in his direct' examination, (Railroad Co. v. Stimpson, 14 Pet. 448, 461; Houghton v.Jonea, 1 Wall. 702, 706,) I do not think the proposed questions to Dr. Thompson are admissIble. The witness was asked in his as to the uses and effects. of Moxie, or Moxie Nerve direct Food, for the terms are used interchangeably, but he was not asked as to the particular ingredient of Moxie, what it was, or the place or sour0e from which it'came. In spite of the contention of defendants' counsel to .the contrary, it seems to me that this may fairly be considered the limit of the inquiry by the counsel for complainant. But aside from this, I have grave doubt whether the' witness can be obliged, under the circumstances existing in this case, to disclose what is evidently a trade secret, the result of which might be to ruin his business. I have examined withcate the briefs of counsel, and it must be admitted that the ql1estion is' riot free from difficulty. I am strongly impressed, however, that it would be inequitable to force the witness to make the disclosures called for, and therefore, unless hound by authol'ity,' I. DlUSt deny the motion. ' The defendants have failed to produce any authorities in their .favorupon'the exact point in is&ue. The complainant supports its position by reference to the case of Tetlow v. Savournvfl" 15 Phila. 170, 11 Wkly. Notes Cas. 191, where a rule for attachment against the plaintiff for his refusal to answer what ingredients his goods were composed of was dismissed. The counsel for the plaintiff in that case urged that the whole ,commercial value of such proprietary manufacturers depends upon secrecy as to their composition, and protested against depriving a man of his property by such a proceeding 'as this. If these questions must be answered, every manufacturer will be at the mercy of anyone who desires to extort from him an account of his process, for an attempt to 'restrain RJ;l infringer would result in the disclosure of aU that makes the invention valuable. The case was heard berore Judge MITCHELL and' Judge HAnE. It seemS to me that the arguments urged in Tetlow v. Satlournin against the right of the defendant to oblige the witness' to m,ake disclosure are sound, and are applicable to the present case. Motion dismissed.
, " «7lorcuit OO'U'1't,S. D. New York. July 9, 1888.)
.. Whf1re plaintiff alleges in ;his complaint that he is a citizen of Pennsylvania, and defendant of New York, and defendant in his answer as to this allegation denies "any knowledge or information sufficient to form a belief," and then answers to the merits, he waives his plea to the jurisdiction, and the same is properly disregarded; and this rule is not altered by Code Civil Proc. N. Y 518, recognizing and providing for the ver,i,tication of dilatory defenses; and section 48tl, providing for a demurrer when want of jurisdiction of the court. (If of capacity of plaintiff to sue, appears on the face of the complaint; and section 498, providing that the objection may be taken by answer when it does
AND REVIVAL-O:BJEOTION TO JURISDICTION-WArVER, , '
CUTHBERT tI. GALLOWAY.
not so awear, as applied to the practice of the U. B. courts by act of 1872, reo quiring the practice, pleadings, forms, and modes Of procedure in civil causes other than equity and admiralty to conform "as near as may be" to those of, the courts of record of the state. " .
MALICIOUsPROSECUTION-.AnVICE' OF COUNSEL.
In an action for malicious ,prosecution of special proceedings for an order of arrest and false imprisonment. it appeared that defendant was a member of a firm doing business as photographers in New York. and also of a like firm inPhiladelphia; that the firms divided territory between themselves, and were notto encroach upon that of each other; that the New York firm wasto have Connecticut, and appointed plaintiff agent for that territory. agreeing that he should have the exclusive right there, and certain commissions. and that he should collect all moneys and turn them over weekly,:with & statement of reo ceipts and disbursements; that this agreement was subsequently changed so that the firm were to charge him with what was f\lrnished him at agreed prices, he to pay his own expenses, and make collections at his own risk; that on set· tlement there was an ultimate balance against plaintiff at the agreed rates, which he refused to pay, claiming damages in consequence of an agent of the other firm having eucroached onbis territory; that thereupon an order of ar· rest was procured by defendant on the ground that this balance was received by plaintiff in a tlduciary capacity, under which plaintiff was arrested on Fri· day, and committed to jail, from which he was released on the follOWing Monday, the' order having been dissolved. Held that, defendant ad· mitted that he did not lay the facts with reference to the doing of busIDess by th!l, agent of the Philadelphia firm in plaintiff's territory, or the change from sellingforthe New York J;irm to purchasing from them, before his coun· sel time of applying for, the order of arrest, the advice of counsel was not 'a shelter from liability.1 NeitMr is it a defense to BUChaction that the general term of the city court reversed the order vacating the order of arrest, that order being reversed on appeal by the court of common pleas; and that, on the trial of the action in w'hichthe order of arrest was issued, verdict was directed for plaintiff therein, and then set aside by the trial judge, plaintiff thereupon dismissing his action. 1i In'such action a verdict for plaintiff for $8,500 damages will not be set aside as excessive. s
SAME-PROBABLE CAUSE-VERDICT OF JURY.
