The United States v. Volz.

as defined by § 5392 of the United States Revised Statutes. The facts are as follows: A complaint was made before John A. Osborn, a United States commissioner, against one Thomas P. Somerville, charging him with the crime of conspiracy. Upon such complaint the commissioner issued his warrant to apprehend Somerville, who, by virtue thereof, was thereafter apprehended and brought before the commissioner, and, an examination being waived, and it appearing that the offence charged was cognizable by the Courts of the District of Columbia, Somerville was committed by the commissioner to the custody of the marshal, to await the issuing by the District Judge of a warrant for his removal to the District where the trial was to be had. Thereafter, and before any removal warrant was issued by the District Judge, and while Somerville was in the custody of the marshal, by virtue of the commitment of the commissioner, the accused presented himself before the commissioner, to justify as bail for Somerville, and thereupon made oath to a deposition concerning his property, with the object of showing his sufficiency as such surety. This deposition was in writing, signed by the accused, and entitled United States v. Thomas P. Somerville. As the jury have found, it contained statements of material matter, which the deponent did not believe to be true. Thereafter, Somerville made application to Judge Blatchford to be released by him upon bail, to appear for trial in the District of Columbia, and tendered to Judge Blatchford a bail bond executed by the accused as his bail. This bond was accepted by Judge Blatchford, and Somerville thereupon was released upon such bail. It does not appear that the deposition made by the accused before Commissioner Osborn was exhibited to Judge Blatchford, or that any further steps were taken before Commissioner Osborn after the making of the deposition under consideration. Upon these facts the question arises, whether the deposition made by the prisoner before Commissioner Osborn was made in a case "in which a law of the United States authorizes an oath to be administered,” within the meaning of § 5392.

The United States v. Volz.

It

I am of the opinion that it must be held to have been so made. Plainly, the word "case," as used in the statute, is not to be confined to suits or proceedings strictly in Court. There are many instances where the laws of the United States authorize an oath to be administered, when no suit or criminal proceeding has been commenced. But, in the present instance, a criminal proceeding had been instituted before a commissioner, in which a prisoner had been arrested who was entitled to give bail, and in which a surety could lawfully justify under oath, as being good bail for such prisoner. can make no difference, as to the validity of such an oath, whether the person making it be accepted or rejected as bail, nor is the oath rendered invalid by the fact that the proceeding before the commissioner stops with the justification of the bail. The deposition in question was made in such proceeding, and was left with the commissioner. It became then a part of that proceeding, and afforded foundation for a demand. by Somerville to be released by the commissioner upon tendering the bond executed by such surety, whenever it might be deemed desirable to make such tender and demand.

It has been contended, in behalf of the defendant, that, at the time this oath was administered, the commissioner had no power to release Somerville on bail, and, consequently, no power to take the justification of a surety, because the offence appeared to have been committed in another District, and Somerville stood committed to await the action of the District Judge in regard to his removal to such District for trial. It is claimed that the power of the commissioner terminated with the issuing of the commitment. I do not so understand the law. The power to take bail exists in every case where a party has been arrested for any crime or offence against the United States, and it is in all cases to be taken for trial before such Court of the United States as by law has cognizance of the offence. This power never ceases with the issuing of a commitment. The requirement of the statute, (§ 1015,) is, that "bail shall be admitted upon all arrests in criminal cases, where the offence is not punishable by death;" and, in such

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The United States v. Volz.

cases, it may be taken by any of the persons authorized by 1014 to arrest and imprison offenders. There is no provision that the right to give bail is to cease with the issuing of a removal warrant, and certainly the right must exist so long as no such warrant is issued. Until the removal warrant is issued, the prisoner is held in arrest under the commitment of the commissioner, and to that officer application may be made to be released from arrest, on giving bail for trial before such Court of the United States as the commissioner shall determine to have cognizance of the offence as proved before him. What power the commissioner may have after the District Judge shall have issued his warrant directing the prisoner to be removed to another District for trial, it is unnecessary now to consider. But, it seems plain, that, up to the time of the issuing of a removal warrant, the commissioner under whose commitment the prisoner is held has jurisdiction to entertain an application for his release on bail, and, by necessary consequence, jurisdiction to administer an oath to one tendering himself for justification as good bail for such prisoner. I am, therefore, of the opinion, that the offence of perjury, as defined by the statute, was committed by the accused, when, in a proceeding taken before Commissioner Osborn, to justify himself against the exceptions of the District Attorney to his sufficiency as bail for Somerville, a prisoner at that time in custody under the commitment of Commissioner Osborn, and entitled to be released by such commissioner upon giving good bail, he made a deposition containing material statements touching his property, which he did not believe to be true.

