A to recover land or money, he, failing on the merits, cannot bring into his suit a new plaintiff, especially one whose action, if then commenced, would be barred by the Statute of Limitations. If otherwise, the same suit can be continued indefinitely, constantly making new plaintiffs, until some one shall be found who has a meritorious claim. It would be a practical abrogation of the limitation of the statute. The Act of 1867, 14 Stat. at L., 544, has been further extended, and the heirs of Ramos must make an original application in their own names. We understand the case of U. S. v. Patterson, 15 How., 12, to be a decisive authority against the present claim.

The decree is reversed, and the case is remitted to the District Court of Louisiana, with directions to dismiss the petition. Cited--97 U. S., 223.

*1. Whilst the right to plead the Statute of Limitations is no more within the discretion of the court permit that plea to be filed is based on the allegation that it is not filed within the time prescribed by the rules of practice adopted in that court, it is necessary that the party excepting to the refusal shall incorporate the rule in his bill of exceptions, or this court will presume that the court below construed correctly its own rule.

than other pleas, when the refusal of the court to

under them.

The controversy arises out of the use by the defendants below of the improvement in the steam engine known as the Sickles cut off, for which Sickles, one of the plaintiffs, had received a patent.

All the trials in the court below previous to the one under review, had been founded on a special count, the substantial allegations of which were, that after an experiment to ascertain the saving in fuel due to the use of the patented invention, the defendant would pay to the plaintiffs three fourths of the value of said saving of fuel during the existence of the patent, if the vessel on which it was to be used should last so long. Very large savings were proved to the satisfaction of juries, and several heavy verdicts and judgments were rendered, which were reversed on different grounds in this court.

The last of these reversals was in the present case, and is reported in 5 Wall., 580 (72 U. S., XVIII., 550).

It was there held that this special contract, on which the case had always been previously tried, was void under the Statute of Frauds, because it was not to be performed within one year and was not in writing. This was in 1867, and the case being remanded, the plaintiff, by leave of the court, filed, on 4th March, 1868, the following amendment to the declaration: "The plaintiffs sue the defendant for money payable to the plaintiffs, for the use of a certain apparatus patented by one Frederick E. Sickles, on the 20th day of May, 1842, for lifting and tripping the valves of steam-engines and also an improved water reservoir and plunger.

And the plaintiffs sue the defendant for money received by the defendant for the plaintiffs; and the plaintiffs claim $25,000."

To this the defendants, on the first day of leave of the court, filed a plea of non asMarch, 1871, three years afterwards, without sumpsit and two pleas of the Statute of Limitations. On motion of the plaintiffs the two latter

2. Such rules are indispensable to the dispatch of business and the orderly administration of justice, and it must be presumed that the court below is familiar with the construction and course of practice 3. The rule of damages in actions at law for in-pleas were stricken from the files, on the ground fringement of the rights of patentees has long been established in this court to be the customary price at which the patentee has licensed the use of his invention, where a sufficient number of licenses or sales have been made to establish a market value. 4. The reason for this rule is still stronger when

the use of the patented invention has been, with the consent of the patentee,express or implied, without any rate of compensation fixed by the parties. [No. 265.]

Argued Mar. 31, and Apr. 1, 1874. Decided Apr. 13, 1874.

that not having been filed within time, according to the rules of the court, it would, in furtherance of the ends of justice, refuse to permit them to stand as part of the issue to be tried.

This ruling is the ground of the first exception, and of one of the assignments of errors.

The rule of the court below is not made a part of the bill of exceptions. What purports to be a rule on the general subject of notice to plead, is put at the bottom of the page in a note, a mode of making up records on writs of error N_ERROR_to the Supreme Court of the which is quite novel. What these rules are, can

IN

District of Columbia.

not be judicially noticed by this court, and we are much embarrassed as to the effect of the reference to those rules in the bill of exceptions. The right to plead the Statute of Limitations, like any other defense, does not depend on the pleasure or discretion of the court. And if the action of the court was rested solely on that ground, we should have no hesitation in reversing it. But there are other considerations to be weighed. The right of a court to prescribe rules to regulate the time and manner of filing pleas is beyond question, if they are reasonable, and such rules are indispensable to the dispatch of business and the orderly administration of justice.

