¶1(after holding, that, on other grounds urged, a new trial ought not to be granted). The proof of damages sustained by the plaintiff did not, I think, justify so large a verdict. Although the action is. in form, tort, the verdict should be for actual damages only. Where the circumstances of the case make it just and proper, the court are authorized to award, in the judgment, not exceeding three times the ae-tual damages found by the jury; and this furnishes ample opportunity to the plaintiff to obtain whatever greater sum the court may deem reasonable. But the duty of the jury was to find the actual damages, and the bur-then was upon the plaintiff to establish those damages by proof.
¶2Yielding full weight to the presumption, that, in a community where the improved leather was in great use and demand, the plaintiff would have realized the profit of preparing the skins, or an equal number of skins to those, which the infringing defendants prepared by the use of the invention, the ease, on the proof, stands thus: Taking the testimony most favorably for the plaintiff, the profit he lost was $1 87% on each dozen of skins. The defendants, in their estimate of the quantity they manufactured after the patent was re-issued, made not exceeding three hundred dozen. The plaintiff’s loss, on this most favorable view of the evidence, did not exceed $562 50. I apprehend, however, that this does not necessarily require that a new trial should be granted. The plaintiff may, if he sees fit, remit the excess.
¶3Besides this, where the court has power, and is called upon, to grant treble damages, this excess may be considered, and, in the discretion of the court, the error be fully corrected by such enhancement of damages as may seem just, to indemnify the plaintiff for the expenses of prosecution, especially where, as in this case, the infringement seems deliberate and intentional, though it may have been done under an erroneous estimate of the plaintiff’s rights. The plaintiff seeks a reasonable increase of the sum found by the verdict; and I think it is a proper case for such an allowance. It is not reasonable that an inventor of a useful improvement should be compelled to spend his means in protecting himself without indemnity, and so practically lose the benefit of the invention which the law is designed to secure to him.
¶4I am disposed to award judgment for $1,-200 and costs of suit; but, if the defendants prefer that course, and that the record may conform to my views of the evidence, the plaintiff may first be required to remit the excess before mentioned, or submit to a new trial, and the order of the court thereupon will award him judgment as just stated. j