256 F. 849 | D.N.J. | 1918
Plaintiffs in the above-stated cause are receivers of the National Electric Signaling Company. They charge that the defendants infringed a patent, granted by the United States to the said company, in the operation of the wireless telegraph station at Tuckerton, N. J. The suit was instituted after Congress had declared that a state of war existed between the United States and the imperial government of Germany. Emil E. Mayer, made a party with the corporate defendant, was formerly in charge for the defendant corporation of the wireless telegraph station at Tuckerton, and while confined
Counsel for defendants allege that they represented the defendant corporation prior to the declaration of a state of war between this country and that nation, and that they believe they have a good defense to the case upon the merits, and that it is impossible for them to confer with their clients at this time in order to file a proper defense. There is no .probability that they will be able to confer with their clients until the war shall have come to an end. They therefore ask that the time be extended until three months after the end of the war to file their answer.
After war was declared between Great Britain, France et al., and Germany et al., the United States took over the operation of the said wireless station, and $350,000 has been collected and is now held by the United States for the rightful owner of the plant. If tire French company wins, the plaintiffs claim the money will be delivered to that company, and that there is no other fund out of which to satisfy any judgment that may be secured against the defendants. If it should be determined that the defendant corporation is the rightful owner of the plant, -and said $350,000, therefore, belongs to it, counsel have agreed that it shall not be turned over to the defendant, but may be retained by the United States to satisfy any judgment secured against the defendants in this cause. If-it should finally be determined that the said French company owns the plant, then it would appear that the defend
The right of an enemy, or ally of enemy, licensed to do business in this country, to prosecute and maintain any such suit or action so far as the same arises solely out of the business transacted within the United States, is recognized in “An act to define regulating and punishing trading with the enemy and for other purposes, approved October 6, 1917” (40 Stat. 411, c. 106 [Comp. St. 1918, §§ 3115½a-3115½j]). In the case of Harland & Wolff, Ltd., appellant, v. S. S. Kaiser Wilhelm II, appellee, 246 Fed. 786, 159 C. C. A, 88, L. R. A. 1918C, 795, recently decided by the Circuit Court of Appeals of this Circuit, the court said:
“If, as is no doubt the case, the counsel for the German claimant cannot at this time properly procure proofs and present his client’s case, the court [District Court] can, and no doubt will, delay action until this can he done.”
The court further said:
“This case is exceptional in its situation, and calls for the exercise of that range of discretion which the broad powers of a court of admiralty enable it to exercise. Such broad powers and range of discretion are, in our judgment, fittingly exercised by an order which will make due provision for, first, giving the German citizen and belligerent an opportunity to litigate his rights, if relations with his country are hereafter resumed; second, providing for adjudging, if the government hereafter so desires, its rights and liabilities, if any, in taking over libeled property of the German subject; third,.adjudging hereafter what effect the taking of this ship by the government had on the claim of the British lienor and the further obligation of the Gorman vessel owner as between themselves.
“In following this course, and protecting the unprotected rights of an absent German citizen while this country is at war with the imperial government of its country, we are impelled by three all-sufficient reasons: First, the innate sense of fairness, decency, and justice, which respects the rights of an enemy; second, the "broad principles of international intercourse, which leads courts and nations that believe in international rights to be the more careful to observe them toward belligerents; and, lastly, because the awarding to this German citizen, with whom our country is at war, the careful preservation until times of peace of its rights, is in line with those high ideals of Anglo-Saxon justice which led the British courts years ago (In re Bousemaker, 13 Vesey, 71, decided in 1806). to allow the claim of an alien enemy to be proved in time of war and the dividends held by the British court until peace. Indeed, the fact that onr country is now at war with Germany is all the more reason why this court should most scrupulously award to this German citizen those international and equitable rights which no fair-minded people ever deny, even to their enemies, in times of war.”