,rdirquii Oourt, N. IJi
E. D. August 9,1888.}
,averp1,ent in tbe, to tbe amount royalty uniformly mandell and ftom ustirs of patented deVIce does not make a claIm f,"o,r, in,,fringement liq,u,idated,;,' aJ:ldd,ispense with the demand required by C,ode requiring unliqujdll:ted demands to be ,Presented to the board of ,Iowa. §: sUI:lervlsors before suit can bebrought thereon agalllst a county. 2: CONsTt'1'UTlONAL LAW...;.STATE LAW-IMfAIRING JURISDICTION
'COURT.' ; '"
'1'IONS. ,', :
AGAINST-LiQurDATED DAMAGES-PATENTS FOR INVEN, '" '( l , ,
not affect or:lmpalr the jurisdiction of the federal courts, nor cItizens of other tosne therein.
At Law. Demurrer to petition. RunnerM &l Walker, for plaintiff. ,Graham & aady and M.O Gregory, for defendant.
SarRAs;, J '/'This cause has already been before the court upon a demurrt;lr to the':petition, which presented two questions: Jilirst, whether the state statute of limitations could, be pleaded as a bar to an action to recover damages for the infringement of a patent granted by the United States; and,second, whether the plaintiff could maintain the action without averring and showing that she had presented her claim for damages, the same being unliquidated; to the board of supervisors of the county, accol'ding to the provisions of section 2610 of the Code of Iowa. It was then held that the state statute of limitations was not applicable to the but that the provisions of the statute requiring the claim to be presented to the board of supervisors was applicable; and on that ground the demurrer was sustained. See May v. Oountyof Buchanan, 29 Fed. Bep.469; Mayv. Oass 00., 30 Fed. Rep. 762. The amendment made to the petition avers that plaintiff has uniformly demanded and eollected $50 per cell as a royalty from the lessors of the invention covered by the letters patent owned by plaintiff; and counsel for plaintiff now contend that her claim is not unliquidated, within the meaning of the Iowa statute, and therefore no necessity exists for a presentation thereof to the board of supervisors. The cause of action has not been changed by this averment. It remains an action for a ,tort, and the averment touching the amount of the royalty usually demandeddoes not change the character of the demand, and convert it from an unliquidated to a liquMated claim. The petition as amended shows that the defendant has, without the consent of the plaintiff, been using prison cells which are an infringement of the patent owned by plaintiff, and for the damages thus caused plaintiff seeks a recovery. It is not averred that the parties have ever agreed upon any sum to be paid for such use, nor that the amount is fixed by any positive law. The damages are therefore unliquidated, and the question presented by the demurrer to the amended petition is identical with the one passed upon in the opinion already filed in this cause.
SARGENT Ii; HoME BENEFIT' ASS'N.
Counsel for plaintiff have' very fully reargued 'the 'latter question, claiming that it comes within the rule so often announced by the supreme court, that the jurisdiction _of the courts of the United States, and the right of citizens of otber states to sue therein for the recovery or protection of their claims, cannot be affected or impaired by the legislation of the state. The legislation in question is not intended to affect or impair the jurisdiction of the federal courts, nor to deny the right of citizens of other states to sue therein, nor to control, limit, or impair the rights and remedies of patentees, nor does it seek to deal with subjects beyond the legislative, control of the state. In creating the municipal corporations known as counties, the state legislature has declared 'them to be liable to be sued on contracts and for torts, but, as a protection to the property owners,qf the county, upon whom the burden falls, has ,enacted that llefore suit is brought upon an unliquidated claim, the same must be presented to, and a demand for payment be made of, the board of supetvisorB. The 'argument of for,plaintiff, if well founded, would in the conclusion that this provision of the statute is inapplicable t() claims held by citizens of other states, suable in the federal courts. I cannot such is the result of the authorities cited by counsel,' nor that such is the correct conclusion on principle. The purpose of the statutory enactment is a wise one. It simply requires that an opportunity for settlement shall be afforded the county before it is subjected'to the expenses of a suit upon unliq'uidated claims, of the very existence of· which the county officials may be wholly ignorant. "The sole que&tion is whether the courts of the United States will recognize and enforce, this provision of the state statute, enacted for the protection of the ties and their tax-payers. The argument of counsel has wholly failed to sbow any good reason why the courts of the United States should ignore this provision of the statute. Legislation of this cMracter no more af· fects the jurisdiction of the federal courts. or the rights of citizens of other states, than the legislation touching demand and notice of nonpayment of commercial paper; and many other subjects, in respect to which the federal courts adopt the statutory enactments as the rule to be followed by those courts. The dem urrer is therefore sustained.
IlO¥E BENEFIT ASS'N.
(Circuit Oourt, S.
York. 'May 22,'1888.)
In an action on a policy of life insurance iro'Illthe risks assumed <leath of assured "by his own hand or ach voluntary or involuntary, sa,\e or insane," it that the proofs of death signed by plaintiff contalOed , this question, 'Was the death caused by his own hands or acts?" The answer ,was, 'See statement of coroner's physician" Dr; J." That statement gave "the immediate cause of death" as "shock from penetrating shot wound 'of head. Mental aberration, superinduced by chronic heada<:ho;" and set out
INSURANCE-PROOF OF DEA'tH-,-ESTOPPEL BY :Al>MISSIONB.