Wooster v. Marks.

order of May 24th, remanding the cause, on the furnishing now, by the defendant, of an affidavit showing what would have been held to be a satisfactory excuse for not having filed the first record in time, or a case of "accident." The defendant had his day in Court, at that time, and the matter became res adjudicata, not to be re-opened because of any facts then existing and which might have been then shown. Moreover, the defendant has acquiesced in the former remand, and waived all right to claim that the cause is in this Court under the first removal, by averring, in its second petition for removal, that the suit "is now," May 28th, 1879, (that being the day the petition was sworn to by the president of the defendant corporation,) "pending in the Court of Common Pleas for the city and county of New York," and praying for its removal from that Court to this Court.

The motion to remand the cause to the State Court is granted, with costs.

A man worked for the defendant by the piece, in the defendant's manufactory, and there used, in the defendant's business, folding guides, his own property. which infringed the plaintiff's patent: Held, in a suit in equity, that the defendant had infringed the patent.

(Before WHEELER, J., Southern District of New York, December 22d, 1879.)

Sims v. Sims.

WHEELER, J. Folding guides, for which the orator has a patent, have been used in the defendants' manufactory. The only question in this case is, whether they have been so used there as that the defendants are themselves liable for the infringement. They were procured and used by a man, whom one of the defendants, in his testimony, calls "our man," and who worked for them there and was paid for his labor by the piece, furnishing his own tools of this sort. They knew of this use of the guides, but not that they were patented, and stopped the use when they were informed of that fact. Under these circumstances, he was using the guides for them, in their business. The mode of payment made it none the less so; and they, at least, participated in the tort which constituted the infringement. An action at law would lie for this participation, and this bill in equity, which rests upon the same foundation, although, in some respects, for different relief, will lie also. The question is not at all as to the extent of infringement, but only as to the fact of infringement at all. Upon the evidence as to that, although it was fairly debatable, it is found that the defendants have infringed to some extent. Let a decree be entered for an injunction and an account, according to the prayer of the bill, with costs.

Frederic H. Betts, for the plaintiff.

William A. Coursen, for the defendants.

THOMAS SIMS vs. ELIAS SIMS.

Subdivision 3 of § 639 of the Revised Statutes, in regard to the removal of causes, is not repealed by the Act of March 3d, 1875, (18 U. S. Stat. at Large, 471.)

Where a suit has been tried in the State Court and a judgment had for the plaintiff, and such judgment has been reversed, on appeal, and a new trial or VOL. XVII.-24

Sims v. Sims.

dered, and proceedings, by the defendant, to remove the cause into this Court, are taken before the new trial is had, the application for removal is made before the trial or final hearing of the suit," and in time, under said subdivision 3.

(Before BLATCHFORD, J., Northern District of New York, December 23d, 1879.)

BLATCHFORD, J. The petition for removal in this suit makes out a case falling strictly within the provisions of subdivision 3 of section 639 of the Revised Statutes of the United States, and the affidavit required by that subdivision was filed. The petition and affidavit were filed before "the trial or final hearing of the suit." The proper bond was given. The State Court accepted and approved the bond and made an order of removal.

This suit is an action at law, sounding in damages, for breach of a contract. It was tried in the State Court, and the plaintiff had a money judgment, in April, 1875. That judg ment was reversed by the Court of Appeals of New York and a new trial was ordered. The remittitur or mandate from the Court of Appeals was filed in the Supreme Court, where the suit was pending, and an order was entered by that Court, December 30th, 1878, ordering a new trial. The proceedings for removal were taken before any new trial was had. The petition for removal alleges that the cause" is now at issue and pending for trial" in the State Court. This, in connection with the other allegations in the petition, as to the history of the case, is a substantial allegation that the new trial has not been had. Under these circumstances, the application for removal was made in time, under said subdivision 3. (See the authorities collected in Dillon on Removal of Causes, 2d ed., p. 54, n. 82.)

