232
FEDERAL REFORTER.
fendant moved for a new trial, and assigned, inter alia, the following reason: "Because the learned judge refused to affirm 'the second point of the defendant, viz., that, if the jury believe that no notice had been given to the defendant (sur(lty) un.til a .shorttime prior to bringing suit, no interest should be charged against the sureties." George K. Cr088, for the rule. In the matter of interest found by the jury, under the direction of the court. it is admitted that it is excessive. and should have been computed from September 14. 1886. tM day of service of the writ of summons in this case, and the first notice of the surety of the settlement of the account of his principal, and on this ground alone a new trial should be awarded or a 1'emittitur filed. Where verdict is received or rendered on insufficient evidence. the remedy is a motion for a new trial. The City v. Babcoclf. 3 Wall. 240. As in the matter of interest, it is due only on the ascertained balance of an account from the time of a demand for payment. It is not due as of course upon an account current, or an unliquidated debt. Crawford v. Willing,4 Dallas, 286. John K. Valentine, U. S. Dist. Atty., contra. BUTLER, J. On hearing the rule for new trial, the question was case, whether the plaintiff was entitled to raised, for the first time in interest, under the pleadings and :evidence, prior to service of the writ. Notwithstanding the late hour at which the question was raised, I consider itjust, under all the circumstances, that the court should consider it, as if made on the trial. The case seems to be undistinguishable from U. S. v. Curtis, 100 U. S. 119. No demand had ever been made on the princil?al prior to the service of the writ. The interest should be calculated from that period only. If the plaintiff will sign and put on the record a relinquishment of the excessive interest embraced in the verdict, judgment may be {lnterEid .for the balance, all other exceptions being dismissed. If such relinquishment be not filed within 15 days, the rule for new trial will be made absolute.
UNITED STATES .". LANTRY and others. (OirlJuit Oourt, S. D. New York. March 21, 1887,)
Where prisoners. have been held by the commissioner upon conflicting evi· dence, both as regards identity and the commission of the offense, for reo moval to another district for trial, under section 1014, Rev. St., and there is sufficient proof both of identity and criminality. aside from the evidence in behalf of the prisoners, the court should not examine the evidence as an original question, but is required by section 1014 to issue the warrant of removal. , . 2. BURGLARY-BREAXlNG INTO POST-OFFICE-REV. ST. U. S. § 5478. . Section 5478, Rev. St. U. S., requires evidence of forcible breaking into the premises. Persons found attempting a burglary are not entitled to the benefit of anr. presumption that they had previously secreted themselves within the bmlding, it appearing that all persons had apparently been previ· ously removed from the premises.
1.
CRIMINAL I'RACTICE-VENUE-REMOVAL OF PRISONERS-EvIDENCE.
UNITED STATES V. LANTRY.
233
Stephen A. Walker and B. B. Foster, for the United States. John H. Kitchen. for the prisoners. BROWN, J. The prisoners were arrested in this district on a charge of feloniously breaking into the post-office in Jersey City, and have been held by a. commissioner here upon the evidence taken-before him under sections 1014 and 5478 ofthe'Revised Statutes, for removal to New Jersey for trial. Counsel in behalf of the prisoners object to this removal, and it is agreed that the Ujatter should be decided as upon habeas corpus and certiorari. Tile rule upon that subject is that the commissioner's conclusions upon the proofs befol'e him cannot be reviewed or set aside upon habeas corpus if there'wascompetent evidence of the crime alleged, and also evidence tending to show the' probable guilt of the prisoners. In re Fowler, 18 Blatchf. 430,443, 4 Fed. Rep.30S; In re Day, 27 Fed. Rep. 678, and cases cited. In this respect there is no difference between extradition proceedings and a removal under section 1014, Rev.. St. It is D(,)t the commissioner's office to determine finally the question of guilt or innocence, nor would it be proper for the commissioner to refuse to. hold the prisoners for trial simply because the accused, as in tbis case, have produced evidence which, if alone considered, might be sufficient to acquit them. In this case there is doubtless conflicting evidence. It is the province of a jury, upon a proper trial, to determine what evidence to believe and what to reject; and of the commissioner, to determine whether it was reasonably sufficient to hold for trial. Aside from the prYloners' evidence, there was clearly sufficient proof ofthe identity ofthe prisoners with the persons seen in the post-office building at the time of the burglary. I have no authority under section 1014 to say that the commissioner was not justified in holding them for trial. The prisoners having been "committed" for trial by the commissioner upon _competent proof, it is made "the of the district judge" to "issue the warrant of removal." As respects the forcible breaking into the building, the fact that the prisoners were found in the building after the building had been clOSed for the night, and after all persons had been apparently renloved, is sufficient prima fame evidence of a forcible breaking. The prisoners are not entitled to the presumption that they had hidden themselves within the buildipg merely because they had been seen with other persons lawfully in the premises before they were closed for the night. The tilne of the attempted burglary is not to be taken too rigidly; and, if any: of the prisoners were out Of New Jersey up to the time of closing at night, they could only have been found afterwards in the building by breaking in. The commissioner discharged one of the persons arrested, and I am not authorized to disturb his conclusions upon tMevidence as to'th others. . The removal must ordered.
