« ZurückWeiter »
this motion (as well as by motions made by other defendants) have been examined, and the court is of the opinion that each is either a matter of evidence, has been sufficiently set forth by the indictment, or is information with respect to acts and conversations of which each defendant "must be in position to have as much information as any. body could have as to whether they did or did not occur.” United States v. Gouled, supra, 253 Fed. at page 241. See, also, United States v. Pierce (D. C.) 245 Fed. 878.
In determining this motion, the court is not unmindful of the fact that it is agreed by all that this will be a long trial, continuing for some weeks. It is expected that the trial will start in two weeks, and the defendants will have practically as much time after the trial begins and the evidence of the government is presented to prepare their respective defenses as though a bill were now ordered.
Much of what has been said applies to the motions made by various other defendants for bills of particulars.
In the exercise of discretion, having in mind that the object of a criminal trial is not only to shield the innocent but to convict the guilty, and in the belief that the government would be too seriously hampered and prejudiced if compelled at this time to limit its proof to the statements contained in a bill of particulars furnished by it, and in the further belief that each defendant will be able to prepare for trial adequately without a bill of particulars, the motion is denied. See Evans v. United States, 153 U. S. 584, 590, 14 Sup. Ct. 934, 38 L. Ed. 830.
LOW et al. v. MCMASTER.
(District Court, E. D. Pennsylvania. February 3, 1919.)
COURTS 347–FEDERAL COUBTS-MULTIFARIOUSNESS-RULE OF COURT.
Injunction bill by three plaintiffs, based on three patents, one belonging to three plaintiffs, others belonging to but two, held not multifarious, though disclosing more than one cause of action; such causes being joint within equity rule 26 (201 Fed. v, 118 C. C. A. v), which is not to be interpreted as prohibitive of anything permissible in chancery before its adoption. In Equity. Bill for injunction by Arthur B. Low and others against Henry McMaster, doing business as the Presto Patents Company. On motion to dismiss. Motion denied.
H. S. Johnson, of St. Paul, Minn., and Jos. B. Englander and Howson & Howson, both of Philadelphia, Pa., for plaintiffs.
Alfred E. Freeman, of Philadelphia, Pa., for defendant.
DICKINSON, District Judge. The motion is based upon the averment that the plaintiffs have set forth in their bill of complaint no cause of action. This is because the cause of action stated does not belong to the plaintiffs. More particularly the basis of the motion is For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
that there are three causes of action set forth, only one of which belongs to the plaintiffs. In still other words, the position of the counsel for defendant is that the bill is multifarious. This is because, not merely that more than one cause of action is sought to be incorporated in one bill (which it is admitted does not of itself render the bill multifarious), but because there is more than one plaintiff, and the several causes of action are not joint, as they must be in order to have the several injuries complained of redressed in one proceeding.
The real question involved is embraced in the following formulation of the facts and the question arising out of them: Three letters patent have issued, and the defendant has infringed the property rights granted by each patent. One of the patents belongs to A., B., and C. The others belong to A. and B. Can A., B., and C. maintain a bill based upon the complaint of these three several infringements? The pertinent equity rule is 26 (201 Fed. v, 118 C. C. A. v).
To find a beginning to the line of reasoning which leads to the conclusion we have reached, we commence with the finding that the requirement of rule 26 is (as defendant contends) that each cause of action set forth must belong jointly to the plaintiffs in the sense of embracing the thought that each, every, and all of the plaintiffs must have an interest therein. In strictness, and in the sense in which defendant employs the term, all the causes of action which have been joined in this proceeding are not joint. It is, of course, desirable, as counsel for plaintiff urges, to have the controversies between the parties set at rest by one proceeding, instead of resorting to two or more. This may even contribute to the convenience of the defendant, while preserving all its rights. We do not see, however, that these considerations lead to the conclusion at which counsel for plaintiffs aims.
However desirable the result, and however much the proceeding may be to the advantage even of the defendant, we cannot force the hand of the defendant, unless the procedure is in accordance with the accepted practice in equity, and we must leave it free to decide what is for its advantage. The utmost effect such considerations can have is to incline the courts to uphold such procedure when it can be done.
All the plaintiffs in the instant case are jointly interested in the patents with which we are concerned, except Miles. He has suc terest in one of the patents as necessarily to be a party to any proceeding affecting that patent. His interest, although that of the legal owner of the title, is practically that of a pledgee.
