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Other Relief by Decree.---The court may by decree order the infringing articles to be delivered up to be destroyed, or grant other equitable relief.2

burg, 12 Fed. Rep. 783; Munson v. Mayor etc. of N. Y., 19 Fed. Rep. 313; Roller Mill Co. v. Coombs, 39 Fed. Rep. 803; s. c. 48 Pat. Off. Gaz. 973. But it is not a matter of right even if the defendant will give bond and the patent is about to expire. Brown v. Deere, 6 Fed. Rep. 487; s. c., 19 Pat. Off. Gaz. 1217.

An injunction will not be suspended until the final decree to permit the defendant to have time to change his machine, unless there is a probability of his being able to do so in such a manner as will evade the patent. Brown v. Deere, 6 Fed. Rep. 487; s. c., 19 Pat. Off. Gaz. 1217.

An injunction will be granted although the plaintiff has withdrawn the patented device from a State on account of alleged oppressive legislative exactments. American Bell Telephone Co. v. Cushman Telephone Co., 36 Fed. Rep. 488; s. c., 45 Pat. Off. Gaz. 1193.

Expiration of Patent Before Decree.Where a patent expires before final hearing, the injunction will not be granted. Bliss v. Brooklyn, 8 Blatchf. (U. S.) 533; Tilghman v. Mitchell, 9 Blatchf. (U. S.) 18; s. c., 4 Fish. Pat. Cas. 615.

A case where the injury to plaintiff consists only in the failure to pay the price of his license, will not warrant an injunction. Sanders v. Logan, 2 Fish. Pat. Cas. 167.

Where the plaintiff is not a manufacturer the injunction may be refused upon his receiving proper compensation. Dorsey etc. Rake Co. v. Marsh, 6 Fish. Pat. Čas. 387.

The principle being that, where the injury to the defendant was greater than the advantage to complainant, the injunction should be refused. McCrary v. Pennsylvania Canal Co., 5 Fed. Rep. 567. All of these cases are in third circuit, which, as stated by JUDGE Brown in Consolidated Roller Mill Co. v. Coombs, 39 Fed. Rep. 803, seems to have a different rule of decision from that obtaining in other circuits and was refused to be followed.

An injunction has been denied on the ground that the patentee did not put his patent into use or allow others to use it on equitable terms. Hoe v. Knap, 27 Fed. Rep. 204.

That a patentee is compelled to put his invention into use is denied by Consolidated Roller Mill Co. v. Combs, 39 Fed. Rep. S03.

The right of the plaintiff to his injunction is stated to be based on the fact that the chancellor cannot in the decree give the complainant less than his full right and cannot bargain with him what he may or may not choose to do. Penn v. Bibby, L. R., 3 Eq. (Eng.) 308. See Birdsell v. Shaliol, 112 U. S. 485.

The ordinary practice is for an injunction, as a matter of course, to follow a decree in favor of the complainant on the merits. Rumford Chemical Works v. Hecker, 11 Pat. Off. Gaz. 330.

An injunction will not ordinarily be continued as to articles manufactured during the life of the patent. Westinghouse v. Carpenter, 43 Fed. Rep. 894. Contra, Crosby v. Gas Light Co., 1 Web. Pat. Cas. (Eng.) 119; American etc. Boring Co. v. Sheldon, 18 Blatchf. (U. S.) 52; s. c., 2 Fed. Rep. 353; Mower etc. Co. v. Johnston Harvester Co., 24 Fed. Rep. 739; New York Belting etc. Co. v. Macgowan, 27 Fed. Rep. 111.

But not as to articles made from elements made before the expiration, when the elements were old and the combination the only thing patentable. Johnson v. Brooklyn etc. R. Co., 37 Fed. Rep. 147.

Liability of Complainant on Bond.— Where the complainant has given bond to obtain an injunction, he is liable on failure for damages for loss of sales, depreciation of goods on hand, etc. Toby Furniture Co. v. Colby, 35 Fed. Rep. 392.

1. Birdsell v. Shaliol, 112 U. S. 487; Needham v. Oxley, 8 L. T., N. §. (Eng.) 604; Frearson v. Loe, Ch. Div. (Eng.) 67; Betts v. De Vitre, 34 L. J., Ch. (Eng.) 289; American Bell Teleph. Co. v. Kitsell, 35 Fed. Rep. 521; Emperor v. Day, 2 Giff. (U. S.) 628.

