[105] plainant below, filed his bill against the ap- The bill of complaint was accompanied with were heard upon the matter, and the case w submitted. On November 12 the report w prepared and submitted to the inspection counsel. On the 18th, motion was made by t defendants' counsel, bef r the master, to op the proofs and for leave to introduce newly di covered evidence. This motion was support by affidavits, but was overruled by the maste and his report was filed December 10, 1880, which it was found and stated that the defen ants had used at various times, from Janua 18, 1877, to the commencement of the su twenty-seven folding guides infringing th complainant's patent, and had folded 1,217,8 yards of goods by their use, and that durin that period there was no means known or use or open to the public to use, for folding suc goods in the same, or substantially the san manner, other than folding them by hand, an that the saving in cost to the defendants using the folding guides was three cents o each piece of six yards, making the amount profit which the complainant was entitled recover, $6,089.35; and that during the san period the complainant depended upon licen fees for his compensation for the use of th patented device, and that the amount of suc fees constituted his loss or damage for the u authorized use of his invention; and that, a cording to the established fees, the defendan would have been liable to pay for the use of th folding guides used by them during the yea 1877, 1878 and 1879 (the period covered by th infringement), the sum of $1,350, which wa the amount of the complainant's damages. Th evidence taken by the master was filed with h report. said application upon the affidavits presented which were appended to the report, he was un able to discover any just ground therefor. The defendants did not object to this sup plemental report, but on the 10th of January 1881, they filed exceptions to the principal r port, substantially as follows: The defendants appeared to the suit by eir By a supplemental report, filed at the sam solicitor, May 3, 1879, but neglected to file any time, the master stated the fact of the applic answer, or to make any defense to the bill, and tion made to him to open the proofs on th a rule that the bill be taken pro confesso was ground of surprise and newly discovered ev entered in regular course June 10, 1879. There-dence (as before stated), and that after hearin upon, on the 2d of August, 1879, after due notice and hearing, the court made a decree to the following effect, viz.. 1st. That the letters patent sued on were good and valid in law; 2d. That Douglass was the first and original inventor of the invention described and claimed therein; 3d. That the defendants had infringed the same by making, using and vending to others to be used, without right or license, certain folding guides substantially as described in said let ters patent; 4th. That the complainant recover of the defendants the profits which they had derived by reason of such infringement by any [106] manufacture, use, or sale, and any and all damages which the complainant had sustained thereby; and it was referred to a master to take and state an account of said profits, and to assess said damages, with directions to the defendants to produce their books and papers and submit to an oral examination if required. It was also decreed that a perpetual injunction issue to restrain the defendants from making, using or vending any folding guides made as theretofore used by them, containing any of the inventions described and claimed in the patent, and from infringing the patent in any way. Under this decree the parties went before the master, and the examination was commenced in October, 1879, in the presence of counsel for both parties, and was continued from time to time until November 3, 1880, when arguments 1. That instead of the double guide or folde claimed in the complainant's patent being th only means for folding cloth or strips on eac edge during the period of the infringement (otl er than that of folding by hand), the maste should have found that such strips could hav been folded by means of a single guide or fold er, and that the use of such guides was know and open to the public long before 1877, an that such guides were not embraced in the cou plainant's patent. 2. That the amount of profits found by th master was erroneous, because it appeared the folded strips such as those used by the defenc ants were an article of merchandise, cut and folded by different parties at a charge of 2 cents for 144 yards. 3. That the profits should not have bee found greater than the saving made by the us of the double guide as compared with the us of a single guide, or greater than the amoun for which the strips could have been cut an folded by persons doing such business. 