102

FEDERAL REPORTER.

upon a mere majority of the votes cast at the election, or upon the theory of the new constitution notto issue them unless there was a majority of three-fourths, 'as required by that instrument; that, possibly, the law should be held to be that the new constitution only modified the act of authority to issue the bonds, and supplemented that legislative grant of power with a new condition, which, if complied with, would make the issue of bonds as valid as if the original act had so required, or as if any new act had incorporated that new condition; and further that I was inclined to that opinion. Green v.Dyersburg, 2 Flip. 477; Norton v. Town of Dyersburg, 127 U. S. 163, 8 Sup. Ct. Rep. 1111. Norton v. Shelby (Jounty, 118 U. S. 425, 6 Sup. Ct. Rep. 1121. The circuit judge took a,different view, and asked me to set aside the verdict for the plaintiff. and to direct one for the defendant, which, owing to delays of counsel, wl1s:not done till after his death; and, knowing my inclination as above stated, the plaintiff's counsel sought on motion for a new trial before me to obtain a different result by reopening the case, and upon another trial proving the fact, now proved in this case. that there was in fact a three-fourths majority. But I thought that justice required that the parties should be held to their agreement before the circuit judge, and that, he being dead, it was more particularly important that the defendant should have the judgment he had rendered in the case, as the parties had made it before him. And, for the same reason, I have disregarded here any inclination of my own, and do not take the trouble to determine how far that inclination would lead. towards a different view from that of the late cir· cuit judge, it being my judgment that the bonds should stand as he left them, so far as this court is concerned. his judgment on the first case to be taken as the precedent for these cases. No injustice is done. as the parties by writ of error may invoke the judgment of the supreme court, and thereby setUe the law of the case for each and all the bonds But the parties have the right, no doubt, that this court shall declare the basis of this ruling. Motion overruled.

HARPER t1. NORFOLK &

W. R. Co.

(Cirouit Oourt. W; D. Virginia. November 5, 1887.) L
ACTION FOR WRONGFUL DEATH-JURISDICTION-FEDERAL COURTS.

Code Va. 1878, c. 145, requires an administrator, when suing for damages for causing the death of his intestate, to bring the action in his own name, the amount recovered to go to the widow and children, if any; otherwise to be assets of the estate. Held that, where tbe administrator and defendant are citizenll of different states, the action may be brought in the federal courts, though the. deceased was a citizen of the same state with defendant, where his widow and children still reside.

.. SAME-PARTIES.

In such action the real beneficiaries need not be named in the declaration.

HARPER ". NORFOLK &: W. R. CO.

103

8.

SAME-NEGLIGENCE""7PLEADING;

A declaration alleging that the defendant did not use its trains, provide servants, etc., so as to avoid extraordinary risk to its employes, js not too general, where it is also alleged that by reason of the careless and negligent use of its cars, engines, etc.. and by failure to employ a sufficiellt number of servants, the extraordinary risk was not avoided.!

At Law. Trespass on the case for causing the death of plaintiff's testate. On plea in abatement and demurrer. Daniel Trigg, for plaintiff. Fulkerson Page, for defendant. PAUL, J. This is an action of trespass, brought by Isaac Harper, administrator of Anderson Harper, deceased, to recover damages of the defandant for causing the death of the plaintiff's intestate. . The action is brought under the provisions of chapter 145, Code Va. 1873, which authorizes the administrator of the decedent to bring an action of this character; the statute requiring the action by the administrator, and in his name, and provides that the amount recovered of the defendant shall be for the benefit of the widow and children of the deceased, where there aresuchj ifnone, the recovery is assets in the hands ofthe administrator, to be disposed of according to law. The declaration alleges that the plaintiff is a citizen of the state of Tennessee, and the defendant .is It resident of the state of Virginia. The defendant files a plea to the jurisdiCtion of this court, on the ground "that the said Anderson Harper, before and at his death, was a citizen of the state of Virginia, and that the. said Anderson Harper left a widow and children surviving hini, 'and that the aaid widow and children of the said Anderson Harper were,· at the time of his death, and still are, citizens of the state of Virginia." To this plea the plaintiff files a demurrer. . It is conceded that the plaintiff, the administrator ofAnderson Harper, is a citizen of the state of Tennessee, and that the defendant is a resident of the state of Virginia; but the defendant contends that Isaac Harper, the administrator of Anderson Harper, is merely a nominal party to the record; that the widow and children of Anderson Harper are the reaI parties in interest in this action; thatthe administratoris a mere instrument or conduit through whom the rights of the real plaintiffs as-serted. To sustain this position, counsel for the defendant rely chiefly on Browne v. Strode, 5 Cranch, 303; and on MoNutt v. Bland, 2 9. Browne v. Strode was an ac.tion in the name of the justices of the of a county in Virginia, on an executor's bond giv!ln to the justices, ill accordance with the then statute, for the faithful performance of his duties, as an executor's bond is now given to theconimonwealth. The ao. tioilwas for the benefit of an alien. McNutt v. Bland was an actioI1 in the name of the governor of Mississippi, on a sheriff's bond, given tothe governor of Mississippi for the protection of any party who might be ag1 Concerning the sufficiency of the averments in the pleadings, in actions for negli· gent injuries,.Jee Railroad Co. v. LeeJ.. (Tex.) 7 S. W. Rep. 857, and note; Railroad Co; v. Mitchell, (.as..y.).8 S. W. Rep. 706; .ltailroad Co. v. Jones, (Ala.) SSouth. Rep. 002. Railway Co. v. RIchardson, (Ga.) 7 B. E. Rep. 119. ' .

