JOHNSON
v.
MERRY MOUNT GRANITE CO.
569
will appear in the 4:;ourt from which the execution issued, and make good his title, return the property, or pay its value to the officer. 2 Hill's Code, § 491 et seq. Under said chapter, after property has been claimed, the affidavit is deemed to be denied, and the question of title to the property is treated as an issue to be tried and determined in the court from which the execution issued. The plaintiff has, by an affidavit and bond, attempted to defeat a leYy by the marshal upon certain property, under an execution issued out of this court upon a judgment in favor of Ralph S. Hopkins against her husband, H. Emanuel Levy, in an action by said Hopkins against said Levy to recover damages for a tort. The property levied upon con· sists of certain houses built by Levy upon property leased by him for an indefinite period,. and rent money collected by the marshal from persons occupying said houses as tenauts of said Levy. Other money on deposit in a bank to the credit of Lt:lvy, and made subject to the execution by notice of garnishment thereof, is also claimed by the plaintiff, which money, I find from the evidence, was eollected for rent of real to which the plaintiff appears by the record to have the legal title. the testimony I find the houses levied upon and moneys collected by the marshal to be the eommuuity property of the plaintiff and said H. Emanuel Levy. The real estate referred to was acquired by purchase while the plaintiff and her husband were living together as husband and wife in this state, with money which they together borrowed for the purpose; and, in my opinion, it is their community property, although the evidence shows that the husband intended to bestow his interest therein as a gift upon his wife. The rent thereof is community personal property. For the purpose of this decision, I assume that the debt for the collection of which the execution issued is not a community debt, and, under the decisions of the supreme court of this state, community real estate of the parties could not be subjected to this execution. But the decisions referred to interpret and give effect to the sec· tion of the Code which denies to a husband alone power to sell or incumber community real estate. Community personal property is not .affected by said section of the Code, and by another section the husband is given the absolute power of disposition thereof. The decisions of the supreme court, as I understand the same, carefully observe a distinction betv.'een community personal property and community real corresponding to the distinction which the statute has made in the provisions thereof affecting the husband's pOWel' of disposition. It is my conclusion, therefore, that the plaintiff has failed to establish her claim of title, and judgment must be rendered !or the defendanm. JOHNSON v. MEHRY MOUNT GHANITE CO.
(Cirouit Court, D. Massachusetts. No. 3,636. 1.
November 15, 1892.)
PLEADING-EQUITABLE DEFENSES IN ACTIONS AT LAW.
8t Mass. 1883, c. 223, § 14, authorizing equitable defenses to be set up in actions at law, being limited to the superior courts, is not a general rule
570
FEDERAL REPORTER,
vol. 53.
,law' actioilil.,' ' ,
Qt J1met!qe!JL@e,1Jtate, and not blpdlqgupon the federeJ'QOurts;and, morethat it.isst1.ll the generallaw,in 1;!assac)msetts ·that. Qrdl:p.aJ;!Jjr, defenses valld, oDly in -equity cannot be set up in common-
"
,- ,: , · ·
2. REL'EASIc 'AlIibbfsCHARG'E-RESCIsSI6:1!fl-TENDER;
A releasennder seal of plalntUr's cause of action for a money consldera. ti\ln Url1 COll1plete bar in this court to an action at law, even though fraud is alleged, in Qptaining the especially so unless it be shown that the, conSideratlllJl was tendered back lilefore the action was commenced, or that deteJ;idl1t1t was ,non compos mentis when he executed the release, and that' hiS unsoundness was' of 'a nature which prevented him from character 01: the transaction. c.efendant offj!red in evidence sf full, signed by plaintiff. Plaintiff thereupon offered to prove cerfuin facts,impeaching the release, one clauS{iijf' the, otrer heing "that the alleged release is not the plaintiff's conthiS offer, ,was too general to merit tlle attention of the court. ' · .A,CHMJ!lN.T OF RELEA,SE; On the trilll ot an actiontl.t law to recover damages for personal injurIes
8.