The motion is denied.

Benjamin B. Foster, (Assistant District Attorney,) for the United States.

Thomas Stewart, for the defendant.

Buerk v. Imhaeuser.

JACOB E. BUERK

vs.

WILLIAM IMHAEUSER AND OTHERS. IN EQUITY.

By an interlocutory decree, a master was ordered to report the profits received by the defendant from making, using and selling an improvement in time detectors, patented to the plaintiff, and also the damages which the plaintiff had sustained by reason of the infringement, over and above such profits. The master reported a certain sum as such profits, and also $53 25 as damages on each one of 437 time-detectors made and sold by the defendant. The $53 25 was arrived at, by taking $75, the price for which the plaintiff sold his time-detectors, and deducting therefrom $21 75, composed of $18, cost of making, and $3 75, commission paid for selling. The defendant was manufacturing under a patent, and was not a wilful infringer. It was not made to appear that those who purchased from the defendant would have purchased from the plaintiff: Held,

(1.) That the basis adopted by the master for computing the damages was erroneous, in assuming that those who bought from the defendant would have bought from the plaintiff;

(2.) That it was also erroneous in including in the $53 25 the manufacturer's profit;

(3.) That the amount of the defendant's profits was an adequate compensation for the injury which it had been shown the plaintiff had suffered.

(Before JOHNSON, J., Southern District of New York, November 11th, 1876.)

JOHNSON, J. Under the interlocutory decree in this case, the master was ordered, among other things, to report the gains and profits which the defendants, or either of them, had received from the manufacture, use and sale of the patented improvement of the plaintiff, and also to assess and report the damages, if any, which the plaintiff had suffered or sustained by reason of the infringement, over and above the said gains and profits. He found, and has reported, that the defendants, up to the time when Keinath left the firm, had sold 61 infringing time-detectors, with a profit, over and above the allowances he made to them for the cost and expenses, of

Buerk v. Imhaeuser.

$1,748 24; and that the subsequent sales of the other two de fendants numbered 376, with a resulting profit, over and above the allowances, of $3,748 28. The master has further reported, that the damages which the plaintiff had suffered were as follows: on the 61 time-detectors sold by all the defendants, $53 25 on each; and on the 376 sold by Imhaeuser & Hahn, $53 25 on each, amounting, for the latter, to the sum of $20,022 00, and for the former to the sum of $3.248 25. The defendants have excepted to the report in this particular, in due form, and contend that the master has erred in this ascertainment of damages.

The method in which the master has proceeded is apparent from the report. He has ascertained from the complainant that he sells his watches at $75 each, and that they cost him about $18 each: and that, on the average, he pays $3 75 commissions for sales. These sums, deducted from $75, gives what he calls a net profit of $53 25 on each watch. This amount, multiplied by the number of watches which the defendants sold, produces the sums which the master has found as damages.

The 55th section of the patent act of July 8th, 1870, substantially re-enacted in section 4921 of the Revised Statutes, gives to a successful plaintiff in an equity suit for an infringement, the damages which he has sustained, in addition to the profits to be accounted for by the defendants. But, it by no means follows that, in every case, such damages are in excess of the amount of profits made by the infringer. As is said by Mr. Justice Clifford, in Carew v. Boston Elastic Fabrics Co., (3 Clifford, 356, 370,) if it appears that the injuries which the complainant sustained by the infringement are greater than the gains and profits realized by the defendants, then the complainant is entitled to recover compensation for the excess of the injuries sustained beyond the gains and profits received by the defendants: and yet, in that case, although the plaintiff succeeded, the Court was of opinion that the recovery ought not to go beyond the gains and profits of the defendant. In the present case, the defendants were manufacturing, under a