statute of limitations in this case, he must plead it in his a.nswer; a.nd this is the better way; or he may move to make the complaint more definite and certain in respect to the date when the injury occurred, and if it then appears that the action is barred by the lapse of time, he may make the defense by demurrer to the amended complaint.
UNITED STATES V. MATHEWS.1
(Oircuit Oourt, 8. D. Ohio, W. D. February 26, 1885.)
1. EXOEllSIVE OOMPENSATION IN PENSION OF ACT OF MAROH 3, l881-EFFECT OF, ON PENDING PROSECUTIONS. A pending prosecution for receiving excessive compensation for prosccuting pension claims in violation of the act of .Tune 20, 1878, is not affected by the repeal of the clause of the general appropriation act of March 3, 1881, relating to act of June 20, 1878, by the act of July 4, 1884. although the repealing act contains no saving clause as to pending prosecutions. Section 13, Rev. St., operates to save prosecutions, generally, upon repeal of statutes upon which they are founded, unless the contrary is expressly provided in the repealing act. U 8. v. Van Vliet, 22 FED. REP. 641; U. S. v. Hague, 22 FED. REP. 706, not followed. 2. REPEALS-SAVING PENDING PROSECUTIONS-SECTION 13,REV. ST. Section 13, Rev. St., which provides that "the repeal of any statute shall not have the effect to release or extinguish any forfeiture, or liability incurred under such statt'lte, unless the repealing Ilct shall so expressly provide, and such statute shall be treated as remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability," held to cover a prosecution under a statute which authorizes imprisonment as well as fine. U. S. v. Ulrici,3 Dill. 532, followed.
Motion in Arrest of Judgment. Channing Richards, U. S. Atty., and Henry Hooper, Asst. U. S. Atty., for United States. Alfred Yaple, for defendant. SAGE, J. The defendant was indicted March 8, 1884, nnder section 5485, Rev. St., for receiving for his services in prosecuting a pension claim a greater compensation than the $10 allowed by the act of July 20, 1878; the provisions of section 5485 having been, by a clause of the general appropriation act of March 3, 1881, made applicable to any person who should violate the provisions of said act before the of July 20, 1878. The defendant was tried and repeal, July 4, 1884, of the clause of the act of March 3,1881, above refflrredto. The repeal of the act of 1881 is without any saving clause as to offenses already committed, or prosecutions already begun. That upon the repeal of a penal statute without such saving clause, judgment will be arrested even after conviction,is so well settled. a.s not to require verification. But section 13 of the Revised Statutes of the United States provides that "the repeal of any statute
lReported by Harper & Blakemore, Ellqs.,ofthe Cincinnati bar.
UNITED BTATES 'D. MATHEWS.
shall not have the effect to release or ex.tinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing act shall so expressly provide; and such statute shall be treated as remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability." This general provision, in the chapter of the Revised Statutes relating to the form of statutes and effect of repeals, made the insertion of a saving clause in the repealing enactment of July 4,1884, unnecessary. It is urged that, inasmuch as the punishment for violatIOn of section 5485 is a fine or imprisonment at hard labat, or both, section 13 is not broad enough to cover this case; that here is neither "forfeiture" nor "liability," and that "penalty" cannot be properly construed to include imprisonment, even if it could be held to include a fine, which counsel for defendant denies. Penalty is the punishment inflicted by law for its violation. The term is mostly applied to a pecuniary punishment, (2 Bouv. Law Diet. 399,) but it is not exclusively so. The case of U. S. v. Ulrici, 3 Dill. 532, is in point upon all the propositions urged on behalf of the defendant. In that case Mr. Justice MILLER, sitting as circuit justice with TREAT, J., held that the thirteenth section of the Revised Statutes contains a general. provision changing the rule of the common la W invoked in favor of the defendant in this case; and he says that the section was intended to repeal the rule. It is only necessary, in passing upon the motion, to quote the language of Justice MILLER from page 534:
"Now, the counsel for the defendant argues that neither the word' penalty,' 'forfeiture,' nor 'liability,' is equival,mt to the word 'punishment;' and therefore that the section under which these indictments are drawn is repealed, unless the penal sanction is comprehended by the term 'penalty,' and this, he insists, means only that which can be enforced by a civil action; or by the term' forfeiture,' which relates merely to property; or by the term 'liabiIity,'which he says means merely subject to a civil proceeding. But, without attempting to go into a precise technical definition of each of these words, it is my opinion that they were used by congress to include all forms of punishment for crime; and as strong evidence of this view I found, during the progress of the argument, and called the attention of the counsel to, a section which prescribed fine and imprisonment for two years, wherein congress used the words' shall be liable to a penalty of not less than one thousand dollars, * * * and to imprisonment not more than two years.' Moreover, any man using common language might say, and very properly, that congress had subjected a party to a liability; and, if asked what liability, might reply, a liability to be imprisoned. This is a very general use of language, and surely it would not be understood as denoting a civil proceeding. I think, therefore, that this word' liability' is intended to cover every form of punishment to which a man subjects himself by violating the common laws of the country. Besides, as my brother TREAT reminds me, the word 'prosecution' is used in this section, and that usually denotes a criminal proceeding."
