thie exclusive interest. to said Fielding, said Fielding will thereupon reconvey said patents to said Burr, or will pay to Burr for the /:lame" $2,500. This proV'ision shows that these two parties thought that Andrews & Co. could terminate the license, and if they did so terminate, and if they reconveyed to Fielding, then bis trust relation to the patents would cease, and he must either reconvey to Burr or obtain the absolute title by a payment of $2,S.OO. After receiving a reconveyance, provided such reconveyance was without fraudulent collusion on his part with Andrews & Co., his duty was to convey to his cestui que trust or to buy the patents. It is not necessary for me to decide what Andrews & Co. had the power to do under the license alone. The agreement between Burr and Fielding was that when Andrews & Co. did all in their power to end the contract, and reconveyed to Pielding, he would no longer retain the patents, but would reconvey to Burr, and let him manage them as he chose, or would purchase them himself for $2,500. In Fielding's contract he provided that as long as Andrews & Co. paid royalties he was to have a part of them. When payment was stopped, and the income ceased, then Burr was to have his patents, or Pielding would buy them. The condition of things which was provided for in this agreement has taken place. Andrews & Co. have tried to terminate, and have reconveyed, but Fielding has done nothing. Let a decree be entered directing Fielding to convey to Burr the two patents, No. 230,105 and reissue No. 9,393, and restraining Fielding from prosecuting any action for royalties which accrued after the expu-ation of three months from and after July 15, 1881.
WORSWICK MANuF'a Co. and another v. CITY OF BUFFALO and others.
(Circuit Court, N. D. New York.
When in a patent-infringement cause the defense relied on is that the plaIntiff was not the original inventor, the burden of proof is on the defendant to satisfy the court on that point beyond a reasonable doubt
In Equity. M. D. Le,qgett and John Orowell, for complainants. Giles E. Stilwell, for defendants. COXE, J. The complainants are the owners of letters patent, No. 171,190, granted December 14, 1875, to Edward O. Sullivan for improvements in harness for fire-engines. The patent relates not only to the construction of the harness but also to the manner of suspending it above the horse. The object of the invention is to enable the horses to be kept unharnessed until the moment of the alarm, and
WOBSWICK MANUp'a 00. V.
then to attach them to the engine with great expedition. One man is thus enabled to do the work of three under the old system. The harness is made in sections, is permanently fastened to the neap or thills and suspended from the ceiling by means of straps and spring catches so that it may be dropped upon the horse and quickly sccured. Before the use of this apparatus horses were kept continually in harness night and day. The result was that they were irritated and galled and the harness was injured and soon destroyed by the constant rubbing which this irritation There can be no doubt regarding the utility of the invention. Its advantages may be summarized as follows: Relief to the horse, expedition in reaching the fire. durability and reliability of the harness, economy in the employment of firemen and harness makers. And when it is remembered that promptness in arriving at a fire has often prevented a great conflagration the indirect benefits can hardly be estimated. . The claim in controversy is the third. It is in these words: of a device for suspending said harness above the place occupied by the horse when attached to the apparatus, substantially as and for the purpose set The defenses interposed are: First, the claim is void for the reason that there is an attempt to patent a mere abstraction-the idea of suspending a harness from the ceiling at a particular place; second, the defendants do not infringe if the claim is confined to the particular mechanism described in the specification; third, the patentee was not the original inventor. So far as the records of the patent-office show Sullivan was the first to enter this field of invention. No other patent, American or foreign, is introduced to anticipate or limit the claim referred to. It should, therefore, be construed broadly to cover any similar apparatus which suspends a harness in substantially the same manner. The details of construction both in the harness and suspending apparatus are non-essentials, inferior and subordinate to the principle embodied in the patent which is the paramount and superior consideration. The man who first conceived the idea of suspending the harness above the horse and put it into successful and practical