J'EDERAL REPORTER, vol. 42.
'8ey, nt>r in the conveyance of parcels of these lands to the respective defendants, is there visible any taint caused by fraudulent acts of any of the defendants; while, on the other hand, I cannot but conclude, from the testimony, that the defendants come into this court with clean bands. Nor do I think that the complainant has shown such diligence in asserting her claim as to clear her from the charge of laches. For five years, admittedly, l:lhe slept upon her alleged rights. Then she asserted them, indeed; but so feeble was that assertion that in two and a half years it died of inanitien. Then followed 10 years of absolute inaction. During that time these defendants, or some of them, expended large sums of llloney in the improvement of these premises. Because of this expenditure; and, as well, because of ihe growth of the city of Paterson, this unproductive property once belonging to the complainant has doubled, quadrupled perhaps, in value. Now the complainant thinks the time is opportune, and seeks the aid of this court. Her delay has been remarkable. Her success would carry disaster to innocent parties. Such cOllduqt does not commend itself to a court of equity. The bill of complaint is dismissed, with costs.
SOCIETE ANONYME DE LA DISTILLERIE· DE LA LIQUEUR BENEDICTINE DE L'ABBAYE DE FECAMP V. WESTERN DISTIl,LING Co.
(Oircuit Oourt, E. D. Missouri, E. D. April 29, 1890.)
A defendant who, when elljoined from selling a certain cordial in certain bottles with a partiCUlar label, sells its entire stock of the cordial, bottles, and labels to a third person, under an arrangement that he would fill such orders for the cordial as the defendant might receive, is guilty of a violation of the injunction, though the defendant did not share in the Vrofit of filling such orders, and though it had received the advice of counsel that lt might sell its stock in hulk without violating the injunction. '
On Motion to Punish .the Defendant and Its President for Contempt. F. N. Judson and Oha8. Bulkley HubbeU, for complainant. Rassieur & Schnurmacher, for defendant. THAYER, J. The order heretofore entered in this case commanded the defendant, its officers, servants, and agents, to desist during the pendency of the action "from putting up, selling, or exposing for sale, * * * any liquid or cordial commonly called' Benedictine,' which was put up in bottles, or with labels or wrappers, made in imitation of, or resemblance to, the bottles, labels, or wrappers in use by complainant for putting up a liquid or cordial known as' Benedictine.'" It is admitted by the defendant that, after the service of this order, it sold to a third party its.stock of liquor called' Benedictine,' also its stock of bottles,
SomiTB ANONYME DE LA
ETC., II. WESTERN DISTILLING 00.
labels, and wrappers made .in imitation of those used by complainant for putting up Benedictine, and that it tqrned over to such third party all orders for Benedictine in bottles subsequently received from its customers, and notified its customers that such third party would fill such orders. Though not expressly admitted by the affidavits, the court is satisfied, as a matter of fact, that the sale by defendant of its stock of cordial, bottles, labels, etc., to such third party was made for the express purpose of enabling him to supply defendant's customers with Benedictine put up in bottles, and with labels and wrappers, made in imitation of those in use by complainant, and under an arrangement with such third party that he would so supply them. Under the circumstances, the defendant must be adjudged guilty of a violation of the injunction. By entering into an arrangement with a third party to do the very act that it was enjoined from doing, and by supplying him with the means of doing the prohibited act, and by turning over to him such orders as were. from time to time received from its customers·for Benedictine put up in bottles, the defendant made itself a party to the act in question, and is as much responsible for it, as if done by itself. A party who, while resting under an injunction restraining him from doing a given act, counsels, advises, and procures another to do the act, violates the letter as well as the spirit of the restraining order. Even the criminal law regards one who counsels and ad vises another to commit a crime as an accessory before the fact, and as punishable in that capacity. The affidavits filed by the defendant show that it did not make any sales of Benedictine in bottles, in its own name, after the injunctipn was served, and that it did not share in the profits Of the sales made by the person to whom it transferred its stock of bottles, labels, etc. This, however, is immateral. In a proceeding against the nefendantfor violating the injunction, its responsibility cannot be tested by determining whether it realized any profit from the sales in question. The test is, simply, whether it was intentionally instrumental in causing such sales to be made, and I have no doubt that it was. Advice of counsel is also pleaded as an excuse for what was done by the defendant. The proof shows that advice was given to the effect that defendant might sell its. stock of Benedictine in bulk, and even its stock of bottles and labels, without violating the injunction. But, conceding such advice to have been given, and to have been sound as far as it went, still it does not excuse the defendant for selling the articles in question under an arrangement with the purchaser that he would do with them precisely what the defendant was prohibited from doing, and that he would fill such orders as the defendant might receive, but was prohibited from filling. It is not claimed that advice was given to the effect that such an arrangement could lawfully be entered into, although it sufficiently appears that that was substantially the arrangement under which the sale was made. The defendant and its president are hereby adjudged guilty of contempt, and a joint fine of $50 is hereby imposed, together with the costs of this proceeding. v.42F.no.2-7
April 28, 1890.)