When in a bill of exceptions the court places

"In cases where there is no established patent or license fee in the case," says the court in The Suffolk Co.v. Hayden, or even an approximation to it, general evidence must necessarily be resorted to."

its action on such rules, with the construction | as the measure of his damages against the inof which and the course of practice under them, fringer. The rule thus declared has remained it must be familiar, it would seem that the the established criterion of damages in cases to party assigning error on such rulings should be which it was applicable ever since. Sickles v. bound to exhibit in his bill of exceptions so Borden, 4 Blatchf., 14; The Suffolk Co. v. Haymuch of the rule or rules as affects the question. den, 3 Wall., 315 [70 U. S., XVIII., 76]; Liv No little weight is added to these views by the ingston v. Jones, 3 Wall., Jr., 330. fact that the defendants did not file their pleas until three years after the filing of the amended declaration, to which they were answers, and until the day before the case was tried by the jury. In addition to this, while it may be true that the amended declaration, as a general rule, is to be taken as the commencement of the suit, in reference to the defense of the statute, it may be doubted whether in this particular case, where, after years of fierce litigation, only a common count is added, which is intended to cover the same subject-matter, justice will be promoted by allowing this plea, which can only be valid by reason of the time elapsed pending the litigation. On the whole we do not think, as the case appears before us, that the exception is well taken.

The case went to trial on the plea of non assumpsit to the amended declaration. Evidence was admitted, to which defendants excepted, proving the special contract, the value of the saving in fuel made by the use of the patented improvement, and the length of time it was in use by defendants. Evidence was also given by defendants that the plaintiffs had sold a great many licenses for the use of the patent on steamboats, that the patent fees were numerous and ranged from $250 to $1,500 for the use of the patent during its existence, and that though they had produced evidence of all the sales made of licenses for the use of the patent on steamboats during its existence, the fee in no case exceeded the latter sum. Notwithstanding this testimony, which seems to have been un contradicted, the verdict of the jury and the judgment of the court was for $11,333, with interest from the date of the commencement of the suit.

In the case of Seymour v. McCormick, a charge very similar to the one given in the present case was held erroneous and the principles we have stated established.

The rule in suits in equity, of ascertaining by a reference to a master the profits which the defendant has made by the use of the plaintiff's invention, stands on a different principle. It is that of converting the infringer into a trustee for the patentee as regards the profits thus made; and the adjustment of these profits is subject to all the equitable considerations which are necessary to do complete justice between the parties, many of which would be inappropriate in a trial by jury. With these corrective powers in the hands of a chancellor, the rule of assuming profits as the groundwork for estimating the compensation due from the infringer to the patentee has produced results calculated to suggest distrust to its universal application even in courts of equity.

Certainly any unnecessary relaxation of the rule we have laid down in cases at law. where the patentee has been in the habit of selling his invention or license to use it, so that a fair deduction can be made as to the value which he and those using it have established for it, does not commend itself to our judgment, nor is it encouraged by our experience.

If such be the proper rule in case of the infringer who uses the invention without license and against the consent of the owner, it should not be harsher against the party who uses it The defendants in various forms prayed the with consent of the owner, express or implied, court to instruct the jury that the measure of but without any agreement as to the rate of damages was the established rate for the license compensation. In such case nothing can be more to use their invention, as ascertained by the reasonable than that the price fixed by the patsales made by plaintiffs of such license to others. entee for the use of his invention, in his dealIf this was the true rule of estimating the dam-ings with others, and submitted to by them beage, the bill of exceptions shows that a sufficient number of such licenses, and the prices at which they were granted, were in evidence to enable the jury to apply the principle to the case before them.

And we are of opinion that this was the sound rule, and that in refusing the prayers for instruction based on it, as well as in admitting evidence of the saving of fuel and its value as affecting the amount of the verdict, the court below was in error. And the same error is to be found in the charge of the court to the jury on that subject.

