The plaintiff contends that the part which the defendant calls a fork is really a portion of the nailways; and that it reciprocates for the same purpose, and with the same effect as the whole track or way reciprocates in the patent; and that, in truth, the mode of operation of the two machines is substantially similar. The defendant insists upon the differences between the two organizations, which all depend upon the fact that the defendant's machine has no spring to stop or protect the end of his nailway. In all other respects the machines are alike. The piece called a fork is one with the nailway, and a part of it when the nail is delivered into the throat ()f the nail tube; the separator acts in the same way to divide the lowest nail from the others; the fork, which, when at rest, was a part ()f the nailway, recedes, and the nail is driven in the same way as in the :plaintiff's machine. 1'he difference is that the nailway is cut in two and the lower end moves in the opposite direction from that in which the plaintiff's nailway moves. The part of the cover which acts as a stop is not needed, and is not present in tIle defendant's machine. We doubt its being an essential part of the plaintiff's machine. At any rate it is distinctly and separately described and clnimed. We agree with the plaintiff that the fair construction of his patent will cover the defendant's machine. The fourth claim, which contains, as an element, the stop, or springing end of the cover, is not infringed. Claims 1, 2, and 3-which are for combinations, (1) of the nailway and nail tube, (2) of the nail tube with an opening in its side, and the picker (or separator) and nailways, and (3) the ways and the adjustable cover-are infringed. Decree for tIle cumplainant.
,Circuit Court, W. D. Pennsylvania. September 4, 1883.)
PATEXTS Fan PATEXl'. IN REISSUE REPEATIXG IN OmoiNAL
'Where the claim in a reis.ue while differing verhally from the claim in the original pa1ent, is sllustanti:lll)" and in lc'g:t1 elIcct a mere repetition of that t!1:lilll the claim in til" reissue mar be sustained. U<1.Qe v. lJerring 2 Sup, Ct. Hep. 819; belL/WilDer v. fJree",cu!I lJre'lCiug Co. 17 FED. REP. 2,ll, followed.
In Equity. Sllr demurrer to bill. John K. Hallock, for demurrer. J[r. Taylor, contra. J. The first, second, and thirrl grounds of demnrrer go to the entire bill of complaint, and, if sustained, would req1lire the court to hold that the reissued letters patellt are void in totu by leason
THE MARY N. HOGAN.
of the alleged unwarrantable expansion of the claim. But it has been authoritatively decided that the invalidity of a claim in a reissue does not imLJail' the validity of a claim in the original patent which is repeated and separately stated in the reissued patent. v. Herring, 23 O. G. 2119; [So C. 2 Sup. Ct. Rep. 81$l;] Schillinger v. Greenway Brewing Co. 24 O. G. 495; [So C. 17 FED. REP. 244.] :Now, in the present case, the second claim of the reissue, while differing verbally from tho first claim of the original patent, is, it seems to me, substantially, and in legal effect, a mere repetition of that claim; and therefore, under the authorities cited, such second claim may be sllstained. The fourth ground of demurller is conceded. And now, September 3, :1883, the fourth gt·ound of demurrer is sustained, but the first, second, and third grounds of demu>;rer are overruled, and leave is granted the defendant to answer within 30 days.
(District Court, S. D. New York.
II. The eleventh rule in "dmiralty, authorizing- the honding of vessels arrester]. is not imperative in all cases; it.is designed to apply in suits to recover pecuniary demands, and should nol be applied where it would defeat the object of the snit. 2. S.UIE-HEV. bT. 5283, 4189-BmmrxG VESSEL. t'eetiotl 52f3 of the Revised Statutes is designed to prevent hostile expeditions altogether by til(' seizure and forfeiture of the vessel engaged in them; not to ,et a price, by releasing Ille vessel on bond, upon the violation of international obligations; and no interpretation of the admiralty rules should IJe permitted which would admit of that result. 3. B.UIE-CASE t'TATED. 'Where the steam-tug N. H. was seized for forfeiture under sections 5283 and 418£1, on a libel charging, upon responsible authority, that sh" had been fitted out for, and was about to depart upon, a hostile expedition against IIayt1, and was registered nnder a false certificate of ownership, and application \Va; made hy the alleged owr.;r. under rule 11, for app.Jintment of appr:lisers for the purpose of lJond;ng the vessel, held, that rnle 11 was not designed for such a ,;ase, ane! that the vessel should not he released OIl Lond, and the application for appraisers was denied.
