product “Brooklyn white lead." It is, however, urged that it is impossible that the works at Dubuque, Iowa, should be confounded with the works at Erie, Pennsylvania, and highly improbable that any one should be misled, as the words "of Dubuque, Iowa," are plainly added to the defendant's name on its goods, and also appear in all its advertisements, circulars, &c. But the business of the complainants and defendant, respectively, is not local; their trade is co-extensive with the whole country, and even passes beyond. The complainants' most fruitful field of operations lies nearer to Dubuque than to Erie, and into that field the defendant may enter to sell under the reservation in the contract between Willard and Gray. There is credible evidence that no little confusion has actually arisen, and I think such is the unavoidable result of the double use of the same trade-name in this business.

In my judgment, the complainants' right to equitable protection is as clear, and the necessity for the exercise of the restraining power of the court is as urgent, as in any case to which my attention has been called in which the like relief was granted. But the jurisdiction of the court is disputed, the defendant being a foreign corporation, and a motion has been made to set aside the service of the subpœna and dismiss the bill. The return of the marshal shows a service on its face entirely regular upon the president of the corporation, Edwin Bindley; and as a corporation is liable to be sued in a State other than that of its creation and citizenship if "found" therein, the only question to be settled here is whether the defendant was amenable to the process of the State courts for the cause of action complained of and the service authorized by the State law. Ex parte Shallenberger, 96 U. S., 369; Merchants' Manufacturing Company v. Grand Trunk Railway Company, 13 Fed. Rep., 358. In Pennsylvania, by the act of March 21, 1849, in the commencement of any suit or action against a foreign corporation process may be served upon any of its officers, agents, or engineers. Pur. Dig., 287; Lehigh Company v. Boom Company, 6 W. N. C., 222; Coxe v. Camden and Atlantic Railroad Company, 11 W. N. C., 386. And suits may be instituted against a foreign corporation by service of process conformably to the act of 1849, notwithstanding it has failed to establish a place of business in the State and appoint an agent upon whom service may be made agreeably to the State constitution and act of April 22, 1874. Hagerman v. Empire Slate Company, 97 Pa. St., 534. The president of the defendant company was not in this State casually when served by the marshal. He is a citizen of Pennsylvania and a permanent resident in the western district. The bill charges that he transacts "the business of president of said corporation at Pittsburgh, Pa.," and although this is traversed, there is at least slight evidence tending to sustain the averment. However, it is shown that the defendant has procured labels and circulars, in infringement of complainants' rights, to be printed within the western district of Pennsylvania, and has caused such circulars to be distributed therein. This, in connection with the

president's residence therein, it seems to me, is "doing business" suffi ciently to make it amenable to the courts here. But, after all, the foundation of this suit is a continuing tort-widespread in its nature and results-the company's tortious acts being in part actually committed within this State and district. Now, for a tort committed by a foreign corporation within this State I have no manner of doubt the corporation may be sued here if found within the State in the person of an officer or agent upon whom process may be served. The defendant's motion must be denied.

A preliminary injunction will be allowed. Let counsel prepare and submit the form of decree.

[United States Circuit Court-District of Vermont.]

STEAM STONE Cutter COMPANY v. Sheldons ET AL.

Decided March 12, 1883.

O. G., 24, 703.

1. INFRINGEMENT-MACHINES EMBODYING PATENTED INVENTIONS-CHOICE OF

ACTIONS.

The sale of machines embodying the patented inventions of another to one for use is an invasion of the patentee's rights, and such a conversion of his property as will render the party so selling the invention liable in an action for tort. But in such case the plaintiff' may waive the tort and sue in assumpsit for the money received from the sale.

2. SAME-MEASURE OF DAMAGES-WAIVER-RIGHT TO USE.

In an action or proceeding for the money the measure of damages would be the amount of money received, not the amount of damages done, and all right of recovery beyond that would be waived. This is the effect of waiving the tort. The recovery of satisfaction in either form would pass the right to that for which satisfaction was had, and there could be no damages beyond. Consequently, when the plaintiff has recovered and received satisfaction for the tort committed, the title to so much of his property as was wrongfully converted will have passed by the sale and conversion, and no damages will accrue to him on account of further use of that property.