4. That the damages found were erroneous ions were subsequently filed, I also the bill is taken pro confesso, because it is verruled for being filed out of time. presumed to be true when he has appeared and the argument of the exceptions the departs in despite of the court and withstands ante rave notice of a motion to the court all its process without answering." Forum cause back to the master to take Romanum, 36. Lord Hardwicke likened a deey in reference to the question cree pro confesso to a judgment by nil dicit at and damages chargeable against them common law, and to judgment for plaintiff on cer of reference. In support of demurrer to the defendant's plea. Davis v. == further affidavits were presented. Davis, 2 Atk. 21. It was said in Hawkins v. Crook (qua supra), and quoted in 2 Eq. Cas. Abr., 179, that "the method in equity of taking a bill pro confesso is consonant to the rule and practice of the courts at law, where, if the defendant makes default by nil dicit, judgment is immediately given in debt, or in all cases where the thing demanded is certain; but where the matter sued for consists in damages, a judg ment interlocutory is given; after which a writ of inquiry goes to ascertain the damages, and then the judgment follows." The strict analogy of this proceeding in actions of law to a general decree pro confesso in equity in favor of the complainant, with a reference to a master to take a necessary account, or to assess uncon-liquidated damages, is obvious and striking. ons to the report and the applica- cts have assigned fourteen rea- A carefully prepared history of the practice and effect of taking bills pro confesso is given in Williams v. Corwin, Hopk. Ch., 471, by Hoffman, master, in a report made to Chancellor Sanford, of New York, in which the conclusion come to (and adopted by the Chancellor), as to the effect of taking a bill pro confesso, was that "when the allegations of a bill are distinct and positive, and the bill is taken as confessed, such allegations are taken as true without proofs," and a decree will be made according. ly; but "where the allegations of a bill are indefinite, or the demand of the complainant is in its nature uncertain, the certainty requisite to a proper decree must be afforded by proofs. The bill, when confessed by the default of the defendant, is taken to be true in all matters alleged with sufficient certainty; but in respect to matters not alleged with due certainty, or subjects which from their nature and the course of the court require an examination of details, the obligation to furnish proofs rests on the complainant." We may properly say, therefore, that to take a bill pro confesso is to order it to stand as if its statements were confessed to be true; and that a decree pro confesso is a decree based on such statements, assumed to be true (1 Smith's Ch. Pr., 153), and such a decree is as binding and conclusive as any decree rendered in the most solemn manner. "It cannot be impeached collaterally, but only upon a bill of review, or [a bill] to set it aside for fraud." 1 Dan. Ch. Pr., 696, 1st ed.; Ogilvie v. Hearne, 13 Ves., 463.* practice of the Civil Law, failthe day to which the cause was deemed a confession of the acver times this rule was changed, tant, notwithstanding the contu defendant, only obtained judgment with the truth of the case as es7127 parte examination. Keller, The original practice of the of Chancery was in accordance R man law. Hawkins v. Crook, But for at least two centuries ave been taken pro confesso for conIs. Chef Baron Gilbert says: appears by his clerk in court, 7s in prison, and is brought up pub. 1837), as being, with the 2d edition of Smith's **a noort by habeas corpus, and has toritative work on English Chancery Practice in Practice (published the same year), the most aum and refuses to answer, such use in March, 1842, when our Equity Rules were in court does amount to the con- adopted. Supplemented by the General Orders be bill. Secondly, when a made by Lords Cottenham and Langdale in August, 1841 (many of which were closely copied in war and departs without answer- our own Rules), they exhibit that "present prac ane process of the court has tice of the High Court of Chancery in England," med gunst him after his appear-ard of equity practice in cases where the Rules prewhich by our 90th Rule was adopted as the standmc bparture, to the sequestration; there scribed by this court, or by the Circuit Court, do Such being the general nature and effect of an order taking a bill pro confesso, and of a decree pro confesso regularly made thereon, we Reference is made to the 1st edition of Daniell [111] [112] OCT. TERM Ch. 547, 548. Our rules do not require the cause to be set down for hearing at a regular Rose v. Woodruff, 4 Johns. term, but, after the entry of the order to take the bill pro confesso, the 18th Rule declares that thereupon the cause shall be proceeded in ex parte, and the matter of the bill may be decreed by the court at any time after the expiration of thirty days from the entry of such order, if it can be done without answer, and is proper to be decreed. of the bill ought at least to be opened and exThis language shows that the matter for, so that the court may see that the decree plained to the court when the decree is applied is a proper one. The binding character of the decree, as declared in Rule 19, renders it proper that this degree of precaution should be taken. are prepared to understand the full force of our | by, as in the case of default by the defendan rules of practice on the subject. Those rules, at the hearing.' of course, are to govern so far as they