At Law.. Action by Andrew Johnson against the Merry Mount Granite O@mp(lJiy to recover damages for a personal injury. At the time of the ,injury plaintiff was on land adjoining the quatty, but not owned by the granite compa:ny, and was struck by a stone thrown from the quarry by a blast'i' There was a jury trial,and, after the evidence :fof both sides was in, defendant offered a written release, signed by the plaintiff. The jury was thereupon temporarily excused until the questions of law arising upon the release were disposed of. John:E.Hanly, J.F. LibbY;andW. B. Grant, for plaintiff. James E. Cotter, for defendant. PUTNAM, Circuit Judge. During the progress of this case on Thursday it became apparent that very important questions of law arose whieh might take the case from the jury, or, if it went to the jury, wouldfundamentaJ.ly affect the rules on which it would be submitted. Therefore, the jurors were excused until this morning, and on Friday the questions involved were carefully and thoroughly argued by counsel for the plaintiff and defendant. The conclusions which t ha'\Te reached require me to express my views on only one question. The defendant has offered a release by the plaintiff, which clearly covers tbiscause of action, and was executed September 18 or 19, 1891,-a few days before'the bringing of this suit, which was October 3, 1891., 'The,execution of the release was duly proved by the attesting , It is conceded that simultaneously with the, release the plaintm reCeived $310, and that at no time prior to the putting of the release in evidence was ,this $310, or any part of it, repaid or tendered to the defendant. The plaintiff makes an offer to prove certain facts for purpose of 4nReaching the release. He also offers to show that neither the plaintiff nor his counsel knew the terms of the release until it was introduced in evidence, and he "now offers to return- the money paid }lnder the said agreement in writing, together with interest frolIl the. date of payment." The first clause in the offer is. in words: "That the alleged release is not the plaintiff's,. contract." This is too general in its
JOHl\SON
MERRY MOUNT· GRANITE CO.
571
terms to require the consideration of the court The discharge, or paper of settlement, is under seal, and a release by a "Titing obligatory in due form of the most solemn character. Its execution was admittedly accompanied. by the payment of a substantial sum of IP.oney, which went infact into the hands of the plaintiff and his per· sonal possession. There is no offer to prove that the instrument was is to say, was not signed, sealed, and not technically delivered by the plaintiff; or that he in fact signed his name to one piece of paper, substituted by fraud for another which he supposed he was signing and intended to sign. Neither is there any effort to prove legal duress, nor anything else which, according to the ordinary rules of the common law, would prevent this release from being held as the plaintiff's deed, unless it be the matters which I will hereafter consider. In Trambly v. Ricard, 130 Mass. 259, cited by the plaintiff, the supreme court of this state seems to hold that, in a common-law suit, the party executing a deed may disaffirm it by showing that his signature was obtained by fraud; but the only federal case cited in that opinion is Selden v. Myers, 20 How. 506, which was in equity, and all the cases which I have been able .to find, decided by the supreme court of the United States, have been in equity. Some of them will be referred to further hereafter. In this connection I will observe that the plaintiff cites Massachusetts Statutes of 1883, c. 223, § 14. The effect of this citation is against the plaintiff, and not in his favor; as it shows that it is still the law in Massachusetts that defenses which are ordinarily valid only in equity, cannot be set up in common-law CO'lll'ts in this state without statute authority. This statute, being limited to the superior court, is not a general rule of practice in Massachusettstribunals, by which the federal courts are bound. Moreover. the law seems to be well settled that the federal courts are not bound by the local practice dividing jurisdiction between common-law courts and courts sitting in equity. 1'here are only two questions: First, whether the release is void or voidable on the ground that the plaintiff was of unsound mind as known to the law; and, second, whether it is voidable on the ground that the plaintiff was of weak intellect, enfeebled by the injuries which he received, and was imposed on, or by any improper methods induced to make an adjustment for an inadequate consideration. So far as the former is concerned, it must be shown that the plaintiff was non compos mentis,-that is, unsound in some one of the phases known to the law; and also that his unsoundness was of a character which prevented him from understanding the nature of the transaction resulting in the release. If this mental condition existed with the qualifications stated, it seems to be the law of Massachusetts that it can be set up as a defense to the release, without either tendering or returning the consideration. The plaintiff's offer to prove does not cover the proposition of mental unsoundness, or non compos mentis, and can be sustained, if at all, only in connection with the second proposition which I have stated. I think this latter issue cannot be made in this district in a suit at common law; and that, if the state of facts is as claimed by plaintiff,
572
FBDERAL REPORTER.
vol. 58.