At Law. On motion for new trial. Marshal}, P. for plaintiff. Charles!!. Stafford, ,for defendant,
WHEELER, J. This is an action for malicious prosecution of special proceedings for an order ofarrest and false imprisonment. On the trial thejury found for the plaintiff. The defendant has moved for a new trial .on several grounds.
lAs to how far'defendant, in an action for malicious prOSecUtion, may rely upon the advice of counsel, and as to the necessity of stating to counsel all the facts in the case llPonwhich advice is sought, see Norrel v. Vogel, (Minn,) ll8 N. W. Rep. 705, and cases cited in notll. . 1,As to how far the acquittal or conviction of defendant in the original action is evidence of cause or the want,thereof, in actions for malicious prosecutionJ"see Jones v. Fmcht...(Va.) 4 S. E. Rep. 342; Clements v. Apparatus Co., (Md.) 10 At!. .tt.ep. 442 and note; DIemer v. Herber, '(Cal.) 17 Pac. Rep. 205; and calle cited in note. On the general subject of proQable cause, and what is evidence thereof in actions for malici9us prosecution see Bartlett v. Hawley, (Minn.) 87 N. W. Rep, 580, and ,Dote; v. Alle!1z.(Ga.) 5S. E. Rep.204i...Dearmond v. St. (,La.) 4 South. Rep. Rail.-oaA 00. v. JlIl1tchell" (Gao) 5 S. E. .tt.ep. 400, and note, Norrel v. Vogel, (Minn,) lilt N. W. 705. " "', , . · See the note to Clai'ke ImprovemeJit Co., pOBt, 478. ,
The first is want of jurisdiction. The plaintiff alleged in his complaint that he was a'citizen of Pennsylvania, and the defendant of New York. As to this the defendant, in his answer, denied" any knowledge or information sufficient to form a belief," and then answered to the merits. On cross-examination the plaintiff answered questions concerning his residence in a manner which tended to show that he was a citizen of New York, and on re-examination that he was a citizen of Pennsylvania. The defendant moved the coilrtto direct a verdIct for the defendant for want of jurisdiotion. This was denied, and nothing further with reference to this question took place. That, where the jurisdiction of the courts of the United States depends upon citizenship of the parties, the requisite citizenship must be substantially set forth somewhere in the proceedings, appears to have been settled from the earliest times. That, when well set forth, the want of it, if to be relied upon to defeat the jurisdiction, must be set forth in,advance of proceeding to the merits, was also well established. In De Wolf v. Rabaud, 1 Pet. 476, Mr. Justice STORY said: , "It has been recently decilled by this court. upon full consideration; that the question of such citizenship constituted no part of the issue upon the mer· its, and must be brought forward by a proper plea in abatement ill an earlier stage of the cause." In Smith v. Kernochen, 7 How. 198, Mr. Justice NELSON said: "The objection came too late after the general issue, for, when taken to the jurisdiction on the ground of citizenship, it must be taken by a plea in abatement, and cannot be raised in a trial on the merits." In Sheppard v. Graves, 14 How. 505, Mr. Justice DANIEL said: "Thus it has ever been received as a canon of pleading that matters which appertain solely to the jurisdiction of a court, or to the disabilities of a suitor, should never be blended with questions which enter essentially into the subject-matter of the controversy; and that all defenses involving inquiries into that subject-matter imply, nay admit, the competency of the parties to institute such hlquiries, and the authority of the court to adjudicate upon them." And, aftE'r stating the confusion and incongruities which would arise from blendingjudgments on verdicts that the court could or could not render judgment on with judgment on the merits, he further said: "That the true doctrine applicable to the question is this: that although in the courts of the United States it is necessary to set forth the grounds of their cognizance as courts of limited jurisdiction, yet whenever jurisdiction shalf be averred in the pleadings in conformity with the laws creating those courts, it must be taken prima facie as existing, and that it is incumbent on him who would impeach that jurisdiction for causes dellOrs the pleadinp; to allege and prove such causes; that the necessity for the allegation and the burden of sustaining it by proof both rest upon the party taking the exception." ' The same doctrine was held in Spencer v. Lapsley, 20 How. 264; Bell v. Railroad Co., 4 Wall. 598; Railroad Co. v. Harris, 12 Wall. 65. In the case Mr. Justice SWAYNE said: "In the proper order of pleading,which is obligatory, a plea in bar waives all pleas, and the right to pleal], in abatement." These cases, with others to the same effect, were decided before the act of 1872, requiring the practice, pleadings, forms,
CUTHBERT V. GALLOWAY.
