JOHNSON RAILROAD SIGNAL
& SIGNAL 00.
(eited:and the prayer is · that tbe lIppemmi's reinvestiture of mie' 'to Uce,nse granted to the appellees, ,by reason of ,the forfeiture of the contract. may be sanctioned by the court.' and for an the injunction he asks for is to be the consequence of the decree of thecourt sanctioning the forfeiture. He allegt's no ground for an iIijunction unless thecontraet is set aside; and, if the case made in the bill was alit one for relief in equity. it ilJ very clear that whether the contract ought to be declared, forfeited or not, in a court of. chancery, depended altogether upon the rules and principles of equity. lind in no degree whatever upon any act of congress concerning patent-rights." ' This opinion has been affirmed in Hartellv. Tilghman, 99 U. S. 547, and ill Al1Jright v. Teas, 106 U. S. 613, iSup. Ct. Rep. 550. See, also, Burr v. Gregory, 2 Paine, 426. This, then, being, as to the two patents of February, 1885, a controversy wholly between parties who are citizens of the state of Illinois, in regard to the effect of a contract, this cou;rt has no jurisdiction to hear and determine it. Taking this view of the question of jurisdiction it would not be proper for this court to exp!eBS any opinion as to the merits of the case, which have been elaborately discussed in the briefs of the ,cOunsel. ' The demurrer is and the bill dismissed for want of jurisdiction.
'D. UNION SWITCH
(CirC1J,it Court, W. D.
1. · .. .
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Anotiginal bill was'foi' the infringement' of letters patent relating to electrio signals. granted to FrederiokChll,eswright, assignee of William R.' Sykes.. In a CrOBI!" bill the I?lainti1f therein set up, amoUg otheJ," things, an exclusive right t<>: t,he term "The Sykes System " as a trade mark or name designating a system of eleotric signal!!, and sought right. Held, that this was new and distinCt matter not within tbescope of the. bUl, and, must be strioken out. . 2. S.UIE-SBRVlOE OF CnoBs-BIU..-NoN'-RESIDENT PLAINTIFF. ,When the plaintiff in the original bill is a oorporation ot another state, an'd has tio agent or representative in the judioial,distriPt where the suit is pending, other t,han its solicitor in the suit, an drder will be made for substituted· service, as. 1'6!!pe01;8' 1ihe cross-bUl, upon such solicitor." , .
InEquity. '.Motion for leave to file cl;oss-bill, and for an order for sttb- ; . ,. George H. Ohristy, for the motion. William S. Pier, contra.
I " .
ACHESON, J. 1. I am of the opinion that the cross-bill, as presented the well-settled rule which forbids the introto the court, offends duction into such a bill of any new and distinct matter not within the scope of the original bill. Cross v. De Valle, 1 Wall. 1, 14. Here, the snbject-matter of the original bill is the patent No. 241,246 granted to Frederick Cheeswright, assignee of William R. Sykes, with the infringement of' which the bill charges the defendant. But the cross-bill, among
" FliJDERAJ, REPORTER, voL 43,
up the right of the plaintiff'therein (the;defelldant in the original bill) to the exclusive use oCthe term "The Sykes System" as a trade mark or name designating a system of electric signals, and -e<:eks protection for that right. This, however, goes far beyond the case of the' plaintiff in the original bill,.is not necessary as.a defense to that bill, andis, indeed, ulatter entirely foreign to the primary controversy. Therefore, everything relating to this alleged trade mark or name must be stricken out before the court will'grant leave to file the cross-bill. 2. The defendant in the cross-bill (plaintiff in the original) being a of the state of New Jersey, and having no agent or reprein this judicial district other than its solicitor in this suit, an Qr,der for, substituted service, as respects the cross-bill uponhim is sought. The application is resisted :upon the ground of the alleged invalidity of service, and several English decisions are produced to sustain the l,}bjection. ·Bu.t I find it laid down in 'Conkling's Treatise on U. S. Courts' tbatWllere non-resident has instituted a suit in equity, and' a cross\;lill is flIed by defendant in .the. suit, the court, upbilmotion, will tPll,t of the sllhpoon'aupon the solicitbr'of such nOll;·i'esident party shall be :Page 143.. Certainly, thisptactice ihad the sanction of Judge WASHINGTON. Ward v. Sebring, 4 Wash. C. C. 472. And in Rubber Co. v; Goodyear,9 WalL807, such substituted service is impliedly recognized as good, in a proper case. Why should it not be so held? A cross-bill is a mere auxiliary proceeding, eitherfor discovery iu 3,\4 of1 again:>t,theoriginal bill or to procure' amOfe complete determination of the matter already in litigation in the court, or for both these purposes, " Daniell, Oh.Pt.:Hj53 .. In Ayres'v. Carver, 17 the oJ ,Lord How. 591, 595, the court quotes with HaRDWIQKE" both the and constItute. but one suit, sO,intjlllately are they connected together;" Il1ll..ve not beeutsferred to any American decision adverse to this motioo, and such investigatiori of the subject as I have been able to make leads me to the conclusion tha.tthe substituted service here asked for in accordance with." precedents, Qf long standing in'the English courts of chancery: G.eled1uki v. 'Ch4rnoclc, 6 Ves. 171; v.Courtney" 12 ,Situ. 140; Cooper v. Wood, '5 Beav. 391; Hope v. Hope, 4 De Gex,M.& G. 328 j Hope·v. Carnegie, L. R. 1 Eq. 126. .If the cross-bill is Il}ade to conform y;iew:s in this opinion,]:eave to file it will ,b,e granted, and the motion for substituted service upon the solicitor of the Johnson Railroad Signal Company will be allowed.' ' , ' .'
