the state of Georgia in the property, of which she has both the title and possession." 109 U. 8. 451, 457 [27: 994, 996].

consequently the circuit court was without jurisdiction to entertain it, the order of injunc tion and the commitments for contempt were null and void, and the imprisonment of the officers was without authority of law. Re Ayers, 123 U. S. 443, 489, 502, 506, 507 [81: 216, 224, 228, 230].

When the matter of the Virginia coupons was last brought before this court, Mr. Justice Bradley, delivering its unanimous opinion, summed up, as the result of the previous decisions, so far as concerns the subject now under consideration, "that no proceedings can be instituted by any holder of said bonds or coupons against the commonwealth of Virginia, either directly by suit against the commonwealth by name, or indirectly against her executive officers to control them in the exercise of their official functions as agents of the state;" but that any holder "who tenders such cou

But where the circuit court of the United States, at the suit of one who has tendered such coupons in payment of his taxes, issued an in junction against the Attorney General and other attorneys of the state of Virginia to restrain them from bringing any action in behalf of the state to recover such taxes, and, upon their bringing such actions, committed them for contempt in disobeying the injunction, they were discharged by this court on writs of habeas corpus. Mr. Justice Matthews, again delivering its opinion, and fully reviewing the previous cases, said that from the decision in Cunningham v. Macon & B. R. Co., above cited, "the inference is, that where it is manifest, upon the face of the record, that the defendants have no individual interest in the controversy, and that the relief sought against them is only in their official capacity as representatives of the state, which alone is to be affected by the judgment or decree, the question then arising, whether the suit is not substantially a suit against the state, is one of jurisdiction;" and added that actions had been sustained against officers acting in behalf of a state "only in those instances where the act complained of, considered apart from the official thority alleged as to its justification, and as the personal act of the individual defendant, constituted a violation of right for which the plaintiff was entitled to a remedy at law or in equity against the wrongdoer in his individual character;" and that the 11th Amendment of the Constitution, declaring that "the judicial power of the 22] United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state," must be held "to cover, not only suits brought against a state by name, but those also against its officers, agents, and representatives, where the state, though not named as such, is, nevertheless, the only real party against which alone in fact the relief is asked, and against which the judgment or decree effectively operates;" and therefore concluded that the suit in which the injunction was granted was in substance and in law a suit against the state of Virginia, and

mands due from him to the state, and continues to hold himself ready to tender the same in payment thereof, is entitled to be free from molestation in person or goods on account of such taxes, debis, dues, or demands, and may vindicate such right in all lawful modes of redress,-by suit to recover his property, by suit against the officer to recover damages for taking it, by injunction to prevent such taking where it would be attended with irremediable injury, or by a defense to a suit brought against him for his taxes or the other claims standing against him." McGahey v. Virginia, 132 U. S. 662, 684 [34: 304, 312]. And this summary was repeated and approved in Pennoyer v. McConnaughy, 140 U. S. 1, 15 [35: 363, 3671.

*It only remains to apply the principles [23 established by the former decisions to this suit under the patent act of the United States.

That act not only provides that "damages for the infringement of any patent may be recovered by action on the case," but also provides that "the several courts vested with jurisdiction of cases arising under the patent laws shall have power to grant injunctions, according to the course and principles of courts of equity, to prevent the violation of any right secured by patent, on such terms as the court may deem reasonable; and upon a decree being rendered in any such case for an infringement, the complainant shall be entitled to recover, in addition to the profits to be accounted for by the defendant, the damages the complainant has sustained thereby; and the court shall assess the same, or cause the same to be assessed under its direction." U. S. Rev. Stat. §§ 4919, 4921.

This bill in equity was filed by the owner of letters patent for an improvement in caisson gates, and alleged that the defendants infringed the patent by manufacturing and using such gates. The defendant filed a plea to the whole bill, and the Attorney General, in behalf of the United States, filed a suggestion, the single ground of each of which was that the only caisson gate that the defendants had any relation with was not made by them, and was not used by them for their own benefit but was made and used by the United States in a dry dock at a navy yard, and the defendants only operated and used it as officers, servants,

and employees of the United States. The fact so pleaded and suggested could not, consist ently with the previous decisions, above cited, prevent the defendants from being held liable to the patentee for their own infringement of his patent. There was no error, therefore, in overruling the plea of the defendants and the suggestion of the Attorney General.