and modes of procedure in civil causes other than equity and admiralty to conform "as near as may be" to those of the courts of record of the state; and in New York its Code of Civil Procedure, and not the commonlaw system of pleading, prevails. This is, however, a rule of law which lies deeper than mere form and mode of procedure, as the language of the distinguished jurists quo.ted shows, and that was not altered by this adoption of the systems of practice of the various states. Ex parte Fisk, 113 U. S. 713,5 Sup. Ct. Rep. 724. In Farmington Village Corp. v. Pillsbury, 114 U. S. 138, 5 Sup. Ct. Rep. 807, decided in 1885, the rule of pleading requiring objection to the jurisdiction on account of citizenship to be brought forward before pleading to the merits as it existed before the act of 1872 was recognized and applied as being still in force. So, also, in Hartog v. Memory, 116 U. S. 588, 6 Sup. Ct. Rep. 521. In this case Mr. Chief Justice WAITE stated the rule as existing up to the act of 1875, (18 St. 470,) andthat in its general scope it had not been altered by that act. The Code of Civil Procedure, by section 513, recognizes defenses which do not involve the merits of the cause, and provides for their verification. And although by section 487 a defendant is ,ailowed no pleading but a demurrer or an answer, section 488 provides for a demurrer when want of jurisdiction of the conrt, or of capacity of the plaintiff to sue appears on the face of the complaint; and section 498, that the objection may be taken by answer when it does not so appear. These pro:visions ofthe Code do not appear to attempt to abolish dilatory defenses, but to prepare the way for them. This denial of knowledge or information sufficient to form a belief as to the plaintiff's citizenship would seem to be sufficient to put the plaintiff to proof of his statement, if it was a part of the cause of action, or material to his right of recovery. Sections 522, 524. As a plea to the jurisdiction its allegation of want -of knowledge or information is wholly immaterial. A direct denial even ·of the citizenship alleged by the plaintiff would not be sufficient. Such a plea must be certain to a certain intent in every particular. 1 Chit. PI. 444; Scott v. Sandford, 19 How. 393. In tbis caseit should either allege that tbe plaintiff was a citizen of NewYork, the same as the defendant, or deny that he was a citizen of Pennsylvania, or of any other state, or an alien. And this denial or averment, whatever it amounts to, was pleaded with defenses to the merits on which the parties proceeded to trial, .and was, on the cases and principlts stated, thereby waived. There was nothing left for trial but the merit of the cause of action, and this question of jurisdiction appears to have been properly disregarded. This defendant, with others non-resident and not served with process, were a firm doing business of photographers in New York. His copartners, with still others, constituted other firms doing a like business in Boston and Philadelphia. These firms sent out agents to take negatives to be sent in to be printed and finished and returnpd to the agents to be furnished to customers. The firms divided the territory between theD1-selves, and were not to encroach upon that of each other. The New York·firm was to have Connecticut, and appointed the plaintiff agent for lhat territory, by writing, in which it was agreed that he should have the
470 exclusive right there,. and certain commissions ; that he should collect all moneys, andturIi .them over to firm weekly, with a statement of what was .received and paid out; in caseof any differences between them, the differences should be submitted to arbitrators chosen by them. After doing business under this, arrangement for a time, it was, as the plaintiff claims, changed, so that then'after the firm were to charge ,what they furnished to the plaintiff at agreed prices, and he was to pay his expenses, andmnke. collections at his own risk. The Philadelphia firm sent an agent into Connecticut who took negatives there, and furnished photographs, on which the profits at the agreed prices would amol,lnt to several hundred dollars. There was an ultimate balance of $45.70 the plaintiff at the agreed rates. He claimed that the firm should make him good for what he lost on account of the business done by'that agent, and that they should allow him much more than this balance, and refused to pay it on that account. They had some proceedings towards an arbitration, which were broken off by the defendant; and this order of arrest 'Yas procured '!?y him on the ground that this balance was received by the plaintiff in a fiduciary capacity, fi:om a judge of the city court. The plaintiff was arrested