OpenJurist

W:E:LLING V. LA BAU.

875

bell-shaped part, and appears to cover no whip-sockets not having such a shaped top. The reissue is for such whip-sockets generally, without any limita tion to that form of top. The patent is to that extent, and perhaps in some other parUculars, enlarged in the reissue. That brings this case within the principles of Miller v. Bridgeport Brass Co. 21 O. G. 201, and James v. Campbell, Id. 337, as now understood. Let the decree heretofore ordered be so modified as to dismiss the bill as to this patent.
See ante, 625, and note, 626.

WELLING 'V.

LA BAU.

SUrE V. GOOTH.

(Oire-ute Court, 8. D. NetIJ:York. June 15, 1882PATENTS FOB mVENTIONs-PRIOR USE.

Where the defences of prior use and anticipation are not established, injune;; tion for the infringement of the patent will be granted.
WALLACE, C. J. The defences of prior use and anticipation are not well established. In view of the state of the art, the three patents of the complainant in controversy are to be limited to the composition of the specific ingredients in the substantial proportions described. The proofs fail to establish infringement of either patent, except No. 5,940. As to that patent a decree is ordered for an injunction cnd accounting; the injury upon the accounting to be confined to in. fringement consisting of the use of shellac and talc in equal parts substantially. .

876

FEDERAL REfOBTER.

THE POWHATTAN,

etc.

July 12,1882.)

(Oircuit Court, E. IJ. New York.

1.

8:mPPING-CATTLE-NEGLIGENCE-BuRDEN OF PROOF.

On a shipment of cattle in an iron ship in hot weather in July, the burden of proof of negligence on the part of the carrier by not providing sufficient vent· ilation is on the shipper.
2. SAME-NEGLIGENCE OF SHIPPER.

Where it is not established that there was any negligence anywhere, except such as existed in confining live cattle in the between-decks of an iron vessel in hot weather, and that was the act of the libellant, the libel brought for the loss of cattle by death from heat during the voyage will be dismissed.

a.

SAME-CAUSE OF :MORTALITY

The continuance of mortality of cattle after wind-sails are put up and kep1 up, and the bad condition of the surviving between-deck cattle, was owing to the keeping of the cattle in the between-decks and not to the omission to put up wind-sails at the pier, or to keep the cattle on the pier until the hour of sailing. See Ii FED. REP. 375.

Thomas E. Stillman, for libellant. Lorenzo Ullo, for claimant. In this case I find the following facts:
The steamer Powhattan is an ocean steamer built of iron. Her length is 2()7 feet, and her breadth of beam 32, feet. Her registered tonnage is 998 tons. She was built in 1878, and was owned by the Mediterranean & New York Steam-ship Company, Limited, and was running between New York and European ports. The firm of Phelps Brothers & Co. were the general agents in New York of the Powhattan and of her owners. The libellant, in 1878, and for many years prior thereto, was a wholesale butcher and dealer in cattle in Brooklyn, New York. The Powhattan was built for the fruit trade, and was so constructed as to render her betweendecks well ventilated for that trade. She had permanent ventilators fixed up to ventilate her hold. She had 15 permanent ventilators, 8 of which were meant to let the hot air up, and the rest had cowls on and were meant to catch the air and force it down; some of them being 15 feet high from the deck and others 9. She had four unusually-large hatches. No.1, the forward hatch, was 11 feet 10 inches long and 8 feet 9 inches broad. No.2 was 19 feet 6 inches long and 10 feet broad. No.3 was 16 feet long and 10 feet broad. No.4 was 8 feet long and 6 feet broad. The combings of all the hatches were 3 feet 10 inches high, so as to enable the hatches to be kept uncovered in ordinary seas. On the seventeenth of June, 1878, Moses May, the libellant, and the firm of Phelps Brothers & Co., as agents of the steamer Powhattan, entered into a written agreement at New York, of which the following is a copy: "NEW YORK, June 17,1878. .. Engaged from Mr. Moses May, per S. S. Powhattan, hence to Bristol. a full load of cattle in the 'tween-decks and on deck. Rate of freight ($32.50) thirty-two dollars fifty cents per head for 'tween-decks, and ($22.50) twenty-