apply; but the effect and meaning of the terms which they employ are necessarily to be sought in the books of authority to which we have referred. By our rules a decree pro confesso may be had if the defendant, on being served with process, fails to appear within the time required; or if, having appeared, he fails to plead, demur or answer to the bill within the time limited for that purpose; or if he fails to answer after a former plea, demurrer or answer is overruled or declared insufficient. Equity prescribes the time when the subpoena The 12th Rule in shall be made returnable, and directs that "at the bottom of the subpoena shall be placed a memorandum, that the defendant is to enter his appearance in the suit in the clerk's office on or before the day at which the writ is returnable; this subject because of the attempt made by the We have been more particular in examining otherwise, the bill may be taken pro confesso." defendants, on this appeal, to overthrow the deThe 18th Rule requires the defendant to file his cree by matters outside of the bill, which was plea, demurrer or answer, unless he gets an en- regularly taken pro confesso. From the authorlargement of the time, on the rule day next ities cited, and the express language of our own [113] succeeding that of entering his appearance; Rules in Equity, it seems clear that the defendand in default thereof the plaintiff may, at his ants, after the entry of the decree pro confesso, election, enter an order (as of course) in the or- and whilst it stood unrevoked, were absolutely der book, that the bill be taken pro confesso; barred and precluded from alleging anything and thereupon the cause shall be proceeded in in derogation of, or in opposition to, the said ex parte, and the matter of the bill may be de- decree, and that they are equally barred and creed by the court at any time after the expira- precluded from questioning its correctness here tion of thirty days from the entry of said order, if the same can be done without an answer, pears manifest that it was erroneous and imon appeal, unless on the face of the bill it apand is proper to be decreed; or the plaintiff, if properly granted. The attempt, on the hearhe requires any discovery or answer to enable ing before the master, to show that the reissued him to obtain a proper decree, shall be entitled patent was for a different invention from that to process of attachment against the defendant described in the original patent, or to show to compel an answer, etc. declares that the decree rendered upon a bill plying for it as to render it void under the reAnd the 19th Rule that there was such unreasonable delay in aptaken pro confesso shall be deemed absolute, un- cent decisions of this court, was entirely inadless the court shall at the same term set aside missible because repugnant to the decree. The the same, or enlarge the time for filing the an-defendants could not be allowed to question the swer, upon cause shown upon motion and affidavit of the defendant. validity of the patent which the decree had deIt is thus seen that by our practice, a decree plied for and granted fourteen years after the clared valid. The fact that the reissue was appro confesso is not a decree as of course accord- date of the original patent would, undoubtedly, ing to the prayer of the bill, nor merely such as had the cause been defended and the validity of the complainant chooses to take it; but that it the reissued patent been controverted, have been is made (or should be made) by the court, ac-strongly presumptive of unreasonable delay; cording to what is proper to be decreed upon the statements of the bill, assumed to be true. This gives it the greater solemnity, and accords with the English practice, as well as that of New York. Chancellor Kent, quoting Lord Eldon, says: "Where the bill is thus taken pro confesso, and the cause is set down for hearing, the course (says Lord Eldon, in Geary v. Sheridan, 8 Ves. 192) is for the court to hear the pleadings, and itself to pronounce the decree, and not to permit the plaintiff to take, at his own discretion, such a deeree as he could abide not apply. The 2d edition of Mr. Daniell's work, published by Mr. Headlam in 1846, was much modified by the extensive changes introduced by the English Orders of May 8th, 1845; and the 3d edition, by the still more radical changes introduced by the Orders of April, 1850, the Statute of 15 and 16 Vict. chap. 86, and the General Orders afterwards made under the authority of that statute. course, the subsequent editions of Daniell are still further removed from the standard adopted by this Of court in 1842; but as they contain a view of the later decisions bearing upon so much of the cld system as remains, they have, on that acc uni, a but it might possibly have been explained, and the court could not say as matter of law, and certainly, under the decree of the court, the master could not say, that it was unsusceptible of explanation. And on this appeal it is surely irregular to question the allegations of the bill. If anything appears in those allegations themselves going to show that the decree was erroneous, of course it is assignable for error; but any attempt to introduce facts not embraced in those allegations, for the purpose of countervailing the decree, is manifestly improper. The introduction of the original patent, pending the appeal, was clearly irregular. value of their own, provided one is not misled by the new portions. 