Fish v. Manning

• Decision Date: 19 May 1887
• Parties: FISH, qui tam, etc., v. MANNING and others.
• Court: U.S. District Court — Southern District of New York

31 F. 340

FISH, qui tam, etc., v. MANNING and others.

United States District Court, S.D. New York.

May 19, 1887

John A Wiedersheim & Co., for complainant.

Stanley Clarke & Smith, for defendants.

BROWN J.

This action is brought to recover $100,000 penalties for the alleged offense of stamping certain patented articles made by the defendants without the patentee's consent, under section 4901 of the United States Revised Statutes. A demurrer to the complaint has been interposed on various grounds.

This offense is not made criminal by statute, although penal; and it is therefore to be distinguished, in some important respects, from the case cited of Boyd v. U.S., 116 U.S. 634, 6 S.Ct. 524. The sufficiency of the complaint is to be determined according to the rules applicable to civil actions, and according to the state practice in similar or analogous actions at common law, and not according to the analogies of criminal procedure.

1. The objection that the time of stamping should be stated as upon a precise and definite day, instead of 'in or about June 1886,' is overruled. Most of the cases cited in support of the demurrer on this point are cases of indictments. The few others that are not cases of indictments (Platt v. Jones, 59 Me. 232, 241; Gilmore v. Mathews, 67 Me. 517; State v. O'Keefe, 41 Vt. 691) should not be followed under the practice in this state; and particularly where the acts are peculiarly within the knowledge of the defendant, and cannot be exactly stated by the plaintiff. Under the state practice, which requires sworn pleadings, a precise statement should not be required of what cannot be known to the pleader, and which need not be proved as laid. Such a rule, applied here, would be a purely technical one. It was the object of the Code of Procedure to dispense altogether with such merely formal and technical averments. It is the essential facts only that are required.

2. In an action upon a penalty, the statute imposing it, and the section thereof, must be pleaded with certainty. Code, Sec. 1897. See Brown v. Pond, 5 Fed.Rep. 31, 41; Brown v. Church, Id. 41. It is therefore improper and insufficient to refer to different statutes without specifying which is relied on. The common-law rule was the same. Cross v. U.S., 1 Gall. 30, 31; Sears v. U.S., Id. 257; Jones v. Vanzandt, 2 McLean, 630, and 5 How. 229; Briscoe v. Hinman, Deady, 588; U.S. v. Babson, 1 Ware, 452. This objection is therefore sustained.

3. Every essential fact to constitute a statutory offense must be distinctly alleged. Ferrett v. Atwill, 1 Blatchf. 151. Hence those...