LltINB8A1'I'D MINING--STATllTORY CONSTRUOTION-SIDE LINES. ,
Where the strike of the vein passes perpendicularly through the end lines of the location. the fact that between 'the end lines the outcrop is forced by the surface influenC69 of slides and debris so lII8 to make slight va.riatlOns from the genllraltrend of tne strike, does not prevent the sid.e lines from being parallel with ,,the vemi it being oUly necessary iii such case that they should be SUbstantially parallel. . The fact that a location is cut by another valid claim crossing it obliquely does not make the line of such intersection,the' end line of the location when the location exteuda beyond the intersecting olaim.
LINES. . ,
"V\;here part of the endola location is adjudged to be in oontlict with a prior cllloim, and thereupon the'owners of the prior claim quitclaim the land in conflict to the owners of said 10catiQJ1, whose possession thereof is not iq,terrupted, the loea. .' will continue to includ,e the land in conflict.
. .! Where mining location. which have passed out of the hands'of the owner haVI'!Atood for years, Ij.nd have been developed ,to,a conslderable exit.is proper in a suit involving tlieir validity to instruct the jury that "the certifiOatesof location are presumptive eVidence of discovery, and every reasonable prllsulllption,shouId be in by the jury in favor of the integrity ·of the locations."
Under Rev. St. U. S. § 2322, which gives the' locators of lode claims the right to fpllQW of the vein beyond their side lines, such not cut off by tae isslleof a patent for the land into which such vein in its dlp extends.
OF PAPERS. '
Where dUring the progress of a trial defendant's counsel, on being asked by JllaintUf to produce a,QElrtain paper, promises to look for ihand bring it into court if found, aI\d the plaintiff's counsel does not again call the matter to the attention of tbeoourt, the right to insist on the production of the paper, or introduce second. ary evj.dellceof its contents, is waived.,
B4.ME....RJll:ll'l: TO OPEN AND CLOSE.
In an ltqtion of trespass for taking ore from plaintitr's mining claIm, where the , defendantadinits the taking and seeks to justify it, and the only evidence necessary to make out a prtma facta oase for plaintiff is the production of his patent, and proof of the 9,uantity aud value of the ore taken, it is proper to anow the defendant to open and close the argument to the jury; the burden of proof on the main issue in the case being on him. .
'A distriQt judge who has, under order of the circuit judge, tried a case in another district, has jurisdiction. to pass upon .a·motion for a new trial in, the case, even after):l.e returned to his own district, where the Pllrties walvf;l his returning to the district for the purpose of deciding the motion.
8. NEW TJ.UAJ;-oJ'URISDICTION OJ', DISTRIOT JUDGB.
B. F. Mrmt omery, A r $;· Frost,
At Law,·"pn motionJor new trial. c. J. .HU1)he8, 'for plaintiffs.
C. C. Par8on8, for
PHIT,lPB, J. . I have examined the grounds for new trial herein as fully as my litriited:time would permit, and can give but a cnrsoryreview of the many questions involved. During the progress of the trial, extending over a period of two weeks, with access to the statutes and decisions of the courts in similar mining controversies, aided by the daily discus--