ON motion to dismiss an appeal from the Circuit Court for the Eastern District of Pennsylvania. The case was thus:

In August, 1865, the American Wood-paper Company filed a bill in the court below to enjoin Heft, Dixon, and other defendants, against infringing certain patents owned by the company for improvements in paper-making; these patents, including one to Watt & Burgess, granted on the 2d July, 1854, the other to M. A. Miller, on the 26th May, 1857.

The answer of the defendants set up, among other defences: 1st. The want of novelty; and, 2d, that they manufactured paper under inventions and patents of Dixon, one of the defendants. Proofs were taken on both sides, and, after the hearing of counsel on the 22d November, 1867, the bill was dismissed; and the case was subsequently brought here by appeal.

Pending this appeal, one Meach asked leave to intervene by consel, upon an allegation that, since the decree below, the case had been settled, and that it was now carried on without the appellees having any further interest in the defence, and for the purpose of obtaining the decree of this court in favor of the complainants to influence suits pending in the circuits in their favor and against strangers to this suit, and in which the same questions are involved; and that the intervenor was a defendant in one of these suits. The application of Meach being allowed, a commission issued to take proofs in the matter, and these being before the court, the motion to dismiss came on to be heard. It appeared, as this court assumed, from the proofs under the commission, that at the time when the original bill was filed, to wit, in August, 1865, the Dixon patents, which were set up as one of the defences to the suit, were owned, twothirds by one Harding and one-third by Dixon, the inventor; the two-thirds having been conveyed in December, 1864, the co-defendants of Dixon having no interest therein, except working under them in the manufacture of paper. It further appeared that in the autumn of 1868, about one year after the decree dismissing the bill, Harding and Dixon sold and transferred all their interest in the Dixon patents to the complainants, and received for the same eighteen hundred shares of the stock of their company at par value, which was $100 per share, nominally $180,000, and this for one-half the interest in the patents; for the other half the complainants confirmed the licenses that had been granted under the Dixon patents.

This was the account of the sale given by Dixon, who was examined as a witness under the commission. One Hay, the general agent of the complainants, testified that the purchase was made with Harding, and that stock to the amount of two thousand shares was given, and that two certificates with blank vouchers of attorney were made out, and delivered to Harding, one for eighteen hundred, and the other for two hundred shares. Dixon stated that Harding transacted the business with the complainants for him, and with his concurrence.

The evidence, it should be added, tended to show that Dixon had agreed to keep Heft and the other defendants harmless.

Mr. B. F. Butler, in support of the motion, argued that on the case presented the appellant had become the sole party in interest; that the controversy was thus a fictitious one; and on the authority of both English and American precedents* ought to be dismissed.

Mr. Jenkes, contra, contended that the evidence rightly viewed did not present such a case as opposite counsel assumed from it; that a fictitious case was not to be supposed, but, on the contrary, required clear proof; and that, even if now late in the controversy, the appellant had, without the knowledge of counsel, become the dominus litis on both sides, still that the question of damages for infringement on the bill remained to be adjusted, and that this required a settlement of the merits as they originally stood.

Mr. Justice NELSON delivered the opinion of the court.