plaintifi's only remedy.is by a bill in equity to set aside the release. The nature of such a proceeding, and the character of the facts nee. essary to be proven in it, are very well stated in Allore v. Jewell, 94 U. S. 506, and Conley v. Nailor, 118 U. S. 133, 6 Sup. Ct. Rep. 1001, and the other case in ·the supreme court already referred to. This defense seems to have no place in a court of common law, and to involve states of facts too complex to be properly weighed and passed on by a jury. Indeed, they frequently involve the balancing of one equity against another in a manner which a jury is not, in presumption of law, qualified to do. In a, late edition of the second volume of Greenleaf's Evidence, and also in a late edition of Chitty's Pleadings, fraud, as well as duress, is given. aR a defense under the plea of non est factum; and in this edition of Chitty, Whelpdale's Case, found in 5 Coke, 119, is cited in the notes as an authority. In the second edition of Chitty on Pleadings the defense of fraud is not listed; nevertheless, Whelpdale's Case is cited, and an examination of it will show that it touches only infa,ncy, duress, and deeds void by act of parliament, and does not include the defense of fraud. Some decisions ha;ve been cited from courts in states where, under Codes, ,there are mixed systems of law and equity; and therefore these cases are not in point, and they would hardly bind this court if they were. Also the plaintiff has cited Trambly v. Ricard, 130 Mass. 259, to which I have already referred. He has also cited Larrabee v. Sewall, 66 Me. 376, and states that the printed CMe shows-what the report does not show-that the instrument of discharge was a formal release under seal. Nevertheless, this question was not considered by the court, but the court describes the instrument merely as a "discharge;" and it is apparent from the case that the facts touching the obtaining of the discharge were proven w.irthout the question now under discussion being raised. MQIreOver, the discharge i)r rel&ase in that case was obtained after suit was brought. According to the English practice, such releases are regarded as $omewhat subject to the control of the court,-a principle which does notiapply to releases before action brought, and which latter stand on the common law.. Indeed, the rule in England that if the party who objecttl to a release given after suit commr-nced does not apply to the court to set it aside, "the judge at the trial must give it effect, and can only regard the legal rights of the parties," strongly supports the views herein expressed. 2 Chit. Cont. (11th Amer. Ed.) p. 1154. However, it must be admitted that, on accJjunt of want of careful discrimination in the various directions which I have suggested, late text writers, and even courts of common law, have not always distinguished between the remedy in equity and that at common law, when fraud is alleged as an answer to a release under seal or other deed; and so I prefer to rest the case upon the fact that the amount received by the plaintiff was not repaid, or tendered back, before suit was commenced. That the law of this state requires this is pm,itively settled in Brown v. Insurance Co., 117 Mass. 479, and Mullen v. Railroad Co., 127 Mass. 86, and was evidently the theory of the court in Maine in Larrabee v. Sewall, 66 Me. 376, cited by the plaintiff. In Snow v. Alley, 144 'Mass. 546, 551, 11 N. E. Rep. 764, it is said that
CARTER & CO. II. WOLLSCHLAEGER.
573
value; but nothing in this case contravenes the earlier decisions referred to. The plaintiff cites two cases, one from Minnesota, (Sobieski v. Railroad Co., 42 N. W. Rep 863,) and one from Massachusetts, (Mullen v. Railroad Co., 127 Mass. 86.) These were peculiar, and not analogous to this at bar, because each involved a question as to a secondary fact, namely: In one the party attacking the settlement claimed that the money was received by him on account of wages which he alleged to be due him, and in the other that it was received as a mere gratuity. In other words, in each case there was evidence for the jury that the money paid was not on account of the settlement. I therefore hold that the evidence which the plaintiff offers is not. admissible, and exclude it, saving to the plaintiff hiE!: exceptions, if he desirt>S them. Without undertaking to express any views of a conclusive character touching the case at bar, it seems to me that there is sufficient suggestion of the impairment of the plaintiff's normal intellectual condition through the severe injury which he received, in connection with the fact that the settlement was brought about in the absence of his counsel, to justify this court in continuing this cause on proper terms. in order that the plaintiff may have the opportunity of filing a bill in equity attacking the release, if he so desires. Therefore I give the plaintiff his option to take a continuance, as suggested. or take my ruling on his offer tl) prove, reserving his exceptions. NOTE. The plaintiff elected a continuance, and the following order was made: The plaintiff to file a bill in equity, as suggested by the opinion, and prosecute with diligence, in the judgment of the court, or case to be nonsuited at May term next. Plaintiff to recover no costs accruing before May term next. CARTER & CO., Limited, v. WOLLSOHLAEGER. (Circuit Oourt, N. D. New York. No. 6,062. October 17, 1892.)
be tendered back until the trial, because it has itself no intrinsic
where the consideration given is a mere promissory note, it need not
1.
PATENTS FOR INVENTIONS-PRELIMINARY INJUNCTl'ONS-PRIOR DECISIONS IN FOREIGN OOURT.
Decisions by Oanadian courts sustaining the validity of a patent, while not controlling, are entitled to consideration on a motion for preliminary injunction. On a motion for preliminary injunction, a decision in aI:other circuit upholding the patent aDd &warding a preliminary injunction after elaborate argument by counsel. is entitled to great weight, it appearinl; that the cause never proceeded to final hearing. Where the field of invention is circulllscribed and minute differences are of utmost importance, the weight to be attached, on a motion for preliminary injunction, to a pdor adjudication sustaining the patent, cannot be easily destroyed by evidence as to anticipating devices not presented in the former case, when such evidence consists of the ex parte statements of witnesses as to devices not seen by them for 13 yea.N.
S.
SAME-PRELIMINARY INJUNCTION IN ANOTHER CIRCUIT.
SAME-NEW EVIDENCE.