Kirk v. Du Bois

• Decision Date: 24 August 1886
• Citation: 28 F. 460
• Parties: KIRK v. DU BOIS.
• Court: U.S. District Court — Western District of Pennsylvania

28 F. 460

KIRK v. DU BOIS.

United States Circuit Court, W.D. Pennsylvania.

August 24, 1886

Bakewell & Kerr, for complainant.

George A. Jenks and T. H. B. Patterson, for respondent.

Before McKENNAN and ACHESON, JJ.

McKENNAN J.

Arthur Kirk, the complainant, filed a bill in equity in this court against John Du Bois, who was duly served with a subpoena requiring him to appear, and answer said bill. The bill is founded upon a patent for an improvement in the structure of dams, and alleges that the complainant is the owner of it that the respondent has infringed it; that large profits have accrued to him, and large damages and loss to the complainant, by reason thereof; and therefore praying for an account of said profits, and an ascertainment of said damages, and a decree for their payment, and for an injunction against further infringement. Before any decree interlocutory or final, in the case, John Du Bois died leaving a will, of which John E. Du Bois was appointed executor. Thereupon the complainant filed a bill of revivor against John E. Du Bois to revive and continue the suit against him as the personal representative of the deceased respondent. To that bill John E. Du Bois has demurred, alleging that as, by the death of John Du Bois, the prayer in the bill cannot be granted, the jurisdiction of the court is lost, and the suit cannot be revived for any purpose; and this is the question for determination.

The researches of counsel have supplied us with only one case which, by the similitude of some of its features to the case in hand, apparently sustains the position of the respondent. It is the case of Draper v. Hudson, 6 Fisher, 327. It was a bill in equity upon letters patent, in which an injunction and discovery and an account were prayed for. The defendant died before final hearing, and this fact was stated upon the record; but it does not appear that any proceeding was taken to revive the suit against his personal representative.

As a general rule, the right to an account of profits in patent cases is incident to the right to an injunction; and 'where the title to the principal relief, which is the proper subject of a suit in equity,-- an injunction and discovery,-- fails, the incident right to an account fails also. ' Root v. Railway Co., 105 U.S. 189. But it does not follow that, where the jurisdiction of the court in an injunction bill has attached, it is entirely ousted by the subsequent happening of an event which precludes the exercise of the power to grant an injunction. On the contrary, patent bills are frequently retained by the circuit courts after the expiration of the term of the patents, when an injunction against infringement could not be granted, and equity, touching...