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ing that it has done so. But it is needless to consider or determine that question here. The corporation claims that it is a resident, for the purposes of litigation, of the Northern district of New York, and until it is proven to the contrary, or until the corporation attempts to deny the jurisdiction of the United States courts in the Northern district of New York, where by statute it is located, it is considered that the Northern district is the district in which this suit should have been instituted.
The motion, therefore, to set aside the service of summons and complaint, must be granted.
UNITED STATES v. GRANER.
(Circuit Court, E. D. New York. July 2, 1907.) 1. BAIL-RECOGNIZANCE-ORAL MODIFICATION.
A recognizance conditioned absolutely that the defendant appear cannot be modified by an oral agreement of the government's representative with the surety that the defendant need not appear unless he be indicted for
a certain offense. 2. SAME-CONDITIONS AND LIABILITY.
Under a recognizance conditioned that defendant, held on a charge of having deserted the mails, appear at a certain time and answer all such matters as shall be objected against him, the surety is liable for the nonappearance of defendant, though he be not indicted for deserting the mail, but for stealing the mail, and the government could therefore have
arrested him at any time, instead of relying on the bond. William J. Youngs, U. S. Atty. J. Baldwin Hand, for defendant.
CHATFIELD, District Judge. This is an application for judgment upon a writ of scire facias filed on behalf of the United States, the answer to said writ filed by Ferdinand A. Graner as surety, and a replication on behalf of the said United States. The facts are briefly as follows: One William F. Pike was held upon the 10th day of December, 1906, to await the action of the grand jury in the Eastern District of New York upon a charge of having deserted the United States mails, in the charge of said Pike as postal clerk in the Post Office Department of the United States government. Upon said 10th day of December, 1906, the said William F. Pike executed a recognizance, in the sum of $1,000, with the respondent Ferdinand A. Graner as the surety, conditioned for the appearance of the said Pike in the Circuit Court of the United States for the Eastern District of New York on the first Wednesday of January, 1907. The records of the court show that on the return day of said recognizance the said Pike did not appear. Upon the 5th day of February, 1907, the recognizance was declared forfeited, and upon the 22d day of March, 1907, a writ of scire facias issued, to which the respondent, Ferdinand A. Graner, was required to plead within twelve days. This writ was duly served upon the surety, and he has filed, as above stated, an answer, to which the government has replied. The surety in his answer alleges that the said surety was not obliged to procure Pike before the court, and that it was not necessary for said Pike to appear unless an indictment was found against Pike on the charge of deserting the mail, which charge had been heard before the Commissioner; that the respondent was informed by the representative of the government that Pike need not appear unless such an indictment were filed, and that an agreement existed between the government and the surety to that effect. The surety, therefore, denies that he was required by said bond, or otherwise, to produce said Pike on the first Wednesday of January, 1907, and alleges that the government could have arrested said Pike, but that it did not do so, relying upon said bond. The surety and respondent further alleges that he has been unable to discover the whereabouts of the said Pike, who proceeded to default upon learning that he was indicted for the larceny of registered letters, and not upon the charge of deserting the mail.
The undertaking, which was filed upon the 10th day of December, 1906, is conditioned as follows:
"Now, therefore, the condition of this recognizance is such that if the said William F. Pike, the defendant aforesaid, shall personally appear at the next Circuit Court of the United States of America for the Eastern District of New York, to be holden at the United States courtrooms, in the borough of Brooklyn, city of New York, on the first Wednesday of January, in the year of our Lord one thousand nine hundred seven, at 10 o'clock in the forenoon of that day, or as soon thereafter as the said court shall be opened, and shall then and there answer all such matters and things as shall be objected against him, and abide the order of the said court and not depart the said court without leave, then this recognizance to be void, otherwise to remain in full force and virtue."
This is a bond filed in the United States court, and, so far as the application of the respondent and surety is concerned, comprises the contract which existed between the government and the defendant and the surety.
Any oral agreement or understanding which the surety may have had cannot modify the terms of this undertaking.