On that subject in the case of Seymour v. McCormick, 16 How., 480, this court, on full consideration, and without dissent, laid down the proposition that in suits at law for infringe ment of patents, where the sale of licenses by the patentee had been sufficient to establish a price for such licenses, that price should be taken

fore using it, should govern.

The case was tried in the court below upon an entirely different theory, against the steady remonstrance and exceptions of the defendants.

With the special contract eliminated from the case, it seems to us to be a very simple one. The defendants have used or are charged with using the invention of plaintiffs, with their consent, until the expiration of the patent. If this is proven to the satisfaction of the jury, the plaint iffs have furnished the rule which must measure their compensation, in the prices at which they have sold the same privilege to others, and they must be bound by it.

The judgment of the Supreme Court of the to order a new trial. District of Columbia is reversed, with directions

Cited-92 U. S., 720; 93 U. S., 70; 105 U. S., 198; 6 Sawy., 432; 4 Hughes, 277.

The case is stated by the court.

served with any Rule requiring him to answer in writing. But the record states that the said James S. Robinson having, at the time, notice that he was required to respond to said Rule, in a grossly contemptuous, contumacious and defiant manner, here in open court refused to respond in writing to said Rule as required by the order of the court; whereupon, for his contempt committed here in open court, as well as for his contempt committed in refusing to respond

to the Rule, it is considered, ordered and adjudged that the order heretofore made enrolling the said party as an attorney and counselor at law and solicitor in chancery, is hereby revoked,

Messrs. W. W. Wilshire and J. S. Robin- annulled and set aside, and that he is hereby son, in person, for appellant.

Mr. Justice Clifford delivered the opinion of the court:

Complaint is made by the appellant, that on the 18th of July last, he was improperly stricken from the roll of attorneys of the District Court of the United States for the Western District of Arkansas, by the District Judge for that District.

disbarred from further practice in this court as such attorney, counselor or solicitor.

Several motions were made to set aside the order, for the reasons set forth in the transcript; but they were all overruled on the 25th of August, 1873, "and the said J. S. Robinson prayed an appeal." No evidence is exhibited that the appeal was ever allowed, but it does appear that the appellant, on the 19th of September last, filed an appeal bond in that court, signed by himself and twelve other persons, executed to the United States of America in the sum of $4,000, "for the use and benefit of any and all persons who may be interested in the premises," and conditioned that he shall prosecute his appeal with effect.

Based on these facts, as more fully set forth in the transcript, he moves the court to advance the case.

Unsuccessful effort it seems had been previously made by the grand jury to summons C. R. Stevenson to appear before them as a witness, and with that view a subpoena had been placed in the hands of R. H. Sheldon, a deputy-marshal, which he ultimately returned non est." While he held the subpoena, and before the same was returned, the person wanted as a witness was seen in the place where the court was in session, and it appears that he, after hav- Cases involving great hardship are frequenting had an interview with the appellant, sudly brought here for revision, and in such cases denly absented himself. Afterwards the grand it is competent for the court to advance the same jury reported the facts as more fully set forth on motion. Still the motion must be denied, as in the transcript to the presiding justice, re- it is well settled law that neither an appeal nor questing the judge to pass an order that the wita writ of error will lie in such a case. ness should be brought before them. Instead it was held in the case of Ex parte Bradley, that of that, however, the court passed an order that mandamus from this court to a subordinate the said R. H. Sheldon, C. R. Stevenson and court was a proper remedy to restore an attorJ. S. Robinson show cause why they should not ney at law, disbarred by such subordinate court be punished as for a contempt. for a contempt committed by him before another court as in such a case the court issuing the order disbarring the attorney had no jurisdiction to pass the order.

Hence

Whether the present case can be distinguished from the case cited, will not now be decided, but the court is of opinion that the remedy of the party, if any, in this court, is not by an appeal. Ex parte Bradley, 7 Wall., 364 (74 U. S., XIX., 214).

Motion denied.

