court of the District, will be interposed between the tribunals of the Patent Office and this court." See also Moore v. Ileany, 34 App. D. C. 31.

*

It is clear, therefore, that the procedure of the Patent Office is ample and effective for the purpose of determining every issue raised in this case. It is the duty of the Patent Commissioner to determine from the evidence whether or not Engle was the real inventor of the battery in controversy, and that

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[43 App.

Manchester and Spooner were simply his employees for the purpose of carrying out his instructions in regard to the construction of the same.

From the decision an appeal lies directly to this court. There is nothing, therefore, to justify our interference with the proceedings in the Patent Office, which already has jurisdiction of the case.

This conclusion was arrived at by the appellate division of the supreme court of New York in a case where the bill sought to restrain a party from filing an application in the Patent Office for a patent for the same invention for which the plaintiff had filed a previous application. previous application. It was held that the court had no jurisdiction because the matter was within the exclusive jurisdiction of the Patent Office, and dismissed the bill. Griffith v. Dodgson, 103 App. Div. 542, 546, 93 N. Y. Supp. 155.

The court did not err in dismissing the bill, and the decree is affirmed with costs. Affirmed.

An application for the allowance of an appeal to the Supreme Court of the United States was denied March 8, 1915.

RHODES v. BOWLING GREEN WHITE STONE
COMPANY OF KENTUCKY.

ATTACHMENT AND GARNISHMENT; SET-OFF BY GARNISHEE; PLEADING; PRACTICE; PENALTY OF BOND IN ATTACHMENT PROCEEDING.

1. Where a garnishee indebted to the defendant seeks to exempt himself from his liability on account of a claim which he holds against the defendant, such claim, in order to protect him, must be a good legal set-off of his own indebtedness, such a set-off as he could have

D. C.]

Syllabus.

made available against his creditor, had the latter sued him in his own name on the day on which the writ of garnishment was served upon him. The garnishee cannot claim a set-off for unliquidated and contingent claims even against the defendant.

2. In an action against an insolvent government contractor to recover for materials furnished in the construction of a public building, the attorney and agent of the contractor's surety, who had been employed by the surety to complete the building, and who had collected from the United States moneys due the failing contractor under the contract, cannot, when garnished by the plaintiff, successfully set off as against the plaintiff a sum due him from the funds in his hands as an attorney's fee under an agreement with the surety, and claims made against him by subcontractors who look to the garnishee only in event they fail to recover against the surety, and a claim made in a pending action against the garnishee for breach of contract; but under such circumstances the plaintiff is entitled to a judgment of condemnation for the amount of his claim.

3. Where a motion for a judgment of condemnation in a garnishment proceeding is denied as having been prematurely filed, leave of court to file a second motion, when such motion is proper, is not necessary.

4. The fact that the court below took cognizance of a second motion for condemnation in a garnishment proceeding, and gave judgment thereon after it had denied a prior motion as having been prematurely made, implies regularity, in the absence of anything in the record to the contrary, and the procedure will not be inquired into on appeal.

5. Costs of suit and interest which may accrue on the plaintiff's claim during litigation are not to be considered in fixing the amount of a bond in an attachment proceeding before judgment instituted by the plaintiff. If the plaintiff's claim, irrespective of costs and interest to accrue, is less than one half of the penalty of the bond, the bond is sufficient. (Construing sec. 445, D. C. Code, 31 Stat. at L. 1258, chap. 854, requiring such a bond to be in double the amount of the plaintiff's claim.)

No. 2740. Submitted February 2, 1915. Decided March 1, 1915.

HEARING on an appeal by a garnishee from a judgment of condemnation of the Supreme Court of the District of Columbia, the judgment having been entered after an oral examination of the garnishee. Affirmed.

Statement of the Case.

The COURT in the opinion stated the facts as follows:

Plaintiff, Bowling Green White Stone Company, a corporation, brought a suit against the defendants F. S. Fancher and J. W. Driscoll, trading under the firm name of Fancher & Driscoll, to recover the sum of $2,587.90 a balance claimed to be due for stone furnished defendants in the construction of a government Postoffice building at Lexington, Kentucky. Plaintiff also sued out a writ of attachment against appellant, Fred B. Rhodes, hereafter referred to as the garnishee, on the ground that defendants were nonresidents, and that the garnishee had in his possession moneys belonging to defendants in amount more than sufficient to satisfy plaintiff's claim.

[43 App.

It appears that defendants had entered into a contract with the United States, with the Illinois Surety Company as surety, for the construction of the building at Lexington, and also a building at Paris, Kentucky. Defendants failed, and, at the request of the surety company, the garnishee proceeded to complete the buildings, and to effect, as far as possible, a settlement with defendants' creditors, to whom the surety company on its bond was liable.

In answer to interrogatories, the garnishee stated that defendants had given him a power of attorney to collect any moneys remaining due under the contract, and that he had in his possession a balance of $8,557.84, against which he claimed an offset of $1,325.69, the amount of a claim of one Pillow; $5,000, attorney's fee to himself; $2,648.06, for claims for labor and material for which he had become personally responsible in completing the building; and $8,000 which the surety company had paid out on account of the Paris contract. The last item will not be considered, inasmuch as the surety company's liability under its bond for the accounts paid must be assumed in the absence of anything to the contrary.

Plaintiff joined issue on the return, denying the right of the garnishee to claim an attorney's fee against defendants, or the right to set off against said balance, to the prejudice of

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