But this relief should not be granted when there is no reason to believe that the defendant will act in bad faith in regard to the matter. American Bell Teleph. Co. v. Kitsell, 35 Fed. Rep. 521.

2. See INFRINGEMENT, vol. 10, pp. 754, 762 et seq.

8. New Trial and Arrest of Judgment.-New trial is granted where a material1 error has been committed,2 or the verdict is against the weight of the evidence; or the new evidence, which could not have been obtained at the time of the trial and which is not merely cumulative, can be and is presented by the losing party.

9. Re-hearing. The granting of a rehearing is governed by substantially the same rules as govern the granting of a new trial,

1. Allen v. Blunt, 2 Woodb. & M. (U. S.) 121; s. c., 2 Robb Pat. Cas. 530; Cowing v. Rumsey, 8 Blatchf. (U. S.) 36; s. c., 4 Fish. Pat. Cas. 275.

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2. The error must have been cepted to at the time. Allen v. Blunt, 2 Woodb. & M. (U. S.) 121; s. c., 2 Robb Pat. Cas. 130; Silsby v. Foote, 14 How. (U. S.) 218; Keyes v. Grant, 118 U. S. 25.

3. Wilson v. James, 3 Blatchf. (U. S.) 227; Aikens v. Bemis, 3 Woodb. & M. (U. S.) 348; s. c., 2 Robb Pat. Cas. 644; Bray v. Hartshorn, 1 Cliff. (U.S.) 538; Roberts v. Schuyler, 12 Blatchf. (U.S.) 444; s. c., 2 Bann. & Ard. Pat.

Cas. 5.

A court will rarely set aside a verdict on account of the amount of damages. Alden v. Dewey, 1 Story (U. S.) 336; s. c., 2 Robb Pat. Cas. 17; Whitney v. Emmett, 1 Baldw. (U. S.) 303: s. c., I Robb Pat. Cas. 567; Stimpson v. Railroads, 1 Wall. Jr. (C. C.) 164, s. c., 2 Robb Pat. Cas. 593.

Sometimes a party may be given the choice to remit part of the damages or the other party will get a new trial. Johnson v. Root, 2 Cliff. (U. S.) 108; s. c., 2 Fish. Pat. Cas. 291; Cowing v. Rumsey, 8 Blatchf. (U. S.) 36; s. c., 4 Fish. Pat. Cas. 275.

4. Washburn v. Gould, 3 Story (U. S.) 122; s. c., I Robb Pat. Čas. 689.

5. Ames v. Howard, 1 Sumn. (U. S.) 482; s. c., Robb Pat. Cas. 689; Aikens v. Bemis, 3 Woodb. & M. (U. S.) 348; s. c., 2 Robb Pat. Cas. 644.

A motion for a new trial in an issue sent for trial to a court of law, will not be noticed in the suit in equity. Watt v. Starke, 101 U. S. 247; s. c., 17 Pat. Off. Gaz. 1093.

6. Ready Roofing Co. v. Taylor, 15 Blatchf. (U. S.) 95; s. c., 3 Bann. & Ard. Pat. Cas. 368; Electrical Accumulator Co. v. Julien Electric Co., 39 Fed. Rep. 490.

14 Blatchf. (U. S.) 19; s. c., 2 Bann. & Ard. Pat. Cas. 452; s. c., 10 Pat. Off. Gaz. 907; Adair v. Thayer, 7 Fed. Rep. 920; s. c., 20 Pat. Off. Gaz. 523; Allis v. Stowell, 5 Bann. & Ard. Pat. Cas. 458: s. c., 18 Pat. Off. Gaz. 465; Craig 7. Smith, 100 U. S. 226; s. c., 17 Pat. Off. Gaz. 145; Hake v. Brown, 44 Fed. Rep. 283; Starling v. St. Paul Plow Works, 32 Fed. Rep. 290; Reed v. Lawrence, 32 Fed. Rep. 228.

