426
FEDERAl. REPORTER,
vol. 37.
daim deed. ran, or that Green was a trustee, and held the title for their benefit, 'in>who1e or in .part; and it does not appear that they have any interest whatever, or expect any, in the land conveyed,and no relief is prayed against them. The fact that fraudulent representations were made· by them: which influenced the· compll\-inant cannot implicate 'Green, unless they are shown to occupy such relation as to charge the fraud upon him. In all cases the bill must show that one who is made a party defendant is in some way liable to complainant's demand, or has an interest in the subject of the suit. An exception is made in the case of the agent or officer of a corporation. Mr. Pomeroy states the rule concisely, viz.: . "The generall'ule is well settled and admits of only one or two special exceptions which are necessary to prevent a failure of justice, that no person can properly be made a defendant in the suit for a discovery or compelled as Buch to disclose facts within Lis knowledge, unless he has an interest in the sUbject matter of the controversy in aid of which the discovery is asked.» 1 Porn. Eq.Jul'. § 199. . '. In a note numerous authorities from which the rule is are cited. where an attorney or agent has assisted his' principal in the accomplishIlj.eQt of a fraud,he may then be made a party defendant, and cOznpellEjd to discover the fact, .an,d relief must be prayed that he pay cOsts. >I1e is made a party, riot for the reason that everyone who assists another,in committing a wrong is answerfl.b1e for the injury susby the, aggrieved person, but as security for incurred in redressing thewrong. See 1 Dalliell, Ch. Pro 299, and cases cited in note. No such is presented by the demurrer, andjn settling the demurrer it is not necessary that defendants should answer denymg the confederating clause. Demurrer sustained. ..
NORRIS 11. ATLAS STEAM-SHIP
Co.
(Oirc'Uit Oourt,
s. D. NW!
York. February 2,1889.)
'1.
t.
In an action for injuries alleged to have been received from the falling of a maintopmast-stay on defendant's Yassel, causing plaintiff's hand to be caught in an exposed winch, evidence that immediately after the injury the defend. ant caused' the stay to be replaced and a guard to be put up at the winch, is . admissible to show the actual condition of the stay and winch at the time of the injury. . . ' I LIMITATION OF ACTIONS-FOREIGN CORPORATIOlis-AJJSENCE OF DESIGNATED AGENT. .
NJIlGLIGBNcm-EvIDENCE.
Code Civil Proc. N. Y. § 482, provides that personal service of a summons upon a· foreign corporation may be made by delivering a copy to a person designated for that purpose; that Buch designation must specify a place within the state as the office and residence of the person designated; and that the "., 'desihrnationshall remain in force until the filing oia written revocation.Sectlon 401 provides that the statute of limitations shall uotrun in favor of non· .residents, but that its provisions do not apply while a designation made as pre· scrilied In section 432 remains in force. The defendant foreign cotporation
ATLAS STEAM-SHIP CO.
427
desip;nated a person upon ,whom process might be served. and specified his residence; but before the had run the cause of action on such person left the state, and did not return to the place designated. and the des. ie:nation was not !enewed. Held, that the. action was not barred. , At
Herinon H. Shook, for plaintifi. Ever.ett P. Wheeler, for defendant.
Law.
On motion for new trial.