108 matter in the allegations of the bill on which The appellants have called attention to one they rely for the purpose of showing that, as matter of law, the reissued patent must be void. It is stated in their 10th assignment of error, as follows: the patent, the reissued patent in suit was ille"10th. For that, on the face of the bill and gally granted, and therefore void, and the court should have so held; and this court is now teen years of the original term of the validity of said letters patent was in numerous suits in the Circuit the United States, and that all perka #und took licenses and paid therefor, as ay others not sued, thereby averring, , that the original letters patent and operative: *bold, because the bill avers that dur- | folding of strips for corsets, which was the work required by the defendants, and for which they used the complainant's invention. On the contrary, it was proved by the positive testimony of the complainant (and not contradicted), that the Chapin device could not be used for folding strips of materials on one or both edges for use upon corsets," for reasons fully detailed in the testimony; and that "the McCurdy deefore, appellants ask this court to hold vice is a binder calculated and adapted to fold zal letters patent having been valid selvage-edged goods, such as ribbon and braid, e, as averred by complainant, for and will fold the strip passing through it in the years, no reissue thereafter could center only," "and cannot be used for folding tated, because invalidity or inop-raw-edged strips of cloth, either on one or both are conditions precedent to the grant edges.' The complainant also testified that there was no other way known to him (and he testified that he had large experience on the subject) to do work like that done by the defendants, except by hand, or in the use of another patent owned by him, namely, the Robjohn patent, dated April 19, 1864 (which was produced in evidence), which consisted of a folding guide, folding one edge in combination with a device for pressing said fold to an edge, and then passing said folded strip through a narrower folder, folding the other edge, and pressing said fold by a pressing device. No evidence was adduced by the defendants to contradict this testimony. wer to this assignment is obvious. aught on the original patent may infringements committed against of the invention, or modes of putting it into operation, as to Le specification was clear, full and suf* at the same tine, there may certain other parts of the invention, cfg it and putting it into operah the specification was defective t, and which were not noticed until - men for reissue was made; or, in the the patentee may have claimed invention more than he had a right - mistake which might be corany time. At all events, the court as mere matter of law, that this ave been the case. that the objection to the decree go dity of the patent and the whole a cannot be sustained. ** then brought to the proceedings in account. The errors assigned on the case are based on the exceptions the master's report, which have alThey resolve themselves papal grounds of objection: First, wed the complainant all the ae by the defendants by the use of machine in folding cloths and pared with doing the same thing as he should only have allowed using the complainant's patented Scared with a single folder, efendants allege was open to the their infringement commenced. the master, in allowing profits, want of the fact that folded strips, sed by the defendants, were an Fandise, cut and folded by difares at a charge of only 25 cents for """ of about one sixth of a cent per the defendants were charged coe half of a cent per yard. trt of these objections, it is to be that no evidence was produced Easter to show that, during the afringement, there was open to the use of any machine for folding a wch was adapted to the work defendants. The only evidence purpose was the letters patent Papin, February 19, 1856, and granted to J. S. McCurdy, ray, 1856 No evidence was inthat the folding guides depatents were adapted to the It is proper to remark here that the affidavits presented to the master, and those afterwards presented to the court, as grounds of the respective applications to reopen the proofs, cannot be look into on this hearing. They form no part of the evidence taken before the master on the reference; and no error is assigned (even if error could be assigned) to the refusal of the court to refer the case back to the master for the purpose of taking further testimony. The second objection to the report is, that the master, in estimating the profits chargeable to the defendants, did not take into account the fact that folded strips, such as those used by the defendants, were an article of merchandise, cut and folded by different parties at a charge of only 25 cents for 144 yards. To this objection it may be observed, that the evidence before the master did not show by what process such folded strips were