The construction of the bond and the meaning of its obligation does not raise any issue of fact, and, as a matter of law, the obligation has matured, so that there is nothing upon which the defendant or the respondent has a right to trial by jury. An indictment having been found and filed for the offense of stealing the mail, the government could have arrested the defendant at any time without reference to the bond which had been given upon another charge, or it could wait until the defendant was produced under that bond, and he could then be required to plead to the other charge. The fact that the defendant is wanted on a different charge than that which was considered before the Commissioner is no answer to the failure of the defendant to appear upon the return day of the recognizance, and does not relieve the surety from his obligation to produce him. In fact, if no indictment had been found at all, the defendant was still bound to appear, and the surety was bound to cause his appearance, and thus comply with the terms of his obligation, in order to be relieved from the condition therein contained. The surety cannot be discharged from his obligation until the court directs an exoneration from the terms of the bond. People v. Gillman, 125 N. Y. 372, 26 N. E. 469. If the conditions of the bond have been changed without the consent of the surety, that may relieve him from his obligation, but no such case exists here. Reese v. United States, 76 U. S. 13, 19 L. Ed. 541.
It has further been held that the subsequent production of a defendant, who has failed to appear according to the terms of his bond, will not of itself relieve the surety from the effect thereof, unless the forfeiture is relieved by the court, under the provisions of section 1020, Rev. St. [U. S. Comp. St. 1901, p. 1719]. U. S. v. McGlashen (C. C.) 66 Fed. 537. When the bond becomes due, the conditions making it a valid indebtedness, which can be enforced by a writ of scire facias, are fulfilled, if the defendant is not produced at the time specified in the bond. U. S. v. Evans (C. C.) 2 Fed. 147.
It has further been settled that a proceeding can be had to enforce against a surety a recognizance or bail bond, even if the information or indictment which has been filed should be subsequently found defective or dismissed upon demurrer, if the defendant fail to appear and the bond is forfeited because of such nonappearance. Hardy v. U. S., 71 Fed. 158, 18 C. C. A. 22; U. S. v. Stien, 13 Blatchf. 121, Fed. Cas. No. 16,403; Reese v. U. S., supra.
The motion of the government, therefore, for judgment upon the pleadings must be granted, and the demand of the surety for trial by jury denied. An order for judgment may be entered accordingly.
DOHERTY V. LYNETT.
(Circuit Court, M. D. Pennsylvania. September 10, 1907.)
No. 39, October Term, 1905.
1. LIMITATION OF ACTIONS-PLEADING-STATUTE.
The defense of the statute of limitations cannot be made by demurrer.
[Ed. Note.--For cases in point, see Cent. Dig. vol. 33, Limitation of AC
tions, $$ 670, 671.] 2. LIBEL-PUBLICATION LIBELOUS PER SE-CHARGING WANT OF INTEGRITY.
An article published by defendant, which as set out in plaintiff's statement directly charged plaintiff with having betrayed his trust as a delegate of a branch of a fraternal order in favor of a rival branch, from which he accepted money to that end, was libelous per se, and an averment of special damages was not necessary.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 32, Libel and Slander, $ 95.] At Law. On demurrer to plaintiff's statement. R. A. Zimmerman, for plaintiff. Cornelius Comegys, for defendant.
ARCHBALD, District Judge. Under the statute of limitations in Pennsylvania, an action for libel must be begun within a year; and as the date of publication here is given as March 7, 1904, while suit was not brought until August 24, 1905, the plaintiff is thus apparently barred, if the statute is pleaded, unless he can show something to obviate it. But it is hornbook law that advantage cannot be taken of the running of the statute by demurrer, but must be set up by plea, if for no other reason than that otherwise the plaintiff would have to anticipate the defense and insert in his declaration the facts on which he relied to avoid it, confusing the issues. Barclay v. Barclay, 206 Pa. 307, 55 Atl. 985. Of course, where time enters into the right of action it is different, as where action is given by statute and it is in the same connection provided that it shall be brought within a specified time. But that is not the case here.
