FIRST DEPARTMENT, MARCH TERM, 1875. reasons we think the order should be affirmed, but without costs to either party. DAVIS, P. J., and DANIELS, J., concurred in affirmance. Order affirmed. GILBERT W. BARNES, RESPONDENT, v. WILLIAM F. Act of Congress, July 4, 1836, § 11 ·Patent- rights of assignee - Interest in patent assigned by operation of law-supplementary proceedings. 3 703 An assignment of a patent vests in the assignee an interest in the patent, indefeasible by the act of the patentee, so that the patentee cannot, by act of surrender of his patent, affect the rights of an assignee of the whole or a part of the patent. The interest in a patent may be assigned by operation of law, in the case of the bankruptcy of the patentee. A patent right was not subject to seizure or sale at common law, but might be reached by a creditor's bill. The same result may be attained by proceedings supplementary to execution. APPEAL from an order, made at Special Term, directing the defendant to deliver to the receiver, appointed under supplementary proceedings, certain patents and models appertaining thereto. Lucien Birdseye, for the appellant. W. H. Van Cott, for the respondent. BRADY, J.: The act of Congress, of July 4, 1836, section 11, provides that every patent shall be assignable, either as to the whole interest, or any individual part, by an instrument in writing, and the thing to be assigned is not the mere parchment on which the grant is written, but the monopoly which the grant confers, the right of prop 143a 571 FIRST DEPARTMENT, MARCH TERM, 1875. * erty which it creates. An assignment vests in the assignee an interest in the patent, indefeasible by the act of the patentee, so that the patentee cannot, by act of surrender of his patent, affect the rights of an assignee to whom he has previously granted the whole or part of the patent, without the consent of such assignee. + The interest in a patent may also be assigned by operation of law, in case of bankruptcy of the patentee. Lord ALVANALLY, Ch. J., in Hesse v. Stevenson, in reference to a proposition that an invention was an idea, or, as he termed it, a scheme in a man's head which could not be reached by process of law, said: "But, if an inventor avail himself of his knowledge and skill, and thereby acquire a beneficial interest which may be the subject of assignment, I cannot frame to myself an argument why that interest should not pass, in the same manner as any other property acquired by personal industry." In Stephens v. Cady, § Justice NELSON said, in relation to the incorporeal right secured by the statute to the author to multiply copies of a map by the use of a plate, that, though from its intangible character it was not the subject of seizure or sale at common law, it could be reached by a creditor's bill, and be applied to the payment of the author's debts, the same as stock was reached and applied; the court compelling a transfer and sale of the stock for the benefit of creditors. It is said by the learned counsel for the appellant here, that this was dictum only; but the cases referred to sustain the proposition. The Court of Chancery had the power to assist a judgment creditor to discover and apply equitable assets and property of the debtor, not liable to execution, where the remedy at law was exhausted and was insufficient for the purpose. The subject is discussed elaborately in Hadden v. Spader, cited by Justice NELSON; and the doctrine is reiterated in subsequent cases. If the courts should declare a patent right exempt from appropriation, it would, as suggested in T *Per TANEY, Ch. J., in Gayler v. Wilder, 10 How., 477; see, also, R. R. Co. v. Trimble, 10 Wallace, 367. + Curtis on Patents, § 192, and cases cited. Hesse v. Stevenson, 3 Bos. & Puller, 565; Curtis on Patents, § 189; Hindmarch on Patents, 238; Bloxam v. Elsee, 6 B. & C., 169. § 14 How. (U. S.), 531. 20 Johns., 554. Storm v. Waddell, 2 Sandf. Ch., 494; Brown v. Nicholls, 42 N. Y., 26; Lynch v. Johnson, 48 id., 27. FIRST DEPARTMENT, MARCH TERM, 1875. Sawin et al. v. Guild, be practicable for a party to lock up his whole property, however great, from the grasp of his creditors, by investing it in profitable patented machines, and thus defeat the administration of justice. If the use of the monopoly which such a grant confers, is not sufficiently productive in the hands of the inventor to pay his debts, the privilege bestowed, being a right of property, as declared by Chief Justice TANEY, should be transferred to the person designated by law, and sold for the benefit of the creditor. It would be a marvellous, if not unjust, perpetuation of the ideal, if an inventor, having obtained a patent, thus divulging his secret and at the same time acquiring a property in it for practical purposes, should be permitted to hold it unused against his creditors, until, either by compromise or the lapse of time, his obligations should be discharged; and this, too, although it might be one which, by assignment, or upon manufacture of the thing invented, would readily