v. WORTHINGTON and others.
«(Jircuit Oourt, S. D. New York. April 12, 1887.)
PLEADING-EQUITY-PLEA IN ABATEMENT-ANOTHER SUIT PENDING.
To a bill against W. and others. a plea averring the pendency of another su!t by complainant against W. must be overruled, since the plea of another SUIt pending is good only when the first suit is between all the same parties. An averment in the plea that W.'s co-defendants were only his servant8 and agent8 does not make W. the 801e true defendant, and thus render the plea good, since agents and servants are liable jointly and severally with their masters for their torts of misfeasance, like infringements of trade-marks.
SA.llE-TRADE-MARKS-!NFRmGEMENT-MASTER AND SERVANT.
In Eqnity. Bill for injunction and an accounting. . G. Gdi1relinghuY8en, for complainant. GecJrge A. Black,for defendants. W At.I.A.CE, J. The plea which has been set down for argument must be overrtiled, because the plea of another suit pending is good only when the first lIuit is between a:1l the same parties, and a full decree can be had therein respecting the matters of the second suit. Neither of these conditions exist in the present case. The bill alleges that the several defendants, including Richard Worthington, have been guilty ofjoint acts ofinfringement of the complainant's trade-mark, and it prays for an injunction and an accounting against all the defendants. The plea avers the pendency of another'suit brought by the complainant. against :Richard Worthington for the same matters, and also avers that the defendants other than Richard Worthington were his agents and servants in doing the wrongful acts complained of. It is not necessary to the sufficiency of a plea of another suit pending that the former suit should be 'precisely between the same parties as the latter. Story, Eq. PI. § 738. No person should be made a party who has no interest in the suit, and against whom no decree can be had at the hearing; and for this reason a person who is a mere agent for another in the. transactions in controversy ought not generally to be made a party defendant, unless his presence for the purposes of discovery. See Earl of Egmont v. Smtith,6 Ch. Div. 469; Attwood v. SmaU, 6 Clark & F. 352; Wei.'l8 v. Wardle, L. R. 19 Eq. 171., And it has been held in suits for infringe/ ments bf'patents that there is 11 Class of agentS, such as mere workmen in the employ of a manufacturer, against whom there can be no recovery, although they may have participated somewhat in the acts of infringement. DeJ.ano v. Scott, Gilp. 498; United Nickel Co.. v. Worthington, 13 Fed.' Rep.. But ordinarily the infringer cannot escape responsibility by showing that he "was acting for another: 'Maltby v. Bobo, 14 Blatebf.53; Steiger Y. Hef,delberger, 4 Fed. Rep'.455.· " In torts of misfeasance, like the violation ofa aget;lts :trnd i!lervants are personally'liable to the injured party. Bell v. 3 Gray, 809; Richardson v. KimbaU; 28 Me. 463; Mitchell v. Hd:mwn'!}, 13 v .30F .no.7-30
How. 115; Phelps v. Wait, 30 N. Y. 78. All persons procuring or assisting in the commission:oLa tres)?ass are principals. in the transaction, and both the master who commands and the servant who does the act of trespass ma.y be made responsible as principals, and may be sued jointly or severally for dll-mages, as the injured party may elect. Lightner v. Brooka, 2 Cliff. 287. A joint action will lie against the principal and agent. Wright v. Wilcox, 19 Wend. 343. If separate actions are brought against several joint trespassers, the plaintiff may proceed to judgment in all; and the judgment against one is not a bar to a trial and recovery against the others, although there can be but one satisfaction. Li'l)'ingBton v. Bishop, 1 Johns. 289. It follows that the defendants, although they were only the agents or servants of Richard Worthington in doing the wrongful acts sought to be restrained, and for. which damages are claimed, are re,sponsible to the complainant, and the complainant has the right to pursue them,.and obtain the relief prayed for, although he is purs\ling Richll.rd Worthington at the same time in another suit for the same wrongs. The facts alleged in the authorize an by Richard W to stay the prosecution of the suit agajnst him during the pendency of the present suit, but they are insufficient for the purposes of a plea. .
ALLEN and others
(Ci'I'O'Idt Go'U,"t, lY. D. 1'en11.u86e. March IS, 1887.)
Whatever rule may prevail elsewhere, there can be, iD, the equity courts of the United States. norelief from a mistake of law. S. BAHE-'CASE Ui JUDGMENT-PARTNERSHIP AsSETS-APPROIrRU.TION '1'OINDIWherethecreditol' of an individnalpartner appropriated; in part payment orbis claim, .3 balance due from himself to that partner's 1irm,but upon garnishmentWlts compelled to pay the amount so appropriated to a creditor of the firm"luld., that a compromise settlement'lending the garnishment, made in the belief that the appropriation was vali ,would not be set aside on the groundofU),istake, upon the appropriation being afterwardsdelllded invalid, there being ,no element of deception by misrepresentation or other fraud, nor any miatalte 8a to the facts·
VIDUAL DEBTS. .
EQUITY-:':MISTJUl:E OF LAW.'
' . '. .'. Plaintifi'aare factors at "New. Orleans, and derendantswere a .firm of in Tennessee, shipping cotton to them. Plaintiffs owed the defendant firm a balance on During the season, Galloway, <),Jile ". ta, opened an accounp. individuaUy . with plaintiffs, shipping cotton, to secure his margins for speculations in cotton futures. Upon this account he owed a large balance to plaintiffs. Defendants, be-