[269] off against the other, and the balance only shall | record and the clerk's fees for supervising the be allowed or paid." same. Messrs. W. Hallett Phillips, Karnes & Ess and Chas. L. Dobson for defendant in error in support of motion. Mr. Henry Wise Garnett, for plaintif in error, contra. Mr. Chief Justice Waite delivered the opin ion of the court: No rights under this section were set up in the pleadings or claimed at the trial; and, besides, the right of the Bank to apply whatever credit there may be in its accounts in favor of the bankrupt firm to the reduction of the amount due on the draft is not denied. The only dispute is as to the amount of the credit, and we are unable to see that the bankrupt law is involved in the determination of that question. This writ of error was dismissed at a forme The Court of Appeals decided that the presen-day in this term, on motion of the defendant in tation of the checks on the 5th of November error, for want of jurisdiction, because the valu operated as an equitable assignment at that of the matter in dispute did not exceed $5,000 date, of an amount of the fund then standing to 112 U. S., 227 [Bk. 28, L. ed. 715]. In orde the credit of the firm equal to the amount of to present his motion to dismiss, it became ne the checks, and made the Savings Association cessary for the defendant in error to cause th from that time, in equity, the creditor of the record to be printed; and to do that he was com Bank to that extent. Debts are provable pelled to pay the cost of printing and the fee o against a bankrupt's estate as of the date of the clerk for supervising. The judgment, a the commencement of the proceedings in bank- entered on the motion to dismiss, made no o ruptcy. Rev. Stat., § 5067. As section 5073 der as to costs, and the defendant in error no relates to the amount which may be allowed moves that the cost of printing and the clerk upon such proof, it is clear that the mutual fee for supervising be taxed against the plain debts or mutual credits there referred to must iff in error. be such as are in existence at the same date. In the present case the question was whether on the 5th of November, 1874, more than two months before the commencement of the proceedings in bankruptcy, a part of the balance standing to the credit of Cobb, Dolhonde & Co. on the books of the Bank had been assigned to the plaintiff in this action. That did not depend on the bankrupt law, but on the legal effect of what was done at and before that time by the parties, and when, so far as appears from the record, no proceedings in bankruptcy were contemplated. The point for determination was whether the presentation of a check drawn on a banker by a customer having funds to his credit transferred in equity to the holder of the check so much of the debt due from the bank to the drawer as was sufficient to pay the check. This clearly is not a federal question. It has been often decided that if a suit is dis missed for want of jurisdiction in this court n judgment for the costs of the suit can be given Inglee v. Coolidge, 2 Wheat., 868; McIver Wattles, 9 Wheat., 650; Strader v. Graham, 1 How., 602 [59 U. S., bk. 15, L. ed. 464]; Hor thall v. Collector, 9 Wall., 566 [76 U. S., bk. 19 L. ed. 562]. A different rule prevails whe there has been a reversal here because the Ci cuit Court did not have jurisdiction, as th court has authority to correct the error of th Circuit Court in taking jurisdiction. Turn v. Enrille, 4 Dall., 7; Winchester v. Jackson, Cranch, 514; Montalet v. Murray, 4 Cranch 47; M. C. & L. M. R. Co. v. Swan, 111 U. S 387 [Bk. 28, L. ed. 465]. Here, however, the question is not as to th right of the defendant in error to recover h costs in the suit, but only such as are incide to his motion to dismiss. It has been decide that the writ of error was wrongfully sued o by the plaintiff in error. To get rid of the wri James H. McKenney, Clerk, Sup. Court, U. S. and the supersedeas which had been obtaine It follows that we have no jurisdiction of the case, and it is dismissed. True copy.__ Test: thereunder, the defendant in error was con pelled to come to this court and move to dismis That motion we had jurisdiction to hear and [262] BRADSTREET COMPANY, Plff. in Err., cide. The right to decide implies the right 0. FORRESTER H. HIGGINS. (See S. C., Reporter's ed., 262-264.) adjudge as to all costs which are incident to th motion. Under Rule 10, section 2, of this court, was the duty of the plaintiff in error to cau the record to be printed and to pay all the cos Costs on motion to dismiss for want of jurisdic and fees incident thereto in time for use whe tion. required in the progress of the cause. If failed in this the defendant in error might pa the costs and fees and thus secure the printin Under section 7, in case of reversal, affirman or dismissal with costs, the amount of the co of printing the record and the clerk's fee are be taxed to the party against whom the cos are given. In this case the plaintiff in error neglected have the record printed by the time it w we died wanted by the defendant in error on his moti not doubt our authority to adjudge the costs cident to the printing against the plaintiff in ror as part of the costs of the motion to dismi 17. Test: H. McKenney, Clerk, Sup. Court, U.S. 3 a grand wely ordered that the judgment here- | Dobson and James Dobson, trading as John d be amended