572
FEDERAL REPORTER.
UNITED STATES V. BADEAU'.
{Di8trict (Jourt, 8. D. N6'IJJ York. December 20, 1886.) 1.PLEADING-AMENDMENT-CHANGE OF ACTION-AcCOUNT-AcCOUNT STATED.
Where suit is brought upon along account claiming a final balance, an amendment will not be allowed at the close of the trial changing the co'mplaint into a claim upon an account stated at a time near the end of the account. for the purpose of excludiug corrections of Qllarterlv adjustments, which iustice may require to be made. . FEES -WHEN "OFFICIAL" . PAYMENT UNDER
2.
AMBASSADORS AND CONSULS MISTAKE.
The defendant. lI. consul, was sued for balance of alleged consular fees claimed to belong to tb,e government, and. he proved. that he had always retained in his hands a sum in excess of the amount claimed, although this amount had in early accounts been credited to the treasury department, and it appeared that the moneys were not in fact official fees. but legally belonged to the consul.' Held, that the facts did not show a voluntary pllyment to the government of the fees in question; so as to preclude the defendant from resisting a recovery of the amount erroneously returned in his former accounts; and further, that the ruling of the state department, and ,the tabular list of fees promulgated by the president, apparently including the fees in question, until a revision and different ruling by the state department, made the case one of an accounting under a mistake of mixed law and fact, and were not con· clusive upon the defendant. 8. SAME-E'EES-:-PERBONAL PERQUISITES.
The sections of the Revised Statutes in relation to consular acts abroad, consular fees, and the regulations authorized to be issued by the president. ate limited to those subjects which belong to the business, the interests, and the jurisdiction of the United States. Fees re.ceived by the consul, acting under state authority, and wholly independent of tb,e authority of the United States government, are not official fees as respects the federal government, but the private property of the consul, which he may, retain for his own use, and for which he is not required to account t,o the government.
Action by the United States upon the official bond of Adam Badeau, consul. This is an action upon an official bond, to recover of the defendant $10,572.64, balance alleged to be due the government on the accounts oIthe defendant as consul general at London, from July, 1870, to September, 1881. The only matter in controversy related to certain fees which had been collected by'the defendant for taking the acknowledgment of deedS, mortgages, assignnients, powers of attorney, affidavits, etc., while consul at London, which the defendant claimed were unofficial fees, belonging to him personally.. In his quarterly accounts rendered tothe treasury deparhnent from July, 1870, to September, 1875, the defendant had credited all such fees to the government. In consequence of a ruling made in the department of state ahout that time, to the effect that fees in the nature of notarial acts, not connected with the business of the government, were "unofficial," and might be retained as such by consular officers, the defendant omitted from quarterly accounts thereafter all such fees for services performed under authority of state laws, making return, however', for affidavits, etc., taken in the business of the
UNITED STATES V. BADEAU.
573
cons\Jlate. On going out of office in 1881, the defendant prepared a detailed statement of all such notarial fees as he claimed to belong to him, under the ruling of the state department, from 1871 to 1875, and submitted this itemized account, amounting to $10,572.64, to the treasury department as a part of his final account. The department refused to allow the charge for these notarial fees. All other items being satisfactorily adjusted, the defendant refused to pay over the balance in his hands, amounting to $10,572.64, claiming that it belonged to him for his unofficial notarial fees from 1871 to September, 1875, and this suit was brought to recover the amount. The evidence showed that at all times during the consulate the defendant had in his hands a balance. considerably exceeding the amount of the notarial fees previously credited to the government in the accounts rendered. Witnesses on Loth sides testified that consular accounts were running accounts., and not settled until the officer went out of office; also that a considerable item, amounting to $729.32, in the final sAttlement 1883, .was llollowed to the defendant by the department in the adjustment of the accounts'in 1883 for a credit due to him in the year 1870. The complaint charged, generally, that the defendant, between the first day of July, 1870, and the sixteenth day of September, 1881, while acting as consul general at London received from sundry persons, sundry official moneys amounting to $10,572.64, which, on demand, he had refused to pay. The answer denied this allegation, and averred