13 F. 392 (D.Mass. 1882), United Nickel Co. v. Worthington

Citation:13 F. 392
Party Name:UNITED NICKEL CO. and others v. WORTHINGTON and others.
Case Date:August 14, 1882
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 392

13 F. 392 (D.Mass. 1882)

UNITED NICKEL CO. and others


WORTHINGTON and others.

United States Circuit Court, D. Massachusetts.

August 14, 1882

T. W. Clarke, for plaintiffs.

D. H. Rice, for defendants.


The final decree of this court in the equity suit being for damages in respect to the very same infringements now in

Page 393

suit, is a merger of the cause of action as against the corporation. The hardship of the case arises from the course of practice by which security can be had by attachment in actions at law, but not in equity, excepting when an injunction nisi is ordered, and so it has happened that the present action might have been more productive to the plaintiffs than that which they pursued. It does not appear that this point had occurred to plaintiffs when they moved before Judge Shepley for a trial of this action. If it had, they might have discontinued the equity suit. As torts are joint and several, the decree does not release the other defendants, there having been no actual satisfaction. The question, then, is whether the directors, stockholders, and workmen of the corporation are liable.

It has been held that a mere workman who makes a patented article is not an infringer. Delano v. Scott, Gilp. 489; Heaton v. Quintard, 7 Blatchf. 73. The reason given by Hopkinson, J., in the first of these cases, goes far to decide the present. He says that the statute does not mean to class mere agents, servants, etc., as makers and venders of the patented improvement, but the principals, for whose account and benefit they act.

It was conceded, but without being decided, in Lightner v. Brooks, 2 Cliff. 287, and in Lightner v. Kimball, 1 Low. 211, that a director who has acted affirmatively, so to speak, and ordered an infringement by the corporation, would subject himself to an action. But, upon further examination, I think the law is not so. Infringement is not a trespass. The form of action is case; and this is because the act done is not of itself a direct interference with the tangible property of the plaintiff, but an indirect interference with his paramount right. It is like the building of a house upon a man's own land, which shuts out a light which his neighbor has a prescriptive right to enjoy. The person who is to pay damages for a disturbance is not every one who has had anything to do with the building, but he who owns it....

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