IN RE ALLIN.
(District Oourt, D. Vermont. September 6, 1881.)
A receiver of lands, on a part of which he holds a mortgage with condition broken, must account for rent issuing out of such part as 'Was not covered by his mortgage, where he rents them for a term which did not exprre until after payhis appointment, and before his appointment receives the rent, which able in advance, for the full term.
In Bankruptcy. WHEELER, D. J; This cause has been submitted upon the report of the' register, to whom was referred the matter of the account of Renry L. Tilton, receiver. !Upon this part of the case the receiver's account only is to be settled. 'What he has received on 'acoount of the property of which he was made receiver, and what he is entitled to' retain in his own right, are to be ascertained, and the differeneeis to be paid into conrt,to go to whomsoever it may be decreed to belong. He was made receiver of lands, part of which was covered by a mortgage with condition broken, held by him, and part not. He .had claimed the whole by an invalid subsequent mortgage, and ,rentlld them at $300 fora year, which had not expired, but the had become due and been paid when he was appointed receiver. He rented them the next year at $250, and has collected two-thirds of that rent. One-third of these sums was due to what his mortgage did not cover, and the other two-thirds to what it did cover. The bankrupt had a homestead right in the part which the mortgage covered, and with his wife conveyed it to the receiver. These premises have been sold free of the homestead right, but subject to the mortgage, and $500, representing that right, have been paid into court. He has leased these premises since that sale and received rent. He claims that he is not chargeable at all as receiver for the rent received before he was made receiver, for the year during which he was appointed receiver; that rent was received for the whole year, and not for a part expiring at or before the rent was paid. It issued out of the land and was the product of the whole year, and appears to have been paid so much in advance as security, and not becll.use it had fully accrued.' When so paid it was in Tilton's hands in trust until accrued. Had the lessee been evicted by title paramount to Tilton's, . doubtless the rent so advanced could have been recovered back. Tilton was appointed receiver while his right to that rent in his hands v.8.no.1 0-48
was accruing and becoming perfect. There is no apportionment of rent as to time, except.in special and differept cases, and the right to this rent became perfect in him as receiver, and he, is to be charged with the third of it 'as such, as if he had been while it was fully accruing. No claim is made but that he should be charged wit,h the one-third of the next :rent, except that he ,was to have $500 for buying in.the valid mortgage, which has not been paid, and took the invalid mortgage and the conveyance of the homestead to secure the payment of that sum. The agreement to pay the $500 was made by Ellery K. Allin, son of the bankrupt. That agreement created no charge up(>.u the land or the rent" for he had no right to charge either. ThevQid mortgage created no right!! in the hands o,f any The homeBtead right is now I;lepa,rated from the land, and vested in Ithe money set ap..,rt for,jt,'}which is in court to be dispqsed of by decree. The reeeiverhas no right left upon,:w4ich heca,n stand to hold any of the rent but his, mortgage. Under.t.1;l.at, I:'s mortgagee in possession, he has-the right to the rents mortgage to apply on his mortgage debt. , He has no right to other lands for that purpQse, fo;r chis rights in those respec.ts all rest upon the and can extend only so)aras the extends. He has .nodght to them to pay any, other debt,for the mortgage only secure!:! them()rtgage debt. No rent has been received for any but the· mortgageprflmises but for those two years. On account of the third que to the part not c.overed, 1:)y the he is to be charged, for the firElt year, one-third of $300, which is $100.00 For the second yeal', of $250, which is''f · Making ., · .$183.. The report does not. ShOWl that he has received interest ,on these sums, and there is no grouqjlapparent for charging him with interest. He is entitled to pay for his services, and expenses a,s allowed, which amount to $114.50. The amount paid for, ,counsel fees appears to hav;e been paid for the maintenance of his individua,l rights as against others represented by the and not in the assertion$of. .the rights belonging to the receivership; therefore, that item is not allowed. The balance in his ha:t;l.dsis to be pajd into' court, to disposed of by decree in the Cause. It is $68.83'., .. , ' " The report is accepted and confirmed, the :is to pay into the regil'jtryof the court said sum of $68.83.within 20 daxs, and upon such payment he is discharged from his receivership. .,
(Oireuie Ooure, N. D. Illirwis. July, 1881.)
I.. REISSUE No. 3,932-CULTIVAron-REFERENCE TO MASTEn-ExcEPTIONIl TO MAsTER'S REpORT-NOMINAL DAMAGES-COSTS. . Upon a reference for the infringement of the first claim of reissued letters patent No. 3,932, granted April 26, 1870, to Julius Gerber, for improvement in cultivators, being but one element of a number composing defendant's device, and consisting in hinging the beams of the cultivator to the pole or tongue· between the evener and neck-yoke, exceptions to master's report, finding arbitrarily, independent of any affirmative proof by the complainant, one-half the total net profit of defendant's machine to be due to such feature, sustained,and d.amages and costs only awarded complainant. 2. PATENT FOR BINGLE FEATURE OF MACHINE....;..INFRINGEMENT-MEASURE OF DAMAGES, When a patent covers but one of many features of a machine, the gains on. the whole machine cannot be reckOned as damages for infringement thereof, but only the gains arising from the use of the special device or element claimed by' such patent. ': . . Seyrrwur v. MeOormick, 16J;Iow. Noek, Wall. 460; Mowry v·.. Whitney, 14 Wall. 620; Oawood. Patent ClUe, 94 U. S. 710; Goulds ManuJ'o (fo·. v. Oowing, 8 O. G. 278. S. BUrGLE INFRIl'lGIl'lG ELEMBNor:-Oo:M:BINATION WITH INFRINGIN'G ELEMENT. lIEASURE' OJ' DAJUGES. Where a machine is composed of several elemen\s, only one of which infringes a. patent, the others making the whole a complete and operative mechanism, being covered by patents in which the complailiant has no interest, or' ,are public property, the complainant cannot recover1profits made by the use of }luCh even in combination with his device.. 4. INFR:INGE:llENT-DAMAGES-PROOF-BuRDEN OF PBOOF. The complainant must show his damages by reason of the infringement by evidence. They niustbe proved, and not jumped at. They ate not to be' pre· Nock, 17 Wall. 460; Btakev. Robertson, 94U. B. 733. 5. SAME-INFRINGING ELEMENT NOT INCREASING VALUE-NOMINAL DAMAGES. Where the defendant shows by affirmative pro()f that his machine derived nC); increased value in the market from the use of the infringing element, the plainantcan only recover nQminal damages: ' 6. BAME-SAME-AFFIRMATIVE PROOF BY DEFENDANT-ABSENCE OF PROOF BY'
GoMl'LA:INANT. . ,
Affirmative proof by defendant that he has made no profit by the use of the infI;inging feature, supplemented ,by th«!lack of proof to tire contrary by thecomplainant, make no recordftom which any damages or profits Can be shown. 7. 'SAME-DAMAGES-AFl'ORTIONMENT-BuRDEN OF PnooF-EvIDENCE-TANGIBLE-SPECULATIVE. " '., " . of proof is upon the complainant to separate or aPl?ortion the defeildant's profits and complainant's damages between the features infringed' and not infringed,and such evidence must be reliable and tangible, not conjectural:W speculatiye; or he must show by equally r,eliable ap.p,/illotisfactory the profits and'damages are to be. calculated on the' Whole machine, for the reason that 'the eilti'rc value of the whole riiachine as amarketa... blc article is properly and legally attributable to tIle patented feature.