ELECTROLIBRATION CO. 11. JACKSON.
773
To make applicable the rule that the right to be sued in a particular district is a mere privilege, which may be waived by plea to the merits, the parties and subject of controversy must be within the general jurisdiction of the court as defined by the statute. To apply that rule to a case not within such general jurisdiction would be to affirm that consent can give jurisdiction, which manifestly cannot be done. The motion to dismiss the suit for want of jurisdiction must be granted, and it is so ordered.
ELECI'ROLIBRATION
Co.
V. JACKSON.
(Cflrcuit Oourt, W. D. Tennessee.
September 20, 1892.)
No. 444.
L
EQUITY l'RAOTICE-DEHURRER-SETTING II'OR ARGUMENT.
The failure of the plaintiff to set down a demurrer for argument on the rule day, when the same is flled, or On the next succeeding rule day, (according to eqUity rule 38,) it having been the practice of the circuit court for the western district of Tennessee to treat all days in term time as rule days, is not, in that court, suftlcienJ; ground for dismissing the bill. A bill which describes an invention as "a certain new and useful apparatus, fully described in the --letters patent hereinafter mentioned and named therein, ·'a new and useful improvement in thermo-electric batt!lries,'" and then refers t6 the letters patent by their date only, without giving the number, and withont referring to any record in the patent oftlce, by book and page, does not describe the invention with suftlcient particularity.' And the fact that the letters patent were iiledona ,for preliminary injunction. and are before the court, will not cure the ,defect; they are not a part of the record. Wise v. Railroad Co., 33 Fed. Rep. 277, aild Postv. Hardware Vo., 25 Fed. Rep. 905, approved. '.' , ,
I.
l'ATENTS-l'L1UDING-SUII'II'ICIENCY 011' BILL-DESCRIPTION 011' l'ATENT.
.. EQutTY PLEADIlfG-SUFII'ICIENCY OF' BILL-ExHIBITS.
The rule a bill in equity contain !l clear and explicit descT!ption, sufficient to'glve the defendant nobce of the SUbJect-matter of the complamt bim, is not abrogated by equity rule 26, whioh forbids. unnecessary recitals of doeuments; and, if exhibits are attached, the bill should contain explicit reference to them. ,,'
In Equity. Suit by the Electrolibration Company against John A. Jackson for infringement of patent. On demurrer to the bill.. Sustained. B.M. Estes, for complainant. Cooper & Pierson, for defendant. HAMMOND, District Judge. The demurrer, and the arguments upon it, present questions of technical nicety not often raised in these days of loose practice. Wehave a very elaborate code of some 90 or more rules of equity practice, promulgated by the supreme court under its powers in that behalf, intended to regulate with uniformity the practice in all the equity courts of the United States. Except in a general way, very Uttle attention has been paid to them, and I doubt if any case can be found in any of the courts where they have been scrupulously and exactly enforced, or where they have been even nearly followed. Be-
774. (Jur state$nd practiqe indistinguisha\;>ly, . The insi$t.\l th.at r.ule 38 has. not that this\;>i.UehQul.d. be pqwfdi#lr,nissed for suoh t,hllt" if shall not set dOWIl is filed, or on the rule ,lwshall be d;eem-ed to adr,nit the andJheJ)ill be dismissed of course, unless a judge shall' the time. Jones, Rules, 97. Taken in connec. tion with rule 33, the evident purpose was to speed the cause during vacation. Id. rule 94. For I take it that the reference to rule days generally implies that the proceeding is necessary on a rule day, because the court is not in. E\.ession,. and it cannot be .otherwise taken before the clerk or master Jpon a rule das held for'that purpose. Our state practice makes every day in term tiJ;ne a rule day, und our lawyers have come to so treat it ill' this court as well, and I think properly; for certainly whatever may be done before the clerk or master on a rule day would be as well done before the court itself, if in session. And our court is so continuously in session,:owing to the.oonstant presence of one ohhe judges, thatthe practice of rule day orders haSfallen into d$uetude, very much as Mr. Gibson describes in relation to our state . practice also. Gibs. Suits Ch. § 1007, note. Here the plaintiff seeks to avoid the effect of rule 38 by stating that ,he applied to the deputy clerk to knoWif there was kept an order book, as 'required by equityrtJ.le 4, Jones, Rules, 69, and was told there was none. But on inquit''yofthe wetlnd there is an order ':book, .but· not an entry has been made in it for more than seven years. This could do the plaintiff tl.o good, because it doell not appear that he applied to the clerk. to enter an order setting the . demurrer down for argument upon a rule day, and could not comply with the rule, because there waS not an order book, under rule 4, but orl1y that since the application to dismiss was made for noncompliance with rule 38 he has discovered that the order book was not kept. Obviously, if the fact were so, it would not avail him to escape the penalty of the rule, because he made no attem..pt to comply which failed for want of a book; and, if he had, the bookcould hav.ebeell immediately supplied for the ,occasion. But I think the penalty has not been incurred for the other .reason. Theoretically, under rule 1, Jones, Rules, 67, the courts of 'equity "shall be deemed always open,,,: etc. In fact, the court is nearly always open in this district, and the habit is quite universal to do in open court what these uJlow to. be' done on rule days, and hence been quite useless. Owing to.thesummer vacation, the arid prolonged sickness. in the family of the judge, the argument of this demurrer has .been delayed, .DO doubt, and the .courtshould exercise its power, und.er ru.le 38, tQ:enlarge the time if necessary. But this need not be done, because the practice hMbeen followed which generally obtains, and the :argument has been had here and now. No formal order in writingup0/:l the minutes is necessary to set the demurrer down for argument, thoughtbat would be a better practice, no doubt. as it would and .bee.Il;
ELECTROLIBRATION CO. V. JACKSON.
