Railway Co., 43 Ohio St. 571, 3 N. E. Rep. 907. And the remedies afforded by the act of congress for such practices are cumulative, and 110t exclusive of the remedies existillgat common law. The act declares that Hnothing in this act contained shall in any way abridge or alter the remedies now existing at common law or by statute, but theprovisions of this act are in addition to such remedies." The law would haveheen the same independently of this provision. The rule is that when a statute gives a remedy in the affirmative, (without a negative express or implied,) for a matter which was actionable at common law, this does not take away the common-law remedy, but the party may still sue at common law as well as upon the statute. Potter, Dwar. St. 275, 110te 5. It is highly probable that in the progress of the case it will be found that, as to some of the plaintiff's causes of action, the statute is in some respects more favorable to the plaintiff than the common law. And the learned counsel for the plaintiff enter no disclaimer of their intention to avail themselves of the8e statutory advantages on the trial ·of the cause. But if the plaintiff's case was basen, in terms, on the common law alone, that fact would not affect the question of removal. The plaintiff n1ay be content to rest his case on the common-law liability of common carriers, but he cannot thereby deprive the defendant, as a carrier of interstate commerce, of any defense it has under the act of congress, which covers the ground of the common law, and much more. It is enough that there is a federal question in the case, whether it is relied on by the plaintiff or the defendant. A case arises under a law of the United States ""henever that law is the basis of the right or privilege, or claim or protection, or defense. of the party, in whole or in part, by whom it is set up.:Tennessee v. Davis, 100 U; S. 257. The motion to remand is overruled.
(Circuit Court, S. D.Nuw York.
EQUITY JunISDICTION-REMEDY AT LAW.
A suit in equity for discovery and,accounting will not lie upon a contract to pay complainant commissions on certain saletltne amounts of which are unknown to. the complainant, since he has a plain, adequate, and complete l'emedy at law.
.In Equity., A. Dutcher, for complainant. S. S. Perry, for dellmdant.
LACOMBE, Circuit Judge. This action is brought upon an alleged oral agreement by, which the defendant agreed to pay the complainant (providedcomplainant would introduc.e defendant to the person or persons who oWIled and controlled certain patents) a commission of 5 per .cent. on"the capital stock of aj)y companies defendant might form, or cause tG be fqrmed, for the use of said patents; and, in case of the sale of said pateilts for any territory by defendant, 5 per cent. of the amount of such sales. The colIlplainant further that he did introduce defendant
10 the said patents; th/l.t through them, and by means of such introduc"tiOll, defendant purchased and obtained the right to use saId patents, and in part sold the same, realizing therefor a Jarge :amount of money, (the precise amount of which is unknown,) and also ,caused to be organized a corporation for the use of said patents, with a capital stock of $250,000. The complainant demands his 5 per cent. upon these sums, and)"averring thathe has asked for an account which has been refused, prays for and for relief. The defendant has demurred, and the 'demurrer must be sustained. The complainant has a plain, adequate, and complete remedy at law, and therefore, under Bection 723, Rev. St. U .8., suitin equity cannot be sustained. Upon proof of his contract, and of the sale of the patent and the organization (If the company, he can at law recover the full amount of his claim. Such proof can be secured without the aid of a court of equity. If ,the defendant is within the hundred-mile limit, he can be subpmnaed as a arid required by a duces tewm to produce his books and papers; if he is beyond that limit, his testimony may in like manner be taken under section 863, ld. All the facts within his knowledge may be thus proved as fully as they could be on an accounting. under section 724, ld., he may be required to produce books or writings in his possessio!1 which contain evidence pertinent to the issue. Demurrer sustained.
(Oi:rcuit Oourt, S. D. New York.
DISMISSAL OF BILL-ANSWER FILED.
March 31, 1891.) ,
A complainant is not entitled as of right to dismiss his bill after the answer is filed, setting up that the license to use a patent upon which the suit is brought is fraudulent and void, and showing that defendant is entitled to a decree for its cancellation.
John R. Bennett, for compl!\inant. Wetmore &; Jenner, for defendants.
LACOMBE, Circuit Judge. Should the defense set up by the defendants be made out by -the proof, they would be entitled to a d'ecree not simply denying complain-ant's right to money damages, or ah a'ccoimting, but also declaring the license upon which the suit is, brought be fraudulent and "oid, and directing its cancellation. The complainant is therefore, ul)der the authorities, not entitled as of right to dismiss its own bill at this stage,.of the case. Electrical Accumulator Co.·v. Brush' Electric Co., 4 4 Fed. Rep. 602; Steven8 v. Rai1roads,4Fed. Rep. 97. Nor, under all the circumstances, shouldit be allQwed to do so. If complainant suffers, default, defendants iDay take dismissing the complaint, decla'ring the license void, and directing its but such decree will, of course, show upon its fa(:ethat it;;wus entered upon