operation is the one who conferred the benefit and is entitled to the reward. It would be an exceedingly illiberal and narrow construction to hold that he should be deprived of the fruits of his ingenuity by one who simply changed the form of the harness or of the device by which it is suspended. No principle is better settled than that a mere abstract idea is not the subject of a patent, but that principle has little application here. for the reason that the inventor has put his idea into tangible shape and given it form and substance. For years the problem was how to get the engine to the fire in the shortest possible time. By a combination of old devices Sullivan has reduced time to the minimum and accomplished a confessedly beneficial rl:lsult. It is not .IVl
"(3) The combination, with
straction he seeks to secure, but the apparatus by which the idea is carried out. With the claim thus construed and in view of the state of the art very little need be said upon the question of infringement. The defendants have adopted an analogous ·combination. The harness and hoisting apparatus used by them are substantially the same as those described in the patent. They have quite likely intr<?duced improvements; they have employed the well-known mechanical equivalent of a pulley and weight for a coiled spring; they suspend the whole harness and attach no part of it to the pole, and there are minor points of difference between the two mechanisms, but in all essential particulars they are alike. 1'he main effort on the part of the defendants has been to show that Sullivan was not the original inventor. 'Here the burden is upon them to satisfy the court beyond a rea'sonable doubt. A mere preponderance of evidence is not enough; the proof must be of such a convincing character that the court can say without hesitancy that the allegations of the answer in that behalf are true. Has such proof been offered? It is thought not. A fair conclusion to draw from the evidence is, that the defendants have succeeded only in casting doubt upon the title of the patentee. Instead of capturing the citadel they have simply made a breach. True it is that before the patent vague conceptions of the invention had entered other minds; true it is that others had approximated more or less closely to the successful realization. No one had quite reached the goal. The evidence shows that in one instance, while the horse was standing ha,rnessed in the stall, the collar was, by means of a cord, pulley, and weight, raised on his neck to prevent chafing, heat, and irritation. In another case a single harness, without collar and hames, was attached to the thills of a light fire wagon. The harness and thills were elevated to the ceiling by a rope, pulley, and weight. A similar method was, at another time, applied to the harness of hose carts, excepting that the collar and bames were left on the horse. There WitS also evidence tending to show that in 1872, at Louisville the harness of a hose cart was suspended by a rope and pulley from the ceiling and that the collar was hinged and was fastened by a snap or spring-lock at the bottom. No witness was called who recollected seeing a harness for fire engines suspended prior to the date of the patent. But, if not discredited, the evidence relating to the Louisville apparatus would certainly have the effect of restricting the claim within exceedingly limits. The complainants have, however, succeeded in showing that there may well be a mistake both as to the time when, and the manner in which, the harness was suspended at Louisville. The chief and assistant chief of the fire department of that city during the year 1872, never saw or beard of the apparatus described by the defendants' witnesses. The chief next in succession who, previous to his elevation to that office, had been in and
'XHE J. W. TUOKER.
about the engine-houses for 20 years, gave like evidence. A member of the Cleveland fire department who came to Louisville in 1879 for the purpose of explaining and introducing the Sullivan apparatus testified that he visited the different engine-houses but saw nothing at all resembling a swinging harness. The Louisville firemen were surprised and pleased with the invention and it was immediately adopted by them. It must, therefore, be said within the rule heretofore adverted to, that the defendants have not succeeded in establishing their defense. There should be a decree for an injunction and an account, with oosts.
(District Court, S. D. New York.
April 24, 1884.)
Costs as against the fund not allowed, except upon the first libel filed and the other necessary disbursements. Claimants not appearing, if any, will be barred after order for the payment of the money out of the registry.
