Page:Federal Reporter, 1st Series, Volume 8.djvu/775

 MAGCIRE V. EAMBS. 76] �The only question, then, that remains is this: the complainants, having shown no damages in the case, will be entitled to a decree only for nominal damages. And the only question is, who shall pay the cost of the reference ? It was contended on the argument that, inas- mueh as no damages have been shown on the part of the complainant, the costs of the reference should be assessed against the complainant. I cannot subscribe to this view of the question for this reason : This. suit was commenced in 1873 or 1874, and the defendants persist- ently fought and resisted not only the validity of the complainant's patent, but the question of infringement. If they had said frankly, at once, as they now say at the end of the conflict, "we get no benefit and make no profit by the use of that part of our machine which inf ringes yours, and therefore we are willing to abandon it ; we can make just as good a cultiyator without using it," and had at once changed or modified the form of their cultivator in that regard, they would have stood in the iight before the court of acting fairly and frankly with the complainant ; but instead of that they resisted the validity of the complainant's patent, denied that they infringed, and fought him to the bitter end upon the question of infringement ; and, when that question was adjudged against them, fell back upon the question of damages. It seems to me, therefore, upon the evidence, that the entire expense of the reference should be .adjudged against the defendants. �The exceptions will be sustained so far as anything but nominal damages are found by the master, and a decree entered giving judg- iaent for nominal damages and costs against the defendant. ���Maguim V. Ea-mes. �(Circuit Court, E. D. New York. Septemter 28, 1880.) �1. liETTEBB Patent— Htdraulic Power Accumulatoe— Patent Bboader than Impbovbmekt. �Patent No. 202,660, granted for an improvement in hydraulic power accumu- lators, is void, because broader tban the improvement. �James Ridgway, for plaintiff. �W. H. McDougal, for defendant. �Benedict, D. J. This action is brought to recover damages and for an injunction to prevent an infringement by the defendant of a patent for an improvement in hydraulic power accumulators, granted to the plaintiff April 23, 1878, and numbered 202,660. Hj'draulic accumu- ��� �