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he held Badge and Eaton accountable to himself for rents of the property. After full hearing, and on the exhibits as to title and other evidence, the court rendered a decree in favor of plaintiffs. This decree was rendered on the fifteenth day of December, 1876. It says:

"This cause came on to be heard on the original, amended, and supplemental bills, exhibits thereto attached, and the answers and exhibits thereto attached, and the proofs and other exhibits in the cause, and from all which it appears to the court, and the court adjudges and decrees, that plaintiffs are entitled to the relief prayed in their bill: that the title to the lands embraced by the terms of the lease, (Exhibit A,) to complainants' original bill, and described in the deed from E. Alley to H. L. Whiteside, dated twenty-sixth April, 1870, (Exhibit A,) is and was at that date in complainant Whiteside, and superior to the title of the defendants, and that she was on that day * * * in actual possession of said land and premises.

* * And it further appearing to the court that the said lease of June 1, 1870, has expired during the proceedings of this litigation, and that the defendants, Badge and Eaton, decline and refuse to demand or accept a renewal lease, as provided for in said Exhibit A, and it further appearing, pending this litigation, the said defendants Badge and Eaton have combined and confederated with defendant J. C. Haselton to injure and defraud complainants, and to carry into effect such object, delivered over into custody and pos. session of J. C. Haselton the said leasehold premises, who now, in violation of the rights of complainants, is holding and claiming possession of the same, illegally and wrongfully: The chancellor, therefore, upon this branch of the case, and in view of the whole case, declares that the said complainants re-o cover from the defendants the possession of all said leasehold premises, including said Vulcan mines, and the property thereon mentioned in said Ex.* hibit A, to be returned to complainant H. L. Whiteside at the termination of said lease, to-wit, all the buildings, houses, tramways, tracks, entries, and approaches to said mines and upon said lands, the same having, with the mines and leasehold premises, been agreed and covenanted by defendants Badge and Eaton to be delivered up in good condition to complainant H. L. Whiteside at the expiration of said lease, and a writ of possession will issue, upon demand of complainants, by the clerk and master of this court, to put complainants in the peaceable, and quiet, undisturbed possession of the same, and as to all said property the injunction in this cause is made absolute."

Here was an issue raised between Mrs. Whiteside and Haselton as to the title to this property,—the same issue and the same title now in question. It was necessary in that case that it should be decided, for if the plaintiff had no title to the land she had no right to recover, and the decree in her favor is that she had such title; that it was paramount or superior to that of defendants, including Haselton; and as by fraudulent confederacy of the lessees with Haselton the latter had possession, a decree for its restoration to plaintiffs was made. That such a decree is, if the court had jurisdiction to render it, which cannot be questioned, conclusive upon the parties before the court, is not doubted. Until reversed, set aside, or annulled by some appropriate judicial proceeding, it cuncludes Haselton and his privies. To this it is objected that the suit was between Badge and Eaton and Mrs. Whiteside, as landlord and tenant, and could not bind Haselton. The answer is, that Haselton had induced Badge and Eaton to acknowledge his title and deny plaintiff's, and when sued and brought into court he accepted the issue, denied plaintiff's title, and asserted his own, and his right to the allegiance of the tenants. On that issue of title the decree was clear and full against him, and he must abide by it. It is argued that he does not bind the Bartow Irono Company, who were innocent purchasers from Haselton. • But they bought pendente lite, and, by the well-known rule on that subject, are bound by this decree. The suit was commenced December 5, 1874, Haselton's answer filed

April 14, 1875, and the deed, though without date, from Haselton to the company, is acknowledged September 8, 1875. It is apparent, also, that during all the time Haselton was president of the Bartow Iron Company. The fact that the corporation was organized under the laws of another state does not, under these circumstances, relieve it from the rule which governs purchasers of property pending litigation about the title. We are of opinion that, as this case is presented to us, the decree of the chancery court of Hamilton county, Tennessee, is conclusive of the rights of all the parties to this suit.

The decree of the circuit court is therefore reversed, and the case remanded to that court for further proceedings in conformity with this opinion.

COOK 0. SANDUSKY TOOL CO.

(January 21, 1884.)

PATENTS POR INVENTION-ANTICIPATION.

Appeal from the Circuit Court of the United States for the Northern District of Ohio.

Geo. H. Howard and H. E. Paine, for appellant.
M. D. Leggett and L. L. Leggett, for appellee.

WAITE, C. J. The decree in this case is affirmed. If the hoe made by the tool company infringes the patent of the appellant, it was an anticipation of the invention, and the patent is void, for the testimony leaves no doubt whatever in our minds that the company made and sold their hoes long before the date of the invention patented. if it is not an anticipation it is not an infringement. Affirmed.

(110 U. S. 215)

VINAL O. WEST VIRGINIA OIL & On LAND CO.

(January 21, 1884.)

