Page:Federal Reporter, 1st Series, Volume 5.djvu/819

 CAMFBEIiL V. JAKES. 807 �upon the question as to the passing of Eddy's right to re- cover gains and profits already a'ccrued by the same assign-: ment ; and upon the motion of the plaititiff for an inorease of damages to be recovered. �The motion for a rehearing in chief is based upon sorae inaccuracies in the statement of the age of a witness in the former opinion, and upon the supposition that, because some of the testimony, and of the reasons leading to the finding, are stated, the other evidence was overlooked, and no other reasons were considered, Thissuppositionisnotwellfounded. There was no attempt to review ail the evidence, or to state ail the reasons bearing upon that question of fact, in the opinion. �Nothing material, not before considered, bas been suggested as ready to be offered in respect to the exceptions to the mas- ter's report, nor in respect to the' pàssing of Eddy's title to the patent by his assignment. '■''■■ > �It is urged that the right to recbtër gains and profits would not pass without the right to the patent itëelf. This is prob- ably true at law, but perhaps hot so in equity. The right to recover them by the assignee, in the nàûie of the assignor, has not been denied in any case cited in argument or that bas been seen. In this case, as it ôtands, the form of the recov- ery in one name or another is not at ail in question. The right to the gains and- profite; as' between the defendants, other than James, themselves, when recovered, only is in controvetsy. The right of the jplaintiff to the share of Eddy has been acquired since the decree, as a part of a sum already recovered, and not as a right of recovery acquired before recovery 'had. There appeairs' to be no obstacle in the ■way of acquiring such a right. No damages have been found in this case, and there are none as such to beincreased. The statute authorizes an increase of dardages, not an increase of gains andprofits, to be recovered. Eev. St. §§ 4919 and 4921. If damages existed to be increased, the circumstances of this case would not warrant any intirease. There has been no wanton invasion of the rights of the owners of the patent by the defendant. The use of the invention in such manner as to ����