Under the averments of the bill the infringing device of the defendant is a trespass upon the rights of all the plaintiffs. The fact may, of course, be found to be that the patent in which the plaintiff Miles is interested has not been infringed. We can, however, view the cause of action only as it is set forth. We have, therefore, a case in which all the parties have a common interest in respect to the points of litigation presented, and in which a decree can be entered binding all. We think this to be the sense in which rule 26 requires that “the causes of action joined must be joint.” This must be so, because rule 26 is not to be interpreted as a prohibitive of anything which was before its adoption permissible in chancery practice in the direction of reaching
desirable results. Rules 37, 43, and 44 (198 Fed. xxviii, xxx, 115 C. C. A. xxviii, xxx) throw light upon the propriety of including Miles as a party plaintiff, although they have no direct bearing upon the question here raised, which is not who may become a party plaintiff, but the right of all of them to ask redress in the one proceeding.
Our view is that all the causes of action joined in this bill are joint within the meaning of rule 26, and we are influenced to take this view because the bringing of the bill as it has been brought is in accord with the practice recognized before the promulgation of the present equity rules, and there is nothing in rule 26 which conflicts with the former practice in this respect. Huber v. Myers (C. C.) 34 Fed. 752. Judge Ray's interpretation of the ruling there made confirms us in the view taken. Kaiser v. Bortel (C. C.) 162 Fed. 902.
We do not regard Waterman v. Mackenzie, 138 U. S. 252, 11 Sup. Ct. 334, 34 L. Ed. 923, as in conflict with the practice to which reference has been made. The court below ruled that the bill could not be maintained without joining as plaintiff an assignee of the patent, notwithstanding the fact that such assignment was by way of mortgage. Neither this ruling nor anything in the very clear opinion of Mr. Justice Gray, accompanying the affirmance of the decree dismissing the bill, touches the point now raised.
On the other hand, Brown v. Guarantee Trust Co., 128 U. S. 403, 9 Sup. Ct. 127, 32 L. Ed. 468, recognizes the propriety of disposing of several causes of action in one bill. Whether, in a given case, it is permissible depends upon the special fact conditions there presented.
We think the fact conditions presented by the bill in the instant case gives to the plaintiffs the right to seek redress for the wrong complained of in one proceeding. Although it be true that in presenting their complaint they disclose more than one cause of action, the bill is not, for this reason, laid open to the objection of being multifarious.
The motion to dismiss is denied.
UNITED STATES V. LAZZARO et al.
(District Court, W. D. Washington, N. D. November 5, 1918.)
1. INTEBNAL REVENUE CA-LIQUOR BUSINESS Tax-OFFENSE FOR VIOLATION-PROHIBITION STATES.
Comp. St. § 5966, declaring the offense of engaging in the liquor business without having paid required revenue tax, which payment section 5970 provides shall not authorize the business in any state contrary to
its laws, is applicable in a prohibition state. 2 INTERNAL REVENUE 4-LIQUOR Tax-STATUTES.
The Webb-Kenyon Act (Comp. St. § 8739), merely reinforcing the state statutes with relation to illicit liquor dealers, and the Reed Amendment of March 3, 1917 (Comp. St. 1918, $$ 8739a, 10387a-10387c), giving federal cognizance and fixing a penalty for violation, are merely cumulative, and not out of harmony with applicability of Comp. St. § 5906, the primary purpose of which is revenue, to prohibition states. For other cases see same topic & KEY-NLABER in all Key-Numbered Digests & Indexes
Dominick Lazzaro and others demur to indictment charging violation of Internal Revenue Law, as to liquor business tax. Demurrer overruled.
Robert C. Saunders, U. S. Dist. Atty., and Ben L. Moore, Asst. U. S. Dist. Atty., both of Seattle, Wash.
George H. Rummens and Walter B. Allen, both of Seattle, Wash., for defendants.
NETERER, District Judge. The defendant is charged with violating the Act of February 8, 1875, c. 36, § 16, 18 Stat. 310 (U. S. Comp. Stat. § 5966).
[1, 2] Counsel challenge the sufficiency of the indictment. It is contended by the defendants that the laws of the state of Washingtori declare the public policy of the state, and, since the sale of intoxicating liquor is prohibited, the government of the United States would not issue a permit or license in contravention of this law, becoming thereby a party to this violation.
