FROlolJllft tI. DUCLOS.
(:District Oowrt, 8. D. New York. April 7, 1887.)
CONt:lutil-AcTIONs AGAINS'l'-JOINT DEFENDANTS-JURISDICTION.
2. SAME-DISTJUCT C O U R T S . .
Prior to the act of 1875, the reasonable construction of Rev. St. U. .8. §§ 568. 711, and of the judiciary act of 1789, giVing, up to the passage of the act of IS75, (18 St. at Large; 818.) exclusive jurisdiction to federal courts of "all suits consuls or vice-consuls." embraced all suits to which the consul or 'V1Cli\;cQusul'was a necessary defendant, because Within the general language Of the eonsUtutionand acts Of congtess, and because otherwise there would be no legal redress upon joint obligations where a consul wl}!l1Jo necessaryco-defendant; IIond the same construction must still prevaiL Hell1, therefore, a iliotion to dissolve an attachment against a consul's necessary cowant ofjutisdietion, should be denied.
Motion to Vacate Attachment. 'Olin,' Rives JcMontgomery,for plaintiff. Bflnjam'itn Yaw, for defendant Duclos.
BRoWN, J. On the twenty-thitd of March last, .suit was commenced. in this recover the value of a bill ofgoods sold by the plaintiff in Octobet,1883, to the defendants; and on the same day an attachment was issued, pursuant to the state practice, against the preperty of the defendant Duclos, a resident of the state of New Jersey. The complaint and affidavit stated that the defendant Fritsch is the Austrian vice-consul at tbis Port. defendant Duclos now appears for the purpose only ofyMating the attachtnent,bn the ground that this court bas no juriSdidt'ion of au action against the Consul and another defendant, but only in an action against the consulalone. . The seVenteenth paragraph of section 563 of the Revised Statutes of , theUllited States gives this court jurisdiction of" all suits against consuls or Vi6e-consuls, except for offenses above tbe description aforesaid." The exception' does not affect this caSe. The cases cited by the defendant to show that ,each of the defendants must be amenable to the jurisdiction of tbe fedetaloourts are all cMes relating to suits "between citizens of differeht states," in wbich tbe language of the statute is quite different. See Rev. St. § 629; StraWbridge v. CurtWi, 3 Cranch, 267; Coal Go. v. BlatchfOrd, 11 WalL 172. In those cases the jurisdiction of the federal cou!rts was neV'et exclusive of the jurisdiction of the etate courts. But the jurisdiction of the federal C01ll'ts over consuls and vice-consuls has always been exclusive of the state courts from tbe passage of the judiciary act of 1789 (1 St.. at Large, 76) until the act of February 18, 1875, (18 St. at Large, 318, Rev. St. U. S. § 711.) See Bars v. Preston, 111 . U. S. 252, 261,4 Sup. Ct. Rep. 407. Whatever may be the effe<:t of the repeal of the' exclusive ju.risdiction v.30F.no.6-25
of the federal courts as respects consuls by the act last mentioned, that act cannot be construed as, inteJ1l11ed,to ,diminish the, jurisdiction of the United States district courts in actions affecting consuls as it existed before. There is no evidence orany such, purpose, and not to be inferred. If such a suit as this was maintainable before the act of February 18, 1875, it must therefore be'held to be maintainable still. Looking at' the. question this poinfofview, it would seem clear that the jurisdiction of court in such a caae'as this should be maintained, whether a similar suit be now maintainable in the state courts or not. TherE! is nQquestion thatst:lch a joint action as this is within the constitutiohll.l of the federal power, since the constitution expressly declares that this power "shall extend * * * to all cases affecting amblj.ssadors, other public ministers, and consuls." This action is just as clearly also a ;"suit against a consulor, vice-consul," and hence 'within the verylanguage ofthe act of congtess/(Rev. St. § 563,} although a necessary co-defendant.ili! joined, In the case or Da'V'i$ v. Packard,"7 Pet. 276, 284, the supreme court, in referring :to the privilege of a suitIn the federal tribunals, says that "the privilege is not a personal one," but is "the privilege of the country or government which the consul'represents., * *, * It was deemed fit and proper that the courts of the government "ith which rested the regulation of all foreign intercourse should have cognizance of suits against representatives of such foreign governments." These renSODS'&re asapplicablet<> II. joint action,including