SOUTH COVINGtON &C. 8'1'. RY'. cO.
et al. v.
SAMEV. THE TRIBUNE.
(Ot"rcuit COU1't. B. ]).New York. August 31, 1888.)
Tpe federal courts may require security for costs from non·resident plaintiffs at any time when no prejudice to plaintiffs' rights is shown to have resulted from defendant's delay in moving.
R. D. Be:nedict, for complainants. Sackett &BenneU, for Tribune Association. Fhmklin& ,Olifford and A. H. llartlett, for the Sun.
LACOMBE,' J. The state courts which refuse to require security for costa from a. non-resident plaintiff, where defendant has delayed moving untH after answer is served, also hold that impecunious non,residents may not sue in jormapauperi8. In this court such plaintiffs are allowed this priv· ilege; and an equitable application of the doctrine of Heckman v. Mackey, 32 Fed. Rep.' 574, would seem to warrant the court in requiring security from solvent non-resident plaintiffs at any time,-at least when no special prejudice to plaintiffs' rights is shown to have resulted from defendant's delay in moving. Defendant in each case may take an order requiring plaililtifl's to file security in the amount of $500.
On Motion for Security for Costs.
(Oircuit Court, 8. D. Ohio, W. D. September 11, 1888.)
Motion for New Trial and for modification of findings of fact. findings, see 34 Fed. Rep. 628. John a.. BenWn and Simrall Mack, for plaintiff. Hoadly, Johm.8on« Colston,and Reemlin &: Reemlin, for defendant.
JACKSON, J. The court has carefully reviewed the evidenc:e in ,this case, and fully considered the several grounds on which the motion for a new trial, and for a modification of the court's findings of fact, are made on behalf of defendant. Without reviewing these grounds in detail, the result of this re-examination is the conclusion that said motions should be denied. The court adheres to its former conclusion that the cause of action based upon the fraudulent representations made by defendant in respect to the 768 coupons was not barred by the statute of limitations. In the findings of fact heretofore filed the court found
that "this fraud was not discovered by plaintiff until the faJl of 1883, when the testimony of said Gest and others was taken in the foreclosure proceedings." By this statement the court meant that the plaintiff was 110t in possession of the facts which were calculated to give them notice of the fraud until after the evidence had been concluded, and the report of the master was made, in the fall of 1883. The court considered that report made in November, 1883, based upon the testimony of Kellogg ,and Gest, as the earliest date at which plaintiff was iIi possession of facts calculated to excite iti' suspicion that Gest had made untrue and fraudulent representations about the coupons. Gest's deposition, given in the foreclosure proceeding in February, 1883, did not disclose the fact that he had knowingly made false and fraudulent representations about the coupons. Neither did the affidavit of Wier." Kellogg's testimony, taken in the fall of 1883, made the first calculated to excite suspicion and inquiry. But the first actual: discovery of the fraud defendant committed in his representations about the coupons was made in the fall of 1885, when GesCs deposition-was given in this case, and when he stnted that he "really didn't believe that they [thesa.id coupons] were a first lien, but were only a valid indebtedness, good in connection with otherfloatin$ debts of the company." When he made this statement as to what his actual belief was at the time of making his representations about the coupons, he disclosed for the first time an essential ingredient of the fraud with which he is charged in and by the amended count filed in February, 1887. If necessnry, the court would hold that the fraud was not actually discovered till the fall of 1885. But as the facts found by the master in his report under the ceedings, and those stated in the deposition of Kellogg under that reference, were calculated to excite plaintiff's suspicion, and induce inquiry, the court in the findings already filed computed the running of the statute of limitations from the fall (November) of 1883. Upon a re-exaplination of the matter, the court is satisfied that this is the earliest date at which plaintiff should be charged with a discovery of the fraud. The other material and controlling iilets of the case are as found by the court in the findings heretofore filed, and they are adhered to, with the legal conclusions deduced thprefrom. It is not deemed proper, nor is it in conformity with the usual practice in such cases, to set out in detail the evi· dence on which these fin'dings were based. The motion to modify the findings of fact and for a new trial are both overruled and disallowed, with costs to be taxed against defendant. An order will be accordingly so entered. '
BA.LL GLOVE FA.STENING CO.
SOCKET l"ASTENER 00.
BALL GLOVE FASTENING CO. 'II. BALL
SOCKET FASTENER CO.
(Circuit Court, D. Ma8sachus8tt8. August 16, 1888.)
PATENTS FOR INVENTIONS-ACTIONS FOR INFRINGEMENT-EQUITy-JURISDICTION.
EquitY' has jurisdiction of a bIll by the owner of a patent to obtain an account of royalties due from a licensee. and an injunction against using the patent in defiance of the agreement of license. Claims 2 and 4 of letters patent Nos. 290.067 and 806.021. for improvement!! in glove fasteners. consisting of the combination of a stud formed into a ball at its upper end, and extending through and connecting two disks, one above and one below the flap of the glove, with a ring having two elastic flanges or jaws. and a separate hood having two ears extending from its base ring. are infring-ed by a device having the same button member. and substan- . tially the same button-hole member, with only immaterial differences in connecting the hood and flanged ring, and in the position of the flanges or jaws.. On bill for
In Equity. for defendant.
John R. Bemnett andW. B. H. Dowse, for coml'llainant.
an injunction and
T. W. Clarke,
CoLT, J. The bill this case prays for an injUIiction, as well as an :account against the defEmdant. It seems to me that this is sufficient to give a court of equity jurisdiction, though the defimdant is a merelicensee; and it has been so held. McKay v. Smith, 29 Fed. Rep: 295; Hat Sweat Co. v. Porter, 34 Fed. Rep. 745; Seibert Co. v. Manning, 32 Fed. Rep. 625. The defendant company is the sole licensee of the complaincant of three patents granted to EdwinJ. Kraetzer for improvements in glove fasteners. The license contract was dated March 21, 1885, and is lltill in force. The present suit is for an account of the royalties due under the agreement, and an injunction, meantime, to restrain the defendant from using the patents in defiance of the agreement. Under these ·circumstances,' the defendant cannot and does not deny the validity of the Kraetzerpatents, but the defense of non-infringement is brought forward and relied' upon. The complainant insists that the defendant's fastener is an infringement of t4e second claim of Kraetzer patent No. 290,067, and the fourth -claim of Kraetzer patent No. 306,021. These claims are as follows: "(2) The combination of a catch. consisting of an inner and an outer plate, .a stud connecting said plates, and a shank attached to the outer plate provided with a ball and a spring-flanged eyelet, adapted to receive the ball of said catch. oSubstantillUy as described." "(4) The combination althe two disks, B. and C. and the knob, A,having its oShank extended through them and upset at its end against the lower of thi;lm. with an entire ring provided with two elastic flanges or jaws. and with a separate hood having two ears extending from its base-ring. as described. and between the said !langes or jaws, and bent against the ring. all being substantiallyas set forth." The complainant's fastener, made under the Kraetzer patents; is com" J>osed()ftwo button member secured to thennder fllipof a·