NON-MAGNETIC WATCH CO.' OF AURICA :etaZ. 'V. ASSOCIATION HORLOGERE SUISSE OF GENEVA et al. (Oircltit Oourt, S. D. New York.
February 11, 1891.)
BOVle. Ol!' PRdml:SS;"'CoRl'OlU,TIONB-'-SETTiNG A.stt>lIi
Where 'at the'time the sUbprena was'served, the bill failed ,'to show jurisdiction of ,defendant and the marshal'll return shows 8el'V'ice only on one B., who was separa,tely nallied' liS a defendant, a decree pro OO'll/e8BO against the 001'poration will be set aside.:, ,',' .,'" ,
In Equity. Brie8en Knauth, for complainants. John H. KUchen, for defen4 flnts., .
LACOMBE, Circuit Judge. When the subprenato' appear and answer was serv,e<l, the, bill.of complaint, failed sh,o)V of the defendiilit the AssQclatioI1' Horlogere '$\iisse; and,the marshal's tetnrlri'showsservicednly updti ·Louis 'E. separately nallied 'iJ1"adefendant;,andnone upon'tpe'corp6ration; as was to be expected; in' 'yiawaf.thefatlt that, 'at, were -expect-ing'to bring it iil by' service by section' 8' of the act of the rebord,as it thenwa.s,(thifbilliandmarshal's return,) the; was entitled to, !,emain quiescent.;" The subsequent plaint,' alleging that the' defendant corporation was engated'in business' did change t96sitUation. Whether the -defendant or not ishtit-to be determined by the state of tbe'C/l:Se-asitwas when the marshal's 'return was made. The decree pro tXmJesio 'against the ASsociation' Horlogare Suisse is' therefore vacated.' ,'.','
·· .. 1:;'
LoutsvIJ,ti, N. O. &T. R. Co.
(Otrcutt OoWrt, N.D. M,t88'£Bs1.PPf.,
Co8'l's-CoPIBS 01' RECORDS.
Under ;Rev. U.. which prov:ldeB th$t "lawful fees forexempUll.eaUonB 'and copies and papers obtained for use ontrial\1 " may be taxell as oosts, a successful party canU9t'tax as costs certified copies of tbe,muniments'ofhistitle, since he must beprE1sumed, to have such papers lD hiS. but he may tax oosts of suits 'on which he ,relies merely to defeat his adversar,y'8
In Equity. On motion ,to retax costa. SullJivan ct Whiyield" for, complainants..
Yerger &t:Percy, forderendallt.
j. The questions. now:. fQIr ,d.ecision. arise. nponcomplainants' motion to retax the costs lIt this cause by disallowing the. itew» for
money copies qf deeds, and other papers, of defenq.anC (1) The amount of $150, filed as evidence paiq. to the clerk of tpe, cbancery court of Hinds county for the transc.r.ipt of the cause of Green V8. Gibbs. (2) Amount, of $95, paid to the clerk of the circuit court of the United States for the district of west in, the case of Luke P. Blackburn Tennessee for transcript of the vs.. Selma & Marion & ¥emphis R. R. Co. (3) For the'sum of $150, paid for copy ofabatement sales, ,Lists, and levee records in and for the coun· Coahoma, Issaquena, Sharkey, Washington, and Tunica. (4) of $475.45, amount paid to clerks of different counties for copiasof,d,(;leds, all filed as, evidence in the cause upon the part of de. , ' fendant,';" I; upon the part of complainants that these deeds and ,but muniments of defandant's title, and not proper charges of costs to be taxed against complainants. rhe questions presented are to no decision very IIluch those of first impression. I hllove been and I am satisfied none exists, or able and astute counsel })I) ,both sides would, the one or other.. produce it; so that I Dlnstl1e)y.npon what sellms to me the proper constr-uction to to Rev. St.: U. S., which reads as follows: "The bill of fees of the clerk, marshal, and attorney, and the amonrtt paid printers and witnesses, and lawful fees for exemplifications and copies and papers necessarily obtained for use on trials, in cases where by law costs are recoverable in favor of thepl"evailing party; shall be taxed by a jUdge or clerk of the court. and be included in, and form a portion of, the judgment or decree against lhe losing varty."
