, COOPER V. AIUlOUR.
215
"(3) If should find that the name philosophical instruments is not a trade term, then it is to be un,derstood as used by congress in the ordinary signification of the words, and would include such instruments as are designed to illustrate or utilize certain laws of natural philosophy, and which reqUire for their design, manufacture or use some special knowledge of those laws. to I affirm this point. "( 4) The word ' wrought' in the tariff laws means that the articles have beE'n man ufactured into something else. The fact that the glass plates or disks, for use in the manufacture of optical instruments, have been ground and polished and advanced in the stages of manufacture does not change their classification so long as they remain glass plates or disks not completely finished as a part of any optical instrument. to ' This point has been disposed of. "(5) Common window glass which bas been subject to no other process of D)anufacturethan cutting into sizes is dutiable under the prOVisions for common window glass under the tariff law, and the small piecl',s of window glass imported by plaintiffs to be made into microscope slides are, therefore, dutiable as common window This point has been disposed of. , Counsel on behalf of plaintiffs excepts to the refusal of the court to affirm the fou,rth and fifth points presented by him, relating to unwrought disks or plates of glass. The district attorney excepts to the answer of the court to the first, second, third, fourth, and fifth points presented by him. The verdict W/LS for plaintiffs for tbe amount claimed on the philosophical 'instruments, and the microscope slides.
COOPER V. ARMOUR
et ale
(Circuit Court, N. D. New Yor7£. April 17,1890.) MALICIOUS PRoSECUTION-WHAT AMOUNTS To-FILING AOCUSATION.
An action for malicious prosecution will not lie for preferring an accusation before a magistrate char!ting plaintiff with a criminal offense, if he was not apprehended, and no process was issued for his arrest.
At Law.
Ward (hmeron. for plaintiff. Stedman, Thompson Andrews, for defendants. WALLACE, J. The question in thiacase is whether an action for malicious prosecntion will lie' against defendants, who have preferred an aecu:sation before a magistrate charging the plaintiff with a criminal ofand, no process fense, notwithstanding the j>l.aintiff
216
I'EDERAL REPORTER,
vol. 42.
for his was issued by the magistrate. The gist of the action of malicious prosecution is the putting of legal process in force, regularly, for the mere purpose of vexation or injury; and the inconvenience 01 harm resulting naturally or directly from the suit or prosecution is the legal damage upon which it is founded. Some of the text-writers state that the action will lie whenever the defendant has made a charge of with II, view to induce a magistrate or trifelony against the bunal to ,entertain it, whether any warrant or other process was issued or not. Steph. Mal. Pros. 8; Add. Torts, § 856. Actions have been maintained in the nature of a conspiracy for procuring a false indictment, and even for preferring a false charge of crime upon which the grand jury refused to indict. But the only decisions cited in support of the proposition that the action of malicious prosecution will lie although a criminal proceeding has not actually been instituted by the issuing of process, where the point actually arose, are in the nisi pm'us case of Cl:a1'ke v. Postan, 6 Cur. & P. 423, and in the case of Dawson v. Vansa71dau,l1 Wkly. Rep. 516, in which, although no process was issued, the plaintiff was taken into custody, and held lor examination upon the charge. On the other hand, it was said by PATTESON, J., in Gregory v. Derby, 8 Car. & P. 749, where there was a charge of stealing, upon whieh a warrant was issued againetthe plaintiff, that, "if the party was neverltpprehended, Do'hction at all would lie;" and in O'DrwcoU v. McBurney, 2 Nott & MeO. 54,55, it was said: "There can be no prosecution without an arrest." The onl)'injury sustained by the person accused, when he is not taken intocustouy, and no process has been issued against him, is to his reputation; and for such an injury the action of libel or slander is the appropriate remedy, and would seem to be the only remedy. This is the view adopted by Hare & Wallace in their notes to American Leading Cases, (volume 1, p. 173;) anu the learned commentators state that slander or libel is the only appropriate remedy where a charge of felony has been made, and warrant was not thereupon issued, and that malicious prosecution, and not slander or libel, is the remedy whenever a warrant has been issued. The question was fully considered by the supreme court of South Carolina in Heyward v. Outhbert, 4 McCord" an I,I.ction for malicious prosecution would lie, founded on a criminal charge upon which no process was issued against the accused; and it was adjudged that it would not. In that ca.se the. charge was in. the form of an information laid before the magistr:ite to procure a warrant for the arrest of the plaintiff. To the same effect is the case of Kneeland v. Spitzka, 42 N. Y. Super. Ct. 470, where the question Was decided in an appellate court. In the early case of Ram v. Lamley, Hut, 113, it was held that an action of slander could not be maintained for an oral charge of felony made to a justice of the peace upon an application for a warrant against the plaintiff, for the reason that, if wordS 80 spoken were to be held actionable, "no other would come to . a justice of the peace to inform him of a felony." A defamatory statement spoken or written in a legal proceeding, civil or criminal, which is pertineut and material, ill so unqualifiedly privileged that its truth can-
IN BE CONVERSE.