It must be shown that it was not in the possession of the party at the time of the hearing and that due diligence had been exercised. Reeves v. Keystone Bridge Co., 2 Bann. & Ard. Pat. Cas. 256; s. c., 9 Pat. Off. Gaz. 885; Munson v. New York, 22 Pat. Of. Gaz. 586; Yerrington v. Putnam, 2 Bann. & Ard. Pat. Cas. 601; Barker v. Stowe, 4 Bann. & Ard. Pat. Cas. 485; s. c., 16 Pat. Off. Gaz. 807; Gillett v. Bate Refrigerating Co., 12 Fed. Rep. 108; Page v. Holmes etc. Tel. Co., 18 Blatchf. (U. S.) 118 s. c., 5 Bann. & Ard. Pat. Cas. 439; s. c., 2 Fed. Rep. 330; Ingersoll v. Benham, 14 Blatchf (U.S.) 362; s. c., 3 Bann. & Ard. Pat. Cas. 439; Allis v. Stowell, 5 Bann. & Ard. Pat. Cas. 458; s. c., 18 Pat. Off. Gaz. 465; Witters v. Sowles, 32 Fed. Rep. 765; Burdsall v. Curran, 31 Fed. Rep. 918; Albany Steam Trap Co. v. Felthousen, 26 Fed. Rep. 318; Hoe v. Kahler, 23 Blatchf. (U. S.) 354; s. C., 25 Fed. Rep. 271; s. c., 34 Pat. Off. Gaz. 127.

New evidence not introduced on account of the incompetence of the former solicitor, is no reason to grant a rehearing. De Florez v. Raynolds, 16 Blatchf. (U. S.) 397; s. c., 4 Bann. & Ard. Pat. Cas. 431; Railway Reg. Mfg. Co. v. North Hudson R. Co., 26 Fed. Rep. 411.

Lack of expert testimony will not induce the court to grant a rehearing. Hitchcock v. Tremaine, 9 Blatchf. (U. S.) 550; s. c., 5 Fish. Pat. Cas. 537; s. c., 1 Pat. Off. Gaz. 633. Merely cumulative

Newly Discovered Evidence.-It must be shown that the evidence is such as would cause the court to come to new evidence another decision. Buerk v. Imhauser, will not induce the court to grant a

excepting the fact that a decree for an injunction, being interlocutory, makes it subject to revision until the making of a final decree, and that the equitable doctrines are applied.3

rehearing. Pfanschmidt v. Kelly Mercantile Co., 32 Fed. Rep. 667; Witters v. Sowles, 32 Fed. Rep. 765.

1. Reeves v. Keystone Bridge Co., 2 Bann. & Ard. Pat. Cas. 256; s. c., 9 Pat. Off. Gaz. 885; Schneider v. Thill, 5 Bann. & Ard. Pat. Cas. 565.

An interlocutory decree may be opened and the bill dismissed on account of the complainant having an adequate remedy at law. Spring v. Domestic Sewing Mach. Co., 13 Fed. Rep. 446; s. c., 22 Pat. Off. Gaz. 1445.

2. Magie Ruffle Co. v. Elm City Co., 14 Blatchf. (U. S.) 109; s. c., 2 Bann. & Ard. Pat. Cas. 506; s. c., 11 Pat. Off. Gaz. 501; Coburn v. Schroeder, 11 Fed. Rep. 425; s. c., 22 Pat. Off. Gaz. 1538; Willimantic Linen Co. v. Clark Thread Co., 32 Pat. Off. Gaz. 1356; s. c., 24 Fed. Rep. 799; Wooster v. Handy, 22 Blatchf. (U. S.) 307; s. c., 21 Fed. Rep. 31; s. c., 28 Pat. Off. Gaz. 629; Steam Stone Cutter Co. v. Sheldon, 22 Blatchf. (U. S.) 484; s. c., 21 Fed. Rep. 875.

Defendant who, subsequent to decree, discovers that the patent sued on is limited by a foreign patent to patentee, may have decree amended to limit the injunction to the life of the American patent as limited by the foreign patent. DeFlorez v. Raynolds, 17 Blatchf. (U. S.) 436; s. c., 8 Fed. Rep. 434; s. c., 17 Pat. Off. Gaz. 503.

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3. Laches will prevent a party from obtaining a rehearing. Andrews Denslow, 14 Blatchf. (U. S.) 182; s. c., 2 Bann. & Ard. Pat. Cas. 587; Doubleday v. Sherman, 6 Blatchf. (U. S.) 513; Willimantic Linen Co. v. Clark Thread Co., 24 Fed. Rep. 799; s. c., 32 Pat. Off. Gaz. 1356.

