
    GILBERT W. BARNES, Respondent, v. WILLIAM F. MORGAN, Appellant.
    
      Act of Congress, July 4,1836, § 11—Patent—rights of assignee—Interest in patent assigned by operation of law — supplementa/ry proceedings.
    
    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.
    
      Luden Birdseye, for the appellant.
    
      W. H. Van Gott, for the respondent.
   Beady, 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 property 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 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. 
      
       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; Hind-march 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.
     
      
       1 Gallison, 485.
     
      
      
         Lynch v. Johnson, supra.
      
     
      
      
         Code, § 298; Bostwick v. Menck, 40 N. Y., 383; Chautauqua Co. Bank v. Risley, 19 id., 369.
     