775
be to set an equity case down for hearing formally, whiGh is rarely done at all. When the case is ready for hearing, or the demurrer or plea is ready to be argued, the parties a:ppear,informally, in <Jonrt, arid proceed with the matter, no attention being' paid to a formal entry setting the hearing down in writing On the minutes, order book, or docket. That practice, regular and proper as it may be, does not and has never obtained among us; The minutes show that the demurrer or plea wasargned, or the hearing finally had, as the case may be, and by necessary implication the proper scttingdoW'rl is and may be assumed, as it will be in this case; and the application to dismiss the bill for noncompliance with rule 38 is refused. ground of demurrer, that thebilldoes.not allege that the The plaintiff has been in the undisputed possession of the invention for some lengthoftime, is overruled for the same reasons given upon the application fora Preliminary injunction, when the point was taken and not tliinedj and s6 the third gt6undof demurrer, that the bill is without equity, is overruled' forthei'easoris 8lso stated upon the application for injunction, when that matter was also fully arglledand determined. This leaves the first ground of demurrer, which I think is well taken, but it is easily cured by an amendment, to which the plaintiff is entitled, al:l a matter of right, under our statutes, and it has leave to amend in that regard. The point is that the bill has not described the invention with that certainty which good pleading requires to put the defendant upon notice of that which is complained against him. The bill is said to follow the form laid down in Walk. Pat., and to have been drawn by an expert patent lawyer; but, while this may be so, it cannot prevail against the adjudication in Wise v. Railroad 00., 33 Fed Rep. 277 , directly in point upon this question, which decision is, in my judgment, well grounded upon principle and authority, as is POBt v. Hardware 00., 25 Fed. Rep. 905. The bill in this case thus describes the invention which is the subject of the controversy,-"a certain new and useful apparatus, fuily uescribed in the specifications of the letters patent hereinafter mentioned, and named therein' a new and useful improvement batteries. '" Itthen states the date of the letters patin ent to be March 31, 1891, says they were signed and sealed by the secretary of the iriterior, and countersigned by the commissioner of patents, and granted the exclusive right to make, use, etc., for 17 years. It does not even give the number, nor refer to any record in the patent office, by book and page, to which the defendant might resort for fuller informAtion.. There might be any number of patents of that date for improvements in thermo-electric batteries, and even any number granted to Webb, described as the original patentee. It is perfectly plain that defendant, under Buch general allegation, would have to Eearch the patent records from beginning to end, to be sure that he had all they disclose about improvements in thermo.:electric batteries of that date to to the patent office at Webb. But the defendant is not required to all, and should not be, for this fuller information. The bill should dis-
776 clo§e it.
FEDERAL REPORTER,
vol. 52.
