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McCloskey v. Cobb & Co.

State where the suit is brought and a citizen of another State." It may be competent for Congress to impose this restriction, but it is a fair inference that it was not contemplated by the framers of the constitution. That instrument does not make it a requisite of jurisdiction that either party should be a citizen of the State in which the suit is brought; nor is it apparent that, in cases of joint liability, it should be required on any principle of public policy.

But, if it be conceded that under the act of 1789, jurisdiction as to the defendant Cobb could not be exercised, it is clearly conferred by section 1 of the act of February 28, 1839. It provides "that where in any suit at law or equity, commenced in any court of the United States, there shall be several defendants, any one or more of whom shall not be inhabitants of, or found within the district where suit is brought, or shall not voluntarily appear thereto, it shall be lawful for the court to entertain jurisdiction, and proceed to trial and adjudication of such suit between the parties properly before it; but the judgment or decree rendered therein shall not conclude or prejudice other parties not regularly served with process, or not voluntarily appearing to answer."

The scope and intention of this section has been often considered by the Supreme Court, as well as by the circuit courts, and it is not necessary to reproduce their views in regard to it. Under the restrictive clause of section 11 of the judiciary act of 1789, before adverted to, great inconvenience and difficulties had been experienced in joint actions where some of the defendants were not inhabitants of the State or district in which suit was brought, or were not served with process within it. Acting under the doctrine of the common law, that all the parties to a joint contract must be sued, the courts held that they could not render judgment against those within the district where suit was brought, unless the other parties to the contract were made parties to the suit, and were brought within the jurisdiction of the court by the service of proper process.

McCloskey v. Cobb & Co.

As to parties in regard to whom there was no jurisdiction given by law, it was properly held by the courts that consent could not give it. The act of 1839 obviously conferred jurisdiction in a class of cases in which it did not previously exist. And it barred a joint contractor, not a party to the judgment, from asserting as a defense that the debt was extinguished by a judgment against one or more of the joint debtors.

In the case of the Louisville, Cincinnati and Charleston Railroad Co. v. Letson, 2 Howard, 497, the court held distinctly that the act of 1839 enlarged the jurisdiction of the courts; and under the authority of that case there is no doubt that this court has jurisdiction of the defendant Cobb. The railroad company in that case was a corporation created by a law of South Carolina, and Letson, a citizen of the State of New York, sued the corporation, in the Circuit Court of South Carolina, for an alleged violation of a contract with him. The railroad company interposed a plea to the jurisdiction of the court, on the ground that certain persons were stockholders in the company who were citizens of North Carolina and not subject to the jurisdiction of the court in that suit. The plea was demurred to, and was sustained by the Circuit Court. The case was taken to the Supreme Court by writ of error, and the judgment of the court below was sustained.

Now, although that was a suit against a corporation, one of the questions arising in the case, and decided by the court, was the same as that involved in the present motion. The plaintiff Letson was a citizen of New York, and sued the railroad company in South Carolina. The court held that the residence of some of the corporators in another State did not take away the jurisdiction of the court. In their opinion the Supreme Court, as one ground of their judgment, hold that under the act of 1839 the court below had jurisdiction of the case. The court say, in reference to that act, "that it enlarges the jurisdiction of the courts, comprehends the case before us, and embraces the entire

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McCloskey v. Cobb & Co.

result of the opinion we shall now give." And again: "If the act, in fact, did no more than to make a change by empowering the courts to take cognizance of cases other than such as were permitted in that clause of section 11 (of the act of 1789) which we have just cited, it would be an enlargement of the jurisdiction as to the character of the parties." "The general words (act of 1839) embrace every suit at law or in equity in which there shall be several defendants, any one or more of whom shall not be inhabitants of, or found within the district where the suit is brought, or who shall not voluntarily appear thereto." The result of the doctrine affirmed by the Supreme Court, as I understand, is, that the act of 1839 modifies or supersedes the clause in section 11 of the act of 1789, limiting the jurisdiction of the courts to suits "between a citizen of the State where the suit is brought and a citizen of another State," and enlarges the jurisdiction so as to embrace all suits against two or more persons involving a joint liability, although the plaintiff and one or more of the defendants are not citizens of the State in which suit is brought. This conclusion obviously presupposes, as necessary to the exercise of jurisdiction, that the parties, not citizens of the district where suit is brought, have been served with process within the district or have voluntarily appeared to the action.

