'rHE PROGRESSO··i
239 !NsT., Limited. '
" ,·rL. COOP
et al.
11.
DR. SaVAGE PIIYSICAL "' .
DEVELOPMENT
(Circuit Qourt. B.'.D. Nm» .; PATEN'1'S
Novembln'NT,1891.) , r :' .
..
Where a bill for infrinlifinga pateh1. for an iniJlrovement iilwalking tracks for gymnasiums propounds mterrogatories as to whether defendant is using. a track ot a particular construction, and, if not, of what, colllltr.llctJ.on, they must be answered by stating the facts, and a general denial jOf-. infriilgeD1ent is insuft1cient. : : · < , \
A:KJ' ANSWEB.
'I
'
·
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In Equity. Bill by William L. Coop and others against the Dr. SavDevelQpment Institute,. Limited, for of a ,patent. " On,exceptions to' answer. Exceptionll .' . F'cruif,ir It Pawler and OM:rle8 N.!rud8on, for plaintifl8. ' Kiddle, " , . . :1; '. . ,," :: . ,
for
.,this ,s#it lshr9Qght upon I " '
,
No. ,358",48$
",illking
Of a'·pii.r:ticular coristniCti,:)[i,and, .if any
to
'whatother, cdnstructiQn,were anrlexed. to, the
hemada"and of that, of t9 be An,.
.'the dt:lfellQaIit,'4as
genet-
ally,without otherwise'aoswenng'the interrogatories, and the answerjs for this laQk., r he!1 rd .,1'he popproved on hellrd by J udge MAN'. ' O¢p v 47 Fed: ReP. 899:'. The deni$l.ofipfringement 'is a' cOllcI sion, and'not an of factij ;ftom Whtch'it is ' Thb may foilow factawhen'.giveIl, whethei'it 'd()es riot in tbecas'e. The plaintiffs eiiiitledJo the andn9t to' b.Y'the wI1chiSion, or comeit.'· .''', , , " . , ' ,'" . , ' '.,
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THE PROGRESBO. STREET
et al. "'.
THE PROGREBSO.
(Dfstrk:t Ccrunt, E. D. Pennsylvania. September 21, 1891.)
1.
WITNESSES-FEES AND MILEAGE IN ADMIRALTY CASES.
In admiralty causes in the eastern district of Pennsylvania, mUeage will not be allowed to witnessea from beyond the district, as to 100 miles of the distance. AND MILEAGE 011' PARTY.
S.
A party is not entitled to either witnesa fees or mileage when bill presence has Dot been required by the opposite party.
240
FEDERALUPORTER,
vol. 48.
In Admiralty. Libel by Street Bros. against James M. Waterbury, ownertlt thesteam·ship Progl'esso.: Upon cxceptions{to the'.clerk's:tax.. ation of costs. I.Jibelants claim ;witness fees and mileage from Charleston to Philadelphia and return for Thomas Street, one of the libelants; also witness, Paul Fattnan, the sitmepla:ce and return. The clerk disallowed Street's witness fees and mileage, and Fatman's N. Duboj,s Miller and Biddle ,Oouqfan-qc1)river, for,
tqp mUes.' ',', ,
Ward, for libelants. . ! '
"
be dismiSsed. As respects the mileage of witnesses pJ;Qu,ght(roXA beyond the district, the clerk's 'ruling corresponds with our practice. 'Depositions JP.ight have been taken abroad and the costs avoided. Inasmuch as the testimony could only depQsitioBlj . p.o ad vantal1e .ill. b,ringing the witness here.. rule onthul SUbJect IS pot barmomou!l' throughout the coun-
?1'
Jred. 115; Woostr v· Hill, 44 Fed. v. F,el1. Rep. 70; 1Juffalo Ins. 00. v. ProvStonington Steam-Ship Id. 237,-tho'subject was fully dis, '" .' '''"',, ... ' , ,',.., As the libelllllt for his, atfendlmceas a, the, is ,sus'tained. 'Or<,linarUy, where a party is '"his preseh?e. neceao'wu behalf,whetper hIS personal testImony IS reqUired or Dlust absent himself, and 'Yget:e he does notayail PlJnselfof the thus afforded his interest in tliecause generally. 'Parties have not been allowed witness fees in this district, and I think should not be, except in case their presence is required by the other side. .
