KNAPP t1. GERSON.
the indebtedness which the school·district could lawfully incur, and, as the bonds offered for sale to them exceeded this limit, they then knew, or were bound to know, no matter what the recitals in the bonds set forth, that the school-district could not legally issue these bonds. Judgment must therefore be entered for defendant.
(Circuit Court, S. D. New York.
Uctoher 19, 1885.)
G., from 1860 to April, 1885, hnd a place of business in New York city, and only resided in Paris during a portion of that time for the purpose of purchasing goods for his New York house. In the fall of 18841w announced his intention to his friends of removing to New York, shipped a large part of his furniture from Paris to New York, and notified his landlord in Paris that he would not need his apartments there after the spring of 1885. On March 17, 1885, he arrived with his family and occupied rooms at a hotel in New York until May 25, 1885, from which date he lived with his wife and child at a house on East, Eighty-sixth street, New York city, declaring his intention to make New York his permanent residence. Held, that G. was not a non-resident, and that an attachment issued on that ground should be vacated.
Motion to Vacate Attachment.
I. Albert Englehart and A. J. DittenllOefer, for the motion. Franklin Bien, opposed.
COXE, J. This is a motion to vacate an attachment granted on the twenty-second day of April, 1885, by the city court of New York, upon the ground that the defendant was a non-resident. The 801e question now to be determined is whether upon that day he was a resident of the city of New York. The defendant presents positive testimony that he is an American citizen; that from 1860 to April, 1885, he hacl a place of business in the city of New York, and though for many years prior to the latter date he had resided in Paris, it was only for the purpose of purchasing goods for his New York house. In the fall of 1884 he announced to a number of his acquaintances in New York his purpose to remove there the following spring. In pursuance of this design he shipped a large portion of his furniture from Paris to New York, and notified his landlord in the former city that he would not require his apartments there after the spring of 1885. On the seventeenth day of March, 1885, he arrived from Europe with his family and occupied rooms at the Hotel Royal, on Fortieth street, until he could procure a suitable house. Since the twenty-fifth of May, 1885, he has lived with his wife and child at the house No.4, East Eighty-sixth street, in the city of New York. He also declares that since the fall of 1884 he intended, and now intends, to make that city his permanent residence.
This testimony is supplemented, upon the question of intent, by the affidavits of several respectable merchants of New York city, who affirm that the defendant told them in the fall of 1884 that it was his purpose to remove there the ensuing spring and reside there permanently. These statements are uncontradicted. Opposed to them the plaintiff presents a n'umber of facts and circumstances which, alone and unexplained, might lead to presumptions in support of the theory upon which the attachment is based. But speculation and conjecture should never be permitted to take the place of evidence. An inference, though plansible, must give way when confronted with direct and positive proof. At the time the attachment was granted the de· fendant and his family had been for over five weeks in the city of New York. He had no other domicile. He had given up his home in Paris. It would require an ingenuity of more than ordinary capacity to discover for the defendant a residence other than New York city on the twenty-second day of April, 1885. The circumstances disclosed by the papers naturally incline the court to sustain the attachment, but with the weight of evidence so overwhelmingly in his favor there can be no doubt as to the right of the defendant to hl1,ve it vacated. The motion is granted.
'V. REINSTEDLER. 1
(Circuit Oourt, E. D. Missouri. l:ieptember 28,1885.)
PATENTS-PRACTICE-HOLDING CASE OPEN FOR DECISION UPON ApPEAL TAKEN IN ANOTHER SUIT.
Where two suits were brought for the infringement of a patent, in different circuits,-one against the manufacturer of the infringing device, and the other against a dealer,-and the former was decided in the defendant's favor, and the latter thereafter, after remaining pending over four years, was heard, and was submitted upon the same evidence taken in the other case, and the complain. ant asked that the case might be allowed to remain open until an appeal from the decree in the suit against the manufacturer could be heard and determined, held, that there being no special reasons for granting the request, the case could not be kept standing open any longer, and that the bill should be dismissed.
In Equity. The defense in this case was substantially the same as in the Indiana case referred to below, and the same evidence was introduced in both cases. Wood et Boyd, for complainant. Steih et Peck, for defendant. BREWER, J., (orally.) The bill in this case will be dismissed. It is an action against a dealer for infringement. The action has been
by Benj. F. Rex, Esq., of tile