The provisions of section 5970, U. S. Comp. Stat., requiring the payment of special tax, does not authorize the carrying on of the business in violation of state laws. The contention that effect must be given to the license against the law of the state must fail. McGuire v. Massachusetts, 3 Wall. (70 U. S.) 387, 18 L. Ed. 164.
Where Congress has power to regulate trade, of course it may do so by license, and, when so regulated, the license carries with it authority to do what its terms provide. This would apply to interstate commerce, etc., and "every other power of Congress to the exercise of which the granting of licenses may be incident." License Tax Cases, 5 Wall. (72 U. S.) 462, 18 L. Ed. 497.
The state has exclusive power over domestic trade of the states. The Webb-Kenyon Act March 1, 1913, c. 90, 37 Stat. 699 (section 8739, U. S. Comp. Stat.), merely reinforces the state statute with relation to illicit liquor dealers, and the Reed Amendment of March 3, 1917, c. 162, 39 Stat. 1069 (Comp. St. 1918, S8 8739a, 10387a-10387c), gives federal cognizance and fixes a penalty for the violation.
These acts are merely cumulative and not out of harmony with the Revenue Act, supra, whose primary purpose is to raise revenue.
This act, as stated, does not grant a right to carry on business, but fixes a penalty for engaging in business without having paid the tax, and this applies uniformly to all the states and territories.
The demurrer is overruled.
The following cases are cited by defendants: Ledbetter v. U. S., 170 U. S. 610, 18 Sup. Ct. 774, 42 L. Ed. 1162; U. S. v. Rennecke (D, C.) 28 Fed. 847; U. S. v. Jackson, Fed. Cas. No. 15,455, 1 Hughes, 531; U. S. v: Logan, Fed. Cas. No. 15,624; U. S. v. Bonham (D. C.) 31 Fed. 808; U. S. v. Angell (C. C.) 11 Fed. 34.
In re GRAFF et al.
Petition of PEOPLE'S TRUST CO.
(District Court, E. D. New York, August 9, 1918.) BANKRUPTCY 228—REVIEW OF ORDER OF REFEREE-Scope.
On a petition to review an order of a referee, the court will not review the order under wbich the matter was referred to the referee for hearing. In Bankruptcy. In the matter of G. Edward Graff and Thomas F. Nevins, individually and as copartners as G. Edward Graff & Co., bankrupts. On motion to confirm order of referee and petition of the People's Trust Company to revise said order. Motion to confirm granted.
Petition to revise dismissed 255 Fed. 241, C. C. A.
J. Herbert Watson and Michael M. Helfgott, both of Brooklyn, N. Y., for the motion.
Walter H. Merritt and David W. Kahn, both of New York City, opposed.
GARVIN, District Judge. This is a motion to confirm a report and order made by Virtus L. Haines, Esq., referee in bankruptcy, finding that the People's Trust Company, as executor of Edward Johnson, deceased, is not a creditor of the bankrupt herein ; that such property of the former bankrupt Nevins as may have come into the hands of the trustee is surplus property to be disposed of as provided by the Bankruptcy Act (Act July 1, 1898, c. 541, 30 Stat. 544 (Comp. St. $$ 9585-96561), and directing the trustee to deliver to Thomas F. Nevins, the former bankrupt, such property of the latter as may have come into his possession, and for that purpose to execute and deliver all necessary instruments to effectuate such transfer.
In 1901 Graff and Nevins became bankrupts, and thereafter in 1903 the estate was closed and the trustee and the bankrupts were discharged. Johnson, while the estate was being administered, became the owner by assignment of every claim filed except one (for $12) which was paid, and, subject to the payment of the expenses of administration, received all the property of the estate in the hands of the trustee, which was not sufficient to pay in full the filed claims. In 1916 the People's Trust Company, claiming to be a creditor of the bankrupt, as executor of Edward Johnson, then deceased, made an application to reopen the estate, alleging that there were assets still in the hands of Nevins which should have been scheduled in the bankruptcy proceeding and delivered to the trustee. The court denied the application to reopen, finding that Johnson was not a creditor of the bankrupt's estate, and in the order of denial directed that the former trustee execute a document validating the title of Nevins to the assets which were in his hands. On appeal, the Circuit Court of Appeals, after holding that the finding of the court below that Johnson was For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & andexes