The Alpena. do not consider that the character of these claims cuts any figure in determining the question of the jurisdiction of this court over this petition, because if liabilities of this character are not covered by the Act of Congress, then no order of the court in this matter can affect them. I, however, had this question before me in the case of the Sea Bird' a few years since, and came to the conclusion that this class of claims was within the act, and no light which has been thrown on the subject by later decisions and the discussion of this case has changed my view in that regard. Most of the statutes in this country giving a right of action for death caused by negligence, and notably those of Illinois and Michigan, one of which must control in this case, have been substantially copied from Lord Campbell's Act, as it is called in England, and which was enacted prior to the Act of Congress limiting liability of ship-owners and they proceed upon the principle that the heirs, executors and administrators of the person whose life is lost by the negligence of another, have a pecuniary interest in such life. In some of the states the amount recovered goes directly to the widow and next of kin, and in others it goes into the general assets, so that the persons entitled to maintain an action may be said to have a property interest in the person whose life is lost, and it is because of this property and pecuniary interest that a right of action is given. I do not look upon these suits as penal suits, punishing the owner for his negli gence, but only as a remedy for the recovery of the pecuniary interest which the survivors of the person whose life is so lost have in his life. NOTE.-Affirmed by the Supreme Court, in Ex parte Slayton, 105 United States, 451.[-REPORTER. 'Not reported. Calkins vs. Bertrand. MARTIN T. CALKINS vs. THEOPHILUS F. BERTRAND et al. CIRCUIT COURT-NORTHERN DISTRICT OF ILLINOIS JULY, 1881. IN EQUITY. 1. PATENT LAW-MEASURE OF DAMAGES FOR INFRINGEMENT.-When a complainant's patent covers but one of many features of the machine manufactured by defendants, the profits on the entire machine cannot be reckoned as damages, but only the gains arising from the use of the special device or element covered by the complainant's patent. 2. BURDEN OF PROOF.-And in such case the burden of proof is on the complainant to show how much of the profits made by defendants upon the whole machine, is due to the use of complainant's patented device. 3. NOMINAL DAMAGES.-Where the complainant's testimony only tended to show the profits made by defendant on the entire machine; and defendant furnished affirmative evidence, showing that he made no extra profit from the use of complainant's device: Held, that a "division of profits" made by the master must be set aside, and complainant be awarded only nominal damages. 4. Costs. In such case where the defendant has persistently fought the validity of complainant's patent and the question of infringment as well as the amount of damages, the court will award all the costs against the defendant. Offield & Towle, for complainant. West & Bond, for defendants. BLODGETT, J. This suit was brought by complainant against the defendants for infringement of certain letterspatent issued by the United States to Irulius R. Smith, on the 24th of April, 1860, and re-issued to Julius Gerber, April 26th, 1870, for "an improvement in cultivators." A hearing was had upon pleadings and proofs, and a decree Calkins vs. Bertrand. entered finding that defendants infringed the first claim of the re-issued patent, which is for "An auxiliary frame carrying two or more shovel standards on each side, as shown, when said frame is hinged to the pole between the evener and the neck yoke as described for the purposes set forth." And a reference was made to the master to take proofs and state an account of the gains and profits received by defendants, and the profits of which complainant had been deprived, and the damages sustained by him in consequence of the infringement so found and adjudged. The proof taken on the hearing on the question of infringement showed that the complainant's patent is applicable to what is known to the trade as a "Riding Straddle Row Cultivator;" that is, a wheel cultivator, on which the operator rides, provided with devices which enable him to drive the team and manage the plows from his seat. The defendants' cultivator belongs to the same class, but the devices by which the plows are manipulated, and many of the operative parts of their machine are not common to the complainant's machine. The only feature of complainant's patent which defendants' machine was held to infringe being that of hinging the beams to the pole or tongue between the evener and neck-yoke so as to secure what complainant calls the "long swing" motion, peculiar to his cultivator. It will thus be seen that defendants were not found to infringe complainant's entire machine, as covered by his re-issued patent, but only one element or feature of it. Other features peculiar to defendant's machine the complainant had no interest in, and, it is claimed, are covered by patents held by defendants. Upon this reference so made to him, the master reported the gross profits made by defendants on all machines made Calkins vs. Bertrand. by them during the years in question, at $33,354.75, from which he deducted ten per cent. as manufacturer's profits, leaving a net profit of $30,023.75 made by defendants on the machines made by them. To this report exceptions were filed by the defendants, and the matter was re-referred to the master for further action, with the following directions: "To further inquire into and report more fully what profits have been made by the defendants upon the machines manufactured by them during the years 1870 to 1874, inclusive, and also what portion of said profits reported by him as made by the defendants on their said machine, is or may be due to the patented devices and improvements of the said defendants contained in said machines, and the value of the said defendants' improvements found in their said machine which ought to be deducted from the gross amount of profits found by said master." Upon this re-reference the master has made a further report, in which he has found the total number of machines made by the defendants in all the years in question, as follows: 1870, 543; 1871, 1,300; 1872, 937; 1873, 740; 1874, 500; total, 4,020. That the gross profits made by defendants on said machines amounted to $41,217.50, from which he has deducted for rent, interest, taxes, advertising, losses on bad debts and wear of machinery, $9,838.42, and for clerk hire, at the rate of a thousand dollars a year to each defendant for four years, making a total of $8,000; making total of deductions $17,838.42, and leaving a net profit of $23,470.08. The master concludes, and so reports to the court, that onehalf of the net profits so found should be deducted as the proportionate amount due to the patented devices and improvements of the defendants contained in said machines, leaving the sum of $11,735.04 as the amount of profits made by defendants, which should be accounted for and paid to Calkins vs. Bertrand. complainant for such infringement. The reason given by the master for dividing the profits equally between the complainant and the defendants, is that the proof furnished no reliable data on which to fix the amount of profits made by defendants from the use of complainant's device in their cultivators, or for showing the amount of deduction which ought to be made from the net profits of the business by the use of defendants' own patented devices, and that he, therefore, resorted to a division of the profits as the most equitable and just rule which he could adopt under the circumstances. To this finding and report of the master, defendants have filed thirteen exceptions. The first seven exceptions assert in substance that it was incumbent on complainant to show by the proof that defendants not only made profits by the use of complainant's device in their machine, but the specific amounts of such profits; that complainant has not only failed to make such proof, but also that the testimony taken and reported, affirmatively shows that the defendants have made no profits by the use of complainant's "long swing" feature in their machines. These exceptions I shall first consider. In a brief opinion directing a second reference to the master, I stated that the master would be directed to hear proof "as to what this long swing' element in defendants' cultivator, which belongs to complainant, is worth to defendants' machine; how much it adds to the value of defendants' machine -the salable value." I assume that this must be the basis of the inquiry. I consider the law to be well settled that when a complainant's patent covers but one of many features of a machine, the gains on the whole machine cannot be reckoned as damage, but only the gains arising from the use of the special device or element covered by the complainant's patent. If the other parts of the machine which go to make the whole a complete |