.
'I.,
j
mCHMOND 'D. BROOKINGS.
241
RICHMOND tI.· BROOKINGS.
(O-lrcuf,t Court, D. Rhode Island.
November 28, 1891.)
REMOVAL OF CAUSES-DIVERSE CITIZENSHIP-FOREIGN ATTAOHMENT.
So
Altbougb tbe judgment in an action commenced [n a state court apinet a nonresident by foreign attachroent without personal service can bind the property only, and .not the person of the defendant, yet the latter is a party to the suit insucb senEathat tbesame may be removed to the federal circuit court on the ground of divt;lrse citizenship, If the defendant could not in such case be considered a party for the purposes of removal, this would not be a ground for dismissing tbe cause in the federBJ. court, but only fpr rerolUlding to tbe state QOurt., Ol!' CIRCUIT COURT-NoN-RESIDENT OF DISTRIOT. .. . ,
BAME.,.-DISMISSAL.
8.
Act .cong. 1888., § 1, .(25 at. U. s. p. 433,) PI'.oVi.din g that no suit shan be brought . in the circuit cOilrt "against p,ny flarson by any original process.* * * in any other district tMn that whereof lie is an inhabitant, .. only to suits commenced in that court; and, in a caseremol'ed to it from a state·couFt, its jurisdiction.is not a1fected by the tact that was not a resident.of the district, and that the state court had acquired jurisdiction by foreign attacbmenf without peri. sona!" service. Barnk v. PagtJllBtecher, 44 Fed. Rep. 705, followed. .. 4. A'J'TAQ:lIMEl"IT OF LUD-BE:\1'v·rQB .01\" NON-RESIDENT. J.. . The Rhode ls1anl1. statu/:8 in regard to attaching real estate requires personal serVIce on the defendaIit or service by leaving a copy with' some person at his reslbe h!l<\,'e'uo rB$idence within the' precinct of,the oftlcer; then by mail· Ing a copy to him, and serving a like copy on the person, If anf, in possession of the real estate. Beld, that when the return shows serVice ofa non-resident by maiijllga copy to him, ;but allusion to serving any person in possession of the bmd, the court has no Jurisdiction. 5. SAME-AMENDING RETURN· . return -may., however, be amended 80 as to show that no person was in poe116s$O. of the land!!, upon. aiIldavits showing such to be the fact. 6. MOTION TO . The question whether the declilration states a cause of action cannot be consid· ered upon a tp dismin, bilt must be .raised by demurrer. .
At Law. Action by William H. Richmond against Wilmot W. Brookings,commenced rQry proceS$ foreign attachment. 0 n motion to dis miss. Conditional order of dismissal. E. D..Bassett, for plaintiff. .. H. ,panBon, for defendant.
a.
CARPENTER, J. This action was commenced in the conrt of common pleas for the county of Providence, in the state of Rhode Island, by attachment·of real estate of the defendant. The defendant was not personally.. served with process. He appeared specially, and filed a plea denying; .the jurisdiction of the court, and also a petition whereby the action was removed into this court. IJe now, still appearing specially, files a motion to dismiss the action "on the ground that he is not a resident or citizen of said stnte Of .Rhode Island, and was not found, or served upon personally with process, in said state or district of Rhode Island." In support of this motion the defendant first contends that this court can have no jurisdiction of any action wherein the defendant is not personally served with process, and cites Perkins v. Hendryx, 40 Fed. Rep. 657. I have already had occasion to consider this question in Bank v. v,48F.noA-16