I am referred to the cases of U. S. v. Van Vliet, 22 FED. REP. 641: -and U. S. v. Hague, 22 FED. REP. 706. In neither case does the re-
port show that section 13 was referred to or considered t and I think that I am bound to recognize U. S. v. Ulrici as the better authority. The motion is overruled.
v. Fw" Vliet. aute, 35, l'evertiillg U. S. v. Van Vliet, 211 FED. REP. 641.
Trustee, v. MACE and others.!
(Oircuit Oourt, E. D. Pennsylvania.
lJlCENSE OF PATEKT-CONSTRUCTION OF TERMS-IMPLIED MEANING-JURISDICTION OF Cmcurr COURT-BILL DISCOVEHY AND ACCOUNT-CITIZENSHIP.
A license granted the use of a certain shoe-sewing machine, embodying a patent which was spectfied by its number, date, and the name of the patentee; .. said machinery also embodying other patents which the said party of the first pal't now has, or may hereafter obtain, applicable to the said machine, or either of them." The license then gave the use of the above-mentioned patent, and also other patents granted to Lyman H. Blake, August 14, 1860, "for the term of the existence of the said patents, or any of them, and of all renewals 01' extensions of the same, 'I\' 'I\' '" and also all patents which the said parlyof the first part now has, or may hereafter obtain, whether as origiual patentee or hy assignment or license, applicable to said machine, and all extensions and renewals of the same." The license also provided ., that this lease and license shall continue (provided the lessee comply with the terms thereof) ulltil the expiration of all the letters patent which the lessees are here by licensed to use, or any extensions or renewals of the same." The Blake patents of 1860 expired August 14, 1881, but the machine, at the execution of the license, embodied other patents not specifically designated in it, which did not expire until September 6,1887. lIeld, that the license did not expire on·August 14, 1881, the date of the expiration of the Blake patents of 1860, but continued in force until September 6, 1887, the date of the expiration of the term of the youngest pateut embodied in the leased machine. A bill praying discovcry and account for refusal to pay royalties under such a license is sustainable in the circuit court when the parties are citizens of different states.
In Equity. Bill for discovery, and an account brought by plaintiff, Gordon McKay, as owner and licensor of certain patents against the defend.ants Charles Mace and others, as licensees. By the license, dated April 29, 1872, the plaintiff leased to the defendants"'rhe McKay sewing-machine No. 1278 for uniting the soles of boots and shoes to their vamps or uppers. constructed according to the specifications, and embodying the invention eontained and set forth in letters patent of the United States, granted to Lyman R. Blake on the sixth day of July, 1858, channeling machine No. 822, and bobbin winder No. 176; said machinery
also embodying other patents which the said party of the first part now has or may hereaj'lerobtain, applicable to the said machine, or either of them.
"And the said party of the first part doth also hereby license the said party of the second part to use the said patent above mentioned, granted to Lyman R. Blake on the sixth day of July, 1858, and also the patents granted to the said Lyman R. Blake on the fourteenth day of August, A. D. 1860, on the process of making a boot or shoe, and on the article so made for the term of the e::e·
istence of said patents, or any of them, and of all renew(lls and extensions of
1Reported by Albert B. Guilbert, Esq., of the Phila .elpbia