The petition for removal refers to the Act of March 2d, 1867, (14 U. S. Stat. at Large, 558,) now subdivision 3 of seetion 639 of the Revised Statutes, and to the Revised Statutes, as being provisions of law under which the removal is sought. It only remains, therefore, to consider whether subdivision 3 of section 639 is still in force, not repealed by the Act of

The Chicago, St. Louis and New Orleans Railroad Company v. McComb.

March 3d, 1875, (18 U. S. Stat. at Large, 471.) I do not deem it necessary to go into a full discussion of the question, as that was done by the late Judge Ballard, in Cooke v. Ford, (4 Central Law Journal, 560.) He came to the conclusion that that subdivision is not repealed by the Act of 1875. No binding or satisfactory decision to the contrary is cited, and I concur in that conclusion. This is the view of Judge Dillon, (Removal of Causes, 2d ed., pp. 28, 29,) and he there states that it has been so decided "in the 8th Circuit, by Mr. Justice Miller, and generally in the Courts of that Circuit, and, so far as we are advised, by the Circuit Courts elsewhere."

I have considered the other points urged as grounds for remanding the cause, and do not deem it necessary to comment on them particularly. They are overruled.

The motion to remand is denied.

James C. Strong, for the plaintiff.

A. G. Rice, for the defendant.

THE CHICAGO, ST. LOUIS AND NEW ORLEANS RAILROAD COMPANY

vs.

HENRY S. McCOMB AND THE SOUTHERN RAILROAD ASSOCIATION. IN EQUITY.

In determining, under the first clause of § 2 of the Act of March 3d, 1875, (18 U. S. Stat. at Large, 470,) whether a suit is one in which there is a controversy between citizens of different States, the condition of the controversy when the petition for removal is filed is what is to be considered, and not its condition at a subsequent time. There must be a controversy between citizens of different States when the petition is filed, and all the parties on one side of such controversy must unite in the petition for removal, and they

The Chicago, St. Louis and New Orleans Railroad Company ». McComb.

must all then be of different State citizenship from any of the parties on the other side of such controversy.

A corporation defendant, which is not a real or actual or necessary party, but is a merely formal party, to the controversy in the suit, as such controversy stands when the petition for removal is filed, is to be considered as not a party.

The controversy is to be judged of, in part, by the pleadings, if any, which had been put in, in the State Court, before the filing of the petition for removal. In a suit by a corporation of one State against a citizen of another State, it is sufficient, in a petition for removal by the defendant, under the first clause of said § 2, to state, that the defendant is a citizen of such other State, and it is not necessary to state that he was such citizen when the suit was commenced. Nothing had transpired, in pleading or evidence, since the case came into this Court, to show that said formal defendant ought now to be held to be an actual, real and necessary defendant; and a motion to remand the cause was denied. (Before BLATCHFORD, J., Southern District of New York, December 31st, 1879.)

BLATCHFORD, J. The defendants in this suit filed in the State Court in which the suit was brought a petition for its removal into this Court. The petition was that of both of the defendants. It set forth, "that the plaintiff is, as alleged in the complaint, a corporation, existing under the laws of the States of Louisiana, Mississippi, Tennessee and Kentucky; that the said Henry S. McComb is a citizen of the State of Delaware, and that the defendant, the Southern Railroad Association, is a corporation existing under the laws of the States of Mississippi and Tennessee; that the said action was commenced against the defendant Henry S. McComb alone, by the service of a copy of the summons and complaint therein upon the said Henry S. McComb on the 28th day of May, 1878, and that said defendant has not yet appeared in said action; that no service of process in said action has yet been made upon the defendant, the Southern Railroad Association; that the matter in dispute in this action exceeds, clusive of costs, five hundred dollars; that it relates to certain railroad bonds amounting to over $475,000 in par value; and that a controversy has arisen in this action between citizens of different States, and the defendants desire to remove the said action from this Court to the Circuit Court of the United States for the Southern District of New York, in which Dis

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