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by the defendants was and is without the authority of the plaintiff, and that plaintiff is being caused, and will be caused, great injury thereby; and that plaintiff has no adequate remedy at law.
It thus appears that the bill of complaint is a lengthy document, and it also appears from an inspection that it was originally verified on December 10, 1917, as was the affidavit immediately hereinafter referred to; both were finally reverified June 27, 1918. Upon these papers plaintiff now asks for an injunction pendente lite.
An additional affidavit by plaintiff is submitted setting forth that on the death of his father in 1912 he went to Syracuse to live, and that in 1916 he learned that defendant Coleman was publishing his song; that the plaintiff had left with the defendant Lawson Company his plates for the printing of the song, and that he wrote to the said Lawson Company to return his plates, which the defendant Lawson refused to do and admitted in writing that they were printing the song for the defendant Coleman, saying:
"That he (referring to Coleman) has made good. He has two automobiles, and no doubt has money besides. However, as we have not had any evidence of your dissolving your partnership, we would print the copies for you the same as we have for him, but you will have to settle with Coleman. He has started on a trip to take in the South, have not heard from him since last week."
The defendant Lawson submits an affidavit saying that he has known Coleman and Flannigan (so spelled in affidavit) since 1910, and has known them as copartners under the firm name of Flannigan & Coleman; that by order of both Flannigan and Coleman he had printed at the F. J. Lawson Company, of which he is president, music sheets with the statement, "Published by Flannigan & Coleman," and Flannigan never made any objection or denied that Coleman was a partner, and in fact defendant's accounts are made out in the name of Flannigan & Coleman; that in the year 1911 Flannigan called on him and stated that he had wound up the partnership with Coleman and would not be responsible for any order placed by Coleman after that date, but that he would continue business and place orders on his own account; that in 1916 or 1917 deponent received an order from Coleman, who was then in Indiana, for several thousand copies of "Where is My Mama"; that in printing these the engraver made an error and had "Copyrighted by Charles Coleman" instead of "Copyrighted by Flannigan"; that these sheets were printed and forwarded to Coleman; that thereafter Coleman wrote deponent calling attention to the mistake, and deponent immediately had the plates changed, so that the new plates contained the statement, "Copyrighted by Songland Publishing Company"; that on the outside of the cover appeared the correct statement, "Words by Coleman and Music by Flannigan." An affidavit was submitted by Daniel G. Gottlieb, who states that for about six or seven years he was employed as a singer by the firm of Flannigan & Coleman (so spelled in affidavit), having been engaged by said Coleman; that immediately thereafter Coleman introduced Flannigan as his partner, to which Flannigan made no objection; that he worked for Flannigan & Coleman for about three months, after which time Flannigan, in Gottlieb's presence, told Coleman that he was having domestic difficulties
with his wife and wished to withdraw from the partnership; that it was agreed that Coleman buy him out for about $100; that thereafter Flannigan withdrew from the firm; that Coleman continued the business, Gottlieb working for him for a period of three years; that this deponent does not know whether Coleman ever paid the $100, but he does know that Flannigan met Coleman at times, and that he (Gottlieb) saw Coleman pay something on account.
The defendant Coleman submits an affidavit in which he states further that he was in partnership with plaintiff; that plaintiff was a pianist and author of certain songs; that Coleman was a public singer; that their acquaintance began in 1909, and that they roomed together on Sixth avenue, New York City; that they decided it would be profitable to join forces and go about the streets singing and playing their compositions; that, accordingly, a copartnership was formed by them, the terms providing that plaintiff was to put into the business such songs as he owned and Coleman was to pay $100, making them equal partners; that he then paid the plaintiff $100; that the partnership was under the name of Flannigan & Coleman (so spelled in affidavit), and it was subsequently changed to Songland Music Publishing Company; that up to this time the song "Where is My Mama" had not been written; that the copartnership was continued for some time; that Coleman then suggested to the plaintiff that they needed a baby song; that thereupon after repeated efforts he (Coleman) alone wrote the words of the song, "Where is My Mama," as it was printed and since has been sung; that thereupon plaintiff undertook to set the words to music and, after many trials, he (Coleman), collaborating with him, prepared the music which is now attached to the words; that the front page bore the statement, "Words by Charles Coleman, Music by Thomas Jay Flannigan," which statement was prepared by plaintiff and not by Coleman, and that the plates for printing were originally under the direction of plaintiff and deponent together; that the copyright of said song was issued in 1916 by the Librarian of Congress; that the application for the copyright was made by T. Jay Flanagan, plaintiff; that in the application the plaintiff stated, "Words by Charles Coleman," "Music by T. Jay Flannigan"; other allegations which it is not necessary to set forth at length follow.
The plaintiff filed an answering affidavit denying a number of allegations made by Coleman and making further allegations, some of which are denied by the president of the defendant Plaza Music Company in an affidavit filed in its behalf.
