HOHNER tI. GRATZ.
non of jurisdiction, filed an answer to the bill in July, 1878. It seems clear that with the present parties to the case the court is without jurisdiction. In arranging the parties according to their interests, and as to their respective sides. in the controversy, it will be necesRary to place Mrs. Phillips with the complainants; and the fact of her residence and citizenship in this district will be fatal to the jurisdiction. Bland v. Fleeman, 29 Fed. Rep. 669; Covert v. Waldron, 33 Fed. Rep. 311 ; Rich v. Bray, 37 Fed. Rep. 273. Where there is great delay, as in this case, in raising the question of jurisdiction, the court will consider the delay inpassing..upon the question. See Deputron v. Young, 134 U. S. 241, 10 Sup, Ct. Rep. 539. The counsel for complainants suggested to the court his rig.bt to dismiss as to Mrs. Phillips, which would obviate all difficulty as to the jurisdiction of the court on the ground of citizenship; and the question would then remain as to whether or not it is necessary to retain Mrs. Phillips as an indispensable party, under the equity practice of the court, In Horn v. ,Lockhart, 17 Wall. 570, a case very much like this, being a suit to recover assets of an estate in the hands of an executor, the suit was brought in Alabama, where the executor resided, and two of the parties. mad defendants resided in the state of Texas, ! which was the residence of the complainants. The objection to the jurisdiction was met by the dismissal of the suit as to the tWQ defendants resident in Texas. The dismissal as to these parties, thereby obviating the qUestipn of jurIsdiction, was sustained by the supreme court, and I am unable to see the difference in principle between that dismissal and the dismis!;lal here of the case as to Mrs. Phillips. The two defendants as to whom that case was dismissed had interests identical with the interest of Mrs. Phillips in this case; and, if a decree could be rendered in that case without their presence as indispensable parties, I see no not be rendered in this case. Upon the authority of reason why,it the case just cited, I am of the opinion that, if counsel for complainants desire, an order may be taken, dismissing this case as to Mrs. Phillips; otherwise, the. ,case must be dismissed for want of jurisdiction.
HOHNER !1. GRATZ· . (C'£rcuU Court. S. D. New York. May 7,1892.)
FOREIGN JUDG1IIllNTB-RIlBADroDtCATA-INFIUNGEMENT OF THroE.MARK.
In an equity to rest,rain the defendant from selling in this country har. mOnicas made in Germany. and protected by the complainant's trade,mark. a mo· tion will not be granted, after the cause is in readiness for hearing. giving leave to interpose. a Bupplemental answer setting up a judgment rendered against the same complainant in a suitin Germany to restrain an alleged violation of the same trade-,matk;thE!J,'6.' in which the 'defendant there was the principal of the defendant here; because foreign adjudications, as respects torts, are not binding, and be· cause the granting of an inj unction depends in part upon circumstances which vary in different jurisdictions; and also because neither the parties nor the subject-matter of the two suits are the same, and neither comity nor public policy require or
, OOI:qWltted, ,here !!hQuld In,any degree be held su1)jeot t,o the deoielone of a for,eig, .
protedti<llJl olOI1,'e oi1lizens o:tthfs oounir,'y against: imliosftfob or fralia "'.' ..' ,. " ' ' . ,
In EtI\1ity. Bill by Hohner against William R. Gratz to restrainlthe'violation of a. ttilie-mark. Motion for leave to file a supplemental-answer foreign judgment, denied.' LrYwi6:0·. If-<UJgClter,l for cO'Dlplainant.· ," Bcnin6Lwwy, for defendant. .
