CREAMER V. BOWERS.
Five of the members of the Union were prosecuted by the for being in the business of wholesale liquor dealers. witI-fout license. At the trial it was urged, on the part of the government, that these facts amounted to a sale by the Milwaukee firm to the Union, and a resale by it to its members,a,nd that the question of profit was not material; and on the part of the deferidants that, in substance, it was a mere device of· the retail dealers to geUheir stuff cheaper by association, and that the Union was not a "dealer," wbi.ch term contemplated a being in the business for the purpose of buying and selling fpr profit. . . . On the authority of tWo cases in the federal courts, to which you are refelTed,-U. 8. v. Roligeo, 28 lnt.' Rev. Ree. 314, (B. D. Ill., TREAT, J.;) U. S. v. Wittig, 22 Int. Rev. Rec. 98;:(D. Mass., LoWELL,J".,)-and notwithstanding Com. v. Bmith., 102 Mass. 144, and the cases therein referred to, which were cited by counsel for the defendants; and in view of the results to the federal· revenue by the crowding out of the middle,.men, who are wholesale dealers, by such a practice; and upon consideration that the Union might' be regarded as, in fact, dealing for· profit, the profit being the two dollars saved by the members on each barrel,-yet, with considerable misgiving, I instructed the jury thilt, these faets being admitted by the defendants, they -should find the defendants guilty. I imposed sentence, fine to be paid in 60 days, and, in default, impl'isonment, ete. The 60 days were given to give time for further consideration and consultation. The question is so close, and. the practice in question one which, if allowed, may become so wide,.spread, that I conclude to trouble you for your views upon it. Very respectfully yours, H. F. SEVERENS.
G.Chase Godwin, U. S. Atty., for the United States. Hurley & Mapes, for defendants.
I have considered the foregoing case, and the authori.referred and am of the opinion that ruling of the district Judge at the tnal was correct. The constructIOn of the revenue laws should not be so loose as to permit evasions on merely fanciful and un-:substantial distinctions. If "profit" is necessarily a part of the business which constitutes the Union in this case a dealer, it is found in the amount saved to the members on each barrel purchased. It is not material that the profit does not come to the Union, but is directly realized by the members.
CREAMER 11. BoWERS
(Oirc'Uit Oo'Urt, D. Delaware. February 21, 1887.)
PATENTS FOR INVENTIONS-ExPIRATION OF PATENT-BUIT FOR INFRINGEMENTREFORMING DECREE.
In Equity. On petition for rehearing. Frost & Cae,for complainant. , WiUiam O..spruance and Oharlea M; Ourtis, for defendants.
WAI.ES,J., The complainant filed his bill, on the thirteenth of September, 1880, against the defendants for the infringement of two letters patent which had been severally-issued to him,-one, numbered 33,071, dated,August 20, 1861, for a ventilator for railroa,d cars, and the other, numbered 89,944, dated May 11. 1869, for a railroad car ventilator. For the purpose ofconvenient reference, the first is called the "Ventilator Patent," and the second the "Register Patent." At the hearing the defendants offered no proofs, and on the thirty-first of November, 1883, an interlocutory decree was made, practically without opposition, sustaining the yaUdity of both patents, ordering an account to be taken of profits and damages for the making, using, or selling of or both of the invention$ d.escribed in the letters patent, and enjoining the defendants from any further infringement of the register patent. Application is now made to open the decree, and to strikeout so much thereofas directs the taking of an account of profits and damages arising out of the infringement of the ventilator patent. The reason assigned is that thisPlltent had expired more than two years before the complainant filed his bill, and that, at the time of pringing his suit, he had a plain and adequate remedy at law for the alleged infringement. It is not contended that an injunction bill for the infringement of an expired patent can be maintained; and in considering this application the only question to, be decided is whether there are ariy special grounds for equito the ventilator patent. There is nothing appearing in table the recordfo except this case from the general rule laid down in Root v. Rauway Co., 105 U. S. 189, "that a bill in equity for a naked account of profitsanq damages against an infringer of a patent cannot, be sustained." This is the only object of the complainant's bill, so far as it relates to the infringement of the ventilator patent; for, although the bill prays for an injunction against the further use of this patent by the defendants, the decree enjoins the continued infringement of the register patent only. It is true that the defendants have been late in making the objection to the jurisdiction of the and that their proper course would have been to demur to the bill; but, as was by Judge NIXON, in Spring v. Domestic S. 111. Co., 13 Fed. Rep. 446:' "It is never too late, at any time during the pendency of the proceedings, for, the court to examine into its rights and powers to make a' decree, or enter a judgment in a case." It, is unnecessary to inq]lire, into the causes of the unusual delay in the progress of this suit. They in no manner affect the question. If jurisdiction never attltched, neither waiver, delay, or consent can now confer it... The ,fact that the contrivances covered by the expired and the eXisting patents could he and were used conjointly by the defendants is of' no importance, in View of the additional faet that they were also distinct and independent, and that each could be and was applied and used in a different Illanner from the other. Their combined
WIRT 11. BROWN.