217
not be drawn into question, or malice predicated of it, in an action for slander or libel. Reris v. Smith, 18 C. B. 126; Lea v. White, 4 Sneed, 111; Garrv. Selden, 4 N. Y. 91; Hawk v. Evans, 76 Iowa, 593,41 N. W. Rep. 368. If, upon considerations of public policy, such an action cannot be maintained, upon the same considerations no other action should lie. Without doubt, libel or slander will lie for an accusation to a magistrate when made with no bonafide intention of prosecuting it. Unless such facts .can be shown by the person accused, or unless he is sqbjected to the vexation and expense of process against him, upon principle, he ought not to be allowed to recover. The more generally approved doctrine is that, for the prosecution of a civil action, maliciously and without probable cause, to the injury of the plaintiff, he may maintain an action for damages, although there was no interference with his person or property. Pangburn v. Bull, 1 Wend. 345; Whipple v. Ner, 11 Conn. 582; Closson v. Staples, 42 Vt. 209; Eastin v. Bank, 66 Cal. 123, 4Pac. Rep. 1106; Allen v. Cadman, 139 Mass. 136; Marbourg v. Smiih, 11 Kan. 554; Woods v. Pinnell, 13 Bush, 629; Pope v. Pollock, (Ohio,) 21 N. E. Rep. 356; McCardle v. McGinley, 86 Ind. 538; McPhersOn v. Runyon, (Minn.) 43 N. W. Rep. 392; Smith v. Smith, 20 Hun, 555. The cases, however, which sustain this· view, do not countenance an action when thEl vexatious suit has not been actually instituted and prosecuted to such effect that the plaintiff has sustained pecuniary loss. Inasmuch as the defamatory words which must be set forth in an action for slander or libel are not alleged in the present complaint, the case cannot be treated as an action for slander or libel. 'I.'he motion for a new trial is denied.
In re
CONVERSE.
(Circuit Court, E. D. Michigan.
Maroh 10, 1890.)
..ATTORNEY AT LAW-EMBEZZLEMENT-CONSTRUCTION OF STATUTE BY STATE CoUXTHABEAS CORPUS.
Petitioner.was arraigned in the state court under a general statute punishing the orime of embezzlement. He pleaded that "as attorney at law"he was guilty of embezzling $3,500, "that being the amount colleoted and reoeived by me, less my reasonable fees as suoh attorney for oolleoting the money." There was another statute punishing the failure by attorneys at law to pay over moneys oolleoted and received by them. Petitioner was sentenced upon his plea of guilty as for the crime of embezzlement, and, upon a writ of error to the supreme court, that oourt held that an attorney at law might be convioted of embezzlement under the general statute. Held, that this construction of the statute was binding upon the federal court, and that petitioner was not entitled to be disoharged upon habeaB CorPU8.
by the CoW1.)
Habeas Corpus. This was a petition for a writ of habeas COrpUB based upon the following facts: Petitioner was arraigned upon an information in the circuit court for the county of Calhoun, charging him with embezzlement, he
FEDERAL
Hbeing th¢t1 arid there,agent to John E. Dunning and Daniel W. the .execdtors of the last will and testament of Rice Hall, deceased." Upon such arraignment lletitioner pleaded to the information in the following l!mgu·age: "As an attorney at law, I am guilty of embezzlement of $3,500, that being the amount collected and received by me, less my reasonable feeS as such attorney for collecting the money." '['hereupon the court, having made the usual private examination of the accused requiredby statute after a plea of guilty, sentenced him to five years' imprisonment, in pursuance of section 9151, How. St., which provides that "if any:blerk, agent, or servant of any private person * * * shall embezzle, * * without consent of his employer or master, any money or other !Iroperty of another, which shall have come to his possession, or shall be under his charge, by virtue of such office or employment, he shall be deemed; 'by!lO, doing, to have committed the crime of larceny." The neit succeecling section (9152) provides that "if any attorney at law . . shall.collect or receive in such capacity, any money belonging toanothet, and' shall neglect .or refuse to. pay the same to the person entitled'. thereto, within a reasonll-ble time after demand thereof, the person so neglecting or refusing shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by imprisonment in the county jail not more than one year." Petitioner claims that as the information was framed under section 9151, for the crime of embezzlement by an agent, and he had pleaded guilty to the offense of withholding money which he had collected as attorney at law, which was only a misdemeanorunder section 9152, his sentence was illegal, and his imprisonment without due process of law. John C. Patterson, for petitioner. Herbert E. Winsor, Pros. Atty., for the People.
**
BROWN, J. Petitioner claims to be held in confinement in violation of the fourteenth amendment to the constitution of the United States, which declares that no state shall "deprive any person of life, liberty, or property without due process oflaw," and demands the interposition of this court under Rev. St. § 753, which extends the right of haJJea8 co?pus to every person held in custody "in violation of the constitution, or of s. law, or atrooty of the United States." This jurisdiction, which requires of us to pass t;tpon rulings made by state courts in cases not only witHin their cognizance, but within their exclusive jurisdiction, is one we would gladly disclaim, if it were within our power, and, so far as it iss. matterof discretion, we have uniformly refused to exercise it, until the petitioner has exhausted his remedy in the state tribunals by an appeal to the supreme court. This discretion was declared by the supreme court to exist in Ex parte RoyaU, 117 U. S. 249, 6 Sup. Ct. Rep. 734. In this case, however, the petitioner has been refused relief by the supreme court of the state, llnd we do not feel at liberty to, deny him the right to of us whether his imprisonment was imposed by due process of ll!ow, or by the arbitrary and unauthorized act of the state court.