104

FEDERAL REPORTER.

grieved by the conduct of the sheriff, and the action was for the benefit of a citizen of New York. The principle decided in these two cases is that a public officer, to whom an official bond is made payable, and whose name must be employed by the plaintiff in a controversy between citizens of different states, or an alien and a citizen, cannot be considered a party litigant. McNutt v. Bland, supra. Can it be said in the case at bar that the plaintiff, the administrator of Anc1ersonHarper, is not a party litigant? He is in no sense a public officer. He is the actor in the controversy. The law compels him to be such. By statute the legal right to bring this action is vested in him. No other party can bring it, nor in anyway be a party plaintiff to it. In Bonnafee v. Williams, 3 How. 574-577, the court says: "Where t1l.e citizenship of the parties gives jurisdiction, and the legal right to slIe is in the pklintiff. the court will not inquire into the I'esidenceof those who may have an equitable interest in the claim. .A. person having the legal right may sue at law in federal conrts, without reference.to the citizenship of those who may have the equitable interest." But apart from the legal right conferred by statute on the administrator to bring this action, is he in nowise a party in interest? Is he not liable, as the administrator, for the costs of this action, in the event of ,his failure to recover,and for attorney's fees to those he has employed to bring this suit? In the event of the death of the widow and children, the amount recovered would be assets in his hands, as administrator, for disposal accordilig to law. If he succeeds in this action, and collects the money of the defendant, and fails to pay the same to the parties entitled thereto, clearly he will be liable on his official bond therefor. The distinction between the class of cases relied on by the defendant, such as Browne v. Strode and McNutt v. Bland, 8Upra, and the case at bar, in Goal Co. v. Blatchford, 11 Wall. 172. It is is very clearly dra scarcely necessary for the court to refer to the cases of Chappedelaine v. Dechenaux, 4 Cranch. 306, Childress v. Emory, 8 Wheat. 642; Osborn v. Bank, 9 Wheat. 738; Rice v. HOU8ton, 13 Wall. 66, 67. In all of these cases it is clearly decided that "the jurisdiction depends, not on the relative situation of the parties concerned in interest, but on the relative situation of the parties named in the record!' In Coal Co. v. Blatchford, 11 Wall. 172, the court says: "If the legal representatives are personally qualified by their citizenship to bring suits iu the courts of the United States, the jurisdiction is not defeated by the fact that the parties whom they represent may be disqualified." The court is of opinion that the plaintiff, by virtue of his citizenship, has a right to resort to the jurisdiction of this court. This right is conferred by the constitution and laws of the United States. That he is not deprived of it by the Virginia statute, vesting in him, arid in him alone, the legal right to bring this action. The demurrer to the plea must be sustained. The defendant files a demurrer to the declaration, on the groundsFirst. That the real beneficiaries in this action are not named in the declunttion. It was decided in Railroad 00. v. Wightman's Adm'r, 29 Grat.

GElS tI. KIMBER.

105

431, that this is not necessary. Second. That the allegation in the declaration that the defendant did not use its trains, provide servants, etc., so as to avoid extraordinary risk to its employes, is too general; that the means by which it failed to avoid extraordinary risk should be set out in detail. In the same count in which the allegation is made it is stated that by reason of the careless and negligent use of its cars, engines. etc., and by.ft failure to employ a sufficient number of servants, etc., the extraordinary risk was not avoided by the defendant. The demurrer to the declaration must be overruled.

GElS

v.

KIMBER. J

(Circuit Court, E. D. Pennsyl'IJania. May 21, 1888.)

1.

PATENTS FOR INVENTIONS-CONSTRUCTION OF CLAIM-BREWING-WORT-MAKING STOCK.

Letters.patent No. 249,332, granted November 8,1881, to Francis J. Geis" for a new and improved mixture or grist for brewing purposes," describing "a mixture or grist for brewing malt liquors, composed of malt and cereals or grain, having the cellulose or integuments and germ or heart removed; the cereals and grain constituting from about 25 to 50 per centum, by of said mixture,"-must be construed as and for "a composition of matter." "a wort-making stock," prepared by com pounding a dry mixture of grain from hulls, etc., and of malt, in tke proportion stated. Where it is evident from the record in the patent-office that a certain construction of a patent was there contemplated. and that it would not otherwise have been granted, no objection can be made to the same construction of it by the court on the ground that such construction is narrow, and will render the patent practically useless. The above patent is not infringed by the sale of a manufactured material SUbstantially the same as one of the ingredients in the above composition, with a recommendation to brewers to use it iu the mash-tub with the other ingredients of the above composition.

2.

SAME-CONSTRUCTION BY PATENT-OFFICE.

8.

SAME-INFRINGEMENT.

The sale of an ingredient to persons who intend to use it in the combination claimed in the patent, and adwrtised and sold for that purpose, is an infringementonthepatent. Bowker v. Dows,14 O.G. - ; Wallace v. Holmes, 9 Blatchf·.65; Coolldge v. McCone, 2 Sawy. 571; Saxe v. Hammond,! Holmes, 456; Terrell v.Spa1·th, 8 O. G. 986; Renwick v.Pond, 5 Fish. Pat. Cas. 569; Richard.son v. Noyes, 10 O. G. 507. Rowland Cox and Samuel B. Huey, for defendant. The patent is invalid, because the mixture or grist described and claimed is a mere aggregation of known things. 'fhe grain remains grain, and the malt remains malt; each performing its own distinctive act and function. It is the same as mixing beans oJ different co]ors, or pebbles or stones of different appearance. This is made plain by the fact that neithel' the complainant nor
IReported by C. Berkeley Taylor, Esq., of the Philadelphia bar.

In Equity. Suit for infringement of patent. George E. Buckley and Edwin M. Hunt, for complainant.