use by the defendants may render the taking of an account the more diffiGult, bQHhe mere intricacy of an account will not furnish ground fdr equitable interference .intbe absence of jurisdiction of the principal cause, of which.the accountis only an incident. Hipp v. Babin,19 How. 271j Ri)ot Vi. Railway 00., 8upraj Campbell v. Ward, 12 Fed. Rep. 150j Lord v. TJ'hitehead &- Atherton M. 00., 24 Fed; Rep. 801 j Adam8 v. Bridgewaw I. 00.,26 Fed. Rep. 324; Consolidated, etc., 00. v. Ashton, etc., Co.,ld. 319; Broo1clJ v. Miller, 28 Fed. Rep. 615. In (}kJ,rk v; Wooster, 7 Sup. Ct. Rep. 217, cited by the complainant's conns-el, the' court below had jurisdiction at the inception of the suit, thQugl1()l). anarrpwground, as the patents had but a short tb:ne to runj yet, as the defendants did not ask for the dismissal of. the bill for want of jurisdiction, the appellate court refused, after the ease had been tried and determined, to reverse the decree. The supreme court, speaking by Justiee BRADLEY, said:
"The court below had jurisdiction of the case, and could retain the bill, if, in its discretion, it saw fit to do so, which it,.did. It might have dismissed the bill if it had deemed it inexpedient to grant an injunction; but that was discretion, and with that discretion it is not our a matter in its own province to interfere, unless it wils exercised in a manner clearly illegal. We spe.no, in tlle of its exercise in thiscas.e. "
tiono:f that portion of the bill which prays for an injunction to restrain
Inthe case at bar, as already indicated, this court never had jurisdic-
the infringement of the ventilator patent, and it was equally without power to order an account as incident thereto. An order will therefore be entered to open.and reform the interlocutory decree heretofore made, in accordance with the petition, but without costs to the defendants.
WIRT 11. BROWN.·
(Oirouit Court, E. D. NIfW York. January Ii, 18B7.)
PATJll:NTS FOR rnVENTIO:NS-1:NJU:NCTION-NEW PATljl:NT-CONTEMPT.
Where defendant was enjoined from making a certain kind of pen, and thereafter made a different· pen, on which he obtained a patent.,held. on motion to attach for contempt of injunction. that the fact that a patent had been issued to defendant entitled him to have the question of infrmgement determined on a motion to prevent the making of this form of pen, and that the present motion should lie denied.
In Equity. On motion to attach for contempt. W. S. Logan, for plaintiff. Charle8 H. Bulkley, for defelldant.
BENEDIcT, J. The motion for an attachment in this case the sa.me question that arose in Onderdonk v. Fanning, 2 Fed. Rep. 568. JReported by Edward G. Benedict, Esq., afthe New York bar.