470
FEDERAL REPORTER.
their own laches. 'rhey bad, it is said, full notice of the composition proceedings. They knew, or could have known, of each successive step as it was taken, yet they made no sign. No objection was interposed, no suggestion made to the court, no warning given to th41 assignee. They stood by and saw the composition resolution carried out in good faith by the court, the bankrupts, the assignee, and the other creditors without dissent, and cannot now be permitted to set in motion machinery calculated to give them an unfair advantage, and affect injuriously the rights of innocent parties. '{'his is the argument. It is certainly persiJasive, and would, quite likely, be controlling, were it not that the question, being jurisdictional in character, cannot be affected by the mere inertness and the silence of the credo itors; and further, an examination of the papers discloses the fact that the proceedings in the county court were commenced only four days after the petition in bankruptcy was filed. At the date of the final order in composition, at the very time the assignee delivered back the property to the bankrupts, a motion was pending, at the instance of Fraser, Bell & Loughran, to compel him to Mcount, and to punish him for contempt in not having accounted before. He had, then, direct and positive notice of the position of these creditors, and cannot now be heard to say that he was entrapped, or that he proceeded in ignorance of their hostile attitude towards him. He was perfectly aware of the situation, acted with full knowledge, and, knowing what risk he ran, concluded to assume it. lt would, in such circumstances, be an arbitrary assumption of power to permit the summary writ of injunction (which should neve1' issue in a doubtful case) to go out against creditors who have a decision of the supreme court of New York in their favor, and thus, in effect, restrain a state tribun.al which has had jurisdiction of the con. troversy for more than seven years, and which is fully competent to to protect the rights of all parties concerned. The motion must therefore be denied.
SMITH
and another
t1. SANDS
and another. April 11, 1885.)
(Circuit Oourt, W. D. Mid/joan, l:J. D.
PATENTS FOR INVENTIONS-MANUFACTURE AND SALE OF ONE MACHINE-USE BY PtrnCHASER.-REMEDY OF PA'l'ENTEE.
P. manufactured a single machine protected bycomplainant's patent, and S. bought the machine and continued to use it in his saw-mill for disposing of the saw-dust and refuse ot the mill, the purpose for which it was intended. Held, that the extent of the injury to complainant was the royalty or proper license for the use of the machine, that he had an adequate action at la.w. and that the bill for an injunction and accounting should be dismissed.
6.MIIH V. SANDS.
471
In Equity. Demurrer to the bill of complaint. Keating &: Dickerman, for complainants, Edward Taggart, of counsel. A. V. McAlv,Ij, for defendants. WITHEY, J. The demurrer filed to the bill of complaint is for the misjoinder of the defendants. At the time of the argument the defendants' counsel was permitted to present, ore tenus, the additional ground that the bill fails to state a case for equity jurisdiction. Inasmuch as this last ground of demurrer is believed to be well taken, the question as to a misjoinder will Dot be considered. In substance the bill of complaint states that complainants are own· ers of certain letters patent for machines and devices for burning the saw-dust and refuse of saw-mills, that they have put the machines into practical use, and that the public has long acquiesced in their exclusive right to the same. The defendants, without license or permit, have unlawfully made, or caused to, be made, sold, and used infringing machines; particularly that defendant Peters erected one infringing machine about July 15, 1881, and sold the same to defendant Sands, who has ever since used such infringing machine, and that said defendants still continue so to do in defiance of your orators' said rights, whatever that may mean. The bill states that the complainants have been damaged and suffered large loss of profits, to-wit, to the amount of $10,000; that the defendants have been requested to refrain from "such infringement," but they still continue the infringement and wrongful acts aforesaid. The prayer is for an accounting as to profits and damages, and for an injunction. So far as the matters stated in the bill are well pleaded, the demurrer admits them to be true. Accordingly, it appears that the defendant Peters, by making and selling the infringing machine for use, infringed the exclusive patented rights of the complainant, and so did the defendant Sands by using the infringing machine, and both are undoubtedly liable for the injury in an action at law. But the defendant Peters manufactured but the one machine, which was in July, 1881, more than three years before the bill of complaint was filed, in September, 1884, and there is no claim that he threatens or gives out that he shall repeat the wrongful act by making another. As to him, therefore, no ground exists either for asbng or granting an injunction, and the bill of complaint states no ground for entertaining jurisdiction by a court of equity, if there is no cause for an injunction, so far as regards the defendant Peters. How is it as to the defendant Sands? He bought, and has continued to use, the one infringing machine. It is used only in his sawmill for disposing of the saw-dust and refuse of the mill; it is not employed in the manufacture of any article or thing for market or for sale, and it is for the interest of complainants that all saw-mills use their patented machines, provided they are paid the priae of a license. The ex.tent of their injury for using a single machine in-
472
fringing their patents is the royalty or a. suitable license fee. When :mce they have been paid the price or value of a license, they have received the full measure of the "actual damage" they suffer for any particular infringing machine used by another, and it is the full remedy they are entitled to, except a court may treble the actual damages if the circumstances justify it. Such damages once recovered would be a bar to a subsequent suit for further damages, no matter how long the infringing machine is used by Sands subsequent to such recovery, because the injury for the particular wrongful act of using the one machine is complete and has by such recovery been fully compensated. The infringement is not one where there is a .damaging and constantly increasing competition and loss of profits, and hence there is irreparable injury to the complainants, and no occasion to exercise the power of an injunction to restrain or pre· vent a multiplicity of suits. As has been said, complainants by an action at law against the respective defendants can recover full compensation for the infringements. The only wrong done is the nonpayment of suitable license money, and the indefinite use by Sands of this same infringing machine Will give no right to demand more. It is conceded that courts of equity have assumed jurisdiction in similar cases as the one presented by this bill of complaint. Howe v. Newton, 2 Fish. 534, Morris v. Lowell Manuj'g Co. 3 Fish. 68-70, and Blake v. Greenwood Cemetery, 3 Bann. & A. 112, are among them. But Justice GRIER, at the circuit, l'efused an injunotion, and intimated very clearly that a court of equity does not have jurisdiction in cases like this one; that the remedy is at law. Sanders v. Logan, 2 Fish. 167. The bill in that case was dismissed on another ground. Since Root v. Railway 00. 105 U. S. 189, was decided, in which Mr. Justice MATTHEWS reviews the patent laws and the decisions under them, showing when the remedy is in equity and when the sale remedy is in a court oT law, for the infringement of letters patent, no court of equity, it is believed, would assume jurisdiction in a case like this, or in either of the cases cited above. The demurrer is sustained for the reason stated, that there is no case for equitable jurisdiction under the statements of the bill of com· plaint.
THE
M.
VANDERCOOK.
(Di8trict Oourt, D. New Jer8ey. 1.
June 30, 1885.)
SALVAGE SERVICE-HELl, GATE-TOWAGE-AwARD.
On May 4, 1884, the M. Vandercook was bound through Hell Gate to the city of New York. the tide running a strong ebb. When she reached a point in said Hcll Gate abreast of Flood rock she broke her shaft and lost her propeller, by reason of which she became perfectly helpless, and was in danger of and would have gone ashore, and tilled and sunk, as the channel of Hell Gate is dangerous, full of rocks, through which the tide rushes with great velocity,