made, nor whether they were not really made by infringing the complainant's patent. As the proof stood before the master, they must have been made by the use of the complainant's machine, for there was no other known machine by which they could have been made at any such cost. And if made by the use of complainant's machine, the inference must be that the persons making them were infringing the complainant's patent, for they are not named in the list of those to whom the complainant had granted licenses, which list was presented before the master at the defendants' request. If made by such infringement they can hardly be set up against the complainant to reduce the amount of profits made by the defendants. There is something singular about this part of the case. If folded strips, suitable for the defendants' purpose, could have been procured in the market by them at such a low price as is pretended, why did they not procure them in that way after being enjoined against using the complainant's machine, instead of making them by the disadvantageous method of using a single folder and [117] [118 1:9 TOL & Nest; as it is also in the Chancellor's dis **On Who Near to order a bill to be taken pro confesso com a default, or to order the complainant to nurkkap. tuke proofs to sustain the allegations of the bill. 10 SELL 1 Non's Dig. Art. Chancery, § 21; Gen. Ord. 16 detent XIV., 3–7; Brundage v. Goodfellow, 4 Halst. Ch. 513. PIK MASUH IN As we have seen, by our 18th Rule in Equity others, it is provided that if the defendant make deevout account fault in not filing his plea, demurrer or anSo the mom-swer in proper time, the plaintiff may, as one I might alternative, enter an order as of course that prati I have the bill be taken pro confesso, "and thereupon razumes u make the cause shall be proceeded in ex parte." The Tel yast as, old Rules, adopted in 1822, did not contain at the road this ex parte clause; they simply declared bete na to have that if the defendant failed to appear and file halterels, but to his answer within three months after appearta as they chose to per- ance day, the plaintiff might take the bill for sponsible to confessed, and that the matter thereof should be decreed accordingly; the decree to be absolute unless cause should be shown at the next term. See Equity Rules VI. and X. of 1822, 7 Wheat. VII, and Pendleton v. Erans, 4 Wash. C. C. 336; O'Hara v. MacConnell, 93 U. S., 150 [bk. 23, L. ed. 840]. Under these rules the English practice was left to govern the subsequent course of proceeding, by which, as we have seen, the defendant might have an order to permit him to appear before the master, and be entitled to notice. Whether under the present rules a different practice was intended to be introduced is a question which it is not necessary to decide in this case. frantur derived from 41. S. 70 bk. 24, L. Lat the the objection Le reasons of appeal must um of appeal, is assigned the art below to refer the ser for the purpose of recred sineegh some observations smitted in the brief of the We hink that that matter was 17 Td to the discretion of the court, sons properly be made the ground of obstaca in his appeal New evidence, discovLieu aller (ie daring before the master is closed, lay, a proper cases, be ground for a bill of review, on which issue may be joined and evidence adduced by both parties in the usual way. The defendants are not concluded by the refusal of the court, on mere affidavits, to refer the cause back to the master. An examination, however, of the fidavits presented to the court, does not convince us that a further inquiry should have been ordered. In thus considering the case on its merits, as ant before a master on a reference under a de- The decree of the Circuit Court is affirmed. James H. McKenney, Clerk, Sup. Court, U. 8. DAVID W. MINOR. (See S. C., Reporter's ed., 233-244.) Public lands-remedy of United States in equity to set aside patent-fraud-decisions of land officers-how far conclusive. *1. The United States has the same remedy in a court of equity to set aside or annul a patent for land, on the ground of fraud in procuring its issue, which an individual would have in regard to his own deed procured under similar circumstances. 2. The doctrine of the conclusiveness of judgments and decrees of courts, as between those who are parties to the litigation, is not applicable to the United States, in regard to the proceedings before the land officers in granting patents for the public land. that the officers of the Land Department exercise 3. Though it has been said very truly in some cases functions in their nature judicial, this has reference to cases in which individuals have, as between each other, contested the right to a patent before those is held to be conclusive between those parties. officers, whose decision as to the facts before them 4. But fraud or imposition on those officers, or a radical mistake by them of the law governing the to be subject to remedy in a court of equity; and disposition of the public lands, has always been held where there has been no contest, and the claimant produces without opposition his ex parte proofs of performance of the necessary conditions, it is *Head notes by Mr. Justice MILLER. |