On December 12, 1888, the canal-boat J. W. Tucker was libeled in this court by David Cox, and in that proceeding she was subsequently sold. After satisfying the amount due on that libel with costs, the sum of $206.23 remained, which was deposited in the registry of the court. Prior to the sfl,le the petitioner Stillman filed his libel against the boat on the twenty-seventh of December, 1883; and on the twenty-second day of January following, the petitioner Dentz filed her petition against the same; both claiming maritine liens on the boat and its proceeds. The claim of Stillman amounts to $398.90 for variou!:! towage services rendered to the canal-boat on the Connecticut river, between New Haven, Middletown, and Hartford, during each month from April 9, 1883, to November, 2, 1883. The claim of the petitioner Dentz is for a balance of $340 for towage services during each month from May to November 6, 1883, between Jersey City, Saybrook, and New. Haven, or Greenpoint. The claims for towage services rendered by each were in the usual course of the' business of the canal-boat upon her trips from Jersey City to the points upon the Connecticut river above named and back. The money in the registry being insufficient to pay the claim of either in full, the libelant Stillman claims the whole amount on the ground that the boat was first libeled and attached in his suit. Benedict, Taft d: Benedict, for Stillman. Jas. K. Hill, Wing ef; Slwudy, forDentz. BROWN, J. The claim of the libelant Stillman presents in its simplest form the question whether, as between maritime liens of the same rank, priority is to be given to that on which the libel is first filed and the vessel first arrested, without regard to the dates at which the liens respectively accrued.. Such was the rule declared in this district in the case of The Triumph, (1841,) 2 Blatchf. 433, note, and The Globe, ld. 433, (1852,) and which has been more or less followed since. The principle on which this rule was based, in the language of those cases, is that a maritime lien "is, in reality, only a privilege to arrest the vessel for a debt which, of itself, constitutes no incumbrance on the vessel, and becomes such only by virtue of an actual attachment." Upon this view of the nature of a maritime lien, it is obvious that the parties first attaching the vessel must necessarily have a prior right. But this view of the nature of maritime liens, which is the foundation of the rule in question, has long since been superseded.. In the case of The Young lVfechanic, 3 Ware, 85, WARE, J., defines it as "a jU8 in re, a proprietary interest in the thing, which may be enforced directly against the thing itself by a libel in rem, in whosesoever possession it may be, and to whomsoever the general title may be transferred." The subject was elaborately can-
THE J. W. TUCKER.
sidered by CURTIS, J., on appeal in the same case, 2 Curt. 404. The definition of maritime liens, as stated by WARE, J., was affirmed, and the view of the nature of such liens, as expressed in the case of The Triumph, was shown to be unsound, (page 412.) The same view was affirmed in the following year (1856) by the supreme court, in the case of The Yankee Blade, 19 How. 82, 89, and has since then been universally recognized and followed. In the case of The Lottawanna the supreme court say, (21 Wall. 579:) "A lien is a right of property, and not a mere matter of procedure. " WARE, J., in the case of The Paragon, 1 Ware, 322, 330, held, according to this view of such liens, that "when all the debts hold the same rank of privilege, if the prop. erty is not sufficient to fully pay all, the rule is that creditors shall be paid concurrently, each in proportion to the amount of his de· mand." LOWELL, J., in the case of The Fanny, 2 Low. 508, says: "The general rule in admiralty is that all lienholders of like degree share pro rata in the proceeds of the res, without regard to the date of their libels or suits, if all are pending together." The same view was taken by Judge HALL, in the case of The America, 16 Law Rep. 264, 271. So, in the cases of The Supl'rior, 1 Newb. 176; The Kate Hinchman, 6 Biss. 367; The General Burnside, 3 FED. REP. 228, 236; The Arcturus, 18 FED. REP. 743; The Desdemonn, 1 Swabey, 158, it was held that concurrent liens of the same rank should be paid pro rata, where the proceeds were insufficient to pay all, without regard to the date of the libel or the attachment of the vessel by either. Roscoe, Adm. 101. Such is the provision, also, of the French law. Code de Com. 191. The precise question here presented has not, so far as I can ascer. tain, arisen of late years within this district. In the Eastern district, in the case of The Samuel J. Christian, 16 FED. REP. 796, the ques. tion seems to have been regarded by BENEDICT, J., as an open one. He there held that a lien for damages by collision was subject to the prior claims of material.men, and did not acquire any priority ovel: the latter through the prior filing of the libel; and he concludes his opinion by saying that "it is unnecessary to consider the question whether, as between claims of equal rank, a prior seizure of the ves. Ilel secures priority in the distribution of the proceeds. " The recent decision in the circuit court in this district, however, in the case of The Frank G. Fowler, 17 FED. REP. 653, accords in principle with the several cases recently decided, to which I have I1bove referred, holding that mere priority of attachment does not en. title to a preference. That decision seems to me plainly incompat. ible with the rule adopted in the cases of The Triumph and The Globe, .Qupra, and with the views upon which that rule was founded. In the case of The Fowler, damages in favor of different lienors had accrued by two collisions upon successive voyages of the same vessel. The libel for the last collision was filed three days before the libel for the previous collision; but the attachment of the vessel by the marshal
