. CLEVELAND FORGE. &; BOLT. Co·. f.
CO. et al.
(04.rcuit Court, N. D. nUn0i8. December
al. . legl1l.g'that the corporation and the president have infnnged complamant's patent, is no ground of demurrer, though there is no speci1l.o allegation that he directed or panicipated in the infringement complained of.
IrnNTIoN$-A,<i'rtows .PO'B ImINCJ.BuBNT-PARTIBS-DBMURRER. . .Tqe joining ot the l'residel;ltot a corporation as co-d!lfendant, on
InEquity. On demurrer to bill. 'Cob1M'n &7 Thacher, fOfoomplainant. J; H. Raymood, for defendants."
BLODGETT, J., (oraUy.) . This is a bill in equity for aI\injunction and accounting against defendant corporation and its president, charging the irifringement of a owned by complainant. The bill charges that the defendant corporation, and A. B., its presiljent, "well knowing of complainant's rights under the patent, yet have willfully and intentionally infringed upon said patent." To this bill a general demurrer is filod by A.'B., the president, on the ground that there is no specific allegation in the bill that he personally directed or participated in the infringement complained of; that there is no case made for a. discovery against hint; and that singling him out from all the officers of the corporation, and making him a defendant, indicates a spirit of personal persecution .for which nQ foundation is laid in the bill; citing, in, support oithe demurrer, Nwkel Cb. v. Worthington, 13 fed. Rep. 393; Howard Plow- Work8, 35 Fed. Rep. 743; and B08Wn, etc., Co. v.Star Rubber Co., 40 Fed. Rep. 167. It has been t1:le practioe,'Of this court, ever l3ince. pat!'lntlitigation commencedhere,· when a corporation is charged with inf,ringexnent, to join the chief executive as a is, charging thecorporationabd the officer, in general terms, the infrinp;ement; and, while this practice has heenoccasionally objected to in behalf of the.officer, thil!listhe first time, so far as my knowledge memory serves me, that a demurrer has .been interposed by the officer 80 sued. The reason which has been urged for joining one or more of the officers as defendant or defendants in a bill of this kind is that an injunction, or other order of the court, is much more apt to secure obedience, if directed to an individual officer by name, than if it only ran againl:!t the officers and agents of the corporation by that general description, and I have always thought there was much force in the suggestion. It seems to me there is a direct moral effect upon a defendant who is by name restrained by an injunction, which would not be felt if the mandate ran only against the officers, agents, servants, etc. It puts the officer individually addressed by the process of the court upon notice that he must see to it that the process is obeyed, and that he will be held personally responsible fqr disobedience. And the president of the corporation, as
!lKB T. oJ. ICJlUYLEa
TIIB I1llC H. TILLYBB.
the jurisdiction of the court, so that its process shall operate upon him individually. It has not bElen the practice of this court to render a personal decree for damages or costs against an officer of a corporation, except in cases where there was such intentional and willful action of the officer, shown from the proofs, as indicated an individual purpose to infringe the patent, and violate the rights of the complainant, and when, as in one case, it was made to appear on hearing that the company was organized for the express purpose of violating the patent. So much in regard to the practice of the court. But. even if an officer of a corporation is joined as a co-defendant in such a case, with the usual allegation charging an infringement of the patent by all the defendants, does that· . make the bill demurrable, so far as the officer is concerned? If the bill charges an infringement by several defendants, one of which is a corporation"mustlt make any different case against the individual than against the corporation? The allegation that A., B., and O. have infringed a patent is enough to put them all upon answer, if the bill is otherwise sufficient; and the fact that the bill shows the individual defendant to be an officer of the defendant corporation does not require that any different or more specific words be used to charge him than if he were not such officer. The allegation in the bill that the United States RollingStock Oompany, and A. B., its president, have infringed complainant's patent, is sufficient on its face to require an answer or plea from each defendant which shall put such allegation at issue. .In neither of the cases cited by defendant was the question of the liability of an individual officer of a corporation raised by demurrer, but the question as to such liability came up on final hearing in the first two cases, and on a plea in the last olie. 1'he demurrer is overruled.
its chief executive officer, seems to me to be ordinarily the proper person to be joined as a defendant for the purpose of him directly within
SCHUYLER 11. THE ISAAC
H. TILLYEB. 1
(Otrcuit Oourt, E. D. Penn81/l'Vanw. November 2, 1889.)
A large,schooner at anchor at .the mouth of the Schuylkill r:l,ver was taken In tow by a tug at low water, to be <;arried to her wharf on that river, the tug choosing her 'oWl1' time. While passirlg ,through a' draw, she was drawn by the set of the agalnst an obstnwtioJrab()ut six feet from the pier of the bridge, and BJIJIle below the surface of the water. Held, as the towage could have 'heeupert'ormed at a time of higher'water, and as the tug could have kept·further away; from the pier, shewaaohargeablewith neltligenoe. 2. B.uora-Ihl'rY OP Tow. . .' :A: tow th'atendeavora, *hUe under the· control of the tug, to follow as nearly as in her wake, w:not l'esponsible for any injury haPPltDing to her while Iio by obstructions..
TOWAGll-NBGLIGllNCB OP TuG.
Esq., Of .the Philadelphia bar·. Rep; ooL . '.' " . ..