Gentlemen, the further responsibility of the case now rests with you. You will take it, give the evidence patient and full consideration, and decide the issue according to the justice thereof, as shall appear to . you from the evidence. The jury returned a verdict of $6,500 for the plaintiff which, upon ., motion, the court refused to set aside.
CURTIS and another v. WORTSMAN.
(Circuit Court, 8.
November Term, 1885.)
ATTACIIMENT-FRAUD-CLAIMANT-BuRDEN OF PROOF.
On a proceeding by attachment against a debtor fraudulently conveying or concealing his property, where a claim is interposed. the rule is the same as to the burden of proof as in other claims. Where a defendant in attachment has not traversed the grounds of attachment after a judgment against the defendant, the claimant cannot traverse.
SAME-TRAVERSE AFTER JUDGMENT.
At Law. Oharles Nephew West and Wade Hampton Wade, for plaintiff. Garrard d; Meldrim, for claimant. SPEER, J., (orally.) When this question was presented on yesterday, I had doubt whether or not we were proceeding regularly. It occurred to me that the plaintiff here was to show affirmatively that the property levied on was subject to the attachment by proof of the allegations in the petition, under this section of our Code, it being' a new feature in our attachment law. This section (Code Ga. § 3297) provides that whenever a debtor shall sell or conveyor conceal his property liable for the payment of his debt, for the pnrpose of avoiding the payment of the same, or whenever a debtor shall threaten or prepare so to do, his creditors may petition the judge of the superior court of the circuit where such debtor resides, if qualified to act, and, if not, the judge of any adjoining circuit, fully and distinctly stating his grounds of complaint against such debtor, and praying for an attachment against the property of such debtor liable to attachment, supporting his petition by affidavit or testimony, if he can control the same. And the statute further provides that such judge may then grant an attachment in the usual form, and directed as usual, which shall be executed as existing laws provide, subject to existing laws as to traverse, replevy, demurrer, and other modes of defense. It also provides that the judge may, if he deems it more proper under the circumstances of the case as presented to him, before granting Buch attachment, appoint'a day on which he shall hear the petitioner and the party against whom the attachment is prayed ae to the propriety of granting such attachment, and, if satisfied upon such hear-
CURTIS V. WORTSMAN.
109 that the attachment should not issue, he shall not grant the same. In this particular case the judge did not give the defendant in attachment an opportunity to show that the attachment was improp. erly applied for, but granted the attachment. The law enacts that the attachment shall be executed as existing law provides, and the existing law provides that it is subject to traverse, replevy, demurrer, and other defenses. The term "existing laws" means, of course, the laws existing at the time the attachment is sued out. The defendant did not traverse this attachment, and judgment was rendered,-a general judgment on the attachment. I Now, the claimant is before the court, and insists that the property levied on is not the property of the defendant, but is hers. She insists, further, that it is not subject to this attachment, and that the plaintiff must show that it is subject as if on the original trial. When the judgment was obtained, unless there had been a traverse filed, the plaintiff would not haVE been put to the necessity of submitting his proof relative to the grounds of attachment. The affidavit to the attachment is manifestly considered sufficient },Iroof of the grounds of attachment, unless there is a traverse filed, and if there is a traverse, then the burden of proof is on the plaintiff. Oliver v. Wilson. 29 Ga. 642. The supreme court of Georgia have distinctly held that after judgment on attachment the claimant can· not traverse the grounds of attachment, and this concludes the court upon this question. Foster v. Higginbotham, 49 Ga. 264. Besides, it is provided in section 3323 of the Code that the claim shall be tried in the same mariner, subject to the same rules and regulations, as are prescribed in other cases for other claims. Now, in all other cases, where property levied on is at the time of such levy in 'possession of the defendant in execution, when the plaintiff proves that fact the burden of proof is shifted upon the claimant. So in this case, the defendant having failed to traverse the grounds of attach· ment, and judgment having been rendered thereon, the claimant cannot controvert their truth; and, the plaintiff in attachment having shown that the property claimed was in the possession of the defend· ant at the time of the levy, the burden rests upon the claimant to show title thereto, as in other claims. This remedy has to so large an extent been substituted for the equivalent proceeding in equity, that it is highly important to ascertain and sAttle in the courts of the United States the best and most efficient practice in its enforcement.
38 CABY and others
v: DOMESTIC SPRING-BED CO. and others.
(Oireuit (Jourt, D. New Jersey. January 6, 1886.)
PATENTS FOR INVENTIONS-PRELIMINARY INJUNCTION.
No new facts appearing from defendant's affidavit, a preliminary injunction was granted in this case, without an examination of the merits or any t'xpression of opinion upon the validity of the patent; following the ruling in (Jary v. WoQr,24 Fed. Rep. 139. Upon a motion to dissolve the preliminary injunction, the defendants con· ceded the utility of the invention, but sought to show br affidavits that the patentee was not the first inventor. The court, not deCIding that such evidence was conclusive as to the prior use, held that it was of a character to suggest grave doubts on this point, and dissolved the injunction.
SAME-MOTION TO DISSOLVE PRELIMINARY INJUNCTION.
S. SAME-RULE AS TO DISSOLVING INJUNCTIONS. It is a good rule that evidence which would prevent the issuing of an in· junction ought to be regarded as Bufficient to dissolve one already granted.
In Equity. Mr. Collins and Mr. Keasbey, for defendants. Mr. Dlmcan and Mr. Witter, for complainants. NIXON, J. The validity of the complainant's patent was passed upon and sustained by his honor, Judge WHEELER, in the case of Cary v. Wolff, 24 Fed. Rep. 139, pending for several years in the circuit court of the United States for the Southern district of New York. Judge ACHESON, in the Western district of Pennsylvania, followed Judge WHEELER, and granted to the complainant a preliminary injunction. 24 Fed. Rep. 141. An application was then made to this court, in July last, for a provisional injunction, and finding that no facts were revealed by the affidavits which had not been considered by the learned judge in the Wolff Case, I ordered the injunction, without an examination of the merits, or expressing any opinion upon the validity of the patent. The defendants now introduce a number of new affidavits, relating to the novelty of the invention, and move to vacate and dissolve the injunction heretofore granted. They seem to occupy new ground. They acknowledge the value of Cary's alleged invention; concede, as the patent claims, that, in the operation of coiling the wire into springs, the metal is weakened by disturbing the molecules,-the outer portion of the coil being drawn or stretched, and the inner portion crushed or shortened,-and admit that the elasticity and strength, lost by the distortion, is more than restored by subjecting the spring, for a few minutes, to a degree of heat known as "spring-temper heat." They claim, nevertheless, that Cary has been anticipated in the discovery that spiral springs are improved in elasticity by such a process; and that the fact was known, and the process in public use,by the affidavits,-some years before he claims to have discovered and used it.
by Charles C. Linthicum, Esq., of the Chicago bar.