
    NO. 13782.
    NO. 13438.
    JOHN BURT v. THE UNITED STATES. KATE KEARNEY HENRY, Adm’x, v. THE SAME.
    [Decided January 21, 1884.]
    
      On the defendants’ Motions.
    
    The actions are brought to recover for the manufacture of articles by the government covered by the claimant’s letters patent. The defendants move to dismiss for want of jurisdiction on the ground that the actions are for an infringement in the nature of tort.
    I. Where a petition in a patent case is so indefinite in terms and so wanting in specific averments that it is doubtful whether the action is on implied contract or for an infringement, the court must decline to express an opinion upon the important general question which the defendants seek to have determined.
    
      II.The purpose of the petition (in its character of pleading) is (1) to apprise the defendants of the facts which the claimant will prove, and (2) to furnish a record which will constitute an estoppel.
    III. 'The Ruies'of the court (Art. II, $$ 2, 6) prescribe the essentials of the petition.
    IV. Where a petition is indefinite and uncertain and alleges conclusions of law instead of averments of fact, the defendant’s remedy is hy motion to make the petition conform to the requirements of the Rules.
    
      The Reporters' statement of the case:
    The following are the chief allegations of the petitions in these cases:
    “The United States, on the 13th day of December, 1864, granted to said James L. Henry, deceased, letters patent numbered forty-five thousand four hundred and sixty-two, for an improvement in sub-caliber projectiles.
    “That the United States have used said improvement in the Army and in the Navy from the time said letters patent were granted until the end of the period for which said letters patent were granted, without any compensation to said Henry, deceased, or to petitioner, as his administratrix, and that there is due the petitioner, as administratrix as aforesaid, for the use of said improvement, two hundred and fifty thousand dollars, after allowing all just claims and offsets.”
    “The claimant is the inventor and patentee of certain improvements in the construction and operation of canal locks, for which letters patent, numbered 65,054, were issued on the 28th day of May, 1867.
    “On the 11th day of July, 1870, Congress made an appropriation of one hundred and fifty thousand dollars for the improvement of Saint Mary’s Falls Canal and Saint Mary’s River, Michigan. On the 2d day of February, 1871, Congress made another appropriation of one hundred thousand dollars for the purpose of continuing the prosecution of the work upon the improvements of Saint Mary’s Falls Canal and Saint Mary’s River.
    “In pursuance of these and subsequent appropriations and other acts of Congress, the government entered upon the construction of a canal lock at Saint Mary’s Falls aforesaid, and completed the same on or about the 1st day of September, 1881, from which date it has been in use by the said defendant.
    “In the construction of said lock, and subsequently in the use and operation of the same, defendant, by its officers and agents, has used and continues to use the said invention of this claimant without his consent or authority, and in violation of his expressed desire.
    
      “ The defendant thereupon became and is indebted to this claimant on an implied contract, for the just value of the use of the claimant’s said invention, so patented to him as aforesaid, in the sum of five hundred thousand dollars, and he prays judgment therefor.”
    
      Mr. John ÍS. Blair for the United States, for the motion.
    
      Mr. J. H. McGowan opposed.
   Nott, J.,

delivered the opinion of the court:

In these cases motions were made by the defendants to dismiss for want of jurisdiction. The cases are patent cases, and, the defendants insist, of that general class where an ordinary plaintiff, suing an ordinary defendant, could set up no contract and would be put to an action in tort for an infringement. But the petitions are so indefinite in terms, and so wanting in specific averments, that it is doubtful to which class of cases these properly belong. The court therefore must decline to express an opinion upon the very important general question which the defendants have presented and have sought to have determined. ,

The purpose of the petition in this court (in its character of pleading), like a declaration in an action at common law, is twofold : first, to apprise the defendants of the facts which the claimant expects to prove; second, to furnish a record which will constitute an estoppel as against a second suit on the same cause of action. In these cases the petitions set up what are really conclusions of law, and the actual averments of fact amount to little or nothing. The rules of this court (Art. II, §§ 2, 6), which prescribe the essentials of a petition, are almost utterly disregarded, and the law officers of the government are left as ignorant of the acts of the agents of the government, of acts which necessarily must constitute the cause of action, if one exists, as if no petition had been filed.

Yet the court is of the opinion that a motion to dismiss for want of jurisdiction is not the defendants’ remedy. Neither can it be said that the petitions are demurrable for not setting forth facts sufficient to constitute a cause of action.

The petitions are simply indefinite and uncertain. Modern codes of procedure almost always, if not invariably, provide a remedy for such defects by motion to make the defective pleading definite and certain. After the full and clear instructions given by the rules of this court, it was supposed that no such-remedy would be needed, and therefore none such was prescribed ; but the court is of the opinion that a motion to make a petition conform to the requirements of the rule above cited would be the proper remedy for the defendants, and that upon such a motion a party may be required to amend until his petition complies with the rule, and spreads upon the record the specific facts which are to form the elements of legal controversy.

The defendants’ motion to dismiss for want of jurisdiction is overruled in each case.  