Mr. Aldace F. Walker for the orator.

Mr. Walter C. Dunton for the defendants.

WHEELER, J.:

This suit is brought for relief against infringement of several patents owned by the orator by the use of machines embodying the patented inventions bought by the defendants of the Windsor Manufacturing Company, with a guaranty of the right to use. The orator brought suit against the Windsor Manufacturing Company for infringement of the same patents, and claimed to recover therefor the profits on these sales to the defendants here. To this the Windsor Manufacturing Company objected on account of the guaranty. Upon this question it was held that the liability on the guaranty would not relieve that company

from the liability to account for the profits on these sales, for the reason that after a recovery and satisfaction clearly, if not after a recovery only, for those profits, the right to use those machines would have passed to these defendants, so that they would not be liable to the orator for the use of the machines, and there would be no liability over on the guaranty to take away or reduce the profits; and a decree was passed for the recovery, among other things, of these profits. Steam Stone Cutter Company v. Windsor Manufacturing Company, 17 Blatchf C. C., 24. The orator has recovered upon that decree some money, and has caused real estate to be set off on execution in satisfatcion of the balance. Other persons claimed the real estate so set off, and resisted the taking of possession of it by the orator, and suits were brought by the orator against the several claimants of the land, in one of which the orator has recovered one parcel of the land by a final decree; and in another, the principal one, the orator has obtained a decree of this court establishing the validity of the title by the levy, from which an appeal has been taken to the Supreme Court. The defendants now move for a dissolution of the injunction restraining the use of the machines pending the litigation, and the cause has been heard upon this motion. The defendants insist that the mere taking a decree for the profits of the sale was a ratification of the sale, and made it valid to pass the rights of the orator to everything covered by it belonging to the orator, the same as if it had been made by the orator. The orator claims that only actual beneficial satisfaction will affect the right to follow the defendants for their infringement, and that there are, or may be found to be, damages beyond the profits of the sale resulting from the use of the machines, if not restrained, and that the orator has the right to a continuance of the injunction to prevent such damage.

The full determination of all these questions does not appear to be neccessary to the proper disposition of this motion. The patented inventions were property of the orator. When the Windsor Manufact uring Company sold machines embodying these inventions to the defendants for use, it invaded the orator's rights and converted the orator's property to its own use. These acts were tortious, and an action would lie for these wrongs. As that company received money for the orator's property, the orator could waive the tort and sue in assumpsit for the money, or, what is the same in effect, proceed for an account of the money received. In an action or proceeding for the money the measure of damages would be the amount of money received, not the amount of damage done, and all right of recovery beyond that would be waived. This is the effect of waiving the tort. The recovery of satisfaction in either form would pass the right to that for which satisfaction was had, and there could be no damages beyond. Upon these principles, which are elementary, when the orator has recovered and received satisfaction for the tort committed by the sale and conversion of so much of its property, its title to so much of its property will have passed, and no dam

ages could accrue to it on account of further use of that property. By the satisfaction the machines would be freed from the orator's monopoly. The levy upon the real estate is prima facie a satisfaction of the decree; therefore the machines are prima facie free. The defendants, as the case now stands, have prima facie the right to have the injunction dissolved. If this right is varied by further developments or different results, compensation can be made to the orator in the accounting with less danger of injustice than the continuance of the injunction would involve.

Motion granted and injunction dissolved.

[United States Circuit Court-Southern District of New York.]

UNITED NICKEL COMPANY v. PENDLETON.

Decided February 1, 1883.

24 O. G.. 704.

1. INFRINGEMENT-ELECTRO-DEPOSITION OF NICKEL-CHEMICAL EQUIVALENT. Where defendant's solution is amenable to the same laws as that of the plaintiff, and to give the same result must be used under the same conditions and be free from the same impurities, and be made according to the same principles as that of the plaintiff, it is a chemical equivalent of the plaintiff's solution. 2. SAME-SIMILAR PROCESS AND MODES OF WORKING.

