Argument for Romadka. party having possession will have his possessory title, which will be protected against the assaults of any mere trespasser. This is necessarily confined to corporeal property. It can have no application to a patent right. That passes at once by the assignment and requires, and can have, no act of reducing it to possession. There can be no adverse possession. Infringers may perhaps, to the extent of their infringement, hold a quasi adverse possession. This may, unless timely action is brought, protect them in the enjoyment of the fruits of their acts. But there is and can be no adverse possession of the right. It is not a "thing in possession." Secondly. There are some things which, when assigned, impose upon the assignee who accepts the assignments the obligations of a covenantor, obligations which are enforceable, not against the property only by way of lien, but against the assignee personally, as against a promisor. The common instance of this is a lease. The assignee of a lease, by reason of privity of estate, becomes personally bound by its covenants. Hence it is held that an assignment in bankruptcy does not operate to vest this kind of property in the assignee, but that it vests only upon his express acceptance. Subject to these two modifications, all property of the bankrupt, not exempted by statute, vests absolutely in the assignee. It is not sound that the assignee may say to the bankrupt, This thing, I think, is not worth much and I will let you keep it. The law vests it in the assignee without regard to value. The only case in which such a transaction can have any effect is where possessory rights accrue as a consequence. The supposed exception as to "unprofitable" property rests wholly upon English authority. It does not, therefore, exist except so far as it is recognized by English adjudications. A mere dictum or use of a word where the actual question is not involved cannot extend it. No claim is made that the patent was ever reassigned to Poinier. He did not schedule it. The assignee never knew of its existence. The principle of our bankrupt law was: (1) To divest the bankrupt of all his property not exempt, and make it over absolutely to his creditors for the payment of his Argument for Romadka. debts; (2) To leave to the bankrupt all he might thereafter earn, and give him release from his old debts upon compliance with proper conditions. The property transferred to the assignee he does not get back unless his debts are paid in full. An assignee may be discharged, or an assignee may die, but the trust remains while there is property unadministered and debts remain unpaid. "No principle," says Judge Story, "is more firmly established than that a trust will never fail for want of a trustee." Hence we find that when long after estates in bankruptcy have apparently been closed assets are found to exist, the court will appoint a new trustee to take charge of and administer them. Clark v. Clark, 17 How. 315. II. The patent is void on its face, for that it covers several distinct inventions, and this defect cannot be cured by disclaimer. The Taylor patent of 1872 covers four entirely distinct inventions, in no way connected in design and consideration. The patent is therefore void. Evans v. Eaton, 3 Wheat. 506;. Barrett v. Hall, 1 Mason, 447; Moody v. Fiske, 2 Mason, 112; Wyeth v. Stone, 1 Story, 273. The decision of the department, as well as of the, courts, has been uniform that such diverse inventions cannot be united in one patent. This patent was held void by the court below for this reason. Sessions v. Romadka, 21 Fed. Rep. 124; but the court held that the defect was within the remedial reach of a disclaimer. Thereupon, on the 30th of July, 1884, John II. Sessions, the complainant, filed a disclaimer of the first, second and fourth claims. All infringement had ceased a year before this disclaimer was filed. It is true that if this patent could be saved by a disclaimer it saved the suit. But did it save damages which accrued before it was filed? Perhaps it did so far as they accrued to the party who files the disclaimer. But could it possibly save damages which accrued to the former owner, Poinier? He has not disclaimed. While he held the patent it was void. What claim for damages could he transfer to plaintiff in 1878? Argument for Romadka. If he transferred none, how can any subsequent act of Sessions create them? III. The allowance of nominal damages only was correct. The burden of proof to show the defendants' profits is wholly on the complainant. Garretson v. Clark, 15 Blatchford, 70; S. C. on appeal, 111 U. S. 120; Dobson v. Hartford Carpet Co., 114 U. S. 444; Goulds' Man'g Co. v. Cowing, 12 Blatchford, 243; S. C. 14 Blatchford, 315; Ingersoll v. Musgrove, 14 Blatchford, 541. Unless he furnishes the requisite evidence on every essential point, he can have nominal damages only. Rude v. Westcott, 130 U. S. 152. The mode adopted by the master furnished a false test. And further, so far as the damages before the assignment by Poinier are concerned, the right to recover them never passed out of him. IV. Section 4900 of the Revised Statutes provides that "it shall be the duty of all patentees, and their assigns vending any patented article to give sufficient notice to the public that the same is patented, either by fixing thereon the word 'patented,' together with