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BUTLER, D. J. In view of the great lapse of time since the vermination of proceedings in this case, the court did not esteem it wise to appoint an assignee, as asked to do by the petition of Mr. McCrea, without some evidence of the existence of unadministered assets. The application was therefore referred to the register to hear the petitioner and report. Considerable evidence bearing on the subject was presented, and several important questions of law and fact raised and considered, -the Girard Bank, in whose possession assets are alleged to exist, being allowed through its counsel to participate in the inquiry, and to defend against the allegation. The register upon a very careful and able examination of a legal question raised by the bank, which he decided in its favor -holding in consequence that no recovery could be had reported adversely to the petitioners. Without determining whether the register's decision respecting the question considered by him, is right or not, and without intimating any opinion on the subject, or any other disputed question of law or fact involved, I have concluded to appoint an assignee. Evidence of the existence of unadministered assets has been produced; and notwithstanding the important questions of law and fact to which my attention has been called, and which must be passed upon before the right of the assignee to recover can be determined, I believe the creditors should have an opportunity of proceeding in the case, and thus testing their rights. The questions raised in answer to the application cannot properly be considered at this time. Anxious as I have felt to avoid any action that might promote unnecessary litigation, I am satisfied after a very deliberate consideration of the case, that the prayer of the petitioner should be granted, and the creditors thus allowed to proceed to recover the alleged assets if they believe the circumstances warrant it.
HAYES V. LETON.
(Circuit Court, E. D. New York. January 22, 1881.)
1. SUIT ON PATENT-ABANDONMENT OF DEFENCE-EFFECT OF DECREE.
A decree in favor of the plaintiff, in a suit founded on a patent, which was reached because the defendants abandoned the defence of the suit and allowed the decree to be entered without objection and without a hearing before the court, is not sufficient ground upon which to grant a preliminary injunction in a subsequent suit in another district and against other parties, founded on the same patent. A decree obtained under such circumstances can have no greater effect than to show an acquiescence in the plaintiff's claim of right by the parties to the former guit.
BENEDICT, D. J. This cause comes before the court upon a motion for a preliminary injunction to restrain the defendant, during the pendency of this suit, from making a certain form of skylight, which the plaintiff insists the defendant is now making, and which the plaintiff claims to be an infringement upon certain patents owned by the plaintiff and forming the basis of this suit. The ground upon which the application rests is that the acts of infringement are not denied in the answer, and that the validity of the plaintiff's patents has been upheld by a final decree rendered by the circuit court of the United States for the southern district of New York, in an action there brought by this same plaintiff upon these same patents against August Erickson and John H. Gibson.
The defendant insists that the acts of infringement are denied by the answer, and that the decree upon which the plaintiff relies was the result of collusion or agreement between the parties, and does not justify an assumption, upon & motion like the present, that the patents sued on are valid. Passing the question as to the construction to be put upon the answer, it is sufficient for this occasion to say that the circumstances under which the decree of the circuit court for
the southern district of New York was made were such as to deprive that decree of any greater effect than as evidence of an acquiescence in the plaintiff's claim under these patents by the particular persons there sued. For that decree was in substance a decree by default. In point of fact, no opposition was made to its entry; no contest was had before the court; and it is plain to see that the decree was because of an understanding between the parties that contest should cease, and not because the court had examined the plaintiff's patents and found them to be valid.
Treating the decree relied on by the plaintiff as no more than evidence that the defendants in that suit acquiesced in the plaintiff's claim under these patents, it is manifest that sufficient ground upon which to grant a preliminary injunction has not been made to appear. The motion is therefore denied.
HOLMES, Adm'r, v. OREGON & CALIFORNIA Ry. Co.*
(District Court, D. Oregon. January 29, 1881.)
1. ADMINISTRATION JURISDICTION TO GRANT.
By the constitution of this state the county court is a court of record, with general jurisdiction of probate matters, to be regulated by law, (article 7, 8 1 and 12;) and by statute (Civ. Code, $ 869) it has the exclusive power to grant letters of administration upon the estate of a person who at or immediately before his death was an inhabitant of the county. Held, (1) that a decree of the county court of Multnomah county, granting letters to D. upon the estate of P., by which it appears to have been adjudged by said court, upon a proper petition, that P. was an inhabitant of the county at or immediately before his death, cannot be questioned collaterally on the ground that P. was not in fact such inhabitant; (2) that said court having general jurisdiction of the subject matter the granting of administration upon the vacant estate of a deceased person-it had the authority to inquire and determine whether, in that particular case, the deceased was an inhabitant of the county or not, and that its decision upon the question is conclusive, except upon appeal; and (3) that a subsequent decree by the county court of another county, granting letters of administration upon the same estate to H., while the first were in full
force and effect, is null and void. 2. INHABITANT.
The word "inhabitant," as used in the section 869 aforesaid, has a narrower and more limited signification than domicile, and implies
a personal presence in the county as a dweller therein. 3. NEGLIGENCE.
The defendant's steam-ferry crossed the Wallamet river to Portland, on a dark night, with passengers from its railway, and P., in stepping from the boat to the pontoon at the landing, stumbled and fell into the river and was drowned. Held, that the want of a guard to prevent the passengers from attempting to go ashore before the landing was safely made, and some sufficient signal to warn passengers when it was proper to go ashore, and particularly for the want of sufficient light upon the boat and pontoon to enable passengers to readily observe the same and their relative situation, was negligence,
and caused the death of P. .. CONTRIBUTORY NEGLIGENCE-DRUNKENNESS.
Contributory negligence is matter of defence, and the burden of proof is upon the defendant to establish it; and drunkenness is not per se such negligence, but only more or less evidence of it, according to the circumstances.
*See ante, 75.
5. COMMON CARRIER.
A common carrier of passengers for hire is bound to provide for their safety, so far as is practicable, by the exercise of human care and foresight; and, where one is drowned under the circumstances afore
said, drunkenness, if it existed, was not contributory negligence. 6. DAMAGES.
The damages recoverable under section 367 of the Oregon Civil Code, by an administrator for the death of his intestate, are general assets of the estate, and are given merely as a pecuniary compensation for the death, and not as a solatium; nor are they to be exemplary or vindictive, but according to the value of the life, having due regard to the capacity and disposition of the deceased to be useful-to labor and to save.
DEADY, D. J. This suit is brought to recover the sum of $4,900, under section 367 of the Oregon Civil Code, on account of the death of William A. Perkins, the libellant's intestate, alleged to have been caused by the negligence of the defendant, on November 16, 1878, while transporting said Perkins across the Wallamet river at Portland, on its steam-ferry No. 1. The answer of the defendant, in addition to the allegations directly responsive to the libel and contesting the cause of suit therein stated, contains defensive allegations in bar of the same, the equivalent of the pleas of ne unques administrator and a prior adjudication at law. These pleas are but different forms of the same defence, and the facts upon which they rest are as follows: In June, 1877, William A. Perkins, then in his twenty-second year, came to Jackson county, Oregon, via California, from his native state, Vermont, with his mother and step-father, Michael Riggs, where he remained until September 10, 1878, when the mother, on account of alleged cruel treatment, left Riggs, taking with her her three minor children and the effects which belonged to her, and started for California, where she had a brother living, with the ultimate purpose of going back to Vermont to reside, where she had a son still older than the deceased. The deceased accompanied her, first disposing of a pre-emption