that in some way the defeqdant cOllpol.'atipnhas, satisfied the .qf the:plaintiff. The court doubtless; has ,the power, upon proper upon being,flatisfied that interests of all ,parties, includ,ing all.tlle Would be adYll.ncedby the dismisslli1 ,of the bill" to its dismissal, even against the objection of 0lle or more of the creditors; but no such cause has been shown. Fay v. Bank, lfUpra. It was suggested on argument that the possible effect of the joinder of Mr.I;luckenstein and the, foundry cOUlpany as plaintiffs would be to oust the Jurisdiction of the court, as they were citizens of fennsylvania, the defendant being a corpo,ration or fennsylvania. That such would not he the effect was ruled in Stewart v. Dunham, 115 S. 61, 5 Sup. Ct. Rep, 1163, where it was held that, when a creditors' bill is properly removed from a state court to a circuit court of the United States on the ground that the contr,oY'ersy is wholly between citizens of different states, the jurisdiction of th,e latter court is not ousted by admitting in the circuit court as cG-plaintiffs other creditors who are citizens of the Bame state as the defendant. '
C.' AULTMAN &: Co:
(CIrcuit Oourt, N. D. OMo, E. D. June, 1891.)
Inasmuch as the circuit Court of the United States is vested with exclusive 'urisdiction to'try cases involving the validity of' patents issued by the United States, the rule that the Dleadings and practice shall conform, to the practice in like CRses In the state court does not apply, and in suoh a CRse the plaintiff cannot avail himself of the provisions of the Ohio statute (Code Ohio, §§ 5099-5101) bf attaching to his petition interrogatories to be BDswered by defendant on pain of belng defaulted! aDd thereby compel him to disclose testimony which ia important In the trial ox .
At Law·. On motion lor judgment. Marvin & Cook and Oharles S. for plaintiff'. Wm. A. Lynch and Oharles R. Miller, for defendant.
JACKSON and RICJ1;S,/JJ. This isa motion for judgment herein against the defendant by default for failure to "nswer the interrogatories annexed to the petition of the plaintiff filed .herein, as required by law. This i/3an action on the case. under of the Revised Statutes of the Unitl;ld States. The petition fiJeil in this case 11' prepared in accord,ancewith the Code,of Ohio. Secti9n of Revised St$.tutes of ;Ohio provides,tllat,,"a,party may tohisplea4jng, other than a derp.ur;rElr, pertinent, ,to, the in the pleadil1gs; which. iLnot deDlurred to, shall be, plainly and fully. answered under ,oath, by:,the par,ty to whoIXlthey arepropouncled, or, if . Buc1;lparty .is a corporat:iqn, by the president, BlilOtetary". or other officer therepf"JIB party pJ:opoundingreqJlires." Section 5100 provides:
MARVIN v.' C. AULTMAN & CO.