a consul deferidant,as action against aeonsul soledefeHdant. ,As thelawstood until 187 5, ,the jurisdiction of the federal courts being expressly,declared to be exclusive of the courts, if suit upon a joint obligation could not be brought in this cOl,lrt against, both defendants,the;obligationcould not have been enforced anywhere. In a state court the action against both could not lie, because ,suit against the consul there :wasforbidden; and, if the suit werebrougbt there against the, other defendant alone, the ,could successfully have pleaded the non-joinder of the consul as defendant; while, in the federal court the consul could not have been sued alone, sinoe he would: be equally entitled to plead the non-joinder,' of the other defendant.: Barney v. Baltimore Oity;6 Wall. 280, 286., ',Theaot of February 28, 1839, (5 St. at Large, 321, §'i; Rev. St. U. S. §,737,) does not apply in regard to persons who inhabitants of the district, or are fOQ-nd therein, and that statute, therefore, would notcextend ,to this case. It certalnly was not the design of the judiciaryaQt in giving e:Kclusivejnrisdiction to the dis-, trictcourts in suits against consuls. to debar suitors of all legal redress uponconttacts in which a ,consul was a joint obligor. The necessary alternative is that suits against bothjointly ,l.llustbave,lain either in the, federal court, or else in the state.court; and,:as the, general language of the smtute excluded state: courts\ ,the reasonablecoQstruction of the phrase" all suits against consuls ,or nlust be to apply in its general and extendeq .sense; to all suits in which consuls or, viceconsuls were necessary parties defendant. . ;iInthecase of Bixby v: Jarl$86'Il, ,6 315, an action, similar to
ibis wJ bftiught· and the merits;' and, thOtlgh the plaint wainheredismissedtalh,gaihst; third persons on the ground that disproved, the clear inference froIn .the joint liability of the consul decision" is that othet\Vise .the' 'suit would have been sustained. The motion to vacat6 shotildbedenied.
'(Ot'riluiC Oourc,B. D. NtJIlJ York. March 14,1887.)
COURTS-STATE AND "FEDERAIr-lNFRmGEMEWT 01' LICENSE TO SELL PATENTCoNSTRUCTION OF CoNTRACT.
Where the parties to an action are both citizens of the same state, although the action is brought for the infringement of a patent, where the defendant admits the validity of the patent, and his use of it, and the only question is the construction of a contract between them as to the use of the patent, in, volving Who1l1 common-law and equity principles, the federal courts have no jurisdiction 0 the action. and the plaintiff must resort to the state court for his remedy, and it does not affect the question that the state court had previously ruled that it had no jurisdiction, and that relief must be sought in the federal court, the plaintift being thus leU without remedy.
Goo. W. Van Slyke, for complainant. . Jj)uiJehe H. Lewis and Charles E. Hughes, for defendant.
J. The motion for a preliminary injunction mtlst be deupon the,authot:ity of HamUv.Tilghman, 99 U. S. 547, this court has no jurisdiction of the controversy disclosed by the bill and answer. The bill asserts that the plaintiff has the exclusive right to use and sell, throughout the United States, certain patented mirrors by virtue of a license granted to Hall, Nicoll & Granby, by .the owners of the patent, and by Hall, Nicoll & Granby assigned to plaintiff, with the consent of the owners of the patent; that the owners of the patent clltim withc>Ut just cause (and the bill sets forth all the facts) that the licensE! has become forfeited; and that the defendant, as the agent of the owners of the patent, is now selling the patented mirrors in disregard of plaintiff's rights. The answer admits the validity of the patent; admits that the mirrors the defendant is selling are the mirrors of the patent; admits that he is selling them as the agents of the owners of the patent; and denies that the plaintiff has any cause of action, and asserts that his rights .under the license had terminated by reason of non-performance of one of the conditions of the license before the alleged acts of infringement. The parties are .citizens and residents of this state; and according to :Hart.eU v. TUghman,8'lI1"'a, although the Buitis brought for infringement, inasmuch" as defendant admits the validity and use of the patent, and the rights olthe parties depend Wholly upon common-law and equity