with all other prizes in the schedule. The 210 prizes of each are in addition to the full Bcheme of the Royal Havana. Tickets, $2; halves, $1. Prizes paid in full in U. S. currency on presentation of ticket. Above schedule subject to such change as may be necessary to conform to plan of Royal Havana Lottery. G. W. M.
This schedule or circular is the same, identically, on each ticket. It is indorsed in print on all the tickets sent out, in relation to the Little Havana Lottery. It is not in any manner individualized or modified on any ticket that is sent out. It is issued in identically the same set fCirm of words on every ticket, and is emphatically a circula1'. If, therefore, you believe from the evidence that the defendant knowingly deposited the tickets containing this circular in a post-office, to be conveyed by mail, as charged in the information, you must find him guilty; for he is liable to the penalty imposed by law for such an offense.
Co. and another v. H. B.
December 31, IB84.)
& Co., Limited.
(Oircuit Oourt, W. D. Pennsylvania.
PLEA OF PENDING SUIT-AoTION TO ENFOROE CONTRAOT-AcTION TO RESOIND.
A pending suit for the rescission of a contract cannot be pleaded in ahatement, or bar of a suhseqnent suit in another court in enforcement thereof. The complainant in the second suit is not bound to file a cross-bill in the first suit, althoup;h he mip;ht thereby obtain the desired relief. The pendency of a prior suit in a state court is not a bar to a subsequent suit in a circuit court of the United States, although between the same parties and for the same cause of action. Where an application for a preliminary injunction, by a licensor against a licensee, in alleged default in payment of patent 'royalties, is met by affidavits charging the complainants with secret and extensive sales of the patented arti. cle below agreed rates for the government of both parties, in fraud of and to the prejudice of the licensee, and counter-affidavits charge similar misconduct upon the defendant, alleging that any under sales by the complainants were purely in self-defense; and which party commenced cutting schedule rates, is fairly disputable under the conflicting affidavits; and it appears that the com· plainants have already, to a large extent, lost control of the market by reason of unrestrained sales by infringers; held, that a preliminary injunction should be denied, but upon terms as to security, etc.
BAME-:5UIT PENDING IN STATE COURT AS BAR TO ACTION IN FEDERAL COURT.
PATENTS FOR INVENTIONS-LICENSE-FRAUDULENT PRACTICES OF LICENSORPAYlIIEN'f OF ROYAJ,TlES-INJUNCTION.
In Equity. Sur plea and motion for preliminary injunction. Wm. O. Goudy, L. L. Ooburn, and D. F. Patter8on, for complainants. Bakewell it Kerr and D. T. Watson, for defendant. AOHESON, J. 1. The jurisdiction of the conrt of common pleas is contested on the ground that in the suit therein service was made on
WASHBURN & MOEN MANUJl"Q 00. tJ. H. B. SOUTT & 00.
agent within the meaning of the state statute relating to service of judicial process upon corporations, (Parke v. Commonwealth Ins. Co. 44 Pa. St. 422;) but, should that court hold the service to be good, still the present plea could not prevail for several reasons. In the first place, Isaac L. Ellwood, a plaintiff here,-and properly so, as it seems to me,-is not a party to the suit in the common pleas. Again, the object of that suit is the rescis.sion of the license contracts, whereas the purpose of this suit is the enforcement thereof. Clearly, the relief here sought is not attainable in the former suit. Perhaps a cross-bill might bring the whole controversy before the court of common pleas, but the complainants are not bound to take that course. Sharon v. Hill, 22 FED. REP. 28; Story, Eq. PI. § 737; 1 Daniell, Ch. Pro 657. Finally, it has been held that the pendency of a prior suit in a state court is not a bar to a. suit in a. circuit court of the United States, although between the same parties and for the same cause of action. Stauton v. Embrey, 93 U. S. 548; Gordon V. Giifoil, 99 U. S. 168; Sharon V. Hill, supra. The plea must there· fore be overruled, with leave to the defendant to answer within 30 days; and it is so ordered. 2. In disposing of the motion for a. preliminary injunction, I deem it necessary to consider but one of the qutlstions discussed by counsel. While it is certainly true that the written agreement of August 18, 1883, does materially distinguish this case from that of the Washburn 0; Moen Manuj'g CO. V. Cincinnati Barbed-wire Fence Co. post, 712, yet upon one point the ruJing of Judge SAGE there is applicable here, and may be safely followed. He held that it was a fraud in the complainant to secretly undersell thA schedule rates established by it for the government of itself and its licensees, and this was one of the grounds for his denial of a preliminary injunction. Now, the affidavit of James B. Oliver, the chairman of the defendant company, charges that, in fraud of the rights of the defendant as 'licensee, the complainants have secretly and extensively sold barbed fence wire at prices below the schedule rates, to the very great detriment of the defendant. This allegation is supported by the affidavits of several other persons, and there is evidence of specific instances of undersales by the complainants made after the execution of the agreement of August 18, 1883. The complainants, indeed, present counter·affidavits tending to show that the defendant company, im· mediately after accepting license, began to sell under the schedule rates, and has continued the practice ever since, and that the complainants did not sell at rates under the schedule until in the latter part of 1883, and then only in self-defense. The affidavits of the respect. ive parties are conflicting, and which of them first commenced cutting rates after August 18, 1883, is fairly disputable under the present proofs. While it may be that the complainants' violations of the contracts
(if established) may not close a court of equity to them, still, under ihe defendant's sworn allegations and the affidavits adduced in support of them, I think a preliminary injunction, at any rate, should be withheld, upon the terms, however, hereinafter stated. And I am the more inclined to this course because of the fact, clearly shown, that the complainants have, to a very large degree,-whether with or without their fault it is not necessary now to determine,-lost control of the -market by reason of I?xtensive sales of unlicensed wire by numerous infringing parties. A preliminary injunction here would not restore to the complainants the control of the market, and, it seems to me, the injury thereby occasioned the defendant would be much greater than any benefit likely to accrue therefrom to the complainants. If the case is pressed with the diligence the rules of the court admit of, a final hearing cannot be delayed many months. But the defendant must, henceforth, file in court the sworn monthly reports to which the complainants are entitled under the provisions of the con· tracts, and must give security, to be approved of by the court, for the payment of all royalties hereafter accruing under the licenses, and damages from future transactions, which may be herein adjudged by this court to the complainants. Such security is fixed at $20,000 for the present, with leave to the complainants hereinafter to move for its increase.
MOEN MANUF'G Co. 'V. CINCINNATI BARBED-WIBJll FENCE Co.
('h'rcuit Oourt, 8. D. Ohio.
November 8, 18E4.)
SAME-FRAUD ON LICENSEE-INJUNCTJON.
As the owner of the patent in this case has been guilty of fraud in concealing its arranp;ement with another licensee, from defendant, and allowing other parties to enter the market anr! reduce the profits of defenrlllnt, and at the same time exacting from him full royalties, hiS application for a preliminary injunction should be refused.
Coburn d; Thatcher and W. C. Goudy, for complainant. James Moore, for respondent. SACiE, J., (orally.) The complainant moves for a preliminary in-
junction against the defendant, complainant's licensee under a license dated February 1, 1881, for the use of certain patented improvements in barbed-wire fences and in fenee-wire barbing-machines. The defendant is authorized by its license to ma.nufacture at one factory in