PARTNERSHIP ACTION BY PARTNER.

One partner cannot recover his share of a debt due to the partnership in an action at law, prosecuted in his own name alone, against the debtor.

1

John A. Hutchinson, for plaintiff in error. N. Goff, Jr., for defendant in error. WAITE, C. J. This judgment is affirmed. One partner cannot recover his share of a debt due to the partnership in an action at law, prosecuted in his own name alone, against the debtor. That is the only question presented by the bill of exceptions in this case. The refusal of the court below to grant a new trial is not reviewable here. Affirmed.

(110 U. 8. 301)

ILLINOIS CENT. R. Co. 0. TURRILL, Adm'x, etc.

MICHIGAN S. & N. I. R. Co. 0. SAME.

(January 28, 1884.)

1. PATENTS FOR INVENTION-INTEREST ON JUDGMENT-ERROR IN AMOUNT OF DAMAGES.

Where upon appeal from a decree awarding damages to a patentee for the infringement of his patent the case was sent back to a master to readjust the damages by making certain deductions, held, that the plaintiff was entitled to interest upon

the corrected amounts from the time of the master's report. 2. SAME-SURVIVAL OF ACTION-DEATH OF PATENTEE.

A cause of action for the infringement of a patent survives, upon the death of the patentee, to his representatives.

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Appeal from the Circuit Court of the United States for the Northern District of Illinois. *Geo, Payson, for railroad companies. Chauncey Smith and L. L. Bond, for administratrix.

WAITE, C. J. The effect of the judgments in these cases, when here on the former appeals, as reported under the name of The Cawood Patent, 94 U.S. 695, was to afirm the decrees then appealed from, so far as they charged these appellants respectively with the profits made from the use of the infringing machines known as the “Illinois Central,” the “Etheridge,” and the “Whitcomb," and to reverse as to the profits made by the use of the “Bayonet Vise,” the “Michigan Southern," and the “Beebee & Smith,” which were adjudged to be non-infringing machines. The total amount of profits arising from the use of all the machines, infringing and non-infringing, was settled, and the judgment of the courts was that the profits had properly been estimated by comparing the cost of mending on the machines with the cost of mending on a common anvil. This was found to be about 36 cents per foot mended in favor of the machines. Page 709. Nothing was left open for further inquiry but the amounts of the former recoveries for the use of the non-infringing machines. It was quite right, therefore, for the circuit court, when the cases went back, to direct the master to ascertain from the old evidence, if possible, and, if not, from new, how much should be deducted from the old decrees on acccent of the erroneous recoveries. The true way of determining this clearly was to find out what part of the profits for which the original decrees were rendered had been made by the use of the non-infringing machines. This the master attempted to do, and in the case of the Illinois Central company there is no doubt in our minds that the conclusion he reached was entirely correct. In fact, we do not understand that this is disputed. It is argued that a sufficient allowance was not made in the accounting for cut rails, but that question was settled by the original decree, and could not be re-examined on this reference. The inquiry now is limited to the amount of mending done by the use of the non-infringing machines and its comparative cost.

* In the case of the Michigan Southern & Northern Indiana Company, the evidence is not as satisfactory as in that of the Illinois Central. The shop books in which the accounts for repairing rails were kept, if kept at all, were not produced, and had probably been destroyed as of no value before the accounting took place. In their absence it is difficult to determine with accuracy what the facts were, but upon full consideration we are satisfied the circuit court did not in its decree underestimate the amount of deduction to be made in favor of this company. In making up the decree interest was added from the date of the master's report on the balances found due after

303 the ascertained deductions had been made, and this is assigned for error. As a general rule a patentee is not entitled to interest on protits made by an infringer. The reason is that profits are regarded in the light of unliquidated damages, (Parks v. Booth, 102 U. S. 106,) but in many of the cases it is said that circumstances may arise in which it would be proper to add interest. Mowry v. Whitney, 14 Wall. 653; Littlefield v. Perry, 21 Wall. 230. Here, as has been seen, in effect, the original decrees rendered in July, 1874, were affirmed in 1876, to the extent of the present recoveries. The cases were only sent back to ascertain how much should be deducted from those decrees for errors in the accounts as then stated. If the decrees had been entered originally for the present amounts, the patentee would have been entitled to interest from 1874. That was settled in Railroad Co. v. Turrill, 101 U. S. 836, which was one of the cases affirmed in whole at the former hearing in this court. Under these circumstances, it seems to us not at all inequitable to allow interest on the corrected amounts from the date of the master's report in 1879. The cases are entirely different in this particular from what they would have been if the original decrees had been reversed for error in the principles of the accounting. Those decrees may very properly be considered as affirmed in part and reversed in part, the new reference being had only to find out the exact extent of the reversals.

