Wilder. Even if the ,submission calls for a bond signed in pel son by Wallace, which he disputes, after a bond had been given which was apparently satisfactory, and the arbitrators had gone on and acted and made an award, it is too late for Wilder now to r.ttack the validity of his own bond on this ground. There is still lells merit in the technical objection raised by the defendants that the award was in favor of David Wallace, liquidator, while the bond was to pay David Wallace. The whole arbitration proceeds upon the theory of an accounting between Wallace and the other partners, and the award is clearly the sum due from Wilder to Wallace personally; therefore the fact that he is termed liquidator must be considered, as urged by the plaintiff, merely a manner of designation or description,-not as meaning a distinct capacity in which the fund should be held. Yerdiet should be given in favor of the pI aintiff for the penal sum of the bond, with interest thereon from the date of the breach, JJ;lly 2, 1878, and judgment so entered. Pub. St. Mass. c. 171, § 9; Leighton v. Brown, 98 Mass. 515; Bank of Brighton v. Smith, 19 Allen, 243; Ivcs v. Merch,mts' Bank, 12 How. 159, 165.
Wirc¥if Uourt. E. D. Michigan..
,'Itseema,that in tlxing& penalty for contempt in the violation of a temporary ilt ,a IJatent court Illay the ampunt of dofendlllllt's , toge,ther complalOant's costs and expenses, and impose the aggre, of and dil'ectthe same to lJe paid over to thecom'plainan1. of h.isdamages, ' ,'.,
crim\nalpffense. the finll bear a just pro-> magnitllde of. ·· amI not III to ex(('cd 8u'C'lf'arrldul1tas wouldordhllmly be lmposed as a fine, when paid over to the .. i .·. , · .
!iurt,t, ,for J."
tpe sale ?f;
:fif a. )?Q1lalt;y for. I 1ly1ol,a.tlOn 0r.!l:n lDJU1H.:tlon 8 bElen adJqdged to 9 an
. ,. ,
See 7 SlIp. Ct. Rep. '::114.
infringement of complainant's patent. The socketswere sold in bulk to one Havens, upon the day the injunction was issued, and'Havens thereafter disposed of them in small lots, received the money therefor, and paid it over to the defendant. This sale to Havens was, under the circumstances, adjudged by this court to be merely a subterfuge, the defendant Worden was adjudged guilty of contempt, and the case was referred to a master to compute the amount of profit realized by the defendant, together with complainant's costs and expenses. The question now arises as to the amount of fine to be imposed, and its distribution. The main question is whether the fine ought to be assessed at a gross sum, in the nature of a penalty, to be paid over to the government, as in an ordinary !Jriminal proceeding, or whether it may be determined by the amount of profit realized by the defendant, and the costs and expenses incurred by the complain. ant, and the aggregate ordered to be paid over to the complainant in reimbursement of his If the question were to be determined at all by the laws pf this state, there could be no don,bt of our power to indemnify the complainant in this manner, since the Compile,d Laws, § 5709, provide that "if an or injury has been produced to any party by the misconduct alleged, the court shall order a sufficient to be paid by the defendant to .such party to indemnify him, and to satisfy his costs and expenses, of imposing a fine upon such defendant." This section is copied from a similar New York statute, and the practice has been enforced in several cases in that state. People v. Spaulding, 2 Paige, ; People v. Bennett, 4 Paige, 282; People v. Davis, 15 Wend. 602. It i.s"up. ,necessary to;saY that this sta.-tute pas no application to cases iJ;l'the federal courts, nor is there anything in the English or Ame#can. books upon equity practice which seems to justify an order of .kind, frequently allowed to a defendant, upo:q. ,a. dis,. although damages solution. '.High, lnj. c. 21. But I, th,at in several; courts, have adopted an analogous .and iIIj.pl;we4,a fine tp, the profits, wade by the 4efendants, and expenses of complainant, and directed the same to be paid to the latter by way of reimbursement:' . bi/re Mullce; ,7 'Blatchf. 23; v. Sherman, 8 BIatchf. 45. The validity of this practice is not discussed in these cases,' and, without expressing any opinion of my own, I am disposed, with some hesitation, to follow them until corrected by a higher court. In this class of cases it is certainly consonant with justice. This renders it