so as to charge the & James Dobson and as "The Falls of Schuyl fa error with all the costs of the motion kill Carpet Mills." No. 1 is brought by the which shall include the cost of print Hartford Carpet Company, for the infringemerord and the clerk's fee for supervising. ment of design letters patent No. 11074, granted March 18, 1879, to the plaintiff, as assignee of Winthrop L. Jacobs, for three and one half years, for a design for carpets. No. 2 is brought by the Bigelow Carpet Company, for the infringement of design letters patent No. 10778, granted August 13, 1878, to the plaintiff, as assignee of Hugh Cristie, for three and one half years, for a design for carpets. No. 3 is brought by the Bigelow Carpet Company, for the infringement of design letters patent No. 10870, granted October 15, 1878, to the plaintiff, as assignee of Charles Magee, for three and one half years, for a design for carpets. 1 DOBSON AND JAMES DOBSON, ETFORD CARPET COMPANY. SAME, Appts., EXGELOW CARPET COMPANY. SAME, Appts., SAME. See! C. Reporter's ed., 439–447.) -infringement-measure of dam ander of claims-practice-costs. No. 1 was commenced on the 26th of April, [441] 1879, and Nos. 2 and 3 on the 7th of May, 1879. In No. 1 and No. 3 the defendants appeared by a solicitor, but did not plead, answer or demur to the bill, and it was taken as confessed, in each suit, on the 11th July, 1879; and, on the 2d of September, 1879, an interlocutory decree was entered in each suit awarding a perpetual injunction and an account of profits and damages. quity, for the infringement of a paa for carpets, where no profits were In No. 2 an answer was filed on the 3d of have been made by the defendant, the September, 1879, denying infringement and wed to the plaintiff, as damages, setting up a want of novelty. A replication the yards of infringing carpets made 12 defendant, the sum per yard which was filed, and on the 5th of November, 1879, the plaintiff in making and selling a preliminary injunction was granted. Testithe patentel design, there being no mony was taken, and on April 23, 1880, on the value imparted to the carpet by final hearing, a decree was made for a perpetual Fet, that such award of damages was that only nominal damages should injunction and an account of profits and damfounded on a design patent,with ages. Some testimony on the accounting in ter and separate claims for each of Nos. 1 and 3 was taken in November, 1879, das confessed, it alleging infringe- but most of the evidence before the master was tion," the patent will be held taken in the three suits at the same time, in purposes of the suit. June, 1880. of such claims in one patent does at the patent, or any claim, at the The design for a carpet, substanfers to the description and the that a patent for a design is for ornaments, and embodies no cluded, where the bill alleges inavention" and is taken as conthe master reported no profits, and suit in equity for the inpatent for a design, and on excepthe Circuit Court allowed a this court reversed its decree, costs in the Circuit Court teriocutory decree, and the wed his costs after such decree. N231, 232, 233.] 42, 1885. Decided Apr. 20, 1885. Af the Circuit Court of the States for the Eastern District of and facts of the cases appear in of the court. Hector T. Fenton, Richard P. . E. Buckley, for appellants. 1- Arthur Briesen, for appellees. Blatchford delivered the opin its in equity, brought in the of the United States for the East✅ Pennsylvania, against Jolin by Mr. Justice BLATCHFORD, In No. 1 the master filed a report on Janu- [442] [443] In No. 2 the master filed a report on Janu- | presumption that the plaintiffs would have ary 18, 1881, setting forth that the plaintiff, made and sold, in addition to the carpets of the before the master, waived all claim for profits, patented designs which they did make and sell, and limited its claim to the damages it had suf- the infringing carpets which the defendants fered by the infringement; that no testimony made and sold, which are alleged to have been had been taken showing the amount of the de- of poorer quality and cheaper in price, it is plain fendants' sale of the infringing carpet; that the that the price per yard allowed as damages was plaintiff claimed $11,250 damages, being 75 the entire profit to the plaintiffs, per yard, in cents a yard on 300 pieces of carpet of fifty the manufacture and sale of carpets of the pa yards each, as being the decrease of the plaint- tented designs, and not merely the value which iff's sales caused by the infringement, esti- the designs contributed to the carpets. There mating the costs to the plaintiff of making and was no evidence as to that value. selling the carpet at $1.10 per yard, and his selling price at $1.85 per yard; and that the master had rejected that claim as not sustained by the evidence, and also a further claim for expense caused to the plaintiff by the infringement, in getting up another design and in resetting its looms to manufacture the same. The report was for six cents damages. The plaintiff excepted to the report for not finding more than nominal damages. The court sustained the exceptions and decreed to the plaintiff $750, being for twenty pieces of infringing carpet made by the defendants, at fifty yards per piece, or 1,000 yards, at 75 cents per yard, as the plaintiff's profit per yard on carpet of the patented design. The final decree was or $750 and costs, and a perpetual injunction. The defendants have appealed. It is provided by section 4921 of the Revised Statutes that, in a suit in equity for the infringement of a patent the plaintiff may, on a decree in his favor, recover the damages he has sustained, in addition to the profits to be accounted for by the defendant, such damages to be assessed by the court, or under its direction, and with the same power to increase the damages, in the discretion of the court, as in the case of verdicts; and the damages intended are "the actual damages sustained," in the language of section 4919. Root v. R. Co., 105 U. S., 189. 