Clements v. Odorless Excavating Apparatus Co.

Robinson, J., delivered the opinion of the Court. A hill was filed by the appellee in the United States Circuit Court for the District of Maryland against the ⁴⁶² appellant, for the infringement of reissued letters patent granted to Lewis R. Keizer for an apparatus used in cleaning and emptying privies, the original patent having been granted to Henry O. Bull. The appellant, in his answer, denied that Bull was the inventor of the apparatus described in the original patent, and charged that the reissued letters patent granted to Keizer were not for the same invention described in the original patent, but for other and different inventions, not known to Bull at the time the original patent was granted; and further, that the said reissued letters patent were fraudulently obtained, and that the specifications and claims were fraudulently enlarged for the purpose of including other and subsequent inventions. The appellant also claimed that the apparatus or machine used by him was constructed in accordance with letters patent granted to Samuel R. Scharf and Jerome Bradley.

The case was heard on bill, answer and proof, and the Circuit Court, (Judges Bond and Morris,) being of opinion, that the machine used by the appellant was an infringement of the reissued letters patent granted to Keizer, enjoined the appellant from making, using or vending said machine containing the inventions and improvements described in said re-issued letters patent. On appeal to the Supreme Court of the United States, the decree below was reversed, on the ground that the improvement claimed in the reissued letters patent granted to Keizer was but an expansion of the Scharf and Bradley improvements. This action is brought by the appellant to recover damages of the appellee for having instituted suit in the United States Circuit Court maliciously and without probable cause. Whatever may be said of the earlier decisions, it is quite well settled that an action will lie in some cases for the malicious prosecution of -a civil suit without probable or reasonable cause, although there is some conflict as to the cases embraced within the rule.

Such suits ⁴⁶³ are not, however, encouraged, because the law recognizes the right of every one to sue for that which he honestly believes to be his own, and the payment of costs incident to the failure to maintain the suit, is ordinarily considered a sufficient penalty. In McNamee vs. Minke, 49 Md., 122 , we had occasion to consider the law in regard to such actions, and the Court said: “When it has been attempted to hold a party liable for the prosecution of a civil proceeding, it has generally been in cases where there has been an alleged malicious arrest of the person, as in the case of Turner vs. Walker, 3 G. & J., 377 , or a groundless and malicious seizure of property, or the false and malicious placing the