Page:Federal Reporter, 1st Series, Volume 4.djvu/471

 BTErdEE V. HEIDELBEEGEB, e57 �■was filed the plaintiff filed a bill in said circuit court in Penn- sylvania against the members of said firm, for an infringe- ment of said patent by them, by making, using, and selling show-cards for embroidery alleged to contain said patented invention, and praying for a de cree that they pay to him ail profits realized from said infringement, and ail damages sus- tained by him thereby, and for an injunction restraining them from making, using, or vending any show-cards containing said improvement; that the defendants in said suit were served with process therein, and appeared and answered said bill, setting up a defence; that said answer was replied to, and said suit is pending undetermined ; that said bill is for the same subject-matter and things, and the same alleged grievanees, as are set forth in the bill against this defendant, and in fact, legal effect, and intendment; prays a remedy and relief against and damages and profits for and on accouiît of, among other things, the alleged acts of this defendant, as set forth in the present bill against him, and that said alleged acts of this defendant, as an employe of Loeb & Schoenfeld, are, in contemplation of law, deemed and taken to be, and are included within, and constitute a part of, the alleged wrongs and grievanees sued for in said bill filed in Pennsyl- vania, and that the rights, relief, profits, and damages, if any, to which the plaintiff is entitled by reason thereof, constitute a portion of the subject-matter and of the claim of said bill against Loeb & Schoenfeld, and are recoverable thereunder ; and that, therefore, this defendant pleads said former bill and answer as a bar to the present bill. �As to the first branch of the plea, or the first plea, which- ever it may be, (no point being made or decided as to whether there are two pleas or only one, or, if two, as to the propriety of pleading two pleas without leave,) the plea must be over- ruled, The substance of it is that the defendant is not liablft in this suit for what the plea sets forth as having been done by him. This is not so. The plea shows that the defendant bas made a separate and independent profit to himself out of the sale of such goods as he has been instrumental in selling, by receiving a commission thereon, in which commission Loeb ����