District Judge. The recent adjudication in Germany which a in bar of the is sought to IS not, 10 my Judgment, enhtled to the force of an adan action like the present. The relief prayed for is to violation of the complainant's trade-mark in harmonicas, through' 'any sales of the infringing 4armonicas bsthe defendant in this countrY:I The granting of such relief has' rMert>nce not merely to the complldnant's rights, but the protectioh Of the 4IIlerican public'against impositlioh.' Wood, 108 U: S. 218-223, 2 Ct. Rep. 436.' iThe question whether the alleged infringement is likely to impose upon the public, ot whether it 'an unfair and inequitable businesscoti'lpetition,depend$ upon the circumstances of the place. An injunction"might be' properly refused in Germany, and yet properly granted here, from the'different circumstances which would necessarily enter into the decision. . Comity, moreover, does not Do'r does public policy permit, that the protection of the citizens of this country against imposition in transactions within its own territory ,should in any degree be beld subjeetto the decisions of any foreign tribunal. See Brimont v. Penniman, lQBlatchf;436. Cases like the present have no analogy to suits upon foreign rendered on contra(:lts, or other subjects of ordinary common-law right, and are not within such adjudications as that of Hilton v. Guyott,42 Fed. Rep. 249, and the cases there cited. Here the subject-matter is a tort, and an imposition upon the public alleged to be committed or about to be committed here. Such subjects are not concluded by foreign adjudIcatIons, even when the acts referred to are the same identical acts. Whart. Confi. Laws, §§ 793, 827. But here the particular su,bject-matter of the two actions is not identically the same. Though' similadorts or imposition in Germany may have been the supject. o,f $e suit in the. G.el'lllan. tribunal, those acts are not the same as .similar torts committed here; nor is the defendant the same, be the,ageJ;lt of the German defendant. :What is sought here iato restrainthi's defcndan,t's torts within this country, and hi,Simposition theAlriericanpul.>llc; and that is a different subject from, a restraint upon the principal in Germany against similar torts coD:uilittedthere. The motion is,'.therefore, on both grounds denied.
JOYCE, fl. CHARLESTON ICE HANUF'G CO.
10YCE fl. CHARLESTON ICE MANUF'G
(C1trcwU Court, D. South CaroUna. April 80, 189'J.)
TRUL-CoNPLICT Oll' EVrDENOB-PROVINCB Oll' CoURT AND JURY.
When there is a conflict of evidence as to material facts, which conflict call onlJ be solved· by determining the credibility of the witnesses, the court has no authority to direct a verdict.
NEW TRIAL-"-MISCONDUCT Oll' WITNESS.
The fact that a witness, on an objection to his testimony, intentionally deceived the court as to the statements he was about to make, is not sufficient "round for a new trial when the statements thus introduced were not in fact irrelevant, and had already been given in evidence. Although a federal judge may give his opinion as to the weight of the eVidencet yet,_ after two concurring verdicts opposed to that opinion, he cannot grant a thira
SAME-WEIGHT OJ' EVIDENCE-OPINION OJ' COVET-THIRD TRIAL.
trial, except for substantial errors of law.
At Law. Action by E. F. Joyce against the Charleston Ice Manufacturing Company to recover damages for an unlawful detention of perBOnal property. Heard on motion for a new trial. Overruled. Bryan Bryan, for plaintiff. Samuel Lord and J. N. NathanB, for defendant.
SlMONTON, District Judge. This case has been before two juries. At the first trial, which was had in Greenville, the verdict was for the plaintiff. After hearing argument on motion for a new trial, the verdict was set aside, the court blling satisfied that the jury were influenced by prejudice. The second trial was had at the present term in Charleston. The plaintiff again obtained a verdict. A motion for a new trial. The action is for damages for the unlawful detention of personal property. The plaintiff was under contract with the defendant to dig an arteE'ian well on its premises in the city of Charleston. The location of the proposed well was within the inclosure of the defendant. While the digging of the well was in progress, disputes arose between the plaintiff and the defendant respecting the performance of the contract. This dispute pending, plaintiff desired to remove from the inclol:lure of the defendant certain lO-inch tools and lO-inch pipe, rope, and some other materials needed by him for a well in Florence, S. C., and, as he alleges, not needed at the well in Charleston. Prior to this he had, at his own pleasure, brought to and removed from the premises of the defendant plant and materials used about. the well without seeking the. permission or consent of the defendant. On this occasion-13th February, 1890-such consent was asked ,for the removal of the articles specified. It was not given. The lO-inch plant and other material were not removed. One or more efforts were. made by plaintiff with the same result. On 18th Maroh following, a formal demand was addressed to the president of the ice company for the entire plant of the. plaintiff of every description on the premises of defendant. This demand was mailed to the president, who was absent from the. city. On the 24th March he replied in writing, acceding' demand. .This ·lette.t' was recllived by to the -:, ' ;