WHEELER, J. This action was brought in December, 1887, to recover for an injury alleged to have been received on De0ember 4, 1880, by the falling of the maintopmast-stay of one of the defendant's vessels, and causing the plaintiff's hand to be caught in an exposed winch at which he was working, in getting out of the way. Upon the trial the defendant denied that the stay fell and caused the injury in that manner, and relied upon the statute of limitations. The plaintiff was allowed to prove, against defendant's objection, that the defendant caused the stay to be replaced, and a guard to be put up at the winch immediately after. The case has now been heard on a motion Jor a new trial, and the defendant relies upon error being found in the rulings admitting this evidence, and holding the statute not tQ be a bar, in support of the motion. . If this evidence had been admitted for the purpose of having negligence in not making repairs and al!erations before inferred from .the fact that they were made then, its admission or use for that purpose might have been erroneous. The making of repairs and alterations,in itself, shows care rather than neglect. But this evidence showed what was broken, and how, and what was wanting; ann was admitted for. and limited to, the purpose of showing the actual condition of the stay and winch at the time of the injury. The question of negligence was made to. turn upon the state of things then, and 'not upon what happened aJterwards. This does not appear to have been The statutes of limitation appear to be in the Code of Civil Procedure. Section 383 puts among actions to be brought within three years" (5) an. action to recover damages for a personal injury occasioned by negligence." The defendant is a foreign corporation. and necessarily a non-resident. Ji\lli v.- R"ilrond Co., ante, 65. Section 401 provides: "If, whdn the calise of action apCrHI'S against a person, he is without the state, the action OIay be commenced within the time limited therefor after his return into the state; '" '" '" but this spctioll does not apply while a designation, made as prescribed in sl'ction four hundred and thirty, 01' insllb-<livision second of section four hundred and thirty..two, of this act, remains in force." "Sec. 432. Personal service of the summons, upon a defl'ndant, bl'ing a foreign corporation. must be made by delivt'ring a copy thereof, within the state. as follows: (1) To the president, treasurer, or secretary; or, if the corporation la.cks·eitht'r of those olficers. to the ollicer pt'rforming corresponding functions under another name. (2) To a person deijignated for the ·purpose by a writing".undel' the seal of the corporation. and the signature of its president, viee-president. or other aeUlig head, aCi ompanied With 'the written consent of the person desiWilited, and filed in the office of the seci·etary.of,the state. The desiguation must specify a llIace or
428
FEDERAL REPORTER,
vol. 87.
residence of the person designated: and. if it is within a city. the street and street number. if any, or other suitable designation of the particular locality. It remains in force until the filing in the same office of a written revocation theteof, or of the consent, executed in like manner; but the person designated may fn>m time to time change the place specified as bis office or residpnce to some other place within the state, by a writing. executed by him. and filed in like manner." In May, 1880. defendant designated a person on whom process against it might beserved, and specified his residence as being at 262 Fourth Avenue,' and his office as being at 37 WaH street, in the city of New York. In 1881 he changed his residence to Thirty-Fourth street, and his office to State street; and in October, 1883, he went to Europe, and remained away until September, 1884. By the terms of section 401 the limitation operates only while the designation is in force. The object of the designation is to provide a pElI'son on whom service of process may be made. 'It is not accomplishflrl by the lUere making and acceptance designation in the manner prescribed. The service provided Jor is upon the person, and not at the place named, in his absence, for him, or for the defendant. The continuation of the presence of the person within the jurisdiction at least, if not in the same location, is absolutely essential to the continued' operation of the designation for the purpose rorwhich' it is made, and to its continuing in force within the meaning of the statute. The provision in the statute that it remains in force until the filing: of a written revocation, refers to the force derived from the act of the parties, and continues that until it is withdrawn in the manner, pointed olit, and not to the removal of the means by which the designation cduld have any effect. The designation did not continue in force at most any longer than until the person designated left for Europe in September', 1883, which was before the expiration of three years from theadcrning'of the cause of action, and before it was barred. The des· ignation was not renewed; neither did he return to the place designated; the force' olthe designation was not in any mannerrestored; nor was there anything to set the limitation running again. This conclusion bas been reached upon conference with and with the concurrence of Circuit Judge' LAcOiUiE.' Motion overruled, and stay vacated.
WnHBuRN& MOEN MANUF'G
'11, SOUTHERN WIRE
(qircuit Oourt. E. D. Mi88ourl, E. D. January 28,1889.)
1.
,, patentee is doing a large and profitable business in themanufact, uTe'and ,ssle of the patented article, and his patents have been infringed. a covenl\ilt iD II. license granted by him to manufacture and seli such article, , thiJ:t the licensee ,will give his co-operation in properly maintaining the busi'n&Ss"snd the'patents; binds the licensee to assist in ali lawful ways in suppressthe infringement of the patent.
. '; U fAT;El.'TS ,FOR INVENTIONS-LICENSES-COVENANT TO UPHOLD PATENT.
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