212 [bk. 26, L. ed. 975, 983]. By section 4933 all these provisions apply to patents for designs. This court has, in a series of decisions, laid down rules as to what are to be regarded as "profits to be accounted for by the defendant," and what as "actual damages," in suits for the infringement of patents; and no rule has been sanctioned which will allow, in the case of a patent for a design for ornamental figures created in the weaving of a carpet, or imprinted In No. 3 the master filed a report on January 18, 1881, setting forth that the plaintiff, before the master, waived all claim for profits, and limited its claim to the damages it had incurred by the infringement; that the defend-on it, the entire profit from the manufacture ants had sold thirty-one pieces, amounting to 1,6841 yards, of carpet containing the patented design; that the plaintiff claimed $3,750 damages, being 75 cents a yard on 5,000 yards of carpet, as being the decrease of the plaintiff's sales caused by the infringement, estimating the plaintiff's profit on making and selling the carpet at 75 cents per yard; and that the master had rejected that claim as not sustained by the evidence, and also a furthur claim for the cost of getting up another design to replace the one infringed. The report was for six cents damages. The plaintiff excepted to the report because it did not find profits to have been made by the defendants and did not report more than nominal damages. The court sustained the exceptions and decreed to the plaintiff $1,312.50, being for thirty-five pieces of infringing carpet made and sold by the defendants at fifty yards per piece, or 1,750 yards, at 85 cents per yard, as the plaintiff's profit per yard on carpet of the patented design. The final decree was for $1,312.50 and costs and a perpetual injunction. The defendants have appealed. and sale of the carpet, as profits or damages, including all the profits from carding, spinning, dyeing and weaving, thus regarding the entire profits as due to the figure or pattern, unless it is shown by reliable evidence that the entire profit is due to the figure or pattern. It is matter of common knowledge that there is an infinite variety of patterns in carpets, and that, between two carpets of equal cost to make and equal merit as to durability of fabric and fastness of color, each with a pattern pleasing to the taste, one having a design free to be used and the other a design protected by a patent, the latter may or may not command in the market a price larger than the former. If it does, then the increased price may fairly be attributed to the design, and there is a solid basis of evidence for profits or damages. But, short of this, under the rules established by this court, there is no such basis. The same principle is applicable as in patents for inventions. The burden is upon the plaintiff, and if he fails to give the necessary evidence, but resorts, in stead, to inference and conjecture and specula tion, he must fail for want of proof. There is The Circuit Court proceeded on the ground, another suggestion of great force. The carpet as stated in its decision (10 Fed. Rep., 385), that with the infringing design may be made on an it was to be presumed that the defendants' car-infringing loom, and various infringing processpets displaced in the market an equal quantity es or mechanisms for carding, spinning or dye of the plaintiff's carpets; and that the profits which the plaintiffs would have made on that quantity of carpets was the measure of their damages. It rejected the claims for losses for any greater decline in the plaintiff's sales, and on looms, as too remotely connected with the defendants' acts as their supposed cause" and "too speculative in their character" to be allowed." Leaving out of view all question as to the ing may be used in making it, and if the en tire profit in making and selling it is necessarily to be attributed to the pattern, so it may as well, on principle, be attributed to each of the other infringements, and a defendant might be called on to respond many times over for the same amount. There is but one safe rule--to require the actual damages or profits to be established by trustworthy legal proof. L tecessary to cite at length from the set by this court on the subject. It to refer to them as follows: Lic, 15 How.,546; Seymour v. 16 Low 450, Mayor v. Ransom, 23 * 47 475,bk.16, Led. 515]; Mowry v. 14 Wall, 620 [81 U. S., bk. 20, L. ed. Nek 17 Wall,460 [84 U. S., bk. Latt Sv. Perry, 21 Wall., 205 • Led 577]; Birdsall v. Coolidge, 4B 23, L. ed. 802]; Cawood Patent, 24. L. ed. 235]: Blake v. Robert 24.245); Garretson v. Clark, 111 L. ed. 371]; Black v. Thorne, F which applies also to a patent **af rmulated thus by this