NEUTRALITY L.HVS-FoHFETTURE OF VESSEL-AD)!IUALTY RULE
In Admiralty. Elihn Rvot, U. S. Atty., for libelant. TVeekes 11': Forster, for claimant. BRO\yX, J. The steam-tug )'Iary :N. Hogan being in the custody of the marshal, under arrest UpOD process issued fur her forfeiture to the United States, application is made in behalf of John H. McCarthy, her alleged owner, for the appointment. of appraisers to determine her ,alue, preliminary to giving bond for her release from custody. The application is opposed by the district attorney aD the ground that the
claimant is not, in this case, entitled to bond the vessel. The proceedings for the forfeiture of the vessel are instituted under sections 5283 and 4189 of the Revised Statutes. The former section subjects to forfeiture any vessel "furnished, fitted out, or armed within the limits of the United States with intent that such ves!3el shall be employed in the service of any foreign prince or state, or of any colony, district, or people to cruise or commit hostilities against the subjects, citizens, or property of any foreign prince or state, or of any colony, district, or people with whom the United States are at peace." The libel charges that the Mary N. Hogan, on or about the fifteenth of July, 1883, was furnished, fitted out, or armed within this district, with the intent that she should be employed in the service of certa.in rebels in the island of Hayti, to cruise or commit hostilities against the subjects, citizens, or property of the island of Hayti, with which the United States are at poace. By section 4189, also, every vessel is made littble to forfeiture whose certificate of registry "is knowingly and fraudulently obtained;" and the libel charges that John H. McCarthy, on or about the fifteenth da.y of July, 1883, knowingly and fraudulently procured the registry of said vessel in his name as sale owner, upon oath that there was no subject or citizen of any foreign prince or state directly or imlirectly interested in her, whereas, in fact, a foreign citizen was part owner. '1'he proceedings for the forfeiture of the vessel are proceedings in admiralty, and governed by the admiralty rules. The appointment of appraisers and the bonding of the "Vessel are claimed under rule 11 of the supreme court rules in admiralty, which provides that "where any ship shall be arrested, the same II/a.l/, upon the application of the claimant, be delivered to him upon due appraisement to be had under the direction of the court, upon the claimant's depositing in court so much money as the court shall order, or upon his giving stipulation with sureties," etc. In the great majority of cases suits are brought, and the arrest of the ,essel is made, for the purpose only of securing payment of some pecuniary demand. In Buch cases the object of the suit will be fully secured by permitting a good bond, with sureties, to be substituted as security in place of the vessel during the pendency of the litigation; and thereby not only is the great expense of keeping the vessel in custoLly for a considerable period avoided, but the yessel is also allowed in the mean time to be engaged in the pursuits of commerce. Rule 11 is clearly cles:gned for this purpose. It is not in form imperati,e in all cases of the arrest of vessels, but provides only that the ,essel "may" be delivered, etc.; thus leaving to the court a discretion wIJich may be rightly exercised under peculiar circumstances; and, as it seems to me, the rule clearly should not be applied in those cases where the object of the mit is not the enforcement of an:, money demand, nor to secure any payment of damages, but to take posses-
sian of and forfeit the vessel herself, in order to prevent her departure upon an unlawful expedition, in violation of the neutrality laws of the United States. Such,oy the statements of the libel, appears to be the sole object of this suit; and to permit the vessel, as soon as arrested, to be bonded by the very persons alleged to be engaged in this unlawful expedition, and bonded presnmably for the purpose of immediately prosecuting it, would be to facilitate in the most direct mar,ner the unlawful expedition, and would practically defeat the '>"hole object of the suit, and render the government powerless by legal proceedings to prevent the violation of its international obligations. NQ section of the statutes other than section 5283 fully meets the circumstances of this case. That section is rightly invoked to enable the government to preserve itself from large possible liabilities through a violation of its treaty obligations to Hayti. It is clearly not the intention of section 5283, in imposing a forfeiture, to accept the value of the vessel as the price of a hostile expedition against a friendly power, which might entail a hundred-fold greater liabilities on the part of the government. No unnecessary interpretation of the rules should be adopted which would permit that result; and yet such might be the resuit, and even the expected result, of a release of the vessel on bond. 'rhe plain intent of section 5283 is effectually to prevent any such expedition altogether, through the seizure and forfeiture of the vessel herself. The government is, therefore; entitled to retain her in custody, and rule 11 cannot be properly applied to such a case. Upon the papers submitted it appears that the proceedings are promoted at the instance of responsible officers of the Haytian government; and there is no evidence before me tending to show that the proceedings are in bad faith, or malicious, or on insufficient prima facie grounds; and the application for appraisers for the. purpose of bonding should, therefore, be denied. As the vessel is in custody, either party, under the rules of the court, is entitled to an immediate trial. NoteI'm forille trial of calendar causes being in session at this time, upon the consent of the United States attorney, already gi\'en in open court, the claimant, upon filing his answer to the libel, may have an immediate order of reference to the clerk to take the testimony in the cause; and when completed the case may be submitted, and will be at once disposed of.