the day and year the patent was granted, or when from the character of the article this cannot be done, by fixing to it or to the package wherein one or more of them is enclosed, a label containing the like notice, and in any suit for infringement by the party failing so to mark, no damages shall be recovered by the plaintiff, except on proof that the defendant was duly notified of the infringement and continued after such notice to make, use or vend the article so patented." The complainant in this case was a large manufacturer and vendor of the patented article in question. Two specimens offered in evidence were sworn to by him as embodying the patent and to be of his manufacture. It was obvious to the court from their inspection that it could not be truthfully said of them that "from the character of the article" the affixing of the word "patented" with the date of the patent "could not be done." The complainant claimed in general terms that he had notified defendants by letter, but made no sufficient proof to that effect. Opinion of the Court. The statute is that no damages shall be recovered by the plaintiff "except on proof that the defendant was duly noti fied of the infringement and continued after such notice to make, use or vend the article so patented." Here is a notice to be given which is expected to be acted upon, and the non-action will involve substantial pecuniary consequences. We submit that such a notice must be given in writing; also, that a complainant who would rely upon it, in place of complying with the statute duty of marking his goods, should allege it and make satisfactory proof. It is no answer to say that the defendants "doubtless" knew of the Taylor patent. That is not "being notified of the infringement." The rights enjoyed by complainant are great. They levy tribute on the whole country. They are a privilege. But they are purely statutory. Compliance with the statute is the condition precedent to their enjoyment. As the benefits conferred are great, it is but due that compliance with that condition should be insisted on. At best complainant would be entitled to damages only after notice given. V. This was a mere claim for a tort to third persons. It passed to the assignee by the assignment. The assignee had to assert it by suit within two years after his appointment. When it passed back to the bankrupt by reason of the refusal of the assignee to take it, assuming such to be the case, it passed subject to the statute of limitations governing the assignee, and had to be asserted within the two years, which was not done. MR. JUSTICE BROWN, after stating the case, delivered the opinion of the court. 1. Defendants attack the 'title of the plaintiff to this patent upon the ground that Poinier, who bought the patent of Taylor in 1872, and subsequently, in 1878, sold it to Sessions, had, prior to such sale, and in September, 1876, been duly adjudicated a bankrupt in the District Court of the United States for the District of New Jersey, and an assignee appointed, in whom, it is claimed, the legal title to the patent Opinion of the Court. vested. It seems, however, that Poinier did not include this patent in his schedule of assets, upon the ground, as he said, of its being unproductive property and of no value. Indeed, all that he seems to have done with the patent was to make a lot of trunk fasteners in 1872, which proved to be failures, and which appear to have been the cause of his insolvency. He made no others for the three years before he went into bankruptcy. On May 15, 1877, he received his discharge, and on November 27 of the same year his assignee was discharged. On June 12, 1878, thirteen months after Poinier had received his discharge, and six months after his assignee had been discharged, Sessions bought a shop right of Poinier, for which he paid him $500, and in the same year purchased the patent itself, for which he paid him $1000 additional. Mr. Shepard, who acted as the agent of the plaintiff in making this purchase, testifies that he went to Newark on the morning of June 6, 1878, and inquired for Henry W. Poinier. "I was informed that one Mr. Miller was his assignee, and that I could learn of his affairs by seeing him. I then went to the office of Mr. Miller and found him there, introduced myself, and told him that I had come to see him about a patent for a trunk fastener which was owned by Henry W. Poinier, and under which said Poinier had been making trunk fasteners; and I asked Mr. Miller if he would sell me said patent, or give me a shop right thereunder, as the assignee of Mr. Poinier. Mr. Miller replied that he could not do so; that the estate was all settled up; he had made his return to the court, and had been discharged as assignee, and he had no power to do anything in the matter. I asked him what I could do, and he said the only thing was to go to Mr. Poinier; that Poinier was the only one who could give me any title. . I learned that Mr. Poinier was in Rochester." While the assignee does not recollect the conversation, there is nothing to disprove Mr. Sessions's version of it; nor is it strange that Miller did not recollect it, as he acted as assignee in some six or seven hundred cases, and could hardly be expected to remember all the transactions connected with them. It is undisputed that Shepard went to Newark to find Poinier, and subsequently went to |