SOUTHERN PAC. R. CO. 11. WIGGS.
CO. '11. WIGGS
(Oircuit Oourt, N. D. OaU!orn1.a. June 23, 1800.)
PUBLIO LANDS-RAILROAD GRANTS.
The act of congress of July 27, 1866, granting lands to the Southern Paclilo Railroad Company, was a of quantity; and thll grantee, upon accepting the grant, filing its map of 10catlOn and building and equipping its road in the time and manner prescribed by the act, was entitled to its full complement of land to the amount of 10 alternate sections per mile on each side of the road so constructed, provided the same could be found either within the specified present grant, or indemnity limits.
ThElSou'thern Pacific Railroad Company filed its, map of definite location on the 3d of January, 1867, in the oflice of the commissioner of the general landcoflice, showing the present granted and indemnity limits thereon, which granted and indeII).nity.liIJ!.its are clearly llefined in the act of cOIigress; and tlj.e indemnity belt is particU,larlY:limite,dto specified boundaries outside of tne gr,anted limits. that upop filing the map ,of definite location, and upon the secretary of the interior issuing his order withdrawing all the lands within 40 miles of the line of the road, the odd-numbered sections ,both witllin the 'present granted and indemJ;lity limits were withdrawn' frO,m or any otherdisposjtion, Py tue government.' Furthermore held, tpat thE!' statute itself in terms provides that the odd' sections shall not' be liable to, sale or entry or pre-emption other than 'to thE! company. Congress intended to withdraw. froJIJ. sale, entry or pre-emption all thosll lands set apart within specifically ilefined 'limits, ail! well those authorized to be selected, as lieu lands, as those absolutely granted; in which the title itself presentlY ,Wing vesteil. The right of selection indefeasible bY pre-emptioQers the map of definite location, and withdrawal, as provided by the although the title to the land itself did not vest till the selection. " ,,: The secretary of the interior had noauthorlty,while a deficiency existed, low: a pre-eJ;llption to be made upon an.odd seotion within these indtlmnity Ibnits: While such deficiency existed, the secretary could not throw open the oqcl within the indemnity limits to pre-emptioll, or, homestead entry. The right of,selection,in the company, to these lands, is given in: the statute itself, andtlie secretary cannot revoke i t . ' "
" . ., · ''', ' , , ' "
SAM!t-'-RIGJ;lT OF SELECTION,
This joint 'resolution of 1870 (16 St. 382) conferred no new rights upons; preemptqr gqiJ;lg upon these lands subsequent to the order of withdllawal; , It',only and .reserved, such rights as he had acquirlld pefore its passage. A patent issued in the name of the United States to a pre-emptor, enterUlg'upon these lands subsequent to the order of withdraWal, is, erroneously, issued, authority of law, and is void. The existenCe or such a patent is a cloud upon, the complainl\nt's' title. It'embarrasses the assertion of complainant's rights\,ilInd pi'e" vents it getting a patent to the same jandto ,whi$ it is entitled. Thelie (lircum. stances constitute ground for equitable relief. A patent so issued to a pre-emptor is void, and the using of it should be perpetually enjoined. " ", '" ' .,;
Where the secretary of the interior,acting a known a!ld of facts, ,draws therefrom all' erroneous conclusion 'of law, and, m pursuance of such erron",eous, co,J;IcluslQn, isRue,'s a pate,n,,t, to '" Mtt,Y, ,hot entitled ' ,is,, n'?t conclusive, but, is subject to review and rev!"rsal,by the courts. ' ',': (Syllabus by th:6 Oourt.) , ,' ,
SAME'-SECRETA,BY OF INTER,IOR.
This is a bill in equity seeking a decree declaring void and annulling a patent of the United States to Ii quarter section ()f land claimed 'by:the complainant, ,as a part of the land granted to it to aid in the obiistt'uc.. titm of its railroad under the act of congress of July 27,1866, fou'miL'in 14 St. 292. The land 1iesoutside of the 20-milelimit, SO-mile limit fixed by the ,statute, and 1)eing a 'porth>tl of landWh'ich' the complainant was authorized ,to selecttomakeup''for any:defioienayi that might be found in the odd sectionSwitbinthe20-mile :li'n:iit\\by