But the laches must be considerable. Hake v. Brown, 44 Fed. Rep. 283.

Fraud. A collusive decree will be stricken out. Barker v. Todd, 15 Fed. Rep. 265; s. c., 23 Pat. Off. Gaz. 438.

Where the court is not satisfied with the conclusion reached, it may grant a re-hearing with leave to take additional proof. Rumford Chemical Works v. Lauer, 10 Blatchf. (U. S.) 122; s. c., 5 Fish. Pat. Cas. 615; s. c., 3 Pat. Off.

Gaz. 349.

The court will very rarely grant a re-hearing when no new facts are

brought forward. Gage v. Kellogg, 26 Fed. Rep. 242; s. c., 36 Pat. Off. Gaz. 238; Tufts v. Tufts, 3 Woodb. & M. (U. S.) 429; Rogers v. Reissner, 34 Fed. Rep. 270; Giant Powder Co. v. California etc. Powder Co., 5 Fed. Rep.

197.

Practice in Amendment of Decree.-In decrees or decretal orders a mere clerical correction, especially where the decree has not been enrolled, will be made on motion. Witters v. Sowles, 32 Fed. Rep. 130; Union Sugar Refinery v. Mathiesson, 3 Cliff. (U.S.) 146, 597.

Practice on Motion for Re-hearing.— After an interlocutery decree has been entered, application for re-hearing on account of new evidence must be by petition for leave to file supplemental bill or answer and for re-hearing when supplemental bill or answer may be ready for hearing. Reeves v. Keystone Bridge Co., 2 Bann. & Ard. Pat. Cas. 256; s. c., 9 Pat. Off. Gaz. 885; Hop Bitters Mfg. Co. v. Warner, 28 Fed. Rep. 577.

Or to file a petition in the court where the decision was had, and obtain from the court an order upon the other party to show cause on the following rule day or on some other day mentioned, why its prayer should not be granted. The other party can then answer the petition, and upon the petition and answer, the application can be heard. Giant Powder Co. v. Califor nia etc. Powder Co., 5 Fed. Rep. 197.

Practice Petition.-The petition must be signed by counsel and the affidavit cannot be made before an officer who is also attorney for petitioner; it must, if re-hearing is sought on the ground of new evidence, state the nature of the evidence; that it was not in possession of the party until after the hearing; that diligence was used to discover it; when it was discovered and the circumstances of its discovery. Allis v. Stowell, 5 Bann. & Ard. Pat. Cas. 458; s. c., 18 Pat. Off. Gaz. 465.

Terms. A decree made on re-hearing may make terms under circumstances which would otherwise cause great oppression on a party. Campbell v. New York, 35 Fed. Rep. 504.

Where a re-hearing pending an accounting is granted, the testimony al

10. Proceedings on Accounting.-The proceedings in the master's office are substantially the same as in other cases of reference on an accounting.1

ready taken before the master will be retained for use in a subsequent accounting if such be ordered. American etc. Boring Co. v. Sheldon, 23 Blatchf. (U. S.) 286.

Who Can Move to Amend Decree.-A stranger to the decree, even if his rights would be affected by the decree, cannot move to have it amended. In re Iowa etc. Wire Co., 5 Bann. & Ard. Pat. Cas. 279; Washburn etc. Mfg. Co. v. Colwell etc. Fence Co., 1 Fed. Rep. 225; Page v. Holmes Telegraph Co., 18 Blatchf. (U. S.) 118; s. c., 2 Fed. Rep. 320; s. c., 5 Bann. & Ard. Pat. Cas. 439.

1. The following has been stated to be the proper practice on an accounting in a patent suit by JUDGES NELSON and LOWELL: "The master appoints a day for proceeding with the reference, and gives notice, by mail or otherwise, to the parties or their solicitors. We think the solicitor should be notified; though probably under rule seventyfive, notice to the party is good notice. If the defendant does not appear the master proceeds ex parte, and makes out the profits and damages, if he can, from the evidence produced by the plaintiff. If it appears that an account of profits is necessary to a just decision of the cause, and is desired by the plaintiff, he makes an order that the defendant furnish an account by a certain day, and adjourns the hearing to that day. The defendant should be served personally with a notice of this adjournment; and of the order to produce his account, if it is intended to move for an attachment in case he fails to appear. The service may be made by any disinterested party and need not be by the marshal. If the defendant then fails to appear he will be in contempt." Kerosene Lamp Heater Co. v. Fisher, 1 Fed. Rep. 91; s. c., 5 Bann. & Ard. Pat. Cas. 78.