on Friday and committed to jail. The order of arrest was vacated on Saturday, and the plaintiff was released on Monday. The general term of the city court reversed theorJer vacating the order of arrest, and that order was reversed on appeal by the court of common pleas. The suit was tried in the city and a verdict was directed in favor of the plaintiff, which was set aside by the judge before whQm the case was tried, and the plaintiff discontinued the suit. .The defendant claims that he had probable cause to proceed as he did, and relies upon the advice of his counsel. to. procure the order of arrest; the decision of the general term of the city court sustaining the order; and the verdict of the jury,-as defenses to thi'3 suit. He now relies upon the failure of them as such at the trial as grounds for a new trial. The defendant admitted on crossexamination that he did not lay ,the facts with to the doing of business by the agent of the Philadelphia firm in the plaintiff's territory, or. the change from selling for the New York firm to purchasing from them, before hiscQpnael. These facts were very material to the case in respect to the order of arrest, and counsel could not give proper and reliable advice in regard to the right to such an order without being possess.ed of them. Eluch aqvice would not be a shelter unless all the materialfacts fairly presented to the counsel. Stewart v. Sonneborn, 98 U. S. 187. The defendant could not recover in the action against the plaintiff unless he proved on the trial that the plaintiff held the money in a fiduciary capacity, ,so as to be liable to arrest. Code. Civil Proc. § 549. A verdictQf the jury passing upon the facts for the defendant would show probable cause. Whitney v. Peckham, 15 Mass. 24;3 jOwon v. Gerry, 13 Gray, 201. Bufthere was no trial of the facts by the jury; the court directed the verdict, and set it aside. It was a mistrial, and established nothing. .
BELLEVILLE SA-V. BANK'. WINSLOW.
The restoration ofthe order of arrest,' like the granting of it in the first place, was provisional merely, and preliminary to the trial on the merits, by which the right to hold to bail would be determined. It was similar to the preliminary examination in criminal casf',s. The decision to hold to bail in such cases, if evidence of probable cause, does not establish it, as a verdict of guilty on a trial' in chief would. Bacot/, v. Towne,4 Cush. 217; Burt v. Place,4 Wend. 591. These circumstances, with all the others in the case, were laid before the jury, and they have found from all the evidence that at the time the defendant took the proceedings for arrest his firm had no claim against the plaintiff for money held in a fiduciary capacity, and no fair or reasonable ground to suppose that they had, and that the proceeding was institutedto compel the plaintiff to relinquish his claims contrary: to law. No question was made about the charge to the jl,uy but what is covered by these considerations. ' .' The jury found for the plaintiff to recover 83,500 damages. The defendant moves to set aside the verdict for, among the other grounds treated of, excessive damages. The motion in CkLrkev.;Improvemem Co."pOBt, 478, to set aside the verdict for excessive damages, was under consideration at the same time with this motion. The cases are so similar that wha.t was said in that case ,is applicable to this, an.dthe reasons for denying the motion there appear to be controWng in,respeet to this part of this motion. They are referred to without being. repeated. The result is that this motion must be denied·
, B.Ans' At'» ACQUIESCENCE. , In consideration of the relinquishment of boJidsheld 88 collateral,'a transfer of stock, and a cash payment, a bank president executed a release to a debtor of tbe bank, informing him that,thedirectors had not. then assented thereto. ,The directors afterwards authorized. the president and discount committee to compromise the debt, and later rejected the compromise; but DO Dotice of either action was given to the debtor. The bank afterwards sold the bonds without notice to the debtor, and collected dividends on the stock, for which and for the cash 'Payment it made certificates of deposit in favor of the debtor and his wife, but retained them, and the debtor had no knowledge of them. These transactions' extended over a period of seven years. Held" that the release was ratified.J
(Oircuit Oourt_ E. D. MissoUri. June 18_1888.)
At Law. Action on a judgment. O. W. ThO'flU1,8, for plaintiff. John 0' Day and J. M. Hamill, for defendant.
lAs to what will oonstitute a rad1loation by a ot unauthorized· acts ot its agent, aDd. the eflect of sucb ratiflcatioD. see Lathal:n First Nat. Bank, (Kan,) 18 Pac. Rep. Su, and note. ' ' , ,..
, , .'