In view of these conflicting statements and in view of the fact that plaintiff appears to have been guilty of laches in applying for an injunction, I am of the opinion that this motion should be denied. The affidavit of the president of the Plaza Music Company says that Flanagan knew of the conditions about a year ago; that is borne out by the fact that the bill of complaint was originally verified on December 10, 1917, and the affidavit of Flanagan on December 10, 1917.
If this action is placed upon the calendar at once, there is no reason why a trial cannot be had with reasonable promptness. The motion for an injunction pendente lite is therefore denied.
1. NEW TRIAL 105-NEWLY DISCOVERED EVIDENCE.
Newly discovered evidence, merely to contradict a witness, is not sufficient to warrant a new trial.
2. NEW TRIAL
104(1)-NEWLY DISCOVERED EVIDENCE-CUMULATIVE EVI
Newly discovered evidence, which is merely cumulative, is not ordinarily ground for a new trial.
3. NEW TRIAL 108(1)-NEWLY DISCOVERED EVIDENCE-CONCLUSION.
Where newly discovered evidence is not so conclusive as to raise a reasonable presumption that the result of a new trial would be different from the first, it is insufficient as ground for new trial.
4. MALICIOUS PROSECUTION
24(7)-WANT OF PROBABLE CAUSE-PRIMA FA
Where a grand jury hears only the witnesses for the prosecution and determines only the question of probable cause its failure after investigation to return an indictment is prima facie evidence of want of probable
5. MALICIOUS PROSECUTION 24(6)—WANT OF PROBABLE CAUSE-PRIMA FACIE EVIDENCE.
Where a magistrate, who sits as a committing magistrate merely, and not to try a case on the merits, discharges the defendant, such discharge is prima facie evidence of want of probable cause.
6. ESTOPPEL ~68(4)—EQUITABLE ESTOPPEL.
Where defendant, having sworn out a warrant against plaintiff, cannot, in a subsequent action for malicious prosecution, deny that prosecution was under such warrant, on the ground that plaintiff was not present at the preliminary proceedings or arrested under the warrant, for a defendant cannot in one judicial proceeding deny the validity of steps taken by it in another, which would impute a fraud upon the administration of justice in such proceeding.
7. ESTOPPEL 107-EQUITABLE ESTOPPEL-PLEADING.
Generally speaking, an estoppel in pais need not be pleaded; it being in effect a rule of evidence.
8. ESTOPPEL 110-EQUITABLE ESTOPPEL-PLEADING.
At common law, as distinguished from code pleading, an estoppel in pais is available as a defense under the general issue.
347-PRECEDENTS-DECISION OF STATE COURT.
Under the Conformity Act (Comp. St. § 1537), a decision of the highest court of the state as to the necessity of a pleading in estoppel, if intended to establish a general rule of pleading, is binding on a federal court sitting within the state.
In an action for malicious prosecution, where plaintiff alleged a prose cution under a warrant, and defendant merely pleaded the general issue, without averring specifically the invalidity of the proceedings before a justice of the peace begun on such warrant, and the proceedings before the justice showed prima facie at least that plaintiff was bound over on the warrant, plaintiff, without specifically pleading the same, may rely on the estoppel precluding defendant from denying that plaintiff was bound over on such warrant, for, if a party have not an opportunity to show an estoppel by pleading, he may exhibit the matter thereof in evidence.
For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
11. MALICIOUS PROSECUTION
The plaintiff, in an action for malicious prosecution, is not required to prove his own innocence; it being sufficient, to establish a prima facie case, that he show malice and want of probable cause.
12. MALICIOUS PROSECUTION
While, as a matter of public policy, an action for malicious prosecution will not lie in favor of a guilty plaintiff, and defendant by way of defense may show plaintiff's guilt, the burden of establishing such defense is on the defendant.
13. TRIAL 344-VERDICT-IMPEACHMENT.
A verdict cannot be impeached as a quotient verdict on evidence of the jurors.
14. MALICIOUS PROSECUTION
An award of $1,400, in an action for malicious prosecution of a criminal proceeding wherein defendant was charged with unlawfully breaking into a railroad car, is not so excessive as to warrant new trial.
At Law. Action by Horace Shelton against the Southern Railway Company. On defendant's motion for new trial. Motion denied.
Pickle, Turner, Kennerly & Cate, of Knoxville, Tenn., for plaintiff. L. D. Smith, of Knoxville, Tenn., for defendant.
SANFORD, District Judge. My conclusions are:
1. The verdict is not so clearly and manifestly against the weight of the evidence as to warrant its being set aside. Mt. Adams Ry. v. Lowery (6th Cir.) 74 Fed. 463, 472, 20 C. C. A. 596; Felton v. Spiro (6th Cir.) 78 Fed. 576, 582, 24 C. C. A. 321.