that the moneys were moneys received by him for notarial services, were unofficial, and by law belonged to himself. Upon the trial certified transcripts of the accounts in the treasury department were put in evidence, as adjusted quarterly, showing the quarterly balances, and the itemized account of the notarial fees claimed by the defendant as rendered in the final account. The defendant testified that all the items in the account claimed by him were fQr services done for private individuals in private business, and not under the authority of the United States government, and that all were for use in the individual states of the Union, and under the state laws. At the close of the trial, counsel for each party requested the court to direct a verdict in its favor; counsel for the government contending that the claim was in substance an attempt to recover back money once voluntarily paid to the government; and also that, upon the regulations and the law, the fees belonged to the government. The court directed a verdict for the defendant. Stephm A. Walker, for the United States. Stephm G. Olarke, for defendant. BROWN, J. At the close of the testimony yesterday a motion was made to amend the complaint by setting up an account stated as of the date of the last quarterly adjustment of the plaintiff's account, as consul, by the. treasury department, in 1883. The evidence shows that the treasury department, by making deductions in 1883 that date back to. the year 1870, has; treated this account as an open account, notwithstanding the qllarterly adjustments. Three witnesses have testified ihat such was the
574
FEDJ!:R'.U, REPORTER.
in regard to that- they are runningacsettled until' 'the officer goes out of office. .Upon it '-+vonld seem that 'complaint was- drawn intentionallysb ,these '8S to Cover the whole peliod fronr 1870 to 1881-, because the treaSUl:Y transcript waaso made up. As t e actidn is brought for anaceomiting for the whole', period of the c6nsqlar work in London;' the principle that moneys once 'voluntarily paidcaI,ln,ot be recovered back, does not apply here. : The defense does notdaim any repayment as an independent cause 'of action. It simply, denies with particularity the averments of the complaint, that somuch money is now duea.ndowing to thegovei'iiment,-that is, upon the wholeaCcountj arid it alleges that the fees or moneyS'Supposed to be due to 'the government W:ere the property ,of the being defendant. Upon a cause of action of that kind, the Whole before the court,' no case has been. submitted to me', and I do not recall any, in which the court has refused to correct any errors which were proved to exist in the whole account that was before it, on either side; and that, as it' 'seems to me, is all the answer that is necessary to that claimj and that ground I must deny the motion to amend the complaint, or to hold that there was such a settlement as to'constitute a voluntary payment. ' The other question, as to whether the moneys collected and represented 'in Exhibit 1 were moneys rightfullyrf'tained by the consul, or are iobe treated as official moneys for official services, is no doubt a question of some embarrassment. Different views may very easily be entertained on the subject. To some extent this' is, I think,in consequence of the different relations which the officer holds to different persons or different jurisdictions. There is very plainly a-distinction between the mere acts of an official personage, and official acts, or acts done by that persona.ge officially. Every official personage may do, and does do, a multitude of acts that are not official. It does not make his act official that he signs his title of office; nor, even, as I think, the mere fact that he should add his seal of office, if he has a seal. The question whether it is an ofncial act or not,-whether the act is done officially,-must depend.upon 1>ther considerations than the mere presence of a formal signature, or eVen the presence of the print of a seal. ' , A few illustrations I think will make this clear. Suppose Mr. Badeau, . in London, being consul general, observes an advertisement in a newspaper of some western property which he would like to purchase. An entire stranger to the place or to the advertiser, he addresses him on the subject, and signs his name with his title of office; and, as a further indication that he is a responsible person, and the person he professes to be, he might even put the print ofhiR seal on the sheet of paper, or might use paper that bore the heading of the consulate. No one would imagine that an act of that kind was an official act; it would be purely private, for private purposes, as shown by the very' nature of the business. The use of the seal might be unauthorized; but if it is not prohibited, no harm would be done;'no law would be violated; it would be a'mere question of individual taste, or, possibly, of propriety. Thetlse
l1
on
UNIT·ED STATES "'. BADEAU.
