PER CURIAM.
For the progress of this litigation, see the opinions on the former appeals in the same case. Herman v. Youngstown Car Mfg. Co., 191 Fed. 579, 112 C. C. A. 185, and 216 Fed. 604, 610, — C. C. A. -. A supplemental bill, filed against Young, resulted in a decree against him for profits, and he appeals. As we think there must he further proceedings before a final disposition, we now state merely our conclusions:
1. The order permitting the filing of the supplemental bill was within the discretion of the trial court, and should not be disturbed.
[362]*362[1] 2. The supplemental bill, while inartificial, tenders clearly enough the issue whether Young must respond personally for profits for infringements after he took over the business. In connection with the original, it amounts to a claim of several liability, by periods, for the profits of a continuous infringement, and we think this' permissible, under the peculiar facts here present.
[2] 3. As a purchaser of the business pendente lite, Young is bound by the interlocutory decree against the corporation, and so, as concerns his acts in carrying on the same business, is bound by the findings of fact and law on which that decree depends, viz., that the patent was valid and was infringed. The decree to this effect having been entered pursuant to the mandate of this court, Young, like the defendant corporation, can be allowed to present a new defense on either of these issues only after application made to and granted by this court.
[3] 4. Young, as an individual, and with reference to profits on infringements committed by him after the corporation ceased, is not necessarily bound by the findings of fact or conclusions of law which led to the former decree for profits against the corporation; the only issue involved was as to the profits the corporation had made. Prima facie, Young is entitled to be heard, as to the amount of his profits, in proofs as to the facts, and in argument as to the law. The record in the former proceedings may or may not be persuasive that he was so completely identified with the corporation as to make it unseemly to let him escape from the measure of liability fixed upon it; but upon that proposition, as well as upon the fact of the amount of profits made by him and the possibility of and the rule of apportionment, he is entitled to answer and to be heard after he has become, personally, a party to the Case.
The decree must be reversed, with costs, and- the case remanded for proceedings in accordance herewith.
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