FULLER v. FIELD et al., 82 F. 813

JENKINS, Circuit Judge, after stating tlie facts, - delivered the opinion of the court. It is not well that one trained to the profession of the law should act as counsel for himself. Natural bias of mind in one interested in the event tends to obscure the mental vision, making- light of obstacles that are weighty, and unduly exaggerating- matters which are of slight or no importance.

The evil is greatly increased when one unused to the ways and practices of the profession, and unversed in the practice of law, assumes to act as his own counsel, and especially is this so when that one is a lady not only unfamiliar with the practice of law, but unaccustomed to- the ordinary usages of business life. ’In this case the excusable ignorance of business methods, and total unfamiliarity with the practice of the law and with proceedings in judicial tribunals, has not only contributed to swell unduly the voluminous record here with matters which, sitting as a court of review, we cannot consider, but may also have possibly resulted in the failure to produce evidence which might have aided the contention of tlie appellant.

Waiving every question of irregularity in tlie record, we have carefully examined the proceedings before tlie master to ascertain if, from anything that there took place, the appellant has suffered legal injury, and we have not been able to discover that she lias just ground of complaint. The issue was sharply defined.

The defendants insist that the total of their infringement was the purchase and sale of four dozen collarettes; that such infringement occurred from the purchase of the goods from the mother of one of their clerks, a widow whose husband had been in their service; that tlie purchase was made through generous motives, to aid her, and without knowledge on their part of the patent to the complainant, and without in-tent to infringe upon her rights; and that, when advised of infringement, they sought to make ample reparation for tlie unintentional wrong done.

It would seem that the complainant was possessed of the belief that the infringement by the defendants assumed greater proportions. It was incumbent upop the complainant to establish this if it were so, and the attempt of the complainant to prove this without definite knowledge of the fact, and without understanding how to go about it, naturally resulted in failure. The master required the defendants to produce their books which would show the transactions with respect to the sale of any

article of the character covered by the patent of the complainant, and all such books, as they insisted, were produced. The bookkeepers of the defendants testified to their examination of the books in respect to the purchase of articles in the departments of the defendants’ business where such articles would naturally be purchased and exposed for sale, and they testify that no other purchase or sale than that stated had been made. The complainant, however, required that the defendants should examine other of their books, and insisted that the master should compel that to be done.

This was manifestly a request which could not be entertained, and -a proceeding which the master would not he authorized, under the decree, to order. It does not appear that the defendants objected to an examination of their books by the complainant or her agent.

If the complainant had desired any particular books, she should have specified them, and when brought before the master they were subject to her examination; but to compel the production of cart loads of books covering the large transactions of the defendants, and which they insisted had no reference to the matter in hand, or to require the defendants to make such examination, would liaye been an abuse of the process of the court. We are unable to perceive that any wrong’ was done to the complainant in the proceedings before the master.

The defendants below purchased the infringing articles, as would appear from the bills of purchase, at the price of $24, and sold them at the price of $36. Tlie court below, as also the master, awarded as damages and profits the total amount which the defendants received. Of this the appellees are not here complaining, and certainly the appellant, upon this branch of the case, cannot reasonably find fault with that conclusion. The master also allowed the sum of $250, the penalty staled in the act of February 4, 1887 (24 Stat. 387).

The court sustained the exception by the defendants to this finding of the master, and tlie correctness of tliat ruling is before ns. The statute in question declares it to be unlawful for any one, without the license of the owner, to apply a design secured by letters patent, or any colorable imitation of it, to any

article of manufacture for the purpose of sale, or to sell or espose for sale any

article of manufacture to which the design or colorable imitation of it shall, without the license of the owner, hare been applied, knowing that the same has been so applied; and provides a penalty of $250 for so doing, and that such sum may be recovered by the owner of the letters patent to his own use, either by action at law or upon a bill in equity for an injunction to restrain such infringement. We concur with the court below that this penalty only attaches where the infringer knows that the

article exposed for sale has upon it a design protected by letters patent. It was not the object of the statute to impose that penalty upon an innocent infringer. It- is in the nature of a punishment for the willful violation of another’s protected right. So far as this record discloses, the infringement here was inadvertent, without knowledge of the complainant’s right. It occurred through a laudable effort to aid a supposed deserving widow of a former employé, and the extent of the infringement was inconsiderable.

We cannot, upon the language of this act, suppose that it was the intention of congress to impose such a penalty for an inadvertent and ignorant invasion of another’s right. At the argument the appellant, conducting the case in person, made statements to the court with respect to alleged infringement by the appellees of which she had been informed, the evidence of which does not appear in the record.

It must be apparent, even to one wholly unused to judicial proceedings, that, sitting as a court of review, we are not at liberty to take cognizance of matters dehors the record, or to entertain new evidence pertaining to the issue, tvhich, if properly presented to the court below, could have been there considered. The decree will be affirmed.