approve of the decision of Lord HARDWICKE, in the other he gives the objections to it an apparent preponderance. In a question of granting a preliminary injunction, which is rather a matter of convenience for the plaintiffs than at all essential to the 'maintenance of their rights, I feel bound to follow the opinion of the justices of this circuit, until a more deliberate and solemn decision shall show that they were mistaken. , Motion denied.
Ap;ril 23, 1884.)
(Circuit Oourt; S. D. New York.
PLEADING- WAIVER OF FAULTS.
In a suit for the inft'ingement of a patent, although an answer denying in. formation as to the infringement and denying damages is wholly insuffiClent, the orator, by replying t() it,adrnits its sufficiency, aud takes upon himself tho burden of proving the infringement. . ·
In Equity. Frederic H. Betts, for orator. Edmund Wetmore, for defendants. WHEELER, J. The bill states the issuing of a patent to one Doug. lass, the assignment and a reissue of it to the orator; that the defend· ants, in order to deprive him of profits, infringed it and derived profits injured him; and prays an account of profits to themselves, and and damages. One of the defendants answers for himself and in the name of the others, by himself as attorney for each, and states that they are not informed as to the issuing and assignment of the patent, and therefore deny the same; and leave the orator to make such proofs thereof as he shall be advised; and, further answering, denies "that they have deprived the complainant of any profits or inflicted upon him any damages," and prays for dismissal, with costs. The orator, by replication in usual form, traversed the answer, put the reissued patent in evidence, and examined two witnesses as to infringement. The cause haa been heard on these pleadings and proofs. The principal questions are as to where, on these pleadings, the burden of proof rests; and if upon the orator, whether he has made out his case. An answer in equity is required for discovery and evidence as well as for grounds of defense, and evidence cannot be given by attorney; therefore an answer cannot be made by attorney, and this answer is, as to those answering in that way, wholly irregular. And then the gist of the charge in the bill is the infringement. The answer does not meet that, but denies resulting damages and deprivations of profits, which, if true, would not defeat the right to maintain the bill. But still, as the orator did not move to have the answer taken off the file for the irregularity; nor to have the bllltaken pro confesso for want of an
WERNER V. REINHARDT.
answer, as if the answer was void; nor except to the answer for insufficiency,-by replying to it he admitted it to be sufficient, however imperfect it might be. Story, Eq. PI. § 877. The issue joined upon the answer by the traverse was upon its allegations and denials as they were, and the orator, by joining that issue, placed himself where he must overcome the denials and maintain his bill. Young v. Grundy. 6 Cranch, 51. The reissue of the patent ran directly to the orator, and was founded upon assignments entitling him to it, and the production of it would show prima facie that all the preliminary steps had been taken. The law would presume, damage and deprivation of profits from infringement, but there must be at least proof of that to make out either by it. The proof is ,wholly as to use. It comes from a reluctant witness so situated that full force should be given to what he does say, but beyond what he says and what may fairly be inferred from that there is no proof. Without going beyond that, and into suspicion and conjecture, the fact of the use by the defendants of the device patented by this patent does not appear. The orator may have a good case, but the defendants have not admitted it; neither has he proved it. Let there be a decree dismissing the bill, with costs.
May 1, 1884.,
(Oircuit Oourt, S. D. New York.
EqUITy-DECREE OF COURT-INTEREST OF COMPLAINANT IN.
The successful complainant is not properly concerned in the interests of any one, under the decree, but himself.
WHEELER, J. The orator is entitled only to a decree settling his own rights. The master is entitled to have the amount of his fees fixed, and to an order for their payment, and, if necessary, to an attachment to make the order effectual. Equity rule 82. The proposed addition to this decree does not at all fix the amount of the fees, but is a mere general direction to the defendant to pay them, whatever the amount may be. This is not sufficient. As this might as well, and, perhaps, more properly, be by separate order, the decree is signed without it. Myers v. Dunbar, 12 BIatchf. 380.
Briesen &; Steele, for complainant. Jacob L. Hanes, for defendants.