taxes upon 14 cars of the railroad then in actual use for conducting the business by the receiver in charge. The receiver brought his bill for an injunction, alleging the illegality of a part of the assessment, the payment of all taxes admitted to be due, and the injury to the business of the railroad occasioned by the seizure of cars necessary for, and actually used in, carrying on the business of the receiver. The allegations of the bill in that case show a physical invasion of the custody of the receiver,-an actual and forcible seizure of the property in his hands. In addition to this, there was a real controversy with respect to the liability of the property for the payment of the taxes involved. Neither of these facts exists in the case now under consideration. Here there was no seizure of any property, and no interference, or threatened interference, with the receiver's possession or custody, but only an attempt to perfect an incipient title by taking the required statutory steps to that end. If a deed should be executed by the treasurer to Whitehead, and he should attempt to take possession of the property conveyed to him, the court in charge of the receiver will undoubtedly be able to protect his possession, when disturbed or threatened to be disturbed, with due consideration to the rights of all parties interested in the same. In this way the court can assert its lawful right to exclusive custody and control, and the state will not be embarrassed by any unwarranted interference with its own process for collecting its revenue. The interlocutory injunction was, in our opinion, improperly granted, and the order awarding the same is hereby vacated and annulled. ANIMARIUM CO. v. NEIMAN et al (Circuit Court, S. D. Iowa, C. D. EQUITY PLEADING-MULTIFARIOUSNESS. December 11, 1899.) The rule as to multifariousness is largely one of convenience, and a bl which joins as defendants certain individuals and a company, alleging that the individual defendants, under the name of the company as a pretended corporation, are engaged in the manufacture and sale of certain articles which infringe different patents owned by complainant, and also that they wrongfully use on such articles an imitation of complainant's trade-mark, is not subject to demurrer for multifariousness, either on the ground of misjoinder of defendants or of causes of action, all the defendants being jointly interested in each cause of action stated, and no reason appearing why such causes cannot be conveniently tried together, and with less expense to the parties than separately. In Equity. On demurrer to bill. Thornton & Chancellor and Dudley & Coffin, for complainant. SHIRAS, District Judge. In the bill filed in this case it is averred that John N. Neiman, George W. Johnson, and George C. Hunter are engaged in business at Des Moines, Iowa, under the name and style of the Iowa Electropoise Company, a pretended corporation, but acting without a charter and license; and that these parties are infringing upon the rights secured to the complainant as the owner of certain letters patent issued to Dr. Hercules Sanche, and by him assigned to the complainant company, and also as the owner of certain trade-marks used in connection with the sale of the patented articles. To this bill a demurrer is interposed on the ground of multifariousness, it being urged in support thereof that the joining of the Electropoise Company with the individual defendants. and charging in the one bill violations of the four separate letters patent, and charging in the one bill the violation of the rights secured by the letters patent and those secured by the trade-marks, are each sufficient grounds to sustain the objection of multifariousness. Counsel for complainant have submitted a very full brief, complemented by an able oral argument, in support of the demurrer, but I do not deem it necessary to discuss the authorities thus submitted. The rule that should govern the court in this case is given in the opinion of the supreme court in U. S. v. American Bell Tel. Co., 128 U. S. 315, 352, 9 Sup. Ct. 90, 32 L. Ed. 450, in which case a bill was filed on behalf of the United States asking the cancellation of two letters patent, one dated March 7, 1876, and the other January 30, 1877, it being charged that the issuance of these several patents was procured by means of fraud, false suggestion, concealment, and wrong practiced on the patent office. In considering the objection of multifariousness urged against the bill, the supreme court ruled that: "The principle of multifariousness is one very largely of convenience, and is more often applied where two parties are attempted to be brought together by a bill in chancery, who have no common interest in the litigation, whereby one party is compelled to join in the expense and trouble of a suit in which he and his co-defendant have no common interest, or in which one party is joined as complainant with another party, with whom, in like manner, he either has no common interest at all, or no such interest as requires the defendant to litigate it in the same action. Oliver v. Piatt, 3 How. 333, 11 L. Ed. 622; Walker v. Powers, 104 U. S. 245, 26 L. Ed. 729. In the present case there is no such difficulty. The Bell Telephone Company and Mr. Bell himself are the only parties defendant, and their interest in sustaining the patent is the same. So, also, there is no such diversity of the subject-matter embraced in the assault on the two patents that they cannot be conveniently