ing, if it was really begun and prosecuted on its behalf and the
State is named in all the papers on appeal and the State's attorney
appears in this court generally, even if inadvertently, a motion to
dismiss on the ground that the State is not a party will not prevail.
Norfolk Turnpike Co. v. Virginia, 264.
See PRACTICE AND PROCEDURE, 9-12.
1. Infringement; patentee's right of recovery.
Where the infringer has sold or used a patented article, the patentee is
entitled to recover all of the profits. Westinghouse Co. v. Wagner
Mfg. Co., 604.
2. Infringement; right of recovery where patent uses old elements.
Where a patent, though using old elements, gives the entire value to
the combination, the patentee is entitled to recover from an in-
fringer all the profits. Ib.
3. Infringement; liability for; burden on infringer.
Where profits are made by using an article patented as an entirety, the
infringer is liable for all the profits, unless he can show, and the
burden is on him, that the profits are partly the result of some
other things used by him. (Elizabeth v. Pavement Co., 97 U. S.
126.) Ib.
4. Infringement; recovery for, where patent creates only part of profits
derived.
Where the patent admittedly creates only a part of the profits, the
patentee is only entitled to that part and he must apportion the in-
fringer's profits and show by reliable and satisfactory evidence
either what part of the profits are attributable to his patent or that
the entire value of the infringing article is attributable to his
patent. (Garretson v. Clark, 111 U. S. 120.) Ib.
5. Infringement; burden of showing profits from.
Congress has legislated, Rev. Stat., § 4921, with a view to affording
the patentee ample redress against the infringer, but the general
rule of law that the burden is on the one suing for profits to show
that they had been made applies. Ib.
6. Infringement; estoppel to deny value of patent infringed.
The patent itself is evidence of the utility of the claim and an infringer
is estopped from denying that it is of value. Ib.
7. Infringement; burden to apportion profits where other elements con-
tribute.
Where the plaintiff patentee shows that profits have been made by the
use of his patent, but defendant proves that there were other ele-
ments contributing to the profits, it then devolves upon the plain-
tiff to apportion the amount of profits attributable to the use of
his patent. Ib.
8. Infringement; when patentee entitled to all profits though other elements
contribute.
Where the infringer, however, by commingling the elements renders it
impossible for the patentee to meet the requirement of apportion-
ment, the entire inseparable profit must be given to the patentee.
In such a case, as in that of a trustee ex maleficio confusing gains,
the loss should fall on the guilty and not on the innocent. Ib.
9. Infringement; when patentee entitled to all profits though other elements
contribute.
This rule applies even if the patented device infringed did not pre-
ponderate the creation of profits. The owner of a small part of a
fund is equally entitled to protection as the owner of a larger share.
Ib.
10. Infringement; burden of proof as to source of profits.
While the rule applied may ultimately shift the burden so as to cast
it on the defendant, it is justly cast upon one who should bear it, as
he wrought the confusion. Ib.
PENAL STATUTES.
See STATUTES, A 4.
When the Federal Constitution was adopted each State had its own
pilotage regulations. Anderson v. Pacific Coast S. S. Co., 187.
2. State laws as regulations of commerce; power to enforce.
State pilotage laws are regulations of commerce, but they fall within
that class of powers which may be exercised by the States until
Congress shall see fit to act. Ib.
3. Federal laws concerning.
The provisions of former Federal statutes relating to pilotage were in-
corporated in §§ 4401 and 4444, Rev. Stat., which are still in force.
Ib.
4. Conflict of state and Federal laws; liability of vessels for pilotage fees
under state laws.
Distinctions between registered and enrolled vessels and history of
statutes relating to state pilotage of registered and coastwise
vessels reviewed and held that:
Coastwise sea-going vessels sailing under register and having officers
with Federal pilot's licenses are not free from liability for pilotage
fees under state laws, by virtue of § 51 of the act of February 28,
1871, 16 Stat. 440, c. 100, as reenacted in §§ 4401 and 4444, Rev.
Stat.
There are no provisions in Title 52 of the Revised Statutes which may
be construed as exempting coastwise sea-going vessels sailing under
register, whose officers have Federal pilot's licenses, from liability
for pilotage fees under state laws, under the rule of construction
laid down in the last sentence of § 51 of the act of February 28,
1871.
