204
FEDERAL REPORTER,
vol. 41.
CLAFLIN:,eta1. ft. BEAVER
et a1.
(Cfn'cwU Court, S. D. OMo. January 4, 1890.)
Where, in replevin for goods fraudulently purchased, the marshal seizes goods to which· plaintiff is not entitled, and by order of court an issue is framed upon the question whether some of the goods seized were not purchased from the plaintiff, or if so purchased were duly paid for, judgmevt may be rendered for defendant for goods so wrongfully seized, though such goods were not described in the writ of replevin, nor in the petition therefor.
SEIZURE.
At Law. Aqtion by H. B. Claflin & 09-, against A. M. Beaver, Myrtie Beaver, George Me1vill, and B. H. Millikin. l(r(J,mer, Jc Kramer, for plaintiffs. , . W., O. IIen,derson and H. M. Maynard, for . iaan action in replevin for a lot oidry goods claimed to have,beer1 obtained by the defendant A. M. Beaver, by means of fraudulent purchases from the plaintiffs, in the fall and whiter of 1885. The defendants George Melvin a,nd B. H. Millikin are his assignees in insolvency, under a :generalassigllment made by him on the 10th of March, l886. covering his entire stock of dry goods and notions in his storeroom at Washington, Fayette county, Ohio. The defendant Myrtie Beaveliis the wife .0rA. M. an1 had a upon said stock of goods j1 111ade prIOr to the aSSIgnment. Upon the trIal the defendants offered to·prove that the marshal, acting under the direction of the plaintiffs' agent, who was present, when the writ of replevin was executed, topk posseasion ohnd delivered to the plaintiffs a lot of dry goods which were included in the assignment above referred to, and in the possession of the. assijl;nellll. but not. described in the petition or writ,nor included i.(l the aJleged,fl'audulent purchases. The trial ju"dge excluded this testimony, for-the feasOIl tb&t the petition was for the recovery of specific goods named, and there was no issue to which such testimony could be applied. .The verdict was {Qr the plaintiffs. A motion to set aside and for a new trial was heard, and the verdict vacated to the extent qnlyi' that is·to say: The parties were ordered to frame an issue upon sorhe part of the goods taken by the marshal upon the w*of replevin, and delivered to tbeplaintiffs, were not purchased from the p!tl,intiffs , or, if purchased.from them"were,pll.idfor prior to the beginning this suit, and if so, what was their value at the time when theY' were so by the marshal. . The court, after ;giving directions issue, further ordered verdicts "stand as issuesinfavor of the plaintiffs,1l;s to, 1.\11 the goods tbepetition, and taken on the writ, such as' shall from' be found upon ,the issues noW directed, to htLvenot the plaintiffs by either of the defendants, or, if so purchased, were paid for prior to the beginning of this suit." Claflin v. Beaver, 35 Fed. Rep.
of
CLAFLIN tl. BEAVER.
259. In pursuance of this order, the defendants filed their petition, alleging that the schedule of goods thereto attached contained a speCific description of goods taken.by the marshal in the execution of said writ of replevin, but purchased in part from persons other than the plaintiffs, and in part from the plaintiffs, and fully paid for before the commencement of this action. The defendants aver that said goods were so taken on the 16th of March, 1886; that they were of the value of $2,469.84; and that when so taken they were in the possession of the defendants Melvin and Millikin, as assignees in trust for the benefit of the creditors of A. M. Beaver. The plaintiffs filed an answer containing a general denial, and by consent a jury was waived. and the issue so joined submitted to the court. The appraised value of all the goods taken in replevin is$4,045.69. It appears from the testimony that when the marshal executed the writ be was attended by Leopold Cohn, agent of the plailitiffs, who had in his possession copies oftheoriginal bills or invoices of the alleged fraudulent purchases. 'He selected from the general stock of merchandise in the hands of the assignees about $1,900 worth of goods, which he identified as of those described in the bills. There was then So halt, and the goods so selected were valued by the appraisers. Themarshal and'Cohn then proceeded, the marshal acting under the direction' of Cohn, who took the lead, to take possession oithe goods describe<! in the defendants' petition. There was no attempt to identify tho,se of the fraudulent purchase, nor as described inthewt1t,. but, according to the evidence, they were taken indiscriminately from. the stock iltposf'ession of the assignees, the only care being to select· thij best. There was a lot of embroidery taken which it is not pretended wasputchased from the .plaintiffs, nor, described in the petition or writ. There was It lot of ladies'undetwear which was yet in the original! packages, and had not been put in stock.; This also had beeri purchased from parties other than the plaintiffs. The testimony is that noneofthe goods described in the scheduleattachedi to and ma'de part of the ants' petition were included in the fraUdulent purchases; that most'of them had been purchased from other parties; and that such as hatH>'een, purchased from the plaintiffs were fully paid for before the commence:ment ofthis action. It isw6rthy of remark that theplilintiffs dffel'ednd testimony whatever upon the hearing of the issue ,made fend ants' petition. The deposition of Cohn was taken· before the trial of ease, and without reference to this issue. He testifies that hese:lected the:goods with 'the aid of the copies of the original bills, andths:t when he found he had taken any goods not described in those bills he immediaWly returnedtliem to the aSsigbees'stock. But, on thedther hand,five assignee; Millikin, a merchant of Washington C.:H.,wom whom a part of the stock was purchMed;'Silcott, alMa merehant of Washirigton C. H., and one of the appraisers selected clerk emby the marshal; Beaver,defendant; and Ridgway, played by the marshal to assist him i'n the execution of thewrit"'--testify that whnElit WRStrl1e that, in the 'selection ofthe first lot of goods taken, goods not identified'\vereretl'lrnedtd stock, yet,when it caine to
FEDE'!Ur.