575
show to the recipient who the person was that addressed of the seal him. To take another step. Suppose two persons in New York have a dispute about some matter of fact in London, Knowing no one there to ascertain the fact, and not even personally knowing the consul, they may agree the consul ascertain, it. if he will, and write to him to that effect, promising to pay him $10 for his trouble; .and at the same time suggest to him, as they do not know him, to add his title, and put his seaUo his, answer, that they may know that he is the person that they indicate. The consul does it; receives the pay It is purely a private matter; having nothing to do with the business of the consulate, resting purely. upon the request of the two persons. and having no legal validity whatever for any purpose; an act done simply to satisfy the two persons use of the seal may concerned as to a fact in London. There again be unauthorized, though there were no law prohibiting it; it has no official character, and shows only that the person ,who received the paper, and who it, w!1s the man they intended. The consul, the official personage, has done an act; he was requested to do, it .because he was but, nevertheless, the act was au act wholly unofficial in its relations to. the United States. It is only another step 'Whep. the court, under the agreement of parties to a litigation" gives a dedimus potestatem to a consul in London to take testimony between the partieEli and. return it under his hand ,and seal; case solely upon the business of the private parties, or, of he acts in, *e court·., ' It has nothing to do with the business of the government,or with anY proper business of the consulate. He puts his official title.and the seal of his office .to the return because it is not prohibited, and beto attest the fact that he is the person that the court wished . cause it to take the' testimony. Nothing in the use of the seal or the title makes the act officiw, in its relatiOnS, to the government; that is to say, official in the sense of the United States statutes; he acts officially so far as the appointment of the court goes; it is the consular personage that was asked to do the work. So, when a state statute declares that for the purpose ofrecording mortgages, or deeds, or powers ofattorney, persons in London may go before the United States consul and acknowledge such papers in theform prescribed by the state law, and that when he certifies the fact under his hand and seal, they shall be entitled to be recorded; there again is an act done by the consul under an authority wholly in pursuance oi a Stll,te law. It has nothing to do with the business of the consulate. The seal and the title, show that the act is done before the official in the statute for doing the act. It is not an actof the consulate any more than the other acts abov!3 instanced.There.. fore it is not an official act in the federal relations of the officer to the UnitedStates:govemment. In the United States statutes we find, I think, a recognition of the various characters in which consul may act. The first section cited" se9tion 1745,in the president to prescribe what shall be re.. gardedas o:$cialservices, adds: "In the business of the several legations;»
576
that is to say, if it is within the scope of the business that belongs to 'the business? legation as business. What is intended? Doesit mean Does itmean private business having nothing to do with the United States? or does it mean business that is governed by the United States statutes, and is within the jurisdiction of the United States; subjects of interest to the United States, and about which they are legislating? The next section says that all fees collected by diplomatic and consular officers "for and in behalf of the United States, shall be collected in the coin of the United States." That is apparently a recognition that there may be fees that are not collected in behalfof the United States.' Section 1750 is a general authority to consuls "to perform any notarial act which any notary public is required or authorized by law to do within the United States," prescribing what shall be the effect ofit. The construction given to such statutes, so far as I am informed, and which the court regards certainly as the correct one, is that these statutes relate to such acts as are within the scope of the jurisdiction of the federal government. By this general langauge, acts are not intended which belong to a wholly different sphere. Section 1750 does not intend to authorize the consul to perform notarial acts in regard to matters of state practice or state law only, and which are governed by state law; and, in saying What shall be the force altd effect of a consul's notarial act in London, it cannot mean its force in regard to business and subject-matter which belong to the states exclusively, to regulate, since that would be usurpation. The construction given to such acts, drawn in general language, is that they relate to subjects that are within the province of the United States government, i. e., to subjects only that are within its jurisdiction. For these reasons my judgment is that not only these three sections of the statute, but the regulations themselves, issued by the president in conformity with seetion 1745, are all to be construed as referring to those subjects which belong to the jurisdiction, to,the business, to the interests of the United States. In other words, they concern federal relations, and not relations which are exclusively individual or state, and which have no reference to the United States business, or to United States interests. When, therefore, the president, defining under this statutory authority to define "what shall be regarded as official services in the business of the tions," says,by section 312 of theregulatiolls of 1870: "All acts are to be regarded as official services when the consul is required to use his seal and title officially I "it means "officially" in relation to the United States, to the business of the United States, to the subjects which are subjects of United States legislation. So that when the consul does an act purely by virtue of an independent sovereignty, purely by virtue of state law, an act which has'no force or validity except under a state law,-that act is not official in its relations to the United States, becaase it has no relation whatever to the United States. I think, therefore, upon the evidence in this .case, and the testimony of General Badeau, that all items in Exhibit 1 were for business done under state laws; that so far as the acts of General Badeau, who was simply the consular personage, related to business in which the United States government had nc; interest what-
UNI'fli:DSTATES '/1. BADEAU.