[1-3] 2. The affidavits as to the identity of De Witt Smith do not warrant the granting of a new trial upon the ground of newly discovered evidence. This is offered to contradict the testimony of Humbert that Smith was a white man, of Lexington, Kentucky. Newly discovered evidence merely to contradict a witness is not sufficient, however, to warrant a new trial. Lowry v. Mt. Adams Railway Co. (C. C.) 68 Fed. 827, 829. Furthermore on the point offered these affidavits were merely cumulative, as there was evidence on the trial that the plaintiff had himself brought a negro to the Knoxville depot and introduced him as De Witt Smith. Newly discovered evidence, which is merely cumulative, is not ordinarily ground for a new trial. Lowery v. Mt. Adams Railway Co. (C. C.) 68 Fed., supra, at p. 828; Flint v. Insurance Co. (C. C.) 71 Fed. 210, 221; Wright v. Express Co. (C. C.) 80 Fed. 85. The question of Smith's identity was furthermore merely collateral; the affidavits are merely negative; and the counter affidavits introduced by the plaintiff indicate that in fact Smith was a white man then living in Knoxville, who had formerly lived in Lexington. On the whole, I think the newly discovered evidence is not so conclusive as to raise a reasonable presumption that the result of a new trial would be different from the first; it is hence insufficient as ground for a new trial. Stoakes v. Monroe, 36 Cal. 383, 388; Armstrong v. Davis, 41 Cal. 494, 500; State v. Montgomery, 37 Utah, 515, 520, 109 Pac. 815. And see Williams v. United States, 137 U. S. 113, 137, 11 Sup. Ct. 43, 34 L. Ed. 590; Turner v. Schaeffer (6th
For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
Cir.) 249 Fed. 654, 657, — C. C. A. —; and Goldsworthy v. Linden, 75 Wis. 25, 34, 43 N. W. 656.
[4, 5] 3. I find no error in the charge of the court in the matters complained of.
(a) While there is some conflict of authority on the question, I think the true rule is that where the grand jury, as in Tennessee, hears only the witnesses for the prosecution and determines only the question of probable cause, its failure, after investigation, to return an indictment, is prima facie evidence of want of probable cause. Ambs v. Atchison Railway Co. (C. C.) 114 Fed. 318, 320; Brant v. Higgins, 10 Mo. 728, 734; Vinal v. Core, 18 W. Va. 1, 42; Brady v. Stiltner, 40 W. Va. 289, 293, 21 S. E. 729; Hanchey v. Branson, 175 Ala. 236, 245, 56 South. 971, Ann. Cas. 1914C, 804. So, too, where a magistrate who sits as a committing magistrate merely, and not to try a case on the merits, discharges the defendant. Williams v. Norwood, 2 Yerg. (Tenn.) 320, 336; Vinal v. Core, 18 W. Va., supra, at p. 42; Brady v. Stiltner, 40 W. Va., supra, at p. 293, 21 S. E. 729; Hanchey v. Branson, 175 Ala., supra, at p. 245, 56 South. 971, Ann. Cas. 1914C, 804; Smith v. Clark, 37 Utah, 116, 130, 106 Pac. 653, 26 L. R. A. (N. S.) 953, Ann. Cas. 1912B, 1366. I hence find no error in the portion of the charge relating to this question.
 (b) The declaration alleged that the defendant, by its agent, swore out a warrant against the plaintiff charging him with unlawfully breaking into a railroad car, etc., that the plaintiff was arraigned on said charge before the justice, pleaded not guilty and was thereupon bound over to the criminal court, etc. While it was not specifically averred that the defendant was arrested under this warrant, it was necessarily implied, either that he had been arrested under it or entered his appearance to it, and that proceedings were had before the magistrate under this warrant, after his personal appearance before the magistrate. The charge to the jury which is complained of was in substance that even if the plaintiff was not in fact arrested under this warrant or present at the proceedings under it before the magistrate, nevertheless that if the jury found that certain proceedings were there had in his absence by which the warrant was treated as that upon which he was to be prosecuted, the defendant would not be in a position to deny that the prosecution was under this warrant, no matter whether he was actually arrested under it or not. The theory upon which this charge was given, although not expressed at the time, was that the facts hypothetically stated to the jury amounted to an estoppel and prevented the defendant from denying that the criminal. prosecution was had under this warrant. The defendant excepted to this portion of the charge on the ground of "variation," evidently meaning variance.
I am of opinion that, if the facts were found by the jury as stated in this portion of the charge, the defendant was clearly estopped to deny that the plaintiff was in fact bound over to the criminal court on the prosecution commenced on the warrant sworn out by its agent. A defendant cannot be permitted in one legal proceeding to deny the validity of steps taken by it in another proceeding which would im