considered together, and, although it may be possible that one patent may be sustained, and the other may not. yet it is competent for the court to make a decree in conformity with such finding. It seems to us in every way appropriate that the question of the validity of the two patents should be considered together." In the bill of complaint in this case it is averred that the Animarium Company is engaged in the manufacture and sale of apparatus for curing diseases, being the various kinds of apparatus described in the letters patent issued to Dr. Sanche, and by him assigned to complainant; and that in the sale of these articles complainant uses the trade-marks described in the bill. The bill then charges, in effect, that the defendants are engaged in the making and selling of articles which infringe upon the patent rights of complainant, and in doing so they use imitations of the trade-marks belonging to the complainant. Under these circumstances it cannot be held that there is a misjoinder of parties, either plaintiff or defendant. There is but one complainant, and it is averred that all the defendants are jointly engaged in carrying on the alleged in fringement; so that, if this averment be true, they are properly joined in the one action. Can it be said that there is a misjoinder of causes of action? The bill charges that the defendants are united in making and selling articles or apparatus for the curing of diseases which infringe upon the rights secured to complainant by the letters patent described in the bill. While it may be true that the infringement of each patent might have been made the subject of a separate suit, it is not perceived that this would have resulted in any benefit to the parties, and it would unquestionably have largely increased the costs and expenses necessary to a hearing of four cases instead of one only. The patents have a general relation to each other, and, according to the averments of the bill, they all have a relation to the apparatus manufactured by complainant, and which it is claimed the defendants are imitating in the business carried on by them. The same is true of the trade-marks which the bill charges are being imitated and wrongfully used by the defendants in the sale of the articles claimed to infringe upon the patent rights of complainant. If it appears that a person manufactures an article which is an infringement of a patent owned by another, and in order to secure a ready or enlarged sale for the infringing article he places thereon the known trade-mark of the patentee, what good reason exists for holding that the injured party may not in the one suit obtain relief and protection against the infringement of his patent and the misuse of his trade-mark? If, in the progress of the case, it becomes apparent that the two questions cannot be conveniently dealt with in the one suit, the court can require a separation thereof, but there is not such an inherent difficulty in properly disposing of such issues under ordinary circumstances as to require the ruling upon a demurrer that a bill which seeks protection against an infringement of a patent and a misuse of a trade-mark cannot be sustained when it appears that the trade-mark is used as a means to secure the sale of the patented article. The demurrer is overruled, with leave to answer the bill by the January rule day. ALLEN & LEWIS v. OREGON R. & NAV. CO. et al. (Circuit Court, D. Oregon. November 20, 1899.) No. 2,551. 1. CARRIERS-INTERSTATE COMMERCE LAW-UNJUST OR DISCRIMINATIVE RATES. The proportion in which freight earned by two connecting railroads under a joint tariff schedule is divided between them is a matter for their consideration alone, and cannot be taken cognizance of by a court for the purpose of determining that the share received by one constitutes an unjust or discriminative rate, under the interstate commerce law. 2. SAME. Complainant's bill alleged that it was a wholesale dealer in merchandise, located at Portland, Or.; that defendants, owners of connecting_railroad lines, had established a schedule of joint freight tariffs between Portland and points in Idaho on the second line; that such second road, in connection with a third, had also established a schedule of joint rates on freight from San Francisco to the same points, under which the charge from San Francisco was the same as from Portland, although the distance was greater; and that, under the divisions made between the respective roads, the second road received a smaller rate, relative to the length of the haul over its line, under the latter than under the former schedule, in which the haul was from the opposite direction. The bill charged that such facts constituted an undue preference in favor of San Francisco and its merchants over Portland and its merchants, in violation of section 3 of the interstate commerce law, and that therefore the rates charged from Portland were unjust and unreasonable, under section 1 of such law. Held, that the bill stated no grounds for relief under either section: (1) Because the rates from Portland, not being alleged to be unjust or unreasonable in themselves, could not become so by comparison with other joint rates from an opposite direction, and from a different and competing point on a different line of road; (2) because the shipments under the second schedule being entirely without the district, and the other road, which was a party to such schedule, not being before the court, it had no jurisdiction over that schedule, or power to