234
FEDERAL REPORTER.
MONTROSS
v.
MABIE.
(Oircuit Oourt. S. D. N(J1J) York.
March 21,1887.)
The extent of an implied license to make and sell patented articles is to be construed according to the presumed intent of the parties, as inferred from the circumstances. 2. RIGHT TO SELL-INJUNCTION. A tlrm having been largely engaged during several years in manufacturing and selling stoves upon designs patented by one of the partners, and accounts them having been repeatedly settled embracing, such sales, and the protltl\ thereon, as firm business, keld, withQut regard to the que&tion whether the patent wall equitably the exclusive property of the patentee, (1) that' a ll¢en811 by the patentee to the firm to make the stoves and, to sell those manwas c?ufactured was implied; (2) that such license, by necessary: extllnsivewith the business of the flrm,and continued untIl the copartnershIp affairs :w:ere wound ,up by any'lawful agencies for that purpose; (3) that, cons,equllJ),t1yl.thecopartner of the patentee had the same authqrity after dissolution as QeIore to sell for thebeneflt of the firm the stoves manufactured for SIlle before dissolution; and (4)'that a'receiver of ,the partnership effects, appointed by,a state court" in a, suit brought for winding up the affairs of the 'PMtnershIp, had a similar authority to sell the stoves remaIning on hand, both as'the representative of the parties, and as a lawful for closing up the partnership business, and was by necessary implicatIon included in the im'plied license; an application for an injunction to restrain hj.m from selling ' , wasthel;llfore refused., , I · , . ' ,
,E.N. 1}ico/BOn, Jr., for complfUnant. (J/p,rence H, Frost and Geo. F., Betts, for defendant. >,
for
'· '
I,;
,
·.·
I
In a suit brougpt in the state court for winding up the copartnership of of which the' complainant was a member, the, in February last was appointed receiver of the partnership ,effects. Am(;mg the assets that came intp his hands are stoves of various patterns; manufactured in the ordinary course of the firm bU$lesli!under issued, during the Gontinuance of the partnership, ,to the plaintiff individually; and also pattern!!, moulds, and dies useqin th.e manufacture. The copartnership, with some changes in itS meIlfPers,;,hlld existed for many years, and a large quantity of stoves under the peen manufactured and sold by the firm in th,e COllrse oUts. business, for the',benefit of the firm; and its accountS had been at yarions, times adjusted'andsettled between the copartijers, including' the,.m!tDufacture and ,sale of similar stoves. The have come into; the pands qf the receiver were manufact. ured ,during the copartnership; 'and are those only which remained undispose<J, t,he dissolution, ?fthe firm. The plaintiff seeks to enjoin ,fr<;>m. and the dies, patterns, etc., upon the ground that the' plamtIff IS the sole owner of the patents under which the stoves ,were made; and, license might be implied in faver of the firm, or of the copartner, Lent, to make and sell the stoves during the continuance of the firm, such license was a purely
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