of April, 1869. The court refused to give such instruction, and the defendants excepted.

It is apparent that what was granted to Morgan was only the exclusive right to use, within the territory specified, the patented acid in making self-raising flour, and to use and sell in said territory the flour so made. The acid used in making the self-raising flour was all of it to be purchased from the Rumford Chemical Works or its agents. No right was granted to make the acid, or to use it or sell it otherwise than as an ingredient in the self-raising flour. The effect of the grant made by the two instruments of February 1, 1869, is subject to the provisions of section 11 of the act of July 4, 1836, (5 St. at Large, 121,) which was the statute in force at the time, and provided as follows:

"Every patent shall be assignable at law, either as to the whole interest or any undivided part thereof, by any instrument in writing; which assignment, and also every grant and conveyance of the exclusive right under any patent, to make and use, and to grant to others to make and use, the thing patented within and throughout any specified part or portion of the United States, shall be recorded in the patent-office within three months from the execution thereof."

By section 14 of the same act it was provided that damages for making, using, or selling the thing whereof the exclusive right is secured by a patent, "may be recovered by action on the case, in any court of competent jurisdiction, to be brought in the name or names of the person or persons interested, whether as patentees, assignees. or as grantees of the exclusive right within and throughout a specified part of the United States." Morgan was not an assignee of the entire right secured by the patent, nor of any undivided part of such entire right, nor of the exclusive interest in such entire right for the territory specified. He did not acquire the whole of the exclusive right or legal estate vested in the Rumford Chemical Works by the patent for the said territory, leaving no interest in his grantor for that territory, as to anything granted by the patent. It is well settled that a transfer of a right such as Morgan acquired is not an assignment, nor such a grant of exclusive right as the statute speaks of, but is a mere license. Curtis, Pat. (3d Ed.) § 179; Gayler v. Wilder, 10 How. 477, 494. This being so, the instrument of license is not one which will carry the right conferred to any one but the licensee personally, unless there are express words to show an intent to extend the right to an executor, administrator, or assignee, voluntary or involuntary. In Troy Iron & Nail Factory v. Corning, 14 How. 193, 216, this court said: "A mere license to a party, without having 'his assigns' or equivalent words to them, showing that it was meant to be assignable, is only the grant of a personal power to the licensee, and is not transferable by him to another." In the present case there are no words of assignability in either instrument. The right is granted

to Morgan alone, to him personally, with an agreement by him that he will enter on the manufacture of the self-raising flour, and that he will use all his business tact and skill to introduce and sell the flour. It is apparent that licenses of this character must have been granted to such individuals as the grantor chose to select because of their personal ability or qualifications to make or furnish a market for the self-raising flour, and thus for the acid, all of which was to be purchased from the grantor. The license was made revocable by the grantor on the failure of Morgan to perform his covenants and agreements.

We have not overlooked the fact that the privilege granted to Morgan was to continue for five years. This means no more than that he was to have it for five years, if he should live so long, and if the patent should not have expired. But it cannot have the effect to impart assignability to the privilege, or to prolong its duration beyond that of his life.

Respect for the supreme court of Tennessee induces us to say that we have carefully examined the opinion of that court in Oliver v. Morgan, 10 Heisk. 322. That was a suit brought by the widow and administratrix of Morgan against Oliver, Finnie & Co., in a court of the state, to recover compensation under an agreement made between him and them, February 15, 1869, and which was to continue till April 1, 1870, whereby he was to prepare self-raising flour for them under the license to him from the Rumford Chemical Works, and they were to pay him so much a barrel. In that suit it was held that Mrs. Morgan could recover not only for the time prior to Morgan's death, but for the subsequent time, and that the license to Morgan vested in him an interest which passed, at his death, to his personal representative. The proceedings in that suit are made a part of the record on this writ of error; but the suit in the circuit court was tried wholly on the view that the question as to the construction of the instruments of February 1, 1869, was an open one, and was a question of general law, and not one as to a rule of property, and that there was nothing in the former suit which, as res adjudicata, could be binding between the parties in this suit as an estoppel. There is nothing in the pleadings which raises the question of such an estoppel. The lower state court having, in the prior suit, rendered a judgment for the plaintiff, the supreme court of the state, while giving the interpretation before mentioned of the rights of Morgan, reversed the judgment for errors in other respects, and awarded a new trial. Afterwards there was, in the lower court, a verdict by consent, followed by a judgment for the plaintiff, for a less sum than the amount of the first verdict and judgment. Moreover, the present suit is one in a court of the United States, brought under the provisions of an act of congress, for the infringement of letters patent. The former suit arose out of a contract between Morgan and Oliver, Finnie & Co., and was brought to recover damages for the breach of

that contract. Under these circumstances, the question as to the rights of Morgan under the patent must be regarded as one to be passed upon in this suit as an original question, as if there had been no former suit. Giving to the opinion of the supreme court of Tennessee that consideration which is due to the force of reasoning in the views which it announces, we are unable to concur in the construction it gave to the license to Morgan. Accordingly, the judgment of the circuit court is reversed, with direction to award a new trial.

CLERK'S FEES, WHEN PAID-FAILURE TO PAY-EFFECT.

Under the act making appropriations for the expenses of the government for the year ending June 30, 1884, the fees of the clerk of this court should be paid in advance, if demanded.

Under rule 10, failure to pay the fee for printing the record when demanded, in time, is a failure to prosecute. If, through the fault of the party prosecuting, printed copies of the record are not furnished in the due prosecution of the cause, the cause will be dismissed, unless sufficient reason be shown to the contrary.