It is Mt/intended by the'statute to tax tlie losing pa'l'tywith any costs which the gaining party could have avoided by the production of any written" 'testiulOuy in his'possession. The testimony must not only be necessary on the trial 01' hearing orthe cause, but the expenditure tor itsprdduetion must. be necessary, whichcanDot be .the case if the successlul pllhy already had it in hiE! possession, whether the original or a copy. The presumption is that a party claiming lands has in hispossession all the mUlliments of title required to be recOrded 'necessary to show bis title t?the lands owned by, him' embrQcingpatents, copies of wills, and such outer pll.pel'S, not only those immediately executed to him, but all under which he claims title; and, ifhe dot's n,ot have presumption is that he obtain thein, or, them in his if not, that it is 'his niisfortune or neglect. Under this rule I am' of opinion that the charge for copies of these deeds must be disallowed.. I am ofoptnion that the 'or transcnptof same inthecase of Gi-ecnl'.s. 'Gibbs was evidence for defendant on the. heatipg of the cattSe;'ns incidtmtnlly' forming' a part of its rnunifnents. of title,bpt only illcil:lentnUy, and waS not reqUired to be recorded with the deed of 'in chancery to Gordon; or it record whiclrthe dere'ndant is pteb-'t'nn'td' to 'have had in'his possession, and could obtain only by paying foti tb-etranscript of ·1 ani'therefore of the opinion that this item is properly taxed as part of costs.. : I aroals? of opinion that. the
transcript of the proceedings of the United States court in the case of Blackburn vs. Railroad Co. was necessary as testimony for defendant on the hearing of this cause, not as a part of defendant's muniment of title, but a.s evidence to defeat complainants' title. Defendant did not claim title through the proceedings in that case, and was not required to show any title in itself, if it could show a want of title in complainants. I am therefore satisfied that this item is properly taxed as part I")f the costs of the cause. The statute of the state made the certified list of lands sold by the sheriff for non-payment of taxes filed with the auditor a sufficient instrument to pass the title to the land sold from the delinquent taxpayer to the state, and for that reason it is presumed that the defendant has in its possession a certified copy of these lists, and so much of the item charged for a copy of these lists must be disallowed for the reasons stated. The defendant is not presumed to have in his possession a scriptoHhe proceedings of the levee boards, which wereptoperevidence on the hearing of the cause; but the bill of costs, as made out, does not show'what amount was paid for these transcripts. Therefore this item Inust be but with leave to retax the costs, so as to show the amount paid for these transcripts.' The result is that the matters arising upon complainants' motion will be referred to the clerk of this court to' retax the costs, as stated in this opinion.
CEMENT Co. f1. COPLAY CEMENT
(e'ircuit Oourt, E. D. PennBylll'anw. February 13, 1891.)
TRADE-MARXS......MANUll'AC'l'trRES-N.U'lE OF CITY.
While an exclusive right or property in a trade'mark or trade-name need not be confined to a single perllon, yet a trade-mark cannot exist in the name of the city in Which a thing is made by-manufacturers in that city, for anyone is at liberty to go to the 'City aDd manufacture. and falsely,d6signating the article made as coming from that city is e. fraud only. Aftlrwing (4 Fed, Rep. 277. . ,
Bill in Equity to Enjoinlnfringement of Trade-Mark. Motion for reargument. Roland for complainant. " Preston K· .F}rdman and Ohas. Howson, for defendant.
BRADLEY, Justice·.. While we have no hesitation denying the, motioQ for a rehearing in this case, being entirely satisfied with the conclusion at whicp we arrived on the argumerit.of the cause, it may be proper to add a few worQ..El in explanation ofour formeropiniop. Inholding that is necel;lsary to the. validity ora trade-mark, or ,trade-name that, the claimof it be entitled to ,an exclusive right to it, Or property in it, :we do not mean to say that it may not belong to more. than person,
Reported by :Mark Wilks
Esq., of the Philadelphia Dar.