Page:Federal Reporter, 1st Series, Volume 4.djvu/472

 458 FEDEEAL BBPOBTEIÎ. �& Schoenfeld have no interos'u; that bis commission îs de- pendent on the sales; that he hasmade tho sales for the pur- pose of receiving the commission; and that he obtains the commission by making the sales. This is a distinct profit from any profits made by Loeb & Schoenfeld. The commis- sion to this defendant would not be included in any profits to be accounted for by Loeb & Schoenfeld, and such commis- sion is a direct profit to this defendant from the sale of the goods. Moreover, this defendant, although selling only under the circumstances set forth, is liable to be restrained in thig court, by an injunction, from selling the infringing goods, and this suit is properly brought against him for that pur- poov,. Thi3 court has obtained jurisdiction over his person. The plainiiff has a right to restrain the defendant, by injunc- tion, from participating, in the way set forth, in such sales, although a bill will also lie against Loeb & Schoenfeld to restrain them from participating, in the way they do, in the eame sales. Maliby v. Boto, 14 Blatchf. 63. �As to the second branch oi the plea, or the second plea, it follows, from the foregoing observations, that the peudency of the suit in Pennsylvania against Loeb & Schoenfeld is no bar to this suit. This defendant is not a defendant in that suit, and no injunction therein could be issued against him by name; and, although an injunction therein against the defendants therein might reach them for the acts of this defendant as an employe of theirs, yet, although he is an employe of theirs, in one sense, in what he does, he is inde- pcndent of them in the profit he makea by his commission on sales, although he may receive his commission through them out of the sale price, and it is proper that the plain- tiff shonld bave an independant injunction against him in this suit. Again, as beforo said, the bill in Pensylvania would not make the defendants therein account for the com- mission received by this defendant. This, therefore, is not the case of another suit pending between the same parties in another jurisdiction for the same subject-matter. �The plea is overruled, with costs, and the defendant will be assigned to answer the bill. ����