
    Joseph Morrill versus Erastus Worthington.
    A covenant to assign a chattel, in as full a manner as A B had assigned it, to the covenantor, does not necessarily imply that there shall be a covenant of warranty in such assignment.
    It is the business of the assignee of a patent right to procure the deed of transfer to be recorded in the proper office.
    The declaration was, “ In a plea of covenant broken, for that the said Erastus, at said Dedham, on the 7th day of December last past, by his certain writing of that date, sealed with his seal, and in Court to be produced, for and in consideration of 200 dollars, paid him by the said Joseph, did assign, transfer, and set over, to said Joseph, his heirs and assigns forever, one sixteenth part of the patent right to a certain new and useful machine for cutting files, which machine was invented by one John Hatch; and did, by said writing, covenant, among other things, with the said Joseph, that he would, when thereto required, within a reasonable time, make a further transfer of said Hatch’s patent right to said Joseph, in as full a manner as said Hatch had engaged to do to said Worthington. Yet, though said Erastus has been often requested * and demanded, and particularly on the 18th day of July last, at Dedham aforesaid, which was within a reasonable time after the execution and delivery of his said writing, to perform his covenant aforesaid, the said Erastus has not made to the said Joseph a further transfer of said Hatch’s patent right aforesaid, in as full a manner as the said Hatch had engaged to do to said Worthington, but wholly refused so to do; and so said Joseph says that said Erastus his covenant aforesaid has not kept, but has broken the same, to the damage of,” &c.
    The defendant pleaded in bar, that, on the 31st of May last past, he procured from the said Hatch an assignment and further transfer of one sixteenth of the said patent right, (the said Hatch having previously obtained letters patent for the same,) in as full a manner as said Hatch had previously engaged to make the same to him, which is dated the day last mentioned, signed and sealed by Hatch, and in Court to be produced ; and that, on the same day, having the said assignment, &c., in his possession, he wiote on the same anothei and further transfer and assignment from him, the said Erastus, to said Joseph, and signed and sealed the same, and afterwards on, &c., which was within a reasonable time, and at divers other times, offered to deliver, and is still ready and willing to deliver, the same to the said Joseph ; and avers that it contained a further transfer of, &c., in as full a manner as the said Hatch had agreed to make the same to him.
    The plaintiff replied that the said assignment from the defendant to him did not contain a further transfer of, &c., made in as full a manner as said Hatch had engaged to make the same to the defendant, and tendered an issue to the country, which was joined by the plaintiff.
    On this issue the parties submitted the following facts to the Court: The said Hatch, prior to his obtaining letters patent for his invention of a file-machine, promised the defendant to assign to him one eighth part of his said patent; and afterwards on the 1st of * May, 1815, obtained the said letters patent, and while in possession thereof, viz., on the 31st of the same May, he executed and delivered to the defendant an assignment of one sixteenth part of the said patent right, as follows, viz. : “ Know all men, that I, John Hatch, of, &c., in consideration of 200 dollars, to me paid by Erastus Worthington, of, &c., have and do, by these presents, assign, transfer, and set over, to said Worthington one sixteenth part of all the right, title, and interest, I have in a cei tain patent right by me obtained on the 1st day of May present, which is called ‘ a new and useful invention for cutting files.’ And I do hereby convey and relinquish all the profits and benefit, of every kind, which might accrue to me from said sixteenth part; this assignment being made agreeably to a promise by me made to said Worthington on, &c. In witnesses whereof,” &c. On the same 31st of May, the defendant, having possession of said assignment, but not having then or ever since recorded the same in the office of the secretary of state, executed the following instrument, under his hand and seal, on the same paper, viz.: “ Know all men, that I, Erastus Worthington, of, &c., in consideration of 200 dollars, paid me by Joseph Morrill, of, &c., have and do hereby transfer, assign, and set over, to said Joseph, and to his assigns, all the right, title, and interest, I have in the above assignment, which is one sixteenth part of John Hatch’s patent file-machine for cutting files; this assignment being made according to an agreement which I have heretofore made with the said Joseph,” as a further assignment and transfer of all his interest in the said patent right to the plaintiff ; and then offered to deliver the same to the plaintiff, as a performance of the covenant set forth in the declaration, which was ‘n a reasonable time ; and has ever since been ready to deliver the same to the plaintiff; but the plaintiff refused to receive the same.
    If, on these facts, the Court should be of opinion that the plaintiff was entitled to judgment, the jury were to assess his damages; otherwise the plaintiff was to become nonsuit.
    * Metcalf, for the plaintiff,
    contended that the instrument tendered by the defendant was not a performance of his engagement, as it contained no covenant of warranty. Hatch may not have been the original inventor, in which case nothing would pass by the instrument, and the plaintiff would have paid his money without a consideration, and would still be without remedy. 
    
    To have given a good title to the plaintiff, it was necessary that Hatch’s assignment should first have been recorded in the office of the secretary of state, as required by the law of the United States on this subject. 
    
    
      Fuller, for the defendant.
    In every transfer or conveyance of personal chattels, there is an implied warranty that the vendor has a property in the thing conveyed.
    The statute of the United States does not require the recording of transfers of these patent rights until the whole right is assigned. 
    
    
      
       2 Johns. 613, Clutete vs. Robinson —5 Mass. Rep. 494, Aiken vs. Sanford. — 1 Mod. Rep. 67, Lassels vs. Cattorton. — 1 Sid. 467, S. C — T. Ray. 190, S. C. — Sugden's Law of Vendors, 295, 373.
    
    
      
      
        U. S. Laws, 2 Cong. 2 sess. c. 11, § 4. — See, also, 8 Mass. Rep. 46, Bliss & Al. vs. Negus. — 1 And. 56.
    
    
      
       6 Crunch, 324. Tyler Al. vs. Tuel.
      
    
   Per Curiam.

The question is, whether the deed tendered by the

defendant was a sufficient performance of his covenants alleged in the declaration.

The first objection insisted on is, that the deed contained no covenants of warranty. The defendant covenanted that he would make a transfer to the plaintiff, in as full and ample a manner as Hatch had engaged to do to the defendant; and it appears that he has tendered a deed in which he has conveyed the title in as full and ample a manner as Hatch had in fact conveyed it to him. He did all that he was bound to do; all that Hatch had done or engaged to do to him. The case of Lassels vs. Catterton, which was cited for the plaintiff, stands on different grounds. That was a covenant to make such conveyance as counsel should advise ; and the allegation of the breach was, that the plaintiff had tendered such a conveyance, which was set forth at large ; and it is there said that in such case usual covenants may be put in; but there must not be a warranty.

The other objection is, that, the defendant should first have recorded Hatch’s transfer, before he could legally * assign it to the plaintiff. But we do not think the defendant was under such an obligation. It was for the plaintiff to register the transfer, as in cases of conveyance of real estate, which the purchaser always procures to be recorded.

Plaintiff nonsuit  