was made upon both processes at the same time. 1.'he proceeds of sale being insufficient to pay both claims, this court held, for reasons which need not be here referred to, that the liens should be paid in the inverse order of the time at which they accrued. 8 FED. REP. 331. On appeal, BLATCHFORD, J., reversed this ruling, and held that the earlier damage should first be paid in full. Had the rule of priority depended upon the time of filing the libel, the judgment of the district court should have been affirmed, since the libel on the last lien was first filed; had priority depended upon the time of the arrest of the vessel alone, then, as the arrest upon both libels was at the same time, and the claims were of the same rank, neither had priority of the other, and the proceeds should have been divided pro rata between them. Neither of these courses was pursued. The decision, on the contrary, in awarding priority to the earlier lien, established for this circuit the principle, which has been repeatedly affirmed elsewhere, that a lien is a vested proprietary interest in the res itself, from the time when it accrues; and also that failure to enforce such a lien by immediate suit, before the vessel proceeds on another voyage, is neither laches nor sufficient, by any equity or rule of policy, to displace its priority, as a vested proprietary interest, over a subsequent lien of the same rank upon which the vessel is arrested at the same time. The former rule in this district, which made priority among liens of the same rank depend upon the date of filing the libel, or the arrest of the vessel in the proceeding to enforce it, must be regarded, therefore, as superseded; not merely because the foundation upon which that rule rested has been wholly swept away, but also because the rule adopted by the circuit court in the case of The Frank G. Fowler is incompatible with its longer existence. Viewing maritime liens, therefore, as a proprietary interest in the vessel itself, and the filing of the libel and seizure of the vessel as proceedings merely to enforce a right already vested, it follows, necessarily, that, as between different lienors, any proceeds in the registry should be distributed according to the rightful priorities of the liens themselves, and not according to priority of the proceedings merely to enforce them. This rule permits all the equities of such liens to be considered and enforced, instead of subordinating these equities to a mere race of diligence. Where the liens are of the same rank, there is often an equitable priority among them arising out of the character of the lie11s themselves, or the time when they accrued. A later lien for salvage is entitled to priority over a former salvage, because the last service has preserved the benefit of the former. The same is true of successive repR.irs of a vessel on different voyages, or on different parts of the same voyage, or of liens on successive bottomry bonds. The later improvementFl or advances are for the presenation of the former, or for further improvements upon the vessel; and they have, therefore, an equitable priority. As regards such liens, therefore, the rule is
that they shall be discharged in the inverse order of their dates. 3 Kent, 197; The Eliza, 3 Hagg. 87; The Rhadamanthe, 1 Dods. 201; The Rold Buccleugh, 7 Moore, P. O. 267; The St. Lawrence, 5 Prob. Div. 250; The Fanny, 2 Low. 508; The 2 Gall. 345; The America, 16 Law Rep. 273; P.oscoe, Adm.98: The De Smet, 10 FED. REP. 489, note. If the liens are of the same rank and for supplies, or materials, or services in preparation for the same voyage: or if they arise upon different bottomry bonds to different holders for advances at the same time, for the same repairs, such claims are regarded as contemporaneous and concurrent with each other, and they will be discharged pro rata. The Exeter, 1 O. Rob. 173; The Albion, 1 Hagg. 333; The Desdemona., 1 Swab. 158; The Saracen, 2 Wm. Rob. 458: The Rapid Transit, 11 FED. REP. 322, 334, 335; The Paragon, 1 Ware, 325, and cases first above cited. But if the liens arise from causes which are of no benefit to the ship, such as liens for damages by collision, or other torts, or negligence: and if the claims are such as cannot be treated as contemporaneous or concurrent; and if there are no equitable grounds for preferring the later liens, such as laches in the enforcement of prior ones, or other grounds of general policy,then, as stated by STORY, J., in the case of The Je·rusalem, "the rule would seem to apply, qni prior est tempore, potior est jure," (2 Gall. 345, 350:) and the liens should be satisfied in the order in which they accrue, as was held in this circuit in the case of The Frank G. Fowler, supra; Macl. Shipp. 702, 703. As maritime liens are secret incumbrances, and tend to mislead those who subsequently trust to the ship, unless they are enforced with diligence, according to the circumstances and the existing opportunities for enforcing them, they will be deemed either abandoned through laches as against subsequent lienors or incumbrancers, or postponed to the claims of the latter, as circumstances may require. There is no fixed rule applicable to all cases determining what shall be deemed a reasonable time, or what shall be considered as laches in enforcing such liens. In ordinary ocean voyages, the preference allowed even to bottomry will be lost after a subsequent voyage, if reasonable opportunity previously existed for the arrest of the ship. Blaine v. The CaTter, 4 Oraneh, 332; The Royal Arch, 1 Swab. 269284; The Rapid Transit, 11 FED. REP. Sg2, 334. BETTS, J., held that the same rule should be applied to ordinary-liens for supplies. The Utility, Blatchf. & H. 218, 225; The Boston, ld. 309, 327. If this rule were strictly applied to vessels which make very short and frequent voyages, of only a few days' or a few weeks' duration, and which remain in port but a short time between such trips, the effect would be practically to destroy all credit to the ship, and to defeat, therefore, the very object for which maritime liens are allowed; since every lienor would be compelled to enforce his lien almost immediately, or run the risk of having it postponed to all subsequent one!>.
