l>IECKERHOFF DIECKERHOFF and others
(Oircuit OQUrt, 8. D.
ROBERTSON. ROBERTSON, Collector.
January 7, 1887.)
CusTOMS DUTIES-ACTION TO RECOVER BACK-BILL OF PARTICULARS-AMENDMENT-REV'. ST. U. S. 2931,3012.
In suits to recover duties illegally exacted by collectors of customs, while, notwithstanding the mandatory language of Rev. St. U. S. § 3012, which en· acts that suit shall not be maintained unless the bill of particulars containing the matters specified be served within 30 days after due notice of the appearance of the defendant, amendments as to formal matters not involving substantial rights, which had been omitted or misstated by inadvertence, may be allowed, the court will not allow an amendment which will introduce a new cause; as, where two suits are brought, th!l transfer to one of them, brought within the short bar of 90 days from the decision of the secretary of the treasury, provided by Rev. St. U. S. § 2931, of the cause of action in the other, which was not brought until after the expiration of that limitation.
At Motion to amend bill of particulars. The moving affidavit of the plaintiffs showed: (1) That two suits between the same parties were pending,-one numbered 9,187, and the other 10,072. (2) The first suit was brought within 90 days after the decision of the :secretary of the treasury on the appeal to him under section 2931, Rev. St. U. S. (3) The second suit was not commenced un· til more than ,a year had elapsed after the decision of the secretary of the treasury. (4) The plaintiffs did not know, at the time of the commencement of the first suit, that any decision had been made by the secretary of the treasury on their appeal, covering the entries in the second sUit. (5) A bill of particulars in each suit was served within the statutory time. Section 3012, Rev. St. U. S. (6) The plaintiffs asked (or an amendment to· the bill of particulars in the first suit, by adding or transferring thereto 11 entries contained in the bill of partiCUlars in the second suit. Dudley F. Phelps, for the motion, cited Pott v. Arthur, 15 Blatchf. HfJnry (J.Platt, Asst. U.S. Atty., opposed, cited Rev. St. U. S. §§ 2931,3012; Williams v. Cooper, 1 Hill, 637; AmBon v. Murphy, 115U. S. 579, 586; S. C. 6 Sup. Ct. Rep. 185. WALLACE, J. Since the decision in Pott ..,. Arthur, 15 Blatchf. 314, this court has frequently exercised the power of permitting plaintiffs, in suits to recover duties illegally exacted by collectors of customs, to amend the bill of particulars as to essential contents, notwithstanding the man· datory language ofaection 3012, Rev. St. U. S., which enacts that the suit shall not be maintained unless the bill of particulars containing the matters specified be served within 30 days after due notice· of the appearance of the defendant. In that case Judge BLATCHFORD construed the statute as directory merely, and allowed the dates of the invoices .which had been omitted to be supplied by amendment. In subsequent cases, when a similar application has been made, the amendment sought has always been as to some formal matter, not involving any substantial rights of the defendant which had been omitted or misstated by inad·
vertencej and the United States attorney, probably feeling that it was hardly consistent with the dignity of the government to seek: to defeat a just claim by insisting upon a trivial slip in practice, has not opposed the application further than by refusing to consent to its allowance. The pres,ent motion, however, stands upon a different footing, and the effort is now made by the plaintiff, by an amendment of the bill of particulars, to' transfer a cause of action, pending in another suit brought by the plaintiff against the defendant, (No. 10,072,) to recover duties from that suit to this, (No. 9,187.) No 10,072 was not brought within 90 days after the decision of the secretary of the treasury upon the appeal relative to the duties in question, and consequently will be defeated by the short bar of section 2931, Rev. St. This suit, brought to recover other iteIns of duties, was brought within 90 days after the cause of action in No. 10,072 accrued; and under the form of the complaint, if the plain-' tiff can amend his bill of he can try his right to recover for the duties which cannot be recovered