The court will not, however, instruct the master in advance as to the course he is to pursue. Fisher v. Consolidated Amador Mine, 25 Fed. Rep. 201; Wooster v. Gumbirnner, 20 Fed. Rep. 167.

Nor review each alleged error by special motion. Lull v. Clark, 22 Blatchf. (U. S.) 209; s. c., 20 Fed. Rep. 454

Exceptions. Exceptions should be taken on the spot to a ruling of the

master, in overruling or sustaining objections to admission of testimony. Troy Iron etc. Factory v. Corning, 6 Blatchf. (U. S.) 328; s. c., 3 Fish. Pat. Cas. 497; American etc. Pavement Co. v. Elizabeth, 1 Bann. & Ard. Pat. Cas. 463; s. c., 6 Pat. Off. Gaz. 764.

The objections to testimony should state the ground of the objection. Brown v. Hall, 6 Blatchf. (U. S.) 401; s. c., 3 Fish. Pat. Cas. 531.

And the objection should be made at the time of alleged error and afterwards reduced to writing and filed with the master. Fisher v. Hayes, 16 Fed. Rep. 469; s. c., 24 Pat. Off. Gaz, 304.

And unless objections similar to the exceptions taken were made to the draught report, such exceptions will be overruled.

Form of Exception.-Exception should point out the error alleged to have been committed, and the evidence. Turrill v. Illinois Cent. R. Co., 3 Biss. (U. S.) 72; Cutting v. Florida etc. R. etc. Co., 43 Fed. Rep. 743.

When No Exceptions Can be Taken.Where the master's report is based upon an inspection as well as upon the evidence, the findings of fact will not be reversed. Piper v. Brown, 6 Fish. Pat. Cas. 240; s. c., I Holmes (U. S.) 196; s. c., 3 Pat. Off. Gaz. 97.

Or a master's report upon conflicting evidence. Welling v. LeBaw, 34 Fed. Rep. 40.

See as to case where interrogatories were adjusted by master. Union Sugar Refinery v. Matthiesson, 3 Cliff. (U. S.) 146.

No exception can be taken to a report on account of error in the interloc utory decree. Williams v. Leonard, 9 Blatchf. (U. S.) 476; s. c., 5 Fish. Pat. Cas. 381; Turrell v. Speath, 2 Bann. & Ard. Pat. Cas. 185; s. c., 8 Pat. Off. Gaz. 986.

Re-committal of Report.-A re-committal of report will be made where a mistake has been made in it. McKay v. Jackman, 17 Fed. Rep. 641; s. C., 24 Pat. Off. Gaz. 1177.

Or the master has failed to clearly state his conclusions. Webster Loom Co. v. Higgins, 43 Fed. Rep. 673.

But it will not be re-committed merely to allow a party to remedy a neglect. Fisher v. Hayes, 16 Fed. Rep. 469; s. c.,

11. Costs.-The general rule is to give costs to the prevailing party. The exceptions are few and rest on strong grounds.2 They are generally where the award of them would be against equity and good conscience. It is, however, a purely statu

24 Pat. Off. Gaz. 304; Garretson v. Clark, 15 Blatchf. (U. S.) 70; s. c., 3 Bann. & Ard. Pat. Cas. 352; s. c., 14 Pat. Off. Gaz. 485.

But see Webster Loom Co. v. Higgins, 43 Fed. Rep. 673; Porter Needle Co. v. National Needle Co., 22 Fed. Rep. 829.

Nor will it be re-committed where the mistake can be corrected by the facts appearing in the case aside from the evidence before the master. Witters v. Sowles, 43 Fed. Rep. 405.

Opening the Report.-A report will not be opened to admit new testimony when it is evident that all important testimony is in. Morss v. Union Form Co., 39 Fed. Rep. 468.

