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
aPplied tp et/:Ltedin tl;te biU·.. t};le does not ariseundeJ;' any act of the plaintiff must resort to ".',., ' the state court for his, re.tnedy.. . The. ql.\ei3tion bJl.s :man. d.Mjged; the qther way by the court of appeals of this state, in (lfark, 100 N. Y. 365, 3 N. E. Rep. 335j Hat Sweat ManuJ'g 00. v. Reinoehl, 102 N. Y. 167, 6 N. E. Rep. 264, where it was held that in such a case the plaintiff can and must resort to theoircuit'court of the United States. It will probably afford the plaintiff poor comfort to know that, while in this conflict of alkUH)pity lpft :r;eH},lfRry for the violation of his rights, the question has received careful consideration at the hands of both the tribunalfi of last re!,!ort. @d state, and was decided in each by a divided
(Ckcutt Qourl; 1i1. D.Wt8C,onsin.
Where, on the granting of a petition for the removal of a cause from a state court to the federal court, the defendant failed, through the iuadvertence of his counsel, to have .the. r.eco.rd .p ...,rOAl.P.1 transmitted to the circuit court, (Act 1875, § 8,) and W transmission, 'Whereupon the plaintiff, for thepurpbse of a motion to remand, transmitted such record, held, that plaintiff's motion should be granted for want of due prosecution under ,,.[ tl!(l . ,
64ME-MO,'l'ION TO '
REMOVAL OF OAUSES-TRANSMISSAJ, 'OF RECORD:.....LACHES.
ofplalntiff, for Hi mouths, in mil-king his motion to remand, 1teld not a waiver 0f tb6 right tlGobject to defendant's }aiJlure to file, in the " '. :circuit court. a QOpy of t)l6 tlJ,e Cituae
On MQtionto Remand. <fc $(J(irchild, for the ]jJJlis, (fteert6 & Mmi,U, contra. .
J. This suit was begun the court in 1885. On the thud da.y of OctQPe,r in that year the, defendants filed a petition and the requisite bond the removal of the cause to this court, alleging that the plaintiff was an alien, and that the defendants were citizens of this state. Although 15 months h;1ve elapsed since the'petition for removal was tiled, during which time fOl,lrterms of this court have been held, the defendants have never caus.e.d to be entered here of the record in the suit, as required by their bond, and by section 3, of the removal act of 1875. At the present term the plaintiff has brought to the court, and produced for filing, 9, cqpy of the record, and has moved that the ,case btl remanded to the court. The ground chiElfly urged. in supportof the motion is the plaintiff is not an alien,but acitizen of the United States and of the state of Wisconsin; but, upon suggestion