But the circuit court erred in awarding an injunction against the defendants.

As this court, when deciding that things manufactured under letters patent of the United States were subject to be taxed by a state like other property, said: "The right of 24]*property in the physical substance, which is the fruit of the discovery, is altogether distinct from the right in the discovery itself." Patterson v. Kentucky, 97 U. S. 501, 506 [24: 1115, 1117]. Title in the thing manufactured does not give the right to use the patented invention; no more does the patent right in the in vention give title in the thing made in violation of the patent.

In an English case quite analogous to the case at bar, where shells, bought and owned by a foreign sovereign, were brought to England to be put on board his ships of war, the court of appeals held that his agents, if they used the shells in England in infringement of an Eng lish patent, might be liable in damages to the patentee, but that the court could not restrain the delivery of the shells to the sovereign to whom they belonged. Lord Justice Brett said: "The patent law has nothing to do with property:" and Lord Justice Cotton expressed the same idea more fully as follows: "The prop erty in articles which are made in violation of a patent is, notwithstanding the privilege of the patentee, in the infringer, if he would otherwise have the property in them. The court, in a suit to restrain the infringement of a patent, does not proceed on the footing that the defendant proved to have infringed has no property in the articles; but, assuming the property to be in him, it prevents the use of those articles, either by removing that which constitutes the infringement, or by ordering, if necessary, a destruction of the articles so as to prevent them from being used in derogation of the plaintiff's rights, and does this as the most effectual mode of protecting the plaintiff's rights-not on the footing that there is no property in the defendant. The court cannot proceed to give that relief, and interfere with the articles, unless it has before it the person entitled to the articles in question, and has as against this person power to adjudicate that the articles are made or used in infringement of the plaintiff's rights." Varasseur v. Krupp, L. R. 9 Ch. Div. 351, 358, 360.

In the present case, the caisson gale was a part of the dry dock in a navy yard of the United States, was constructed and put in place by the United States, and was the property 25] of the *United States, and held and used by the United States for the public benefit. If the gate was made in infringement of the plaintiff's patent, that did not prevent the title in the gate from vesting in the United States. The United States, then, had both the title and the possession of the property. The United States could not hold or use it, except through officers and agents. Although

this suit was not brought against the United States by name, but against their officers and agents only, nevertheless, so far as the bill prayed for an injunction and for the destruction of the gate in question, the defendants had no individual interest in the controversy; the entire interest adverse to the plaintiff was the interest of the United States in property of which the United States had both the title and the possession; the United States were the only real party, against whom alone in fact the relief was asked, and against whom the decree would effectively operate; the plaintiff sought to control the defendants in their official capacity, and in the exercise of their offi cial functions, as representatives and agents of the United States, and thereby to defeat the use by the United States of property owned and used by the United States for the common defense and general welfare; and therefore the United States were an indispensable party to enable the court, according to the rules which govern its procedure, to grant the relief sought; and the suit could not be maintained without violating the principles affirmed in the long series of decisions of this court, above cited.

There was also error in the final decree awarding profits to the plaintiff as against the defendants.

In a suit in equity for the infringement of a patent, the ground upon which profits are recovered is that they are the benefits which have accrued to the defendants from their wrongful use of the plaintiff's invention, and for w. ich they are liable, ex æquo et bono, to the like extent as a trustee would be who had used the trust property for his own advantage. The defendants in auy such suit, are therefore liable to account for such profits only as have accrued to themselves from the use of the invention, and not for those *which have ac-[26 crued to another, and in which they have no participation. Elizabeth v. American Nicholson Pav. Co. 97 U. S. 126, 138 140 [24: 1000, 1005, 1006]; Root v. Lake Shor: & M. S. R. Co. 105 U. S. 189 [26: 975]; Tilghman v. Proctor, 125 U. 8. 136, 144-148 [31: 664, 666-668]; Keystone Mfg. Co. v. Adams, 151 U. S. 139, 147 [38: 103, 105]; Coupe v. Royer, 155 U. S. 565, 583 [39: 263, 270].