court, Clark: "The patentee must in e evidence tending to separate or the defendant's profits and the pabetween the patented feature -nted features, and such evidence and tangible, and not conjecre; or he must show by equally ctory evidence that the profare to be calculated on the for the reason that the entire whole machine as a marketable erly and legally attributable to Here." The case of Mfg. Co. v. CS, 253 Bk. 26, L. ed. 987], was in the last clause of the rule was an exceptional case, as was Chef Justice, in the opinion. The was regnized in that case, and the de in regard to the oil-well involved because there was only ocal demand for it, which could supplied by any other - was not ion is even more applicable design than to one for mechan4 pattern in ornamentation or to the taste through the eye, a matter of evanescent caprice. which embodies it is not necessarily - more serviceable or durable for the same use having a differm. Approval of the particumay very well be one mothe article containing it, but intrinsic merits of quality Maina purchaser, aside from da, and to attribute in law to the pattern, to the exclusion unless it is shown by eviMaar that the profit ought to be so y violates the statutory rules *- and of "profits to be ac*nfounds all distinctions be therefore, all of them, be --- win the dates awarded. th the bill was taken as conats take the point that the It is fare because it has nineteen tar a claim for an entire pattern, cham for each of eighteen king up the whole. The afgement by the making and austion" and of carpets con971tion" Even if the defendda se non me point after a decree pro con fesso (see Thomson v. Wooster, 114 U. S., 104 [ante, 105]), the patent must be held valid at least for the purposes of this case. In No. 2, the question of proof of making and selling by the defendants before suit brought is raised. But we think, on the pleadings and all the proofs, including the defendant's letter of April 13, 1880, the case is made out. The point is also taken that this patent is void because it has a claim for the entire pattern and three claims for each of three constituent parts of it. No such point is taken in the answer, which speaks of the patent as one for a single design. If the Patent Office, in view of the question of fees, and for other reasons, grants a patent for an entire design, with a claim for that and a claim for each one of various constituent members of it, as a separate design, we see no objection to it, leaving the novelty of the whole and of each part and the validity of the patent open to contestation. The mere joinder of such claims in one grant does not per se invalidate the patent or any particular claim, at the objection of a defendant. In No. 3 objection is taken to the patent because it claims "the design for a carpet, substantially as shown." As the bill is the same in form as that in No. 1 and was taken pro confesso, the patent is valid at least for the purposes of this case. Aside from this we see no good objection to the form of the claim. It refers to the description as well as the drawing, in using the word "shown." The objection is also made, as to No. 3, that the patent is for an aggregation of old ornaments and embodies no invention. This objection is concluded, for this case, by the language of the bill and the decree pro confesso. The final decrees in all of the suits are reversed, and the cases are remanded to the Circuit Court with directions to disallow the award of damages in each suit, and to award six cents damages in each, and to allow to the defendants a recovery in each case for their costs after interlocutory decree, and to the plaintiff in each case a recovery for its costs to and including interlocutory decree. True copy. Test: James H. McKenney, Clerk, Sup. Court, U. 8. Dissenting: Mr. Justice Bradley. RUDGER CLAWSON, Plff. in Err., 0. UNITED STATES. (See S. C., Reporter's ed., 477-488.) Juries in Utah-exclusion of believers in polyga my-5, Act March 22, 1882, and § 4, Act June 23, 1874. Under 5 of the Act of Congress of March 22, 1882 (22Stat. at L., 30), which provides "that in any prosecution for bigamy, polygamy or unlawful cohabitation under any statute in the United States, it shall be sufficient cause of challenge to any person drawn or summoned as a juryman or talesman, ・・・ that he believes it right for a man to have more than one living and undivorced wife at the same time."the proceedings to impanelthe grand jury which finds an indictment for one of the offenses named, under a statute of the United States, against Head notes by Mr. Justice BLATCHFORD. [477] [447] [478] The statute applies to grand jurors. Where, under $4 of the Act of Congress of June 23, 1874 (18 Stat. at L., 254), in relation to courts and judicial officers in the Territory of Utah," in the trial of an indictment, the names in the jurybox of 200 jurors, provided for by that section, are exhausted, when the jury is only partly impaneled the District Court may issue a venire to the United States marshal for the Territory, to summon jurors from the body of the judicial district, and the the jury may be completed from persons thus summoned. [No. 1263.] Argued Apr. 8, 1885. Decided Apr. 20, 1885. thereafter, the clerk of the District Court in each judicial district, and the judge of probate of the county in which the District Court is next to be held, shall prepare a jury list