West Steever and Wm. S. Abert, for appellant.
W. O. Dodd, for appellee.

WAITE, C. J. By the act making appropriations for sundry civil expenses of the government for the fiscal year ending June 30, 1884, c. 143, (St. 1882-3, p. 631,) the clerk of this court is required to pay into the treasury the fees and emoluments of his office over and above his own compensation as fixed by law, and his necessary clerk hire and incidental expenses. It is proper, therefore, that, for his protection, his fees should be paid in advance, if demanded.

*Under rule 10, it is the duty of the clerk to have the record printed, and a fee has been fixed for preparing the record for the printer, indexing the same, and supervising the printing. Ordinarily this fee is to be paid, in the first instance, by the party who prosecutes the cause. If he fails to make the payment when demanded, in time to enable the clerk to cause the printing to be done in due course, he fails in the orderly prosecution of his suit, and may be dealt with accordingly. Consequently, if, through the fault of a plaintiff in error or appellant, printed copies of the record are not furnished to the justices or the parties when required in the due prosecution of the cause, the writ or appeal will be dismissed for want of prosecution, unless sufficient cause be shown to the contrary.

In the present case the record has been printed, but the clerk has not furnished the necessary copies to the justices because his fee for

preparing the record for the printer, etc., has not been paid by the appellant, although demanded. As this is the first time the question has arisen, and the practice has not heretofore been authoritatively announced, it is ordered that, unless the appellant pay to the clerk, within 20 days from the entry hereof, what is due him for this fee, the appeal be dismissed for want of prosecution. If the payment is made, the clerk shall at once notify the opposite party, and the cause may thereafter be brought on for hearing under paragraph 7 of rule 26, as a case that has been passed under circumstances which do not place it at the foot of the docket.

Bill dismissed, on the ground that the complainant failed to establish facts upon which he based his claim for relief.

Appeal from the Supreme Court of the District of Columbia.
L. S. Henkle, for appellant.

W. E. Edmonston, for appellee.

HARLAN, J. Counsel for appellant states the theory of the bill to be that Campbell was not the bona fide purchaser of the lots described, or of either of them, although he holds them by conveyances absolute upon their face; that he was only the broker of Burgess; and that the conveyances were made to him in that capacity, for the purpose of enabling him to raise money upon them for the use of Burgess, less reasonable charges for any services in that behalf rendered. The bill was dismissed by the court below in special term, and that order was affirmed in general term.

The record discloses a serious conflict in the testimony of witnesses, and the court below might well have dismissed the bill upon the sole ground that the complainant had failed to establish the facts upon which he based his claim for relief, and which must have been established before any relief could be granted. The decree must, therefore, be affirmed. It is so ordered.

(109 U. S. 104)

COUNTY OF Green v. ConNERS.

(October 29, 1883.)

MUNICIPAL BONDS-STATE ACTS TO AID IN THE CONSTRUCTION OF RAILROADS"" "CONSOLIDATION OF RAILROADS EFFECT UPON FRANCHISES AND PRIVILEGES.

The act of the general assembly of the state of Missouri, approved March 23, 1868, entitled "An act to facilitate the construction of railroads in the state of Missouri," passed upon, and the former decisions in the County of Ralls v. Douglass, 105 U. S. 728, and Douglass v. Pike Co. 101 U. S. 687, relating thereto, affirmed.

When two companies are authorized to consolidate their roads, it is to be presumed that the franchises and privileges of each continue to exist in respect to the several roads so consolidated.

In Error to the Circuit Court of the United States for the Eastern Division of the Western District of Missouri.

Henry C. Young, for plaintiff in error.

Jas. S. Botsford and R. G. Ingersoll, for defendant in error. BRADLEY, J. Nearly every point in this case has already been decided by this court in the cases of County of Callaway v. Foster, 93 U. S. 567; County of Scotland v. Thomas, 94 U. S. 682; County of Henry v. Nicolay, 95 U. S. 619; County of Schuyler v. Thomas, 98 U. S. 169; County of Cass v. Gillett, 100 U. S. 585; City of Louisiana v. Taylor, 105 U. S. 454; and County of Ralls v. Douglass, 105 U. S.3 728. In the case last cited we referred to the previous cases, and to the cases in Missouri which they followed, and said:

"Such being the condition of the law on this subject down to April, 1878, we do not feel inclined to reconsider our former rulings, and follow the later decisions of the supreme court of the state in State v. Garroutte, 67 Mo. 445, and State v. Dallas Co. Ct. 72 Mo. 329, where this whole line of cases was substantially overruled. The bonds involved in this suit were all in the hands of innocent holders when the law of the state was so materially altered by its courts. In our opinion the rights of the parties to this suit are to be determined by the law as it was judicially construed to be when the bonds in question were put on the market as commercial paper. Douglass v. Pike Co. 101 U. S. 687."

From the views thus expressed we are not disposed to swerve.

One point taken in the present case may not have been presented in any of the cases cited, to-wit, that the rights, privileges, and franchises of the Kansas City & Cameron Railroad Company were not expressly declared to pass over to the company with which it might become consolidated by the law authorizing such consolidation. This law was passed March 11, 1867, and declared as follows:

"It shall be lawful and competent for said company to make such arrangement with any other railroad company to furnish equipments, and to run and manage its railroad, as it may deem expedient and find necessary, or to lease the same, or to consolidate it with any other company upon such terms as may be deemed just and proper."