IN RE CONVERSE.
fa19
We suppose it will not be questioned that if a, party should be sentenced without a trial, upon a plea of not guilty, the constitutional provision would be violated. So, if he were arraigned for one crime, and should plead guilty to another,-as, for instance, if he were charged with burglary, and should plead guilty to larceny,-it would bea plain abuse of power to sentence him either for the burglary to which he did not plead guilty, or for the larceny for which he had not indicted. words, and he Upon the other hand, if he were indicted in pleaded guilty to a particular crime, falling within those general words, it would not be illegal to sentence him under the indictment. As, for example, if he were indicted for embezzlement as "an officer of a bank," and he pleaded guilty of embezzlement as "cashier" of such bank, in such case his description of himself would fall clearly within the general words of the indictment, and his plea would only render it more certain that he did commit the offense charged, and the sentence upon such plea would not be illegal; nor would it change the aspect of the case if it,were shown that the offense of embezzlement by a cashier was provided for in a separate statute. In other words, it is no defense to an indictment under one statute that the prisoner might also be punished under another. In this case the prisoner was charged with embezzlement as the "agent" of Dunning and Hall, executors of the last will and testament of Rice Hall, deceased, and pleaded guilty of "embezzlement of $3,500 as an attorney at law, that being the amount collected and received by me, less my reasonable fees as such attorney for collecting the money." Another statute provided a different punishment for the receipt and retention of money collected by an attorney at law after demand is made for the same. The question, then, which confronted the court, was whether an attorney at law is an "agent," within the meaning of the first statute, and can be punished as such for embezzlement in failing to pay over moneys collected and received by him in his capacity as attorney at law. This question was answered in the affirmative, Mr. Justice CAMPBELL dissenting. Mr. Justice SHERWOOD, in delivering the opinion of the court, observes: " That the respondent collected the money as attorney is of no consequence. If the act of the respondent complained of contained all the elf'ments of embezzlement. he was guilty of the crime, and was properly convicted. If an attorney collects money for his client. he, in so doing, acts as the agent of his client as well as his attorney; if in either case, after making the collection, he appropriates the money to his own use with the intention of depriVing the owner of the same, he is guilty of the crime of embezzlement. If this were not so, no attorney could be convicted of the embezzlerrent of his client's money, and this was certainly never the intention of tbe If'gislature in passing the statute creating the crime." People v. Converse, 42 N. W. Rep. 70. In other words, the learned court construes the statute as covering an embezzlement by an attorney atlaw. Now, while this opinion may perhaps be against the weigl:\t of authority, which seems to hold that the word "agent" in this statute has no application to auctioneers. (Com. v. Stearns, 2 ::Mete. 344,) collectors of bills, (Com. v. Libbey, 11 ::Mete. 64,)
FEDERAL REPORTER,
to soliciwi'S intrusted by clients with money to invest upon mortgage, (Queen v. NeWman, 8 Q. B. Div. 706; Regina v. Cooper, L. R. 2 Cr. Cas.
123,) or to attorneys at law, (State v. McLane, 43 Tex. 404,) still it is a construction placed by the supreme court of the state upon a statute of such state, and is as binding upon this court as ifthe opinion were pronounced iuan ordinary civil suit. As the prisoner di " in fact, plead guilty to embezzlement as an attorney at law, and as the court has held that such offense did fall within the statute, there has been no violation of the constitutional provision, and the petition must be denied.
HOLMES BURGLAR ALARM TEL. Co. TELEPHONE
Co. et al.
et al.
'IJ. DOMESTIC TELEGRAPH
&
(Circuit Court, D. New Jersey. April 12, 1800.) 1. PATENTS FOR INVENTIONS-LICENSE-ASSIGNMENT.
2. S.
The absence of evidence that a certain claim of letters patentwss covered by the oath of the inventor will not invalidate the claim. SAMlll-REISSUE.
A patentee can claim on a reissue whatever clearly appears to have been a part of his original invention as described or shown in his original specifications, drawings, or models.
4. BUill<..
5.
SAME-VARIANCE FROM ORIGINAL CLAIM.
6.
BAME,..,-!NFRINGEMENT.
'1. 8.
SAME-COMBINATION.
SAME-ANTICIPATION.
Such letters patent were not anticipated by the English patent to Tyer. in 1865, for an apparatus for transmitting signals indicating the p'osition of a train on a railway, nor by that to Varley in 1865, which was for a modIfication of the ordinary closed circuit system, nor by that to Mixon in 1866, which would reqUire substantial alterations to make it accomplish the results of tM Guernsey patent.