from which grand and petit jurors shall be drawn, to serve in the District Courts of such district until a new list shall be made as herein provided. Said clerk and probate judge shall alternately select the name of a male citizen of the United States who has resided in the district for the period of six months next preceding, and who can read and write in the English language; and, as selected, the name and residence of each shall be entered upon the list until the same shall contain two hundred names, when the same shall be duly certified by such clerk and probate judge; and the same shall be filed in the office of the clerk of such District Court, and a dupli IN ERROR to the Supreme Court of the Ter-cate copy shall be made and certified by suce ritory of The history and facts of the case fully appear in the opinion of the court. See also Clawson v. U. S., ante, 47. Messrs. Franklin S. Richards and Wayne MacVeagh, for plaintiff in error. Mr. S. F. Phillips, Solicitor-Gen., for defendant in error. Mr. Justice Blatchford delivered the opinion of the court: At April Term, 1884, of the Third Judicial District Court of Utah Territory, Rudger Clawson was indicted, under two counts in the same indictment, one for polygamy and the other for cohabiting with more than one woman. The first count was founded on § 5352 of the Revised Statutes of the United States, as amended by § 1 of the Act of Congress of March 22, 1882 (22 Stat. at L., 30); and the second on section 3 of that Act. By section 4, counts for those offenses may be joined in the same indictment. The defendant was tried in October, 1884, and found guilty on both counts, as charged, and sentenced, on the first count, to pay a fine of $500 and to be imprisoned three years and six months; and on the second count to pay a further fine of $300 and to be imprisoned the further term of six months; and further, to be confined till the fines be paid. From this judgment he appealed to the Supreme Court of the Territory, which affirmed the judgment and sentence, and he has brought the case to this court by a writ of error. The indictment was presented and filed in court April 24, 1884. On the 30th of April, 1884, before plea, the defendant moved to set aside the indictment, on the ground that the grand jury was not legally constituted, in that qualified grand jurors, drawn and summoned, were illegally excluded from the grand jury on the challenge of the prosecuting attorney. The motion was heard on an agreed statement of facts, which is set out in the bill of exceptions, and was overruled, and the defendant excepted to the decision. The first error here assigned is that that motion was improperly overruled. By $ 4 of the Act of Congress of June 23, 1874 (18 Stat. at L., 254), entitled "An Act in Relation to Courts and Judicial Officers in the Territory of Utah," it is provided as follows: That within sixty days after the passage of this Act, and in the month of January annually officers and filed in the office of said probate judge. Whenever a grand or petit jury is to be drawn to serve at any term of a District Court the judge of such district shall give public notice of the time and place of the drawing of such jury, which shall be at least twelve days before the commencement of such term; and on the day and at the place thus fixed the judge of such district shall hold an open session of his court, and shall preside at the drawing of such jury; and the clerk of such court shall write the name of each person on the jury lists returned and filed in his office upon a separate slip of paper, as nearly as practicable of the same size and form, and all such slips shall, by the clerk in open court, be placed in a covered box, and thoroughly mixed and mingled; and thereupon the United States marshal or his deputy shall proceed to fairly draw by lot from said box such number of names as may have previously been directed by said judge; and if both a grand and petit jury are to be drawn, the grand jury shall be drawn first; and when the drawing shall have been concluded, the clerk of the District Court shall issue a venire to the marshal or his deputy, directing him to summon the persons so drawn, and the same shall be duly served on each of the persons so drawn at least seven days before the commencement of the term at which they are to serve; and the jurors so drawn and summoned shall constitute the regular grand and petit juries for the term for all cases. And the names thus drawn from the box by the clerk shall not be returned to or again placed in said box until a new jury list shall be made. If during any term of the District Court any additional grand or petit jurors shall be necessary, the same shall be drawn from said box by the United States marshal in open court; but if the attendance of those drawn cannot be obtained in a reasonable time, other names may be drawn in the same manner. * * * The grand jury must inquire into the case of every person imprisoned within the district on a criminal charge and not indicted. * * *” A jury list of 200 persons from which to draw grand and petit jurors for the Third Judicial District Court for the year 1884 was made, certified and filed in the office of the clerk of the court, under the above cited provisions of the Act of June 23, 1874, and a number was set opposite to each name. Those having even numbers opposite to their names were selected |