577
ever; so far as they related to subject-matters which were wholly outside of the jurisdiction of the United States; so far as those acts depended for their validity on state laws, or the laws of some other sovereignty than the United States, and he was acting under those laws, and those laws only, those acts are not official acts in his federal relations, and not within the scope or province or intention of either of these statutes or of the regulations of the president. The modified regulations of 1874 I understand precisely in this ser.se. And it is to be noticed that the clause defining what are" official services," is identically the same in the two sets of regulations; evidently in the new regulations they were not supposed to be contradictory to other provisions. The additional regulations of 1874 wereamplificMions of the understanding of the state department as to what the consul might do in his individual capacity, or for his individual benefit,arthough acting as a consul in his relations to an authority from other states, or from other jurisdictions. And these regulations point out specifically that circumstance: that "in doing these act."! he is acting entirely outside of the regular duties and responsibility oithe consular office, as recitadin regulation 321." Regulation 312 says: "It is to be understood that in such cases the consular officer does not act in his quality of an agent of the federal government, but simply as a citizen of the United States whose local position and character render him available to his fellow-citizens for such services as might have been rendered by a private individual," i. an official personage doing those acts under the authority of laws from other states or other sovereignties, which laws might have appointed any private individual to do precisely the same acts. This construction seems to me to be not only in harmony with the settled construction of the United States statutes in limiting them to the subjects of federal jurisdiction, but also to be entirely just and beneficial. The consul's acts, in these matters are wholly voluntary; there is no obligation upon him to do these acts, if they are such as I speak of. And if he is under no obligation whatever to do them, if they are entirely outside of the consular business, the government has no interest in the question whether the acts are done or undone. What equity, therefore, is there in the government's demanding the fees for his labor? Congress might, of course, prohibit his doing such acts; they might prohibit the use of the seal as evidence that he had done them; but it is for congress, and not the court, to say how far he may be permitted to use the seal. It is for the convenience of American citizens, possibly of others, that services of this kind should be done to some extent by the consul, or by some one in his position. He is under no obligation to do them; and if he is not to be paid anything for doing them; if his fees are to be returned to the government, that wholly discourages the doing of such acts, and would naturally lead to their discontinuance, and to the inconvenience of our citizens to that extent. Whenever congress makes it· the duty of the consul to do certain acts, then those acts become official by virtue of that obligation; but so long as it is left entirely voluntary, I see no reason in the claim that the fees forwhatis done voluntarily, atsome v.33F.no.9-37
e.,
trouble 'and cost to the officer, out!3ide. of the business and interests of the government, should be returned as official fees belongipg to the government. For,these reasons I think the verdict should be for the defendant on the. evidence as t have assumed. it to be, viz., that the acts of the consul in the matters embraced in Exhibit 1 were all done under state laws, resting for their validity upon ,state laws, and npt upon any statute of the United States, and having no reference to any business of the United States. or to any federal relations; and the verdict will be so directed. .ON MOTION BROWN, 1I1l1W TRlAL.