As respects liens arising in the course of navigation on the western lakes and rivers, where the voyages are short and frequent, the rule has been adopted to a considerable extent of making the division of claims by the successive open seasons of navigation,instead of by the separate voyages during each season. The Buckeye State, 1 Newb. 111; The Dubuque, 2 Abb. (U. S.) 20, 32; The Hercules, 1 Brown, Adm. 560; The Detroit, Id. 141; The Athenian, 3 FED. REP. 248; The Oity of Tawas, Id. 170; The Arcturus, 18 FED. REP. 743, 746. The uniform practice, therefore, has been there adopted of paying maritime liens for repairs and supplies accruing during the same season pro rata, without regard to the particular date or voyage at which they accrued. The Superior, 1 Newb. 176, 185; The Kate Hinchman, 6 Biss. 367; The General Burnside, 3 FED. REP. 228, 236; The A thenian and The City of Tawas, ut supra. While this rule is neither strictly logical nor consistent with the theory of beneficial liens, yet, as applied to short and frequent voyages during the open season of each year, it is not merely convenient in application, but on the whole, as I think, it works out practical justice better than any other rule suggested. It occupies a middle ground, and is in effect a compromise between the theoretical right of priority of the material-man who furnishes supplies for the last v:oyage on the one hand, and the corresponding obligation on his part to prosecute at once in order to retain that priority which commercial policy would disallow. The season of navigation is regarded as in the nature of a single voyage; and the rules applicable to a single ocean voyage are applied, as regards liens for supplies, to the navigation of a whole season. The City of Tawas, 3 FED. REP. 170, 173. As respects liens arising under the state laws, the decisions are at variance whether such liens stand upon the same footing as strictly maritime liens. While the greater number of decisions do not allow the same status to statutory liens, (The SupeTior, 1 Newb. 176; The E. A. Barnard, 2 FED. REP. 712, 721, 722, and cases there cited,) the contrary view, according to later decisions, placing both on the same footing, seems the more likely to prevail. The General Burnside, 3 FED. REP. 228; The Guiding Star, 18 FED. REP. 263. As the best practical mle attainable in such cases, and as a rule already supported by many decisions in the western districts, I think the pro rata rule .of distribution should be adopted here as respects beneficial liens of the same class, in the case of canal-boats and other similar crafl which make short and frequent trips upon the canals and rivers, and are laid up during the winter season, when the canals and rivers are frozen over. The same considerations of convenience, justice, and policy apply to this class of cases as in navigation upon the great lakes. They cannot be applied, however, to other craft navigating about this port, making short ocean voyages, without interruption, the year round.
The towage services rendered in this case hold the same rank as claims for necessary materials and supplies, (The City of 11awas, 3 FED. REP. 170; The St. Lawrence, 5 Prob. Div. 250; The Athenian, 3 FED. REP. 248; The Constancia, 4 Notes Cas. 512; Macl. Shipp. 703,) and on the above rule the claims should be paid pro rata. In one of the bills there is a credit of $130. This credit should be applied upon the earliest items. The costs of the first libel should first be paid out of the fund, and the residue should be divided pro rata between the claimants without regard to the dates during the season at which they accrued. Where there are various lienors entitled to the fund, and the fund is small, no costs after the first libel, beyond necessary disbursements, should be allowed out of the fund. The Jerusalem, 2 Gall. 351; The Kate Hinchman, 6 Biss. 369; The Guiding Star, 18 FED. REP. 269. See The