(Diswict Oourt, D. New Jersey, December 11, 1884.)
BANKRUPTcy-NEGLIGENOE OIl' ATTORNEy-DIBOHARGE.
Where six years has been allowed to elapse by the attorney of · bankrupt without obtaining his discharge. such negligence will be imputed to the bankrupt, and he will be held responsible for such delay, and, on motion 'of his creditors. the proceedings may be dismissed.
On Motion to Dismiss, etc. Riker r£ Riker. for petitioners. Samuel Kalisch, for bankrupt. NIXON,J. This is an application to dismiss bankruptcy proceedings for want of prosecution. It is admitted in the testimony, by . stipulation of the parties. that the debto.r filed his petition for the benefit of the bankrupt act on April 29.1878: that the petitioning credo itors,oll this motion, have a claim resting in judgment on promissory , notes for $14,500 and upwards; that an order for reference was made to the register on the day df filing the petition, requiring the debtor to appear before him on May 11, 1878, on which day an adjudication of bankruptcy was duly entered, and a warrant issued to the marshal, returnable June 4th, and was returned unexecuted: that no other steps were taken until May 22. 1884, when an alias warrant was issued, which also was returned unexecuted: that on July 5, 1884, a second alias warrant was handed to the marshal, reSeptember 17, 1884, and that before the said return-day the petition of the opposing creditors was presented to the court, asking for the dismissal of the proceedings on the ground of laches in the bankrupt. More than six years elapsed between the adjudication of bankruptcy and the service of any warrant upon the bankrupt. His present attorneys, not controverting the delay, seek to put the l'esponsibility of the same upon his former attorney, and there is certainly evidence that he has been most negligent in prosecuting the case. It is not clear to what extent a client should be held responsible for the laches of his attorney. It is difficult to lay down any general rule upon the subject, but each case must be left to its own circumstances, It may be said, however, that whilst courts should be indulgent to suitors who are prejudiced by the neglect and delays of those to whom they have committed the management of their business, there is a limit to such indulgence. In the present case the creditors had a right to assume, after the lapse of six years, that the bankrupt had abandoned the proceedings, and especially since in one instance, at least, he had renewed the notes of a creditor which were about to be .barred by the statute of limitations. I must hold that the culpable neglect of the attorney will not eX:cuse the bankrupt for the long delay; and that he must hold him responsible for all damages which he may suffer for such neglect. The motion to dismiss is granted.
nsOIIEB tI. IIAYJIS.
(Oh'cuU Court, S. D. New York. 1884.)
PATENTS FOB bivENTIONs-lNFRINGEMENT OF ONE CLAm ONLy-PROFITs-EVIDENCE.
Where it is shown that an infringer has infringed one of several claims in & patent only, in estimating the profits it is not admissible to prove that the patent, as an entirety, was capaltle of producing greater prollts than other in_ ventions in use.
SHIPMAN,J. The defendant was adjudged to have infringed the fourth" claim of the plaintiff's patent. An accounting was decreed, and a reference to a master, to take and state the account, was ordered. The invention is described in Fischer v. Wilson, 16 Blatchf. 220. b taking the account the plaintiff is now attempting to prove that the -Fischer patented machine, as an entirety, was capable of forming or bending a greater number of feet of sheet-metal moulding, in a given time, than the other machines known to the art, and free to the defendant to use for accomplishing the same purpose, the object of the proof being to show the profit derived by the defendant by his infringement. The defendant has exoepted to these interrogatories and answers upon this point, and the question as to the proper oourse to be pursued has been certified to me by the master for decision. The fourth claim is as follows: "Arranging the female die, G, above the male die, E, for the purpose of keeping the female die . clear, as set forth," and is apparently solely for the special arrangement of the dies with relation to each other. As a matter of course, the female die is to be moved by some suitable, though not necessarily patented, device. The question for the master to settle is the advantage wQich the defendant derived from the use of that part of the patented invention which was infringed over what he had in using other maohines then open to the public, and this accounting must be oonfined to an account of the profits received by the defendant as a direct J,"esult of the use of that part of the invention which was fringed, and which is specified in the decree. Mowry v. Whitnell, 14 Wall. 620; Littlefield v. Perry, 21 Wall. 205. It will not be proper for the master to infer, because a certain amount of advantage can be derived from the use of the patented machine, as an entirety, that, therefore, the amount of profit was enjoyed by the defendant from the infringement of the feature of the .machine specified in the fourth claim. It is the distinctive advantage which was gained by the use of the arrangement of the femaledie, G, above the male die, E or F, which is to be recovered by the and which must. be affirmatively shqwn by the evidence whiehhe introduces. Schillinger v. Gunther. 15 Blatchf. 303. But if, in addition to showing the amollnt of advantage gained by the v.22F,no.9-84