in the other suit. In c;lffect, the court is asked, where a plaintiff has brought two suits for causes of aetionthat might have been united in the first of them, and is met by a defense in the second which is fatal, to allow him to amend his pleadings in the first,' and introduce as a new cause of action the one which he cannot sustain in the second suit. Although section 954, Rev. St. U. S., confers power upon the courts of the United States to exercise the widest discretion in permitting aInendments of pleadings, it would be an abuse of this discretion to per.mit a plaintiff thereby to revive a cause of action that is dead. In The Harrrumy, 1 Gall. 123, Judge STORY said: , ::"That the statute of limitations w<mld run against a. Cause of action then before the court has been held a good reason for allowing an amendment as to ,such cause of action. But in sucll cases ,the court will not admit of an amendment, if it be to introduce a new substantive cause of action, or new charge the defendant." , , ' lie refused to allow the amendment, because it sought to introduce a 'p.ew substantive charge, and the cause of action would be gone on an original information. To permit the amendment now asked for would be a palpable violation of section 2931, which, in declaring that the decision of the secretary :shall he final aIidconclusive unless suit is brought within 90 days after #ledecision, evincesinthe plainE¥lt terms the intention ,of congress that ihi!'lclass ofactions, which could not be maintained at all except for the of congress, shall be brought within that period or not at aU. ,The motion is denied.
IN BE BOSTON & FAIRHAVEN IRON-WORKS.
& F AIRBAVEN
(Di8trict Oourt, D. Ma88achu8ettll. November 18,1884.)
BANKRUPTCy-DEBTS PROVABLB-!BFRINGEHENT OJ!' PATEBT-PROFlTS-Rl!lv.
ST. U. 8. § 5067. A claim for an account' of profits against an infringer of a patent-right · provable against his estate in bankruptcy, under Rev. St. U. 8. § 5067.1
In Bankruptcy. O. E. WaBhbum, for the creditor. F. B. Greene, for the assignees.
NEI.SON, J. Cyril C. Child offered for proof against the estate of the Boston & Fairhaven Iroll-works, in bankruptcy, a decree for $5,640.26, recently rendered in his favor by the circuit court ofthe United States for this district, in a suit in equity for the infringement of a patent pending against the bankrupt corporation at the commencementofthe bankIt was admitted at the hearing that the decree was solely for profits actually received by the corporation before the bankrnptcy from the wrongful use of the invention secured by the plaintiff's 'patent, without any addition for damages; also that the decree might 'be admitted to proof under Rev. St. § 5106,if the court sh:ouldbeof 'opinion that such profits constituted a debt provable under the bankrupt
The bankrupt act allows proof of "all debts due and bankrupt at the time of the commencement of proceedings in bankruptcy, and all debts then existing, but not payable until a future day;'" 'and further provides that "all demands against the bankrupt, for' or onaecount of any goods or chattels wrongfully taken, converted, or withheld by him, may be proved and allowed as debts;"ttnd also provides that 4'whenthe bankrupt is liable for unliquidated damages arising' out of any 'COntract' or promise, or on account of any goods or chattels, wrongfully 1aken;converted, or withheld, the court may cause such danillgestobe .assessed in such mode as it may deem best, and the sum so assessed may 1>e proved against the estate." Rev. St. § 5067. The language of this 'Section is broad enough and was intended to include all debtiHounded ·on'contract, express or implied, and all wrongful appropriations 'of personal property of every description,for which an action at law or in eqility could be maintained against the ,
lNoTBBY TUB CoUBT. Reversed on appeal in. the circuit court by CoLT 1.,6n the 'ground that a claim for profitBfor the infringement oC a patent is a claitil forunliqui·dated, damages for a tort, and not provable; cli1ng, as a\lthorities Cor this. I'll re Schnchardt, 15 N. B. R. 161; Black ,.McClelland, 12 N.B. R. 481; In Hennocks'1 N. B. R.S7l.,Child v.Boston & Fairhaven Ilon-workiJ,187 M8sif.' 516, and Root 'Y. Co., lOS ",. S. 189. See 23 Fed..;J;tep. 880. . }:, .