CARPENTER". UNITED STATES.
(Circuit OOl,trt, 8.1).
April 8, 1890.}
In an action by a governmant oMber against the United States for indemnity against bis iiability for damages'(fortbe seizure of a flat-boat, if it be viewed as , .sounding in tort, l;tdemurrer to tb,e will be sustained under Act Congo Maroh 8, '1887, O. 859, § 1, aotions 'of tort from the jurisdiction of the court. 2.. SAME-Ex CONTRAOTU-LIMITATIONS, . If the action be considered 68 on implied assnmpsit, tbe demurrer will still be sustained, under subdivision 2 of same section, limiting tbe bringing of such suits .. to six years af1;erri"ht accrued,where it appears that the seizure was made more tbansix years !lefore suit brought, 68 the liability of the United States accrued then, and not when the owner of the boat recovered damages against plaintiff.
CLAIMS AGAINST. UJ;'ITED
'John W. Herron, for defendant.
. Bateman & Harper, for plaintiff.
SAGE, J. If this case is to be considered as sounding in tort, the demurter to the petition must be .sustained for the reason that the act of March 3. 1887, under which it ill brought, excludes from the jurisdiction ofthe court cases sounding in tort. If it is to be considered as an actioll upon an implied assmnpsit, the demurrer must be sustained for the reason that the right accrued in 1873, and this action was brought in 1889, whereas the act of March 3, 1887, make:; it a condition precedent to the right to sue that the action shall be brought within six after the right accrued for which the claim is made. It is true thil.tthepetition alleges the material facts of the action hrought by the Owner of the flat-boat against the plaintiff, and a notification to the United States attorney in the city of Pittsburgh,and the further fact that assumed the defense of said suit. It is also alleged that Col. Merrill, the pllflntiff's superior officer, was by him notified of said suit. The petition sets forth, also, that a judgment was rec,overed against the plaintiff, which he was to and did pay on the .6th day of 1886, which was within six years of this suit. But, if we are to treat the suit as upon an implied assumpsit, the cla.im accrued against the United States when its officer took possession of and used the flat-boat, in 1873, and was not postponed until 1886, ,vhen the plaintiff was compelled to pay the claim made against him. The owner of the flat-boat looked, as he had a right to do, to the plaintiff. The plaintiff had the right either to treat the taking of the boat by the government officer as tortious, and sue him individually, or, waiving the tort, make his claim against the government for the use of the flat-boat. The right of the plaintiff to assert his claim for that use did not depend upon the recovery against him by the owner of the flat-boat. The case is a hard one, but the plaintiff's only means of redress is through an appeal to congress. The demurrer is sustained, and the petition will be dismissed.
GRAVELEY V. GRAVELEY.
et al. v. GRAVELEY et al.
(Oi1;cuit Oourt, W. D. Virginia. Apri119, 1890.)
TBADE-MARKS-INFRINGEl\l:ENT-JURISDICTION OF CIRCUIT COURT.
Under Act Congo March 3, 1881, relating to registration of trade-marks used in foreign commerce, the circuit court has no jurisdiction of a bill for infringement where both parties reside in the state, and it does not appear that the trade-mark is used in foreign commerce.
In Equity. B. F. Graveley & Son filed their bill, November 24, 1888, against B. F. Graveley & Co., to recover damages of the defendants for using trademarks on tobatco manufactured by them so similar to those used by' the complainants on the celebrated "Graveley tobacco" as to constitute an 'infringement, and to enjoin the defendants il'om the further use of such trade-marks. 'Greeeit Miller, for complainants. PeatroM & Harris,' for defendants. and PAUL, JJ. Before BOND,. J. This·isa bill filed to enjoin the defendants from using the trade-mark of the complainants, which had been duly registered under the act of March 3,1881. The parties to these proceedings are all citizens and residents of Virginia, so that whatever jurisdiction the court may have to entertain the bill arises not from the citizenship of the parties, but from the fact· that the complainants have a right guarantied to them by act of congress, which right is the exclusive use of their registered trade-marks against the claims of all other persons to use the same. If it be admitted that the complainants are entitled to the exclusive use Of the trade-m,rks mentioned in the bill otherwise than by act of congress, a matterwhlCh, in our view of the case, it is not necessary to determine, and that the defendants have used them upon tobacco of their manufacture without the consent of the complainants, they do not derive that right of exclusive use from any statute of the United States. Their right under the' laws of the United Slates is the right to use these registered in foreign commerce. Act March 3, 1881, (21 U. S. St. at Large, 502'.) The bill in this case nowhere asserts that the defendants have used these registered trade-marks in foreign COmmerce, nor does the proof show a single instance of such use on their part. Under these circumstances, ·since the parties to the suit are cjtizens of the same state, and since the only right guarantied to complainants by the laws of the United States is the right to use exclusively their registered trademarks in foreign commerce, which right it is not alleged the defendants have infringed, it seems the court is without jurisdiction in the matter. The complainants may be entitled to the exclusive use of these registered trade-marks at common law, or under some state statute, and, if they were citizens of different states, might possibly file this bill here; but, under the state of facts above set forth, we think the bill must be dismissed for want of jurisdiction, and it is so ordered.