37 F. 97 | U.S. Circuit Court for the District of Eastern New York | 1888
This action was brought for an alleged infringement of a patent. The original bill prays that the defendant be required to make discovery as to the use of said invention and of all gains and profits received by him therelf.om, or by means thereof, and that he be required to account to the plaintiff; and an injunction is prayed for against the defendant, his agents, etc. The answer of the original defendant is a specific denial. The original defendant having died, his executrix deifies complainant’s right to have the action revived, for the reason that no injunction can issue against the dead defendant, nor against his executrix, who is not alleged to infringe; and that therefore, as the title of the principal relief—the injunction and discovery—fails, the incident right to an account fails also. Defendant cites Root v. Railway Co., 105 U. S. 189, and Draper v. Hudson, 1 Holmes, 208 (1873.) The whole subject was discussed in the later case of Kirk v. Du Bois, 28 Fed. Rep. 460, (1886, W. D. Pa.,) and the conclusion reached that Rooty. Railway Co. does not go to the extent of holding that jurisdiction is entirely ousted by the subsequent happening of an event which precludes the exercise of the power to grant an injunction. The decision in Kirk v. Du Bois will be followed here. The complainant is entitled to the usual decree that the suit be revived against the executrix, and bo put in the same state it was- in prior to the death of the deceased.