Service of the order or rule was made, and the appellant on the same day appeared at the Bar of the court and filed the return or response of one of the other two persons besides himself named in the rule, when the judge remarked to him that he, too, was required to respond to the rule; to which the appellant replied: "Yes, sir, we are here to respond;" to which the judge remarked that he would be required to respond in writing, when the appellant rejoined that the Rule did not require the return to be in writing; then the court ordered that the Rule be amended so as to require the response thereto to be made Ex Parte JAMES S. ROBINSON, Petitioner. in writing; whereupon, as the transcript states, "The said James S. Robinson turned, and as he was walking off said, in a contemptuous and contumacious manner, that he would not answer anything; but the appellant insists that the last mentioned statement is erroneous, and alleges that he had commenced to answer the order orally, denying that he had been guilty of con- ervation of order in judicial proceedings, and to the tempt, when he was interrupted by the court, informing him that he must answer in writing, and directing the clerk to amend the record to that effect; and he also denied that he was ever

(See S. C., 19 Wall., 505-513.)

Power of courts to punish for contempts-under Act of March, 1831-under Judiciary Act -power to disbar an attorney-mandamus.

*1. The power to punish for contempts is inherent in all courts; its existence is essential to the pres

*Head notes by Mr. Justice FIELD.

NOTE.-Power of courts to punish for contempt. The power to punish for contempt exists in all courts independently of the statute, and is essential

NOTE.-Disbarring an attorney. See note to Ex for their protection and existence. King v. Almon,

parte Bradley, 74 U. S., XIX., 214.

8 St. Tr., 53; Clark v. People, Breeze, 340; S. C., 12

enforcement of the judgments, orders and writs | a legal right to repel, in proper terms, a false of the courts, and, consequently, to the due admin- insinuation of that panel. istration of justice. The moment the courts of the United States were called into existence and in

Messrs. Durant & Hornor and James S. in issue, and he clearly had a right to be heard Robinson, pro se, for petitioner: on the second trial.

Contempts are triable solely in the courts where In other cases it has been held that the power to they are committed. Ex parte Stickney, 40 Ala., punish for contempt was inherent in courts not of 160: Ex parte Rowe, 7 Cal., 151; Phillips v. Welch, 12 record, as well as in those of a higher grade. CoopNev., 158; People v. County Judge, 27 Cal., 151; er's case, 32 Vt., 253; State v. Copp, 15 N. H., 212; Cabot v. Yarborough, 27 Ga., 476; Howard v. Du- Watson v. Williams, 36 Miss., 331; Shattuck v. State, rand, 36 Ga., 476; Darby's case, 3 Wheeler, Cr.Cas.. 1; 51 Miss., 50; Hollingsworth v. Duane, Wall. C. C., 77 ; Sanders v. Metcalf, 1 Tenn. Ch., 419; State v. Thur-2 Bish. Cr. L., sec. 244. mond, 37 Tex., 340; First Cong. Ch. v. Muscatine, 2 The governor of a State has power to pardon for Iowa, 69; Passmore Williamson's case, 27 Pa. St., 18: contempt. State, ex rel. Van Orden, v. Sauvinet, 24 Penn v. Messinger, 1 Yates, 2; Chamberlain's case, | La. Ann., 119; S. C., 13 Am. Rep., 115.

marshal by the name of Sheldon, for service; | thereon, why the parties should not be punthat the deputy-marshal, on the same day, went ished as for contempt, amended from the origi to the Town of Van Buren, as he said; to make nal order by the insertion of the words "forththe service; that after he had left, the witness with in writing and under oath;" and that the was seen on the streets at Fort Smith, and the petitioner, having notice at the time that he was subpoena was on that morning returned un required to respond to the rule, in a grossly, served; that they had learned from evidence contemptuous, contumacious and defiant manbefore them that the witness knew that a subner," in open court, refused to respond in writpœna was issued for him, and had for that ing; and then proceeds to decree that for his reason come to Fort Smith, but," continues contempt committed in open court, as well as the report, "after seeing the attorney, J. S. for his contempt committed in refusing to reRobinson, in the Nash case, very suddenly abspond to the rule, the license of the petitioner sented himself." The jury, therefore, prayed the court to issue an order that the witness, Stephenson, be brought before them.