The only other question on this demurrer is whether a prima facie cause of action is stated. The publication complained of has to do with certain alleged internal troubles in the fraternity known as the “Ancient Order of Hibernians,” by reason of which the Board of Erin branch decided not to parade on St. Patrick's day, three years ago. This, according to the article, was the sequel of what had occurred at the International Conclave of the order at Belfast, Ireland, in 1902, where the plaintiff, as it is charged, was guilty of treachery to those whom he was supposed to represent there. Discussing this, at the Board of Erin meeting, where the question of engaging in the parade came up, it is said that a statement was read by Mr. O'Donnell in which the plaintiff, who was a delegate to the Conclave from the Board of Erin branch, was declared to have betrayed that organization and attempted to sell it out to its rival, the Ancient Order of Hibernians of America, in consequence of which the plaintiff was subsequently expelled from the Board. Enlarging upon the subject, the article proceeds to state that: "Francis Hughes, a delegate, said that Doherty's treachery
* had been discovered by means of letters, and by an investigation made by two other delegates, and that money had been paid by the rival order."
By this, according to the averment of the declaration, the plaintiff is charged with being guilty of treachery to the Ancient Order of Hibernians of Erin, of which he was a member, betraying the organization while representing it as a delegate, and attempting to sell it out to a rival hy whom he was paid money, being thus guilty of taking a bribe, as it is said, and, his treachery being discovered, being expelled.
The declaration or statement where this is set forth is very inartistically drawn, there being practically nothing by way of colloquium or innuendo to explain the article or apply it to the case in hand. Nor is there anything in it to support the suggestion that the crime of accepting a bribe is charged. Taking money as the reward for dishonorable action is not necessarily a criminal offense, however much it may reflect on the party's probity. But, aside from this, it is distinctly and unequivocally declared that the plaintiff was recreant to the trust confided in him as a representative of the fraternal order to which he belonged, betraying its interests in favor of a rival, from whom he accepted money to that end, with the result that, having been discovered, he was expelled. That this was calculated to hold him up to public odium and the reprehension of all honest men there can be no doubt. It certainly was a serious reflection on his integrity, tending to deprive him of the confidence and respect which he would otherwise be entitled to enjoy. It was thus libelous per se. 25 Cyc. 256; Wood v. Boyle, 177 Pa. 620, 35 Atl. 853, 55 Am. St. Rep. 747. And the law thereupon presumes damages, so that special damages did not have to be laid.
The demurrer is overruled, with leave to the defendant to plead issuably within five days.
COYNE V. SOUTHERN PAC. CO.
(Circuit Court, D. Utah. May 20, 1907.)
1. ACTION-STATUTORY RIGHTS OF ACTION-CONDITIONS IMPOSED BY STATUTE
When it is sought to enforce a statutory right in another jurisdiction, any restriction or limitation upon such right imposed by the statute which
created it must also be given effect. 2. COURTS-ACTION UNDER FOREIGN
FOREIGN STATUTC-PERSONAL INJURY-NEVADA STATUTE.
Act Nev. March 23, 1905 (Laws 1905, p. 249, c. 142), which gives a right of action for a personal injury caused by the wrongful act or negligence of another, but which provides that such liability "shall exist only in so far as the same shall be ascertained and adjudged by a state or federal court of competent jurisdiction in this state in an action brought for that purpose by the person injured,” supersedes the common law applicable to the subject in the state, and an action to recover for a personal injury received in Nevada, through the alleged negligence of the defendant, cannot be maintained except in a state or federal court in that state.
[Ed. Note.-Jurisdiction as affected by state laws, see note to Barling V. Bank of British North America, 1 C. C. A. 513.]
At Law. On demurrer to complaint.
MARSHALL, District Judge. This action to recover damages for personal injuries negligently inflicted was instituted by a citizen of Utah on account of an injury received by him on August 31, 1906, in the state of Nevada. A statute of Nevada, adopted March 23, 1905 (Laws 1905, p. 249, c. 142), provides :
"Section 1. Whenever any person shall suffer personal injury by wrongful act, neglect or default of another, the person causing the injury shall be liable to the person injured for damages; and where the person causing such injury is employed by another person or corporation so responsible for his conduct, such person or corporation so responsible shall be liable to the person injured for damages.
“Sec. 2. Such liability, however, where not discharged by agreement and settlement shall exist only in so far as the same shall be ascertained and adjudged by a state or federal court of competent jurisdiction in this state in an action brought for that purpose by the person injured.
“Sec. 3. This act shall take effect and be in force from and after its pas sage.
"Sec. 4. All acts and parts of acts and laws in conflict with this act are hereby repealed.”