REPOR\I1ER, vol. 41.
lotj-tbat il3,the Jpt,gescribed in the <lefe,lildants' petitjpp,--:therewas, no efi"ortat or pretensE! of iqentificatiODI',DOr, was there Il-PY reference to the invoices, nor iothewrit. this is conceded by counsel for p1a,intiffs, and ,theycllj.im in their bdefthat neither intlte origin;il,petition -nor in tIle writ will be goods "described as embroideries, nor anysucll ,em,jlmerations of silbor flannels,orcanton flannels, Qrhose, or dress goods, or other gOQQ.s,:,Qs. are claimed by the defendants in their petition; and the counthe plaintiffs rely upon this very fact as a complete defense to the defendapts' petition, for, they say, :the defenqants' only,remEldy is an action marshaJand the plaintiffs. This was urged UR0P, thearguO,lent, Ap,(l conceded by counsel for the defet;ldapts,as the true oonstruction ruling filed _ the trial judge. by But ,reference to the te?ttof the r;p.ling, and to the autllarities cited by SEyERENS, who presided upon ,the trial, makes it cl,ear that that is altoge,tber too narrow. Judge SEVERENS in his l'ltates that the petition and the writ of repleviJ,l in many inthe goods generally, ;e.g., so many pieces ofC:;/llico, and returned upon the writtpa.the had taken the goods menip:,the writ, and delivered them to theplaintifi"s upClDthlri,rgiving bond. ,Upon trial,whichwas upon gElneralipleadings, the"defElndants offered to sllow by proof that some of the goods actually taken 9)1) the writ were in ,fact either never Pl,lJ,'ch/lsedofthe plaintiffs, or, if iusQQleinstances they had beet} SQ purchased, they had been paid for. objection,. the cpurt held, that thfl marshal's return being that the goods delivered upon the writ were those mentioned in the petition w;1it,and the plea being simply a denial of the petition, noissue of the:kj.pd now proposeq: to be litigated was made by the pleadings, and the offered proof could DQt be received, but indicated that tpe j3;hould be the subject of a, collateral iSl;ll,1e the. case. The order 1J.ereinbefore rtlfeJ1red ,tawas for the framing of an issue" upon the questiOn w!;tether SQJll6 the gOOQS taken by the marshal upon the writ in the,caulle, and delivered to tQft. plaintiffs, were not purchased from.t,he,plaintiffs, 01', irso purchased, were paid fQr prior to the beginning of etc. The further cmler was that HIe verdict should stand ,as ,a finding of the (,)riginal issue. in favor of the plaintiffs as to all the goods in the petition, and tllken on thewrit,except such as should be found, ·upon. theissues directed, to have not been purchased f,rom the plaintiffs, or,ifllO purchased,tobave beenp/lid for prior to the begiqning of this sl,1it. _.: . " _ . Now orders are not so counsel foJ,' the plaintiffs claim. .are bmadenough in tl;leir plainmeaningtoextenli the investigaall the goods described in the ,defendants' peti.tiQJj1. . The authorby Judge in support of his ruljngs (KrilPffidcrrj v. HydelllOU. S.276, Rep. 27; (JoveUv. Heyman,l11 U. S. 176. 4 Sup. Ct. Rep. 355; ;v. Pitkin, 124U. S. 131,8 Sup. Ct. Rep. 379) fullY.llUil,tllinthe ruling byhilll, and the construction. nowgi:vento ij, ,.In v. Hyde" propertydn possession of
. CLAFLIN ". BEAVER;
a third person, claiming. ownership, .was attached by. the marshal on mesne process issued against the' defendant, and it was held that the claimant might seek redress by ancillary proceedings in the circuit court having possession of the property. The same rule Was applied in Covell v. Heymg:fI" where property claimed by a third person was taken sion of by the marshal under a writ of replevin issued against the defendal'Jt. In Gumbel v. Pitkin, it was held that the jurisdiction of the circuit courtsof the United States to administer the attachment laws of the states in which the court is held necessarily draws to itself everything properg incidental, even though into the court, for the. adjudication of their rights, parties not otherwise subject to the jurisdiction. In Kripit was arg1,led for that by an pendorf v .. appropriate 'action, coul<lhave obtained, the specific property, and also damages for' its detention. . But the court held that "the ers of courts, of law over their own· process, to prevent abuse, oPJ>ressioft, and injustice, are inherent, and equally:extensive andefficient,asis'also their power to protect their own jurisdiction, and offic,ers in the poesession of property that is in the' custodY of the law." It is truetpat in that case the: proceeding was by an ancillary bill in equity.Utl't'Covell v. Heyman was an action at law. It was a replevin case. Thesame rule was applied there, and Krippendorj v. Hyde was cited as an autpority.;: i lJpoifwhltt