Congress did not intend to classify with the coastwise vessels referred
to in the last proviso of § 51 of the act of February 28, 1871, as
reënacted in § 4444, Rev. Stat., registered steam vessels engaged
in commerce with both foreign and domestic ports on the same
The wisdom of establishing Federal rules as to port pilotage for such
registered vessels now exempted is a question for Congress to
determine. Ib.
5. State laws; liability of American steam vessels to; effect of stoppage at
foreign ports.
In this case held that American registered steam vessels sailing from
San Francisco clearing for final destination to American ports and
return, but stopping at foreign ports en route for less than ten per
cent of the traffic, are subject on entering and leaving the port of
San Francisco to the state pilotage laws of California as contained
in §§ 2468, 2466 and 2432 of the Political Code of that State. Ib.
See CRIMINAL LAW, 27, 28.
PLACE OF TRIAL.
See CRIMINAL LAW, 11, 12, 13, 22, 28.
1. Demurrer; sufficiency of case made by facts admitted.
When a case is decided upon demurrer the question is whether a case
was made upon those allegations which are well pleaded and not
upon those that are mere conclusions of law. Low Wah Suey v.
Backus, 460.
2. Pleas in abatement based on irregularities in impanelling grand jury;
exactness required.
Pleas in abatement on account of irregularities in selecting and im-
paneling the grand jury which do not relate to the competency of
individual jurors must be pleaded with strict exactness and at the
first opportunity. (Agnew v. United States, 165 U. S. 36.) Hyde
v. United States, 347.
See CONFLICT of Laws, 2;
CONSTITUTIONAL LAW, 2, 11, 12, 15, 17, 26, 27, 28.
PRACTICE AND PROCEDURE.
1. Equitable principles not applied to statutory court where effect would be
to nullify intention of Congress.
This court will not apply to the construction of the equity powers of
a statutory court, general principles of equity, if the effect would be
to destroy the law creating the court by expunging therefrom the
very powers which Congress intended to grant; and so held that the
power given by § 210, Judicial Code, to the Commerce Court to
issue an injunction pendente lite was to enable that court to have
proper time for consideration, and the right of appeal to this court
was given as a safeguard against a possible abuse of the power to
issue the order; and the order will not be reversed in the absence
of such abuse. United States v. Baltimore & Ohio R. R. Co., 306.
2. Evidence required for court to declare statute regulating rates unconsti-
tutional.
This court requires clear evidence before it will declare legislation,
otherwise valid, to be void as an unconstitutional taking of
property by reason of establishing rates that are confiscatory.
Louisville v. Cumberland T. & T. Co., 430.
3. Facts; when reviewed on writ of error to state court.
While this court does not as a general rule review findings of fact of
the state court on writ of error, where a Federal right has been
denied as a result of a finding of fact and it is contended there is no
evidence to support that finding and the evidence is in the record,
the resulting question is open for decision; and where a conclusion
of law as to a Federal right and a finding of fact are so inter-
mingled as to require the facts to be analyzed and dissected so as
to pass on the Federal question this court has power to do so.
Creswill v. Knights of Pythias, 246.
4. Facts found by referee conclusive; exceptions to refusal of referee to find
facts not reviewable.
Where the trial in the Circuit Court is before a reierce by stipulation,
the only question here is whether there is any error of law in the
judgment rendered by the court upon the facts found by the
referee. These findings are conclusive in this court. Nor can this
court pass upon exceptions to the refusal of the referee to find facts
as requested. David Lupton's Sons v. Automobile Club, 489.
5. Facts found by referce; judgment on.
Judgment ordered for plaintiff for amount fixed by referee's findings of
fact. Ib.
6. Mandate on rerersal where questions left open in lower court.
Where on reversal, a decree for apppellant would deprive appellee of the
right to ruling on exceptions taken by him to the master's report
which were not passed on by the court, and it appears that other
questions of law were not passed on below, and also that material
evidence was omitted, the case will be remanded with power to
hear and determine on new testimony and for further proceedings
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