Page:Federal Reporter, 1st Series, Volume 2.djvu/349

 342 PEDEBAL EKPOBTEB. �defendant should do this at the New York office, either himself or by the employment of clerks. The defendant says in his testimony that the clerks are paid by the government. This is doubtless true, in practical effect, so far as he isconcerned; still, it is to be presumed that the business is done according to the law, and he probably did not intend to testify that it was in any respect done contrary to the law. The lawis that the postmaster general may allow to.the postmaster at New York city, and to certain others, ont of the surplus revenues of theirrespective offices — that is to say, the excess of box rents and commissions over and above the salary assigned to the office — a reasonable sum for the necesssary cost, among other things, of clerks, to be adjusted on a satisfactory exhibit of the facts. Eev. St. § 3860. �The defendent is, therefore, to be taken to have made this saving out of moneys actually received into his hands from the profits of his office. He saved it by using the invention in the performance of duties which he was required to do, and bad just so much more money left in his hands by reason of the infringement when the duties were done. He did this as postmaster, but he was not obliged to do it. . He could have refused the office, or resigned it, or have let this invention alone. He was not subject to any restraint, phys- ical or moral, that he could not make subservient to his own choice, His choiee was to use this invention and make this gain. When made it belonged to the orator. He paid it over to the government, and it passed beyond his reach and the orator's, unless it is recovered in this suit and reim- bursed to him under the law. He bas not these profits now, and would not have them if he had cast the money into the sea ; he bas had them as he would have had them then. The situation of the defendant is very different from that of the city of Elizabeth, in FÀizahetk v. Pavement Co. 97 U. S. 126. The city had not saved or made anything by the in- fringement, and was not liable for profits in any view, whethei^any one else was or not, and never had been. Here the defendant bas paid over to the government what belonged ����