yield enough to pay all existing liabilities. If the right of property can be reached by a creditor's bill, it seems to be settled that the same result may be accomplished by proceedings supplementary under the Code, which furnish a substitute for that chancery proceeding. † The personal property passes to the receiver without assignment; but, if an assignment be necessary, the power resides in the court to direct it to be made. The order should be affirmed, with ten dollars costs and disbursements. DAVIS, P. J., and DANIELS, J., concurred. Order affirmed, with ten dollars costs and disbursements. * 1 Gallison, 485. + Lynch v. Johnson, supra. Code, § 298; Bostwick v. Menck, 40 N. Y., 383; Chautauqua Co. Bank v. Risley, 19 id., 369. FIRST DEPARTMENT, MARCH TERM, 1875. ALBERT SPEYERS, APPELLANT, v. LUCY D. FISK, AS EXECUTRIX, ETC., OF JAMES FISK, JR., DECEASED, Respondent. Partners liability of — joint and several debtors—right of creditor. All contracts with partners are joint and several, and each partner is liable to pay the whole amount of the claim thereunder, but each partner is not liable to a separate action. The plaintiff alleged that, at the request of James Fisk, Jr., and one Jay Gould, he rendered services for their benefit and on their account, for which they jointly and severally promised to pay him. The complaint contained no allegation that Fisk and Gould were partners. Held, that a demurrer to the complaint, on the ground that the debt was due from Fisk and Gould as partners, could not be sustained. APPEAL from an order sustaining a demurrer to the complaint. The complaint alleges that the plaintiff was a gold broker, and “he performed certain work, labor and services for James Fisk, Jr., now deceased, and one Jay Gould, at their request, and for their benefit, in and about the purchase of gold coin, for the said Fisk and Gould, and on their account," for which services the said Fisk and Gonld then and there jointly and severally promised and agreed to pay the plaintiff. The defendant demurred, upon the grounds, first, that there was a defect of parties defendant, and, second, that the complaint did not state facts sufficient to constitute a cause of action against the defendant. Albert Stickney and I. V. French, for the appellant. James M. Ball, for the respondent. BRADY, J.: The proposition upon which the learned justice at Special Term sustained the demurrer in this case, is undoubtedly correct. All contracts with partners are joint and several, and every partner is liable to pay the whole debt, as said by Lord Mansfield; but their responsibilities are not joint and several, so as to subject each to a separate action.* Each partner is bound for the whole, until the debt is paid. * Robertson v. Smith, 18 Johns., 459; Van Tine v. Crane, 1 Wend., 524. FIRST DEPARTMENT, MARCH TERM, 1875. The plaintiff alleges, that, at the request of James Fisk, Jr., and one Jay Gould, he rendered services for their benefit and on their account, for which they jointly and severally promised and agreed to pay him his brokerage. There is no allegation that they were partners. The charge is, that each agreed to pay for the service rendered to both, and each became liable for the whole debt, as soon as the service was performed. If it were otherwise, there would be no vitality in the separate promise, and the plaintiff's remedy and the defendant's liability, would be dependent upon the rules governing joint obligations. The plaintiff would then, James Fisk, Jr., having died, be obliged to exhaust his remedy against Jay Gould, unless he were insolvent, before he could resort to the representatives of the deceased joint debtor. Where the contract was joint and several, under the system which prevailed prior to the Code, the right of action existed against either or both. The plaintiff was at liberty to proceed against the parties jointly, or each separately though their interest was joint; but, if the action were brought against both, the plaintiff was, by a common-law principle, held to have elected to consider the demand joint, and must have failed if he did not establish the joint promise. † This rule was abrogated by sections 136 and 274 of the Code, which provided that judgment might be taken against any of the several defendants, if the plaintiff would be entitled to judgment, had the action been against him alone. ‡ * The contractors, Fisk and Gould, being by the terms of the contract separately liable, the action could be brought against either, or the personal representatives of the one dead, and the order made at Special Term was therefore erroneous, and should be reversed. DAVIS, P. J., and DANIELS, J., concurred. Order reversed, and demurrer overruled, with costs; with leave to defendant to answer within twenty days, on payment of costs. * Chitty's Pl., Vol. 1, p. 49. + Parker v. Jackson, 16 Barb., 33, and cases cited. Parker v. Jackson, supra; McIntosh v. Ensign, 28 N. Y., 169; Brumskill v. James, 1 Kern., 294; Marquat v. Marquat, 2 id., 336; Harrington v. Higham, 15 |