FEDERAL REPORTER. THE NEw CHAMPION.
(District (Jourt, S. D. New York.
July 15, 1883
]. ADMIRAJ,TY- LIEN-SUPPLIES- ·PRESUMPTION.
Necessary supplies furnished' to a vessel in a foreign port are presumptively fornished upon the credit of the vessel as well as of her owners, and a lien on the vessel therefor will be sustained, unless the evidence is sufficient to rebut this presumption.
The lien wiil not be atlcctcd by an agreement between the owners and the captain that the latter should find the crew and pruvisions, where the seller had no knowledge or notice of the agreement. .,
In Admiralty. Al<!xander J; Ash, for libelants. J. A. Hyland, for claimant. BROWN, J. The supplies for which this actiontg brought were provisions furnished at Bergen Point, New Jersey, to the steward, in accordance with the master's orders; and all belong to the class of necessaries. The captain was running the barge on an agreement with the owners that he should have $60 per month and find the crew and provisions. The libelants, who kept a grocery store at Bergen Point, had no knowledge or notice of this arrangement, as in the case of The Wm. Cook, 12 FED. REP. 9 I 9, and hence were not bound by it. The .John Farron, 14 Blatchf. 24, reversing 7 Ben. 53; The S. M. Whipple, 14 FED. REP. 355; The India, Id. 4-76. The libelant testified that the supplies were furnished on the credit of the vessel; and upon all the circumstances I do not think there is sufficient evidence to rebut this testimony, or the legal presumption that the supplies, being furnished in a foreign port, were furnished upon the credit of the vessel, as well as of her owners. The Secret, 15 FED. REP. 480; The Plymouth Rock, 7 Ben. 448; The E. A. Baisley, 13 FED. REP. 703; The E. A. Barnard, 2 FED. REP. 712, 714; The Grapeshot, 9 Wall. 129, 136. The libelants must, therefore, have judgment for the value of the goods furnished, amounting with interest to $33.45, with costs.
VAN DOLSEN V. CITY OF NEW YORK.
817 and others.
VAN DOLSEN V. MAYOR,
OF NEW YORK,
(Circuit Court, S. D. NelD York.
August 30, 1883.)
JURISDICTION-LEASE OF HEAl, ESTATE TO CON FEn-TITLE TO 'VATER FRONT.
The owner of certain dock property, who derived his title from the British crown through a gran t of land IJoU!Hled by the" water side." in anticipation of the action of the dcfemlants. leased the same to plaintiff, who was a citizen of another state. Defendants, who derived their title also from the crown, attempted, under authority of the laws of the state of New York, to fill into the water, and build a new water front before the landing place, and cut it off from the water. lIPid that. as defendants were grantees of the crown, they were limited as if they had made the grant the crown had made, and could not grant land bounded on a way, and afterwards remove the way without compensating the parties injured. lIeld, further, that, although the principal motive ''1 making the lease was to enable the plaintIff to sue III the circuit court of the United States, as it did not appear that the lease was not real and effectual to pass the title of the term to plaintiff, the suit involved a controversy properly within the jurisdiction of the court.
In Equity. James IV. Gerard, for orator. James C. Carter, for defendants. WHEELER, J. This cause has been heard upon pleadings and proofs, from which it appears that while the whole proprietary interest in all the land and water now in question was vested in the British crown, Sir Edmund Andross, royal governor of the province of New York, granted, in 1676, to Gabriell Curtessee a tract of land on the east side of hattan island, bounded south-east by the river, and in 1677 to David Deffore another tract adjoining this, bounded "by ye water side." These lands, between now Forty-ninth and Fifty-first streets, on the water front of which there has been, and been used for many years, a landing place, are the property of Gerard and James W. Beekman, who leased the front to the orator for two years from November 11, 1880. The defendants are attempting, under authority of grants .from, and laws of, the state of New York, to fill into the water and ibuild a new water front before this landing place, and cut it off from the water. This bill is bruught to restrain such action, and for an acconnt of damages. The owners have been accustomed to lease these premises for dock purposes before. They apprehended such action as has been begun by the defendants, and a controlling reason for making this lease was the fact that the orator is a citizen of another state, and could, as was supposed, proceed against the defendants in this court for any inteference with his rights. It is objected that this controversy if> really between the lessors and the defendants, who are citizens of the same state, and not between the orator and the defendants, and that, therefore, the suit does not really invoh-e a controversy properly within the jurisdiction of this court, and should be proceerled with no furtller, but dismis,;ecl, under section 5, act of ,.17,no.12-52