Where the defendant did not vary the process or the mode of working, or its essential conditions, but applied a new solution, worked in the same way and under the same conditions as the solution of the plaintiff, it is an infringement of plaintiff's claim.

3. NEW PRODUCTS-PATENTability-DESCRIPTION.

A new product or article of manufacture is patentable as a manufacture: and where the patent describes the product and the mode of making it, having certain characteristics which are defined, and stating that they were never produced before, it is a sufficient specification of a claim.

Messrs. Dickerson & Dickerson for the plaintiff.

Messrs. Frost & Coe for the defendant.

BLATCHFORD, J.:

This suit is brought for the infringement of claims 1 and 4 of Letters Patent No. 93,157, granted to Isaac Adams, jr., August 3, 1869, for an improvement in the electro-deposition of nickel. The patent was before this court in United Nickel Company v. Harris (15 Blatchf. C. C., 319) and in United Nickel Company v. Manhattan Brass Company (16 Blatchf. C. C., 68). It was also before Judge Shepley in United Nickel Company v. Anthes (1 Holmes, 155) and in United Nickel Company v. Keith (Id., 328). Claims 1 and 4 are as follows:

1. The electro-deposition of nickel by means of a solution of the double sulphate of nickel and ammonia, or a solution of the double chloride of nickel and ainmonium, prepared and used in such a manuer as to be free from the presence of potash, soda, alumina, lime, or nitric acid, or from any acid or alkaline reaction.

2. The electroplating of metals with a coating of compact, coherent, tenacious, flexible nickel of sufficient thickness to protect the metal upou which the deposit is made from the action of corrosive agents with which the article may be brought in contact.

In the Anthes case, in May, 1872, the validity of the patent was sustained, and infringement was adjudged of claim 1, as the defendant had used the solutions of the patent.

In the Keith case, in February, 1874, the validity of the patent was again sustained, and infringement of claim 1 was adjudged, because of the use, in the electro-deposition of nickel, of a solution of the double sulphate of nickel and ammonia, although such solution contained a small proportion of tartrate of ammonia and a small proportion of ammonia, the first of these being an inert substance in the solution and the second being speedily eliminated by evaporation when the solution was used.

In the Harris case, in October, 1878, the patent was held valid. Claim 1 was held to be a claim to the electro-deposition of nickel by means of any solution of the double sulphate of nickel and ammonia, or of any solution of the double chloride of nickel and ammonium, however such solution may be prepared, provided such solution is so used as to be free, while the electro-deposition of nickel is going on from the presence of potash, soda, alumina, lime, or nitric acid, or from any acid or alkaline reaction. Infringement of that claim was adjudged, and it was held that although a sulphate or a chloride of potash or soda might be introduced into either of the named solutions, yet if the solution was so used in the electro-deposition of nickel that the sulphate or the chloride would not be decomposed, the claim was infringed. Infringement of claim 4 was also adjudged, and that claim was held to be a claim to the product or coating named in it, having the qualities described in it when such product or coating is produced by employing the invention covered by the first claim.

In the Manhattan Brass Company case, in March, 1879, infringement of claim 1 was adjudged, and it was held that that claim was infringed, although the salts of potash and soda were introduced into the solution, provided the solution was not so used as to liberate free potash or free soda.

In the present case questions arise which were not under consideration in the other cases. In none of those cases was claim 4 involved separately from claim 1, because in all of them infringement of claim 1 was adjudged, and in all of them no solution was under consideration but the solutions named in claim 1. The present defendant uses another solution. The answer avers that he is making, using, and selling a nickel-plating solution consisting of oxide of nickel and acetic acid, form. ing an acetate-of-nickel solution, which solution contains an excess of acid and has an acid reaction, and that he does this under Letters Patent No. 232,615, granted to him September 28, 1880, and in the man