In the present case these last requirements are both fulfilled: The defendant Cobb was served within the district, and also voluntarily appeared to the action. The latter proposition-the voluntary appearance of the defendantI think is clearly sustainable as a legal conclusion. He made no objection to the jurisdiction of the court until after he had appeared and filed his plea to the action.

The case of Taylor and Bond v. Cook and Spalding, 2 McLean, 516, involved substantially the same question presented in the present motion. The plaintiffs were citizens of New York; Cook was a citizen of Illinois, where the the suit was brought, and Spalding the other defendant, was a citizen of Missouri. The writ was served on Cook,

United States v. Morris.

and Spalding entered a voluntary appearance. It was objected in that case, that as the plaintiffs were citizens of New York, and Spalding a citizen of a State other than that in which the suit was brought, the court had no jurisdiction. Judge McLean held-properly, as I think-that under the act of 1839, the voluntary appearance of Spalding gave the court jurisdiction as to both the defendants.

It seems clear, therefore, that in the present case the service of process upon Cobb within the district gives jurisdiction as to him. This brings the case within the purview and intention of the act of 1839, and if the service of process within the district had not this effect, his voluntary appearance and putting in a plea to the action was a waiver of all exception to the jurisdiction of the court.

I have not thought it necessary to refer to the numerous cases cited by the learned counsel for the defendants. I am well aware that up to the time of the decision in 2 Howard, before referred to, the law on the question raised on this motion had been placed on a different footing from the decision in that case. But so far as that case touches the construction of the act of 1839, it has been received as authoritative. There was no dissent from the opinion of Judge Wayne on that part of the case, nor has it in any way been overruled or disaffirmed by the Supreme Court. The motion to dismiss the suit as to Cobb is overruled.

(CRCUIT COURT.)

THE UNITED STATES v. CHARLES N. MORRIS AND HENRY

BRACHMANN.

Suits for the recovery of the penalty prescribed by section 5 of the act of August 29, 1842, for affixing the word "patent" to unpatented articles, must be brought in the name of the informer and not in the name of the United States.

United States v. Morris.

Although the statute affixes a penalty for placing the word "patent" on an unpatented article, yet it must be construed to mean that such article, if not patented, was patentable.

To justify a judgment for a penalty for putting the word "patent" on an unpatented article, the declaration must allege, and there must be proof on the trial, that the article was legally the subject of a patent. As the statute is highly penal, it must receive a strict construction, and can not be held to embrace any act which, although within the strictness of its letter, is against reason and common sense.

It can not be supposed that Congress intended to attach a penalty to placing the word "patent" on any article which was frivolous in itself, and which imported no novelty, or the exercise of any inventive talent, and which could therefore deceive no one.

THIS was a demurrer to the declaration in an action of debt brought in the name of the United States to recover the penalty of one hundred dollars prescribed by section 5 of the act of August 29, 1842, for placing the word "patent" on certain business cards.

The facts sufficiently appear in the opinion of the court.

R. M. Corwine, District Attorney, for United States.

Lyman Walker, for defendants.

OPINION OF THE COURT:

The declaration in this case is in debt for a penalty of one hundred dollars, alleged to have been incurred by the defendants, and to be owing to the United States. There is a demurrer to the declaration on several grounds specified, some of which will be referred to hereafter. The question before the court is: Whether, from the averments of the declaration, the United States is entitled to a judgment for the penalty claimed, supposing the facts averred to be true.

The declaration sets out, in substance, that the defendants were publishers, for compensation, of business cards and other printed matter, on pasteboard and paper, at the city of Cincinnati, and that "with the intent and for the purpose of deceiving the public, and wit out having obtained

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