In the leading case of Elizabeth v. American Nicholson Pav. Co. a suit in equity for the infringement of a patent for an improvement in wooden pavements was brought against a city, as well as against the contractor who had laid down the pavements. It being shown that the city bad made no profits from the use of the invention, but that the contractor bad, this court held that profits could be recovered against the contractor only, and not against the city. Mr. Justice Bradley, in delivering judgment, said: "One thing may be affirmed with reasonable confidence: that if an infringer of a patent has realized no profit from the use of the invention, he cannot be called upon to respond for profits; the patentee, in such case, is left to his remedy for damages." 97 U. S. 138 [24: 1005].

In the case at bar there was no evidence that the defendants themselves had made any profits whatever from the use of the plaintiff's invention; but the only gains, profits, and

LEW ROSEN, Plff. in Err.,

v.

UNITED STATES.

(See S. C. Reporter's ed. 29-51.)

Indictment for mailing obscene paper-sufficiency of bill of particulars-knowledge-decoy letter-submitting case to jury.

1. A charge in an indictment that defendant un

lawfully, wilfully, and knowingly deposited in the post office a certain obscene, lewd, and lascivious paper, describing it, is an allegation of knowledge by him of its character, which is sufficient after verdict.

2. The constitutional right of the defendant to be informed of the accusation against him is not infringed by the omission from the indictment of indecent and obscene matter alleged as not proper to be spread on the records of the court, provided the crime charged is so described as reasonably to inform him of the nature of the charge sought to be established against him.

8. One charged with the offense of depositing in the postoffice an obscene paper may apply to the court before trial for a bill of particulars show. ing what parts of the paper will be relied on as being obscene; and if he fails to so apply or object to the sufficiency of the indictment, judgment will not be arrested, although some parts of the paper are not obscene, if he knew from the indictment what paper would be offered in evidence.

4. Knowledge of the contents of an obscene paper by one who deposits it in the mail is sufficient to make him guilty of an offense under U. S. Rev. Stat. § 3893, although he did not regard the paper

as one that the statute forbade to be carried in the mails.

5. That an obscene paper was mailed in response to a decoy letter is no defense to an indictment for mailing it.

6. Submitting to the jury the question whether the paper in question was obscene is not ground of reversal, where no injury was done to defend ant by so doing, as the jury were properly instructed and their conclusion correct.

[No. 424.]

tisement, or notice of any kind giving information, directly or indirectly, where, or how, or of whom, or by what means, any of the herein before-mentioned matters, articles, or things may be obtained or made, . . . are hereby declared to be nonmailable matter, and shall not be conveyed in the mails, nor deliv ered from any postoffice nor by any letter carrier; and any person who shall knowingly deposit, or cause to be deposited, for mailing or delivery, anything declared by this section to be nonmailable matter, and any person who shall knowingly take the same, or cause the same to be taken, from the mails, for the purpose of circulating, or disposing of, or of aiding in the circulation or disposition of the same, shall be deemed guilty of a misdemeanor, and shall for each and every offense be fined not less than $100 nor more than $5,000, or imprisoned at hard labor not less than one year nor more than ten years, or both, at the discretion of the court.'

The defendant pleaded not guilty, and the trial was entered upon without objection [31 in any form to the indictment as not sufficiently informing the defendant of the nature of the charge against him.

A verdict of guilty having been returned, the accused moved for a new trial upon the ground, among others, that the indictment was fatally defective in matters of substance. That motion was denied.

The defendant thereupon moved in arrest of judgment upon the ground that the indictment did not charge that he knew, at the time, what were the contents of the paper deposited in the mail and alleged to be lewd, obscene, and lascivious. This motion was also denied, and the accused was sentenced to imprisonment at hard labor during a period of thirteen months, and to pay a fine of $1.

The paper, "Broadway," referred to in the indictment, was produced in evidence, first by the United States, and afterwards by the accused. The copy read in evidence by the gov ernment was the one which, it was admitted at the trial, the defendant had caused to be de posited in the mail. The pictures of females

the defendant, partially covered with lamp black that could be easily erased with a piece of bread. The object of sending them out in that condition was, of course, to excite a curiosity to know what was thus concealed. The accused read in evidence a copy that he characterized as a "clean" one, and in which the pictures of females, in different attitudes of indecency, were not obscured by lampblack.

The defendant having indicated his purpose to bring the case here for review, the court below ordered these papers to be sent to the clerk of this court with the trauscript of the proceedings below.

1. The first contention of the plaintiff in error is, that the indictment was fatally defective in not alleging that the paper in question was deposited in the mail with knowledge on his part that it was obscene, lewd, and lascivious.