BRUSH ELECTRIO CO; tl. BALL ELEctRIC LIGHT CO.
on behalf of the public,and :in pursuance of a public policy of enforcing
.tI. recent act of congress to prevent combinations ill festraintof trade and commerce. It is manifest fuat-the'act is new,and this a mostimportant application of it. It would more injure the defendants togrant this preliminary injunction if, on the hearing, it should turn out that the case
does not fall within the act. ,than it would injure the public to withhold the injunction until the final hearing; and the more since the United States gives no bond to protect the defendants against that injury, as a private suitor WQ,uld be compelled to do. When ,this is the situation of the parties the rule is to refuse the preliminary injunction, and abide the hearing.';The court ,reserves allexptession of /)l)i'Oion on the subject-matter of the bill until that time, as the best for all concerned.
17. BALL ELECTRIC LIGHT
oourt.8. D. New Yor1c. No;vember 8, 1890.)
In e.·bill,for infringement of letters patent, to have been issued In 1879, and assigned to1ihe complainaJ!.t. in 1880, an averment. of an infringement of the latter's rights" since the date of said patent "will be construed .as me8.lling after or subsequent to the date of the patent, and not ever since that time, and the bill ill Dot subject to demurrer for laches ot complainant in his rights.
POR INFRINGBMENT-DEMURRER FOR LACHES.·
On Demurrer.' Henry A. Seyrrwuf, for complainant. Philip J. O'Reilly, for defendant. COXE, J. This is' an equity action for infringement of letters pateflt granted to Charles F. Brush, September 2,1879, and now owned by the complainant. The action was commenced February 25, 1890. The usual relief is demanded. The bill alleges that the defendant has "since the date of said patent, since September 2,1879, at New York, within said district," infringed upon the complainant's rights. The demurrer is aimed at the language quoted. the contention being that the defendant is there. charged with a continuous infringement silice the, date of the patent, and that equity will not aid a complainant guilty of such laches in asserting his rights. That the language is open to the construction contended for by the defendant is not denied, but it is equally true that it can be so construed as to sustain the bill, and that such a construction is the more natural one. "Since September 2, 1879," does not necessarily mean ever since September 2, 1879. It may mean after, or subsequently to; September 2, 1879. Engraving Co. v. Hoke, 30 Fed. Rep. 444; KiUl.e v. De GraaJ, ld. 689. That the word "since" wRsused in the latter senseis evident from the fact that it is alleged elsewhere in tbebillthatthe patent was not assigned to the complainant untilSep-: tember,1880. "It cannot be said, therefore, that the pleader intended.
to .aver that the defendant had infringed upon the cOlllp1ll>inant's righte continuously since September, 1879. The complainant l;1ad no rights under the patent until September, 1880. The demurrer is overruled. The defendant has 20 days. in which to answer.
tI. NORTHERN PAO.
(oo£rcul,t oourt. D. North Dakota. November 8, 1890.)
DBoiIli'r-)bIASURB Oll' DAMAGB&' .
In an action for deceit in misrepresenting the value of land sold, the measure of damages under Code Dak. 5 19.67, (providing that the measure of damages for the breach of an obligation not ari,8ing from contract, except where otherwise is tbe amount whic1:l will compensate for all the detriment proximately causea thereby,) is the loss sustainell by reason of the fraud. Following Smith v. BoUes, 182 U. S. 125, 10 Sup. Ot. Rep. 89; Atwater v. Whiteman, 41 Fed. Rep. 427.
" . .
In such an action an instruction to the effect that the measure of damages is the difference between the actual valne of the land and its value as represented by the .vendor is reversible error when it cannot be seen by an inspection of the record that. the jury did not follow suoh instruction. 'Aftldavits· of jurors showing that they did not follow tbe erroneous directions of tbe court in arriving at· their verdict are inadmissible on motion for new trial, though offered in support of the verdict.
8. NEW TRIAL-AFFIDAVITS Oll' JURYMEN.
At Law'; On motion for a new trial. This is an action brought to recover damages for deceit in the sale, by the defendant to the plaintiff of 2,240 acres of land situate in the county of Wells in this district. The action was tried in the territorial district court in and for Stutsman county, in' the sixth judicial district, and a. verdict and. judgment were rendered for the plaintiff on the 26th day of Novelllber,J888, for 812,609.58. A motion for a new trial was thereupon made by t:he defendant in said territorial court, which motion was pending on the 2d day of November, 1889,when the state of North Dak9ta wns ndmitted into the Union. A bill of exceptions was settled '!?y t4e jUdge of the court who tried the cause 011 the 30th property in controversy is situate within the day of August, 1889. said sixthjudicial district as it existed under the territorial system, and all of the said district is included within the boundaries of the state of North Dakota. Upon the admission of the state into the Union this action was transferred from the territorial court into this court upon the request of the to section 23, c. 180, (25 St. at Large, 676,) and on the 8th day of October, 1890, the .said motion for a new trial was brought on to be heard before this court. The plaintiff alleges in his complaint, among other things, in substance, that on or about the 1st day ,of ;F'ebrulj-fY, 1883, at Jamestown/in the county of Stutsman, and terrlt()ry of Dakota" the defendant, the NorthemPacific Railroad for a valuable consideration, to-wit, the Company, 801d to thia Bum. of the lands questiop, described as follows, to-wit: Tht)