princi pie it can ibe fuaintained that the taking of properly'answering,thed'escription ofthewrit, but not that claimed by the plaintiffs, 'is more an abuse of the process of the court (that ing which be by IIl'istake) than the willful and intentional'taking of property not described in the writ, and not, therefore, by any possi·bility taken by mistake, I am not· able· to perceive. In either case, if the wrongful ta.king was intentional there was an abuse of the proctlss of the court; but inasmuch as the taking in the first case might baby mistake, and in thesecond·case could not be other than intentional, the taking 'in thesecoIid'Mse isolearly the greatei'abuse ofthe process of thecouii. Upon thetestimonY'and the law, therefore,the defendilUtsara' clearly entitledtol'ooover from the plaintiffs goods 'clliirnediil theirpetition.' .Theplaintiffs, under their petition, were entitled only'; to the specific goodsthereindellcribed. They havenot only taken aU the goods theycotila identify as described in the .writ, but, in' 'addition,a greater quantity. which was the property of the asaigrieesfor the benefitofthe creditors ·ofthederendant.Beaver.Thevalue of these goods is,8.ccord·jng to the tegtimony, fully equal to the amount clliiim3d by thedetendants. Judgment will therefore be entered in favor of the deferidantsfor the sumof$2j469.84, with interest from March 15, 1886. Jtidgment will be entered in favor oftheplaintiffs upon the verdict for the residue of the goods taken.bythe'marshal in the execution Of the writ of rep'levin. The costs ofllhe case, down to 8tidiIicluding the·trial before 'Judge SEVERENa, will be· taxed against the defendants. The costs of'the'stipplementaryprooElwings upon thedefetidants"petiti()n:will be taxed against the: plaintiffs'; , " .. , '
FEDERAL REPOR:L'ER,
SINGEI!. MANUF'G
Co.
(l.
JUNE MANUF'G
(Oircuit Oourt, N. D. fl/.iwis. December 28, 1889.) L
TJaDB
Tb,atthe patentee, Singer, and his suCCeS801"8, have manufactured sewIng-machines pUblicly known as "Singer Sewing-Machines," and the name" Singer" has come to 1dentify the special kinds of made by them., does not, after the expiration of the patent, giv6 them exclusive right to the use of the term" Singer, " , as applied to sewing-machines.
l'IIAC:iUNES"-USB A.lI'TBB EXPIRATION 011' PATENT.
S. PATENTS lI'OB INVBNTIONB-EXPIRATION-'-RIGHTS OF PATENTEE.
&
'After the expiration of the patent, the 'pUblic'may manufacture machines having .thes,llome form of construction, and even ornamentation, used by the patentee. ; , A trade-mark consisting' of an oval plate attached to the machine, stamped In the c"elJtll,ld w1,th a shuttle and' two crossed, n,eedles, whose threads form an "S," and the edge with the' words "Singer Sewing.Machine Co,," and a,wreath of leaves, is nOt, in the abserlce of a right to the plate itself as a trade-mark, infringed by a, similar with the words "Impl'oved Singer" in the border, and the monq)rram "J. M. \Jo.," in the c,epter.
In Equity. o.Di4:d etc John G.
Bill for infringement trade-mark. and Lawrence Maxwell, Jr., for complainant. for
BLODGETT, J., This isabill in (lquity, charging defendant with an ofqomplainant's trade name and trade-mark, and seeking an bY'Jeal'!9n of the alleged infringement. that in the yeaI' 1850 the firm of The mnteril,ll allegatiOns of the bill 1. M. Co. commenced the manufacture'of sewjng-machines in the citY. of N;ewYork. That in 1863,sll.id 1. M. Singer & Co. transferred ,their lmsiness to the· Singer Manufacturing Company, a corporation under the la'Y!'! of the state of New York, and in organized 1873 the QOI;Jjlpany of the State of New York good-will, and trade-mll.i'ks to the present .plainant,. the Manufacturipg Company of the State of New Jersey . .'l'hat. Jrorp .the commenceDlent of said business of the, firm of 1. M. ,&,09. up to thetime of the filing of this bill, complainant and A,aye manufactureliand sold of many varieties, have from the first marked their ma:with ' tijf} llame "Singe.r, being. the llame of the founder' of have always advertisad;, $nd sold an of their ,'as "Singer have spent large sums of .;U!qpey,in iix)pr()ving andIJerfectipg said machines. and in advertising ,sawe; apqtl1at the so manufacturtld by complainant and {its acquired a world-wide reputation for the excellence w()rl,tmanship and their merit,and have 1?een Universally called ,f1.lld, knowp .bythename;of"Sjqger Sewing-Machines." That the adopand!llPprOPriation of said Illl0l6 was original with said I.M. Singer ,and complainant, have ever 'since used 'the same continuously and exclusively as a designation for the sewing-machines manufactured by them; and that said 1. M.