What Questions Are Not at Issue Before the Master-The validity of the patent. Skinner v. Vulcan Iron Works, 39 Fed. Rep. 870; Thomson v. Wooster, 114 U. S. 104.

Adjudications made by the court upon motion of a party, directing a rule for the computation of profits, are not open to review by exceptions to report. Webster Loom Co. v. Higgins, 39 Fed. Rep. 462.

Reporting the Evidence.-Where, at a hearing before a master, the evidence is not in writing, no order can be made on the master to report the evidence. Hammacher v. Wilson, 32 Fed. Rep. 796. See also Loud v. Stone, 28 Fed. Rep. 749.

1. Hovey v. Stevens, 3 Woodb. & M. (U. S.) 17; s. c., 2 Robb. Pat. Cas. 567; Urner v. Kayton, 17 Fed. Rep. 845: Calkins v. Bertrand, 10 Biss. U. S. 445; s. c., 8 Fed. Rep. 755; Merchant v. Lewis, Bond (U. S.) 172; Green v. Barney, 19 Fed. Rep. 420; McKay v. Jackman, 17 Fed. Rep. 641.

Reference. The cost of a reference

to a master where the decree is for

nominal damages only are taxed against complainant. Garretson v. Clark, 111 U. S. 120; Everest v. Buffalo Lubricating etc. Co., 30 Fed. Rep. 848; Moffitt v. Cavanagh, 27 Fed. Rep. 511; Dobson v. Hartford Carpet Co., 114 U. S. 439.

The complainant pays the master's fee, and then, if he recovers, has it taxed. Macdonald v. Shepard, 10 Fed. Rep.

919; contra, Urner v. Kayton, 17 Fed. Rep. 539; s. c., 24 Pat. Off. Gaz. 1178.

2. Hovey v. Stevens, 3 Wood b. & M. (U. S.) 7; s. c., 2 Robb Pat. Cas. 567; Elfelt v. Steinhart, 6 Sawy. (U. S.) 480; s. c., 5 Bann. & Ard. Pat. Cas. 596; s. c., 11 Fed. Rep. 896; Yale Mfg. Co. v. North, 5 Blatchf. (U. S.) 455; s. C., 3 Fish. Pat. Cas. 279; Hake v. Brown, 37 Fed. Rep. 783.

They may sometimes be divided. Fiske v. West etc. Mfg. Co., 19 Pat. Off. Gaz. 545; Garretson v. Clark, 16 Pat. Off. Gaz. 806; Brooks v. Byam, 2 Story (U. S.) 525.

3. For instance, where defendant has been induced by complainant to believe that his machine did not infringe the patent. Sarven v. Hall, 11 Blatchf. (U. S.) 295; s. c., 6 Fish. Pat. Cas. 495; S. C., 4 Pat. Off. Gaz. 666.

Or where the defendants who have prevailed, have made a profit by reason of the existence of the patent. Hussey v. Bradley, 5 Blatchf. (U. S.) 134; s. c., 2 Fish. Pat. Cas. 362.

Where defendant has prevailed on answer on a defense that should have clearly been raised by demurer. Brooks v. Byam, 2 Story (U. S.) 525.

An offer having been made by defendant to pay over the profits. Ford v. Kurtz, 12 Fed. Rep. 789.

But not where a general offer to pay royalty has been made and refused. Allen v. Deacon, 21 Fed. Rep. 122.

Where complainant has been defeated on the most of his claim. Albany Steam Trap. Co. v. Felthousen, 20 Fed. Rep. 633; Fay v. Allen, 24 Fed. Rep. 804; Schimd v. Scovill Mfg. Co., 37 Fed. Rep. 345; Hayes v. Bickelhoupt, 21 Fed. Rep. 567; Adams v. Howard, 22 Blatchf. (U. S.) 47; s. c., 19 Fed. Rep. 317; s. c., 26 Pat Off. Gaz. 825.

But lack of disclaimer in reissue which has had its claims unduly broadened, does not hinder the costs from going to complainant where he has the decree. The plaintiff was the original inventor of the things claimed but had abandoned them. Mundy v. Lidgerwood Mfg. Co., 20 Fed. Rep. 191; Yale Lock Mfg. Co. v. Sargent, 117 U. S. 537.

Prevailing Only on a Side Issue.

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