"When annexed to the petition, the interrogatories shall be answered the time limited for answer to the petition}' Section 5101 provides: "Answers to interrogatories may be enforced by nonsuit, judgment by default, or by attachment, as the justice of the case may require; and, on the trial, such answers, so far as they contain competent testimony on the issue or issues made, may be used by either party." The interrogatories propounded and annexed to the petition call for farts from the officers of the defendant corporation as to the number of patented devices made under the letters patent attached to the petition; how many were sold during the period from 1883 to 1890, the period covered by the alleged infringement; and other matters relating to their manufacture and sale pertinent to the issue made by the pleadings in this case. The defendant declines to answer said interrogatories, and claims that, under the prl;lctice of the courts of the United States in s\lchcl;lses, it cannot be compelled to make answers thereto. This presants the qU,estion to whether the pleadings in an action of this kind. and of the cause, shall conform to the pleadings and practice if). law under the Ohio Code, 01' whether such pleadings and practice are specially provided 'for by the, ReVIsed Statutes of the Uilited States, We. think that, .tnasmuch as the circuit court of the United Stat(,'8 is vested with exelu'ilive jurisdiction to try C\lSCS involving the validityof patents issued by" the United States, it cannot be said tluitthere are "like ,causes" in conrtsof the several Fitates to which the practice, pleadings, forms, a,ud mode of proceedings shall conform. It is not material whether, the declaration is Galled a "petition ,; or a nor is it very important as to the precise form in which it is expressed; bpt it should contain all: tpeessential averments that are prescribed for adeclarati()n in an action on the case under the common-law form of pleading, because that wassllpposed to be in the miildof congress when sectiOll 4919 was enacted. The petition in this case contains all such averments, a,nd is therefore a good petition; but we do not think the plaintiff has the right to avail himself of the provisions of the Ohio statute in attaching to his petition interrogatories, and thereby compel the defendant to disclose telltimonywhicp is im.pqrtant in the trial of the cause. The statutes of United spt'cificallyprovide how testimony in ,actions of this kind may be secured and offered in the courts of the United States. Those prov,isions of the statute are ample" give the plaiq.tiff the benefit of all evidence which he seeks to obtain by the attached to his petition. The motion for judgment is dEmied,but an order may be entered allowing the plaititiff a subpama duces tecum requiring the defendant to produce the correspondence, bookil, and records of th't corporatiop, ,as provided by the statutes the United States. The case, of Myers,v. Cunningham, 44 Fed. Rep. 346, (decided by the district judge fqr this district at th6 June term 9f this court, 1890, held in Toledo,) has been examined, and is approved by the circuit judge.
SMITH'll. BOARD OF COUNTY COMMlSSIONERS OF CARLTON COUNTY.
V .. Minnesota, Fifth Dl.vision. May 12, 1891.)
COUNTIES-LIABILITY FOR TORTS. I
Plaintiff, the .employe of an indepentient contractor, engaged in building a bridge on a qounty road, was injured by the negligent explosion of a charge of dynamite by the agents of defendant county while blasting and bUilding an approach to the bridge.· Held, in an action' for damages, that counties are not liable for the torts of their ofllW.lrs acting within the line of their authority I unless made so by statute.
At Law.. On demurrer to complaint. Arctander & Arctander, for plaintiff. Alpheus Woodward, Co. Atty., for defendant.
NET,SON, J. The complaint in substance charges that on January 24, 1889, the plaIntiff was an employe of an independent contractor of defendant, then engaged in building a bridge in Carlton county; that it was plaintiff's duty to carry lumber on to the bridge, and, while so engaged, the defendant fired a charge of dynamite while blasting and building an approach to said bridge, without notice or warning, and in such dangerous and careless manner, as, by reason thereof, to cause a rock to fly from such blast, and injure the plaintiff. The complaint is predicated upon a negligent affirmative act on the part of the defendant in making a careless blast while engaged in building a bridge or the approaches thereto on a county road in Carlton county, whereby plaintiff was injured without his fault. The weight of authority is against the position taken by the plaintiff in bringing this suit. While the cases are conflicting,and there are difficulties in the way of maintaining the distinction:slmide, the prevailing rule is that counties are under no liability in respect to torts except as imposed by statute, and are not liable for damages occasioned by reason of the negligence of the county commissioners themselves, or the negligence of persons employed by them to aidin the dischatge of official duties. The supreme court of Minnesota is emphatic insnstaining the rule that the counties are subordinate political subdivisions of.tbe stMe, and the cOllnty officers public officials performing their duties under the authority of the state; and, being subdivisions of the state, created for certain political and administrat.ive purposes, are not liable for tort of their officers acting withinthe line of their authority, unless made so by statute. Dosdall v. Olmsted Co., 30 Minn. 96, 14 N. W. Rep. 458. There is no state law imposing liability, as claimed by the plaintiff. In the state of Ohio the same view is entertained in an able arid elaborate opinion by the supreme court. Ha?riilton .Co."v. Mighel8, 7 Ohio St. 109. The injury complained of was the result of the negligence of the county commissioners in the discharge Of a public duty·· Demurrer sustained.