Upon this report, without other complaint, the court ordered that Sheldon, the deputymarshal, Stevenson, the witness, and Robinson, the attorney, show cause why they should not be punished as for a contempt.'

as an attorney and counselor at law and solicitor in chancery be vacated; that the petitioner be disbarred from further practice in the court, and that his name be stricken from the roll of attorneys, counselors and solicitors of the court.

Before this amended order was entered, the petitioner, through counsel, filed a motion to vacate the judgment disbarring him, upon various grounds which were specified. After its entry, a motion to set aside the order as amended was made, in which the petitioner adopted the grounds of the original motion and added others. The substance of the more important of these was that no charges had previously been preferred in writing and filed against him; that he had had no notice of any charges; that the report of the grand jury contained no charge which he could be required to answer; that no rule had been served upon him to show cause why he should not be disbarred; that he had had no trial previous thereto, and had been denied the right of being heard in his defense; and that the court had no jurisdiction under the circumstances to render the judgment disbarring him.

Two days afterwards on the 18th of July, the petitioner filed the response to the order of the deputy-marshal. The judge then reminded the petitioner that there was also a rule against him, to which he replied: Yes, sir; I know it, and I am here to respond. I don't know what there is for me to answer. It (referring to the report of the grand jury) says I saw Silas R. Stevenson. I do not know what the grand jury has to do with my private business in my law office," and was proceeding to reflect upon the action of the grand jury, when the judge said: "You must answer in writing, Mr. Robinson;" to which the petitioner replied, The Rule itself does not require me to respond in writing." Upon this the judge said, turning to the clerk: "It should have done so; you will amend the order, if it does not, Mr. Clerk." The petitioner also set up, among the grounds The petitioner declined to answer the Rule un upon which he would reply, that the sentence til it was amended. The judge then said: "Well, he uttered, "I shall answer nothing," was inI will make the order for you to respond in complete, and that he was prevented from finwriting, now. Mr. Clerk, you will enter an orishing it by the action of the judge in interruptder requiring Mr. Robinson to answer the Rule in writing." Upon which the petitioner said: **I shall answer nothing;" and thereupon im mediately, without time for another word, the judge ordered the clerk to strike the petitioner's name from the roll of attorneys, and the marshal to remove him from the Bar.

This account of the language used by the petitioner and the judge is taken from the latter's response to the alternative writ issued by this court. The judge states, at the same time, that the tone and manner of the petitioner were angry, disrespectful and defiant; and that regarding the words, "I shall answer nothing." and the tone in which they were uttered as in themselves grossly and intentionally disrespect ful, as an expression of an intention to disobey and treat with contempt an order of the court, and believing that the petitioner in tended to intimidate him in the discharge of his duty, he felt it due to himself and his office to inflict summary and severe punishment upon the petitioner.

The order of the court disbarring the petitioner, made at the time and entered in the minutes of the court kept by the clerk, was declared by the judge to be erroneous in form, and afterwards, on the 28th of July, a more formal order was entered, nunc pro tune. This latter order recites the report of the grand jury mentioned above, the rule to show cause issued

ing him with the judgment disbarring him; that the sentence completed would have been, “I shall answer nothing until the order to answer the Rule in writing shall be served upon me."

The petitioner also disclaimed any intention to commit a contempt of the court, and to act in defiance of its orders or authority at the time, and averred that he was not conscious of the conduct attributed to him, towards the court. This statement was verified by his oath; but the motion was denied.

The petitioner now asks from this court for mandamus upon the judge to vacate the order disbarring him, and to restore him to the roll of attorneys and counselors. In his petition, which is verified, he refers to the proceedings of the court below, the record of which he produces, and states that in the interview which the grand jury mentioned, there was no allusion made to the Nash case, or to the grand jury, and that the consultation related to a totally different matter.

The power to punish for contempts is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders and writs of the courts and, consequently, to the due administration of justice. The mo ment the courts of the United States were called into existence and invested with jurisdiction over any subject, they became possessed of this