Since the present appeals were taken the patentee has died, and the appellants now suggest that the causes of action do not survive, and the suits cannot be further prosecuted in the name of the legal representatives of the decedent. As to this, it is sufficient to say that what was called by Chief Justice MARSHALL, in Gordon v. Ogden, 3 Pet. 35, “the silent practice of the court,” has always been the other way. It is every-day practice to revive such suits, and the books are full of cases in which this has been silently done, no one apparently entertaining a doubt of its propriety.

The decree in each of the cases is affirmed.

304

Mr. Justice BLATCHFORD did not sit in these cases, and took no part in their decision.

(110 U. S. 272)

JAMES, Adm'x, etc., 0. HICKS.

(January 28, 1884.)

1. ACTION TO RECOVER TAXES ILLEGALLY ASSESSED APPEAL TO COMMISSIONER-ACT

OF JULY 13, 1866.

Section 19 of chapter 184 of the act of 1866, declares that no suit shall be brought to recover taxes illegally executed until an appeal has been made to the commissioner, and decided by him, unless (sic) such suit shall be brought within six months after such decision; provided, that if the commissioner delays his decision more than six months, suit may be brought at any time within twelve months from the date of the appeal. Held, that the decision contemplated by the statute, is a decision

upon the merits, and not upon the mere formal accuracy of the appeal. 2. SAME-LIMITATION.

Under the said section a person who, upon the neglect of the commissioner to render a decision within six months, fails to bring suit within a year from the date of his appeal, is not thereby precluded from maintaining his action after a decision is actually rendered by the commissioner.

In Error to the Circuit Court of the United States for the Eastern District of Virginia.

Sol. Gen. Phillips, for plaintiff in error.
W. P. Burwell, for defendant in error.

*273

MATTHEWS, J. This action was brought by Hicks, the defendant in error, on August 15, 1879, to recover $3,292.95 for taxes alleged to have been illegally exacted by the intestate as collector of internal revenue on October 31, 1865. The only question now made is that the suit was not brought within the time allowed by law. The plaintiff in his declaration alleged that he appealed to the commissioner of internal revenue to refund the tax illegally collected, and that his appeal was rejected by the commissioner on January 22, 1879. To this declaration the defendant pleaded that the appeal to the commissioner to refund the money exacted, was filed in his office on February 8, 1866, and was rejected on May 7, 1866. To this the plaintiff replied that the appeal referred to in the plea was not duly made, and that it was not rejected on its merits, but because it had not been made and certified on proper forms as required by the treasury regulations; and that afterwards, on January 8, 1868, he made an appeal in due form, which was entertained by the commissioner, and finally decided and rejected on January 22, 1879. The finding of the fact on this issue by the court is as follows: “The issues in fact being tried and determined by the court in this cause, upon a stipulation in writing by the parties through their respective counsel, filed under section 649, Rer. St., the court find the facts as proved under the special plea of the statute of limitations, to be that the suit was brought within six months after the final rejection of the plaintiff's appeal made to the commissioner of internal revenue at Washington, the same having been pending before the commissioner from the time the appeal was perfected on form 46, according to the provisions of law, and the regulations of the secretary of the treasury inade in pursuance thereof. It is further found that the delay in the cousid. eration of the appeal by the commissioner, after its perfection on form 56 and the signatures of the proper officers required by law, was occasioned by the loss of the original papers filed with the department by the plaintiff or his attorney, and required by law to be kept there.” Judgment was rendered in favor of the plaintiff below, to reverse which, is the object of the present proceeding,

• It is alleged as error, in the first place, that the court should have treated * the appeal rejected for informality as the basis for determining the time within which the suit ought to have been brought. But that appeal was not so treated by the commissioner, who rejected it for mere informality and entertained the subsequent appeal, made in proper form, as rightly prosecuted. The latter, in our opinion, was the appeal contemplated by the statute.

It is further insisted, however, that treating the appeal of January 8, 1868, as the only one to be considered, the action was barred by lapse of time. Section 19 of the act of 1866, (July 13,) c. 184, (14 St. 152,) is: “that no suit shall be maintained in any court for the recovery of any tax alleged to have been erroneously or illegally assessed or collected until appeal shall have been duly made to the commissioner of internal revenue according to the provisions of law in that regard, and the regulations of the secretary of the treasury established in pursuance thereof, and a decision of said commissioner be had thereon, linless ach suit shall be brought within six months from the time of said decision, or within six months from the time this act takes effect: provided, that if said decision shall be delayed more than six months from the date of such appeal, then said suit may be brought at any time within twelve months from the date of such appeal.” Section 32:27, Rev. St., which was first adopted in the act of June 6, 1872, provides that “no suit or proceeding for the recovery of any internal tax alleged to have been erroneously or illegally assessed or collected, or of any penalty alle çe:1 to have been collected without authority, or of any sum alleged to live been excessive or in any manner wrongfully collected, shall be maintained in any court unless the same is brought within two years next after thie

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