prevent the discrimination complained of; and (3) for the further reason that it is not the purpose of the third section of the act to prevent competition in rates between different points on different lines of road. 8. SAME. The fact that a shipper under a joint schedule of rates over two connecting railroads is charged a smaller rate on through shipments over the entire length of the joint line than to intermediate points does not establish a claim that the latter rates are unjust or unreasonable, nor does it entitle him to claim that such rates are discriminative. This was a suit in equity against two railroad companies, to enjoin the enforcement of a schedule of joint rates established by them, on the ground that such rates were unjust and unreasonable. On demurrer to bill. L. B. Cox, for complainant. W. W. Cotton, for defendant Oregon R. & Nav. Co. BELLINGER, District Judge. The complainant is a private corporation engaged in the wholesale grocery business in this city. The defendants are owners, respectively, of two lines of railroad which connect at the town of Huntington, in this state, and thus form a through line for traffic from this city, through the state of Idaho, to Ogden, in the state of Utah; and they have established such a line for a continuous carriage of goods and other property and commodities from Portland to Ogden and intermediate points. The defendant the Oregon Short-Line Railroad and the Southern Pacific Railroad form a connection at Ogden, and these two roads have estab lished a line for a continuous carriage of freight from San Francisco to points on the line of the former road between Ogden and HuntingThe complaint is that the Oregon Railroad & Navigation Company and the Short-Line Company have established a schedule of freight charges on shipments from Portland to Ogden and intermediate points that are the same as those established by arrangement between the latter company and the Southern Pacific Company between San Francisco and the same points, notwithstanding the longer haul over the latter route. The distance from Portland to Caldwell and Shoshone, Idaho, is, respectively, 477 and 623 miles, and 98 F.-2 to Ogden 865 miles, while that from San Francisco to Shoshone is 1,025 miles, to Caldwell 1,221 miles, and to Ogden 833 miles, The joint rate established by the Oregon Railroad Company and the Short Line between Portland and these Idaho points is $2.13 per 100 pounds. The Ogden rate is $1.72. The Short-Line Company and the Southern Pacific have established the same rate between San Francisco and these points. The allegations of the complaint are, in substance, as follows: That on the through haul of Portland freight the Oregon Railroad & Navigation Company receives the amount of its own rate to Huntington, and the Short Line receives the excess; and the Southern Pacific receives the amount of its own rate to Ogden, and the Short Line the excess. That, "in consideration of the premises," the freight charges made by the Oregon Railroad & Navigation Company and the Short-Line Company, "as set forth in their joint freight tariff," are unreasonable and unjust, and in violation of section 1 of the act of congress (24 Stat. 379). That the defendants are charging and receiving more for freight for the shorter haul to intermediate points than to Ogden, the circumstances and conditions being substantially the same. That the Oregon Short-Line Railroad has entered into the joint freight tariff with the Southern Pacific Company, and is charging and receiving lower rates for the carriage of property thereunder than it is charging and receiving for like service in the carriage of property under the joint freight tariff with the Oregon Railroad & Navigation Company, for the purpose of giving, and is thereby giving, San Francisco and its merchants an undue and unreasonable preference over the city of Portland and its merchants, in this: that the said merchants and dealers of San Francisco are given the same freight rates to the various towns and side tracks up to the town of Caldwell, a distance ranging from 1,075 to 1,221 miles (and special commodity rates as far as the town of Weiser), that are required to be paid under the joint freight tariff of the Oregon Railroad & Navigation Company and Short-Line Company; and the Short-Line Company is charging and receiving a much less rate under the "joint freight tariff" with the Southern Pacific Company for its services in the transportation of property than it is charging and receiving under the "joint freight tariff" with the Oregon Railroad & Navigation Company for its services in the transportation of like property a like distance, the circumstances and conditions attending the transportation of such property under both of said tariffs being substantially the That this discrimination is made in order to give San Fran cisco and its merchants an unreasonable preference over the city of Portland and its merchants, "and that said action of said Oregon Short-Line Railroad is having such effect," and that the Oregon Railroad & Navigation Company, by entering into the unjust and unreasonable "joint freight tariff" arrangement with the Short-Line Company, is aiding and abetting in said purpose of an unreasonable preference by the Short-Line Company in its joint tariff agreement with the Southern Pacific Company, "and that, by reason of the mat ters and things here stated, the defendants conjointly, and the Oregon Short-Line Railroad distinctively, are violating section 3 of said same. |