J. Upon theexceptionsa,J:gued before meUpQn this motion,
only the same points have been presented that were submitted at the trial; they have been argued with greater fullness and detail. lam not. satisfied that there was any material error in the conclusion reached at the trial. As regards the first point, that moneys voluntarily ,paid could not be recovered back, further argument has ,not; supplied any authority showing that that principle has ever prevented the correction ofan account rendered so to accord With justice, when the suit itself was not ,brought upon an account stated, but was brought for a balance alleged to accrue during the whole periodjand when the proofs show that the plaintiff had treated the acoount as an open one, by making corrections going back to the beginning. In speaking of, the case at the trial as though the moneys collected for the notarial fees now claimed by the defl:lndallt to belong to him had been actually paid over to the government, too much was. perhaps, apparently conceded to the plaintiff. .Blltthe fact that it was distinctly proved, at the trilllthat the defendant had always retained in his hands more than the amount-of these notarial fees 'now recharged against the government, would that no payment of these specific fees had been actually made to the government, unless the moneys which were paid over were now so applied as to be deemed a payment of the notarial fees which the defend.anthad credited to' the government in his previous accounts, rather than the payment of other items in the same account. There was no evidence, however, to show that any particular application of thl:' moneys previously paid over to the treasl,1ry had been made, either by the plaintiff or by the defendant. Under such circumstances, the rule is stated by the supreme .court in "Bank "v. Bank, 94U. S. 437, 439, as follows: "The rule settled by this court as to the application of payments is that the debtor or party paying the money may, if he chooses t6 do so, direot its application; if he fail, the right devolves upon the creditor,; .if qe fail, the law Will make the application according to its own notions ,of justice. ,Neither of the parties can make it after a controversyupoll the subjeckha..'l arisen between them and a fortiori not at the trial." The court being at liberty" therefore, to apply the payments "according to its own notions of justioe if it finds that the notarial fees in questidn·were the property of the defendant, will treat the balance that all the time remained in his hands. (the same being always in excess of j "
UNI'l'EDSTATEB V. BADEAU.
579
those fees,) all including the notarial fees that belonged to him; and on that applicati(jn, the case would not be one of any previous voluntary payment1and hence not a chl,iIh to recover anything back. Aside from the treatment of this account as an open one, both by the treasury department and by the form of the action, it is not clear to me that if the fees were deemed turned over to the government in the form of accounts rendered, they should be treated as payments under a pure mistake of law only, so as to preclude all correction in the final accounting. The regulations promulga.ted by the president, with the tabular list of fees containing the same general description of items as those here considered, go far to make the case one of at least mixed fact and law, and to a certain extent analogous to that of U. S. v. Lawson, 101 U. S. 164, in which the requirements of a supelior .officer were held to prevent the application of the rule. In reality these fees were returned by the consul in his accounts in consequence of a mistake as to the meaning and intent of the regulations, which were binding orders promulgated Qy the president through the state department. In that view the mistake was a mistake of fact. 1 Story, Eq. Jur. § 130; Pitcher v. Turin, 10 Barb. 436. That mistake was cortected by the ruling of the state department in 1874; and justice, at least, requires that the account should be allowed to be corrected at any time before final settlement; and I find no authority to the contrary. As regards the other point urged, the court ruled upon the trial that the burden 'of proof was upon the defendant to prove what were the items included by mistake in the prior accounts, and that their character was such as showed that they belonged to him, and not to the government. It is urged that the defendant did not prove this, because,as it is said, the acknowledgments or affidavits might have been taken under the authority of section 1750 of the Revised Statutes, for use either in the United States courts, in the District of Columbia, or in the various territories of the United States; and in that event, as they would derive their whole authority and effect from the United States Statutes, they would fall within the regulation of the president, and within the definitiOn of official fees belonging to the government, as laid down by the court at the trial. An examination of the testimony of the defendant does not seem to me to leave opportunity for this question to be raised. The defendant's direct examination showed with considerable minuteness the nature of the notarial acts in question, and stated that they were for use in the individual states, under state authority, and not under any authority of the United States. It was not necessary, and would have been tedious for the defendant in the first instance, to undertake to go over everyone of these several thousand items and say the same thing of each. Had the plaintiff desired to question the general fact testified to, it had opportunity to cross-examine the defendant as to any or all of the items. The defenclant testified that in making up the itemized account, the separation of those that were unofficial and under state authority from those that were deemed official charges was made With scrupulous care, and with great labor. Some items relating to ex-
·
580
tradition proceedings, and therefore connected with federal relations, supposed to be in the list, were found on cross-examination not to be included in it. The cross-examination did not show any mistake in the defendant's general statement as to all of these items. No error being perceived in directing a verdict, the motion for a new trial should be denied. .