It is not required thllt at his own expense .he shall search
at Washington for the description of the plaintiff's inventiQIil,:,{or aQ ,infringement of w issuiIlg him. It would pea:\'ltl9pg to him if this were so. , Good requires that the bAl;'on of it, should ,give him this with reasonable fullne§S, any trouble or upense to him for searching records to the deficiencies of description and information. This is the rule of pleading, at law and in equity, a,nd it is plain that this dl'l$crjption does not,without such labor.and expense, give the defendanta,ny reasonable notice I)f the character and nature of the plaintiff's invention or improvements. The. says that the should make of the letters and the plaintiff replies that "profert" is unknown to equity Technically, this IpI1Y be, so, but the equivalent of profert is knQwnj and whenever the law pleading must make profert, the equity pleading must allege and prove with fullness ,'ilnough to give all the benefit that profert wOUld give, .anc1 ,under a rule the production of the documeD,t would be compelled.. this is beside the question, in my judgment. It is not a question of profert, or of the right of the plainat .all, but only one offnllness in pleading. tiff to see the of the ordinance in chancery Neither is it necessary to, violate . again,at "stl,lffing" a bill with the. ;writings in haJc verba, invoked by coun$eLStory, Eq. Pl. § 266j Eq¥ity Rule 26. While there should be no 'Ver:bosity, there sbould be clear, explicit, and sufficient descriptioQi it9 give the defendant notice of. the subject-matter of the complaint. Rule 26 had not abrogated this requirement. At to exhibits, they a,fe a.mere matter of indulgence. In good pleading, strictly, the bill should give the l'equisite full information of itself; but indulgence to loose practice ll,Pd convenietlce has allowed exhibits with explicit reference to them in the bill, and they J?1ay be referred to in a.id of the bill; b1,l't theyII).l1Y not be omitt!;!d altogether,. as here, and the pleader content pimself with ,a naked reference by ita dateio some document of a far-away place. In Harvey v. Kelly, 41 Miss 490, 493, the late Chancellor of'this city, who was an elegant pleader of the old schOOl" well versed in the law of good pleading, under both ancient and modern forms, says: "It is 'indeed admissible to a certain extent, in pleading in chancery, to file written evidence as exhibits. and to refer to them as a. part of the bill or anthat is material to the case swer; but good pleading requires should be forth in the pleading itself. by proper averments. This may be dorie in gener/ll terms, and the exhibit may be referred to for greater certaintyas to particular details, but the pleading ought to contain the subs nee oithe case." No authority says that an indefinite, general, and wholly undefined stntement. of the invention or other thing in controversy, without exhibiting the document describing it, shall. by mere reference to the document, stand for a specific, statement or description in the bill; or that agelleral statement; accompanied by an exhibit of the document, or a
MONROE
V.
BRITISH
&
FOREIGN 'MARINE INS.
CO.
777
copy of it, meets the rule of good pleading which we have above stated, with the reasons for its requirement. In Daniell, Ch. Pr., it is said that "it is usual to refer to the instrument in some such words as the following, viz., 'as by the said indenture, when produced, will appear,' and the effect is to make the whole document a part of the record." 1 Daniell, Ch. Pro (5th Ed.) 367j Id. (1st Ed.) 476. But this does not say that the bill in such a case shall not, by proper allegation, inform the defendant of the nature of the document, but is a rule to give the plaintiff the benefit of the averring part without reciting it in luec verba, or exhibiting it, as the author saysi and in the very next text he condemns the inconvenience of this indulgence, and says: "It is always necessary in drawing bills to state the case of the plaintiff clearly, though succinctly, upon therecordj and, in doing this, care should be taken to set out precisely tllOse deeds which are relied upon, and thol:le parts of the deeds which are most important to the case." 1 Daniell, Ch. Pro (5th Ed.) 368; Id., (1st Ed.) 476. It is true that on the motion for injunction the letters paten,t were filed as evidence, and the document is before us, among the papers in the case. But it is not a part of.ilie record. Not even the loose reference mentioned above is contained in this bill to make it a part, of tlIe rleading, which alone is the technical record. Reference to it is gailied by implication only, from the fact that its existence is stated. It is not llieaded at all. So found in the papers, it cannot aid this pleading. Demurrer sustained.
)!ONROE v. BRITISH & FOREIGN MARINE INS. Co., Limited. SAME v. UNION MARINE INs. Co·· Limited. (Circuit Court otAppeaZs, First Circuit. October 5, 1892.)
Nos.7'.S. 1. MARINE INSUBANCE-" ABSOLUTE TOTAL -Loss "-ABANDONMENT. Under a marine policy insuring against "absolute total loss only," a partial loss cannot be converted into a constructi-ve total loss, and evidence of abandonment is immaterial. 2. SAME. A shipment of cattle insured agoainst "absolute total loss only" was In part jettisoned, the vessel having struck upon a reef. Part of the jettisoned cattle reached shore, and were taken possession of and sold by a salvors' association, whicb. had been employed by the underwriters to 1/:0 to the wreck and act for the interests of all concerned. with an agreement tb.at they should have a lien on the property saved, with power of s1'le for their reimbursement, but it did not appear for what reason the sale was made. HeW, that the owner of the cattle could not reco-ver on the policy, in the absence of proof that tb.e underwriters directed an unanthorized sale, or that salvage was actually claimed and the sale made in satisfaction thereof, and that he could not by due have disoharged the lien of the ealvors, and tbus secured the remnants of the cargo. 8. SAME-JlITTISON OF CARGO. Ajettison of cargo, either ,to lighten ship or for the purpose of being saved, does Dot of itself constitute an "absolute totallos8, " within the meaning of a marine insurance policy, when part of the goods are in fact saved.