necessary to aseertain the amount of pro.fits realized by the defendant, and the amount of complainant's costs and expenses. The cost of these whip-sockets seems to have heen $15 per gross, or $930 for 62 gross. They were sold at $30 per gross by Havens, but he seems to have been bound to account for them to this defendant only at the rate of $26 per gross. I am disposed, to allow the four dollars per gross as commission on the sales, although I have already had occasion to express my opinion that the sale to Havens was itself a subterfuge. Estimating the 62 gross at $26 per gross, and deducting the cost, we find a profit of $682. Complainant also proved expenses by items to the amount of about $500, besides counsel fees, which are charged at $1,000. The expenses, I think, should be allowed. I aim not disposed. however, to impose upon the defendants the burden of paying the fees of complainant's counsel, brought here from a 'distance, to press this motion. I was at .first disposed to allow a portion of this charge, but upon reflection it has seemed to me that as this was a criminal proceeding, (New Orleans ..... Steam-ship Co. 20 WalL 387, 392,) and probably not reviewable by the supreme court, (Hayes v. Fisher, 102 U.S: 121,) the 'punishment Slibuld bear some just proportion to the magnitude of the offense, and ought not in general to exceed the sum which would ordinarily be imposed byway of fine; although,if these statutes applied, there would seem to be no discretion. H,for instance, the master had reported defendant's profits at only five dollars, the imposition of a fine of $1,500, for expenses and counsel fees, would seem not only an'unwarrantable encouragement of proceedings of this nature, but a possible infraction of the constitutional provision against cruel and unusual punishments. The aggregate of the other items is $1,182, which is imposed as a fine np'onthe defendant for the violation of this injunction; and it is ordered that he Be committed to the custody of the marshal until this fine be paid, and that the amount of such fine, when collected, be paid over to the complainant in satisfaction of his damages.
See In re Oa1'11.10 FED. REB. 622, and note, 629.
GLEASON 'Lt. FIRST NAT ·
FIRST NAT. BANK. OF LAPEER.
(Circuit Oourt, E. D. Michigan.
October 16, 1882.)
In an action for moner had and received" the defendant may avail himself of any defense showing that, equitably, he is entitled to retain the money all against the plaintiff.
INsuRANCE-POLIOY PAYABLE TO OREDlTOR-PURCllA.8E AT EXEcunoN BALB.
Where the owner of property caused it to be insured, and made the poliCies payable to a creditor, who subsequently brought suit against the owner for debt secured by the policies, obtained judgment, levied an execution. upon the property insured, and bought it in upon the sheriff's sale, and shortly after the sale, the property was burned, and the creditor received the proceeds of· the insurance, it was held that, while the purchas!'of the property was technically an extinguishment of the debt secured by the policies, yet that the creditor was equitably entitled to retain the 'proceeds of the insurance, but must credit the same upon the amount of his bid, in case the debtor saw ofit to redeem.
On motion for aNew Trial. This was an action for money had and received. The fa.cts were that one Alexander Mair, the plaintiff's assignor, had borrowed ,money olthe bank to the amount of $5,000, and had given his note therefor, secured by five policies of insurance upon certain mill property, to the amount of such note. Subsequently he became further indebted to the bank, a suit was begun for the entire indebtedness, judgment on cogJwvit obtained, and execution issued On the Same day. The execution was in due time returned satisfied by a sale of .all of Mair's property, including the mill. upon which the aforesaid policies of insurance had been underwritten,the bank being the purAbout two months after the sale upon execution, tb,e mill burned, and th,e bank collected. the money upon these policies of insurance, which had been fnade payable to the bartle. This suit.was brought by the assignee of Mair to recover the amount collected by the bank. Upon this state of facts the court charged that, while technically the purchase of the mill property by the bank for the full amount of the judgment was anextingllishment of the debt for which the policies were given, yet that eqllitablythe bank was entitled to the money representing the value of its mill, ano. directed a verdict for the defendant. C. D. Joslin, for plaintiff. Mr. Williams; for defendant. BROWN,D. J., 'J;"he action for 'money had and received is an equitable action, and, as Mr. Greenleaf says, (vol. 2, § 117,) "may ill