SORCHAN
et al.
'I).
SCHELL
Oourt. B.
n. N6'UJ
York. December 8, 1887.)
CUSTOMS DUTIES--PPOSPlIlCTIVE PROTEST-SUCCEEDING FIRM.
A prospective protest, made br one firm as to importations made by it, is not such a protest, as to simill1-r Importations made by a firm succeeding it in business, as is reqlJired of such succeeding firm by section 1 of the act of February 26, 1845. (5 U. S. St. at Large, 727.)
At Law. Action to recover back customs duties. During 1858, and for some time prior thereto, Armand Lachaise, Victor Fauche, Marius A. Sorchan, and Julien L. Allien, constituted the firm of Lachaise, Fauche & Co., and in such firm name imported on February 10,1858, by the ship Admiral, from France into the port of New York, certain "mousseline delaines" composed wholly of worsted, or worsted with a satin stripe. Duty at the rate of 24 per centum ad valorem was exacted on these mousseline delaines by.Augustus Schell, then collector of customs, under the provision for" delaines" contained in Schedule C of the act of July 30,1846,(9 U. S. St. at Large, 42,) as amended by the act of March 3,1857, (11 U. S. St. at Large,192.) Against this exaction of duty on by the AdIPiral as aforesaid, the rate of these mousseline delaines, 24 per centum ad valorem, the firm of Lachaise, Fauche & Co., made a protest, wherein they claimed that the Bame were dutiable at the rate of 19 per centum (l,d valorem under the.provison for "manufactures of worsted, " etc., contained in Schedule D of the said act of 1846, as amended as aforesaid. This protest concluded with the following prospective clause, You are hereby notified that we desire and intend this protest to apply to aU future similar importations made by us, and· was signed" Lachaise. Fauche &: Co." In 1859, the firm of Lachaise, Fauche & Co. was dissolved, and succeeded in. business by the firm of Sorchan, Allien & Diggelmann, which was composed of the aforesaid Marius A. Sorchan, Julien A. AIlien, (and Victor Fauche, as special partner,) and one Charles Diggelmann, the latter of whom had an interest in the profits of the firm of Lachaise, Fauche & Co. i the assets of the former firm passing to the latter firm. During the years 1860 and 1861 the firm of Sorchan, Allien & Diggelmann made, in their firm name, 14 importations from France into the same port, of like "moU88eline delaines," upon which collector Schell exacted duty at the rate of 24 per centum ad valorem, under the aforesaid provision for "delainesj" but this firm made no protest against
BORCHAN
V.
SCHELL.
581
this exaction. Thereafter the firm of Sorchan, Allien & Diggelmann brought this action to recover (besides other things) an alleged excess of duty of 5 per centum ad valorem exacted upon these 14 importations. The law which in 1858, 1859, and 1860 permitted the bringing of actions to recover alleged excessive duties, was the act of February 26, 1845, (section 1,5 U. S. St. at Large, 727,) and, besides other things, it provided that no action should be maintained against a collector to reduties, unless the same were paid under protest, and "unless cover the said protest was made in writing, and signed by the claimant at or before the payment of said duties." At the trial of this action it appeared t,hat these 14 importations were dutiable at 19 per centum ad valorem as "manufactures of worsted," etc. The plaintiffs therein, the sole surviving partnersof the firm of Sorchan, Allien & Diggelmann, made no attempt to prove the making by that firm of a protest as to these 14 importations; but introduced in evidence the aforesaid protest: by the Admiral, of Lachaise, Fauche &. Co., and relied on the same by virtue of the concluding prospective clause thereof to recover the alleged excessive duty of 5 per centum ad valorem exacted on these 14 importations. At the close of the plaintiffs' case, the defendants' counsel moved the court to direct a verdict in favor of the defendants as to these.14 importations, on the ground that, as the protest by the Admiral, was a protest made and signed by Lachaise, Fauche & Co., the plaintiffs' firm of Sorchan, Allien & Diggelmunn had made and signed in their name no protest as . required by the said act of 1845. Almon W. Griswold, for plaintiff, cited Brune v. Marriott, Taney, 132, 9 How.. 619; Steegman v. Maxwell, 3 Blatchf. 365; Hutton v. Schell, 6 Blatchf. ,48; Wette?" v. Schell, 11 Blatchf. 193; Ullman v. Murphy, ld. 354; Herman v. Schell, 18 Fed. Rep. 891. Stephen A. Walker, U.S. Atty., and Thomas Greenwood, Asst. U. S. Atty., for defendants. LACOMBE, J., (orally.) This is the reductio ad absurdum of the doctrine of prospective protests. To say that, because on some day in one year the collector is notified that the firm of Lachaise, Fauche & Co. object to paying the duties assessed on a certain class of goods for specified reasons, that officer is chargeable with notice that when, on another day, two years later, the firm of Sorchan, Allien & Diggelmann enter similar goods, they are objecting on the same grounds,and mean to take their claims into court, is preposterous. The collector is under no obligations to advise himself as to who composed the various firms he deals with. As indicated in Fauche v. Schell, ante, 336, this doctrine of prospective protests isa judicial graft upon the statute of February 26, 1845, (5 U. S. St. at Large, 727,) and it will be followed here only so far as the settled course of adjudication in this circuit has carried it. The present case as to these 14 entries lies outside of those limits, and I shall therefore,aB 10 them, direct the jury to find for the defendant.
682
FEDERAL REPORTER·
. ULMAN' tI. CmOKERING
(Oircuit 001.irt, D. Maaaachulltta. January 16r18B8.) PATENTS FOR RISDICTION. 'FOR INFRINGEMENT-EQUITY
Ju-
. A licensee, claiming Ilaniages for past infringement of'a patent. sued in equity. in the name of the patentee; Held, that the court had no jurisdiction, as the. remedy was at law.
In Equity. On defendants' plea to the bill. This action was brought by William F. Ulman, on behalf of Epaminondll$ Wilson, against Charles F. Chickering and another, to recover damages for the infringement of a patent. Defendants pleaded in bar to Plaintiff set down the plea for argument. L D,. Van Duzee, for complainant. J.,H. Young, for defendants. !
COLT, J. This case now comes before the court on defendants' plea to the bill which the plaintiff had set down for argument. The plea sets up in bar to the suit that the suit is prosecuted in the name of Ulman, by and on behalf of Wilson; that Wilson is the only party interestedin prosecuting the suit; that his only interest in the patent in question is under and by virtue of the license granted himJune 1, 1877, and that ,said license.was revoked, and his said interest in the patent .therebyterminated prior to filing the present bill, August 13, 1880; and that it was so determined by this court in the suit brought by Ulman and his new licensees, Hammacher & Co., against said Wilson. The only question before the court is the sufficiency in point of law of the facts iJet up in the plea to prevent the plaintiff's recovery. The plea alleges that the license to Wilson was revoked August 13, 1880. Admitting the truth of this allegation, as the plaintiff does, for the purpose of determining the sufficiency of the plea, the case is one in which the plaintiff's only claim at the time of the filing of his bill, November 23, 1881, was for damages for past infringements, and, therefore, his remedy was. at law, and not in equity. The case comes clearly within the decision of Root v. Railway, 1Q5 U. s.. 189, and Hayward v. Andrew8, 106 U. S. 672, 1 Sup. Ct. Rep. 544. Thefe is no distinct equitable ground in the cas,e that can give this court jurisdiction. The fact that Wilson was obliged to sue in the name of the patentee gives him no standing in equity, because he could sue at law in the name of the patentee. ,Hayward v·.Andrew8, 8WpTa.The argument of the plaintiff, that the plea sets up an estoppel by judgment whioh .does not bind him because the parties are different, fails to meet the plea, because the plea also specifically alleges that the license was revoked at a certain date which was more than a year prior to the filing of this bill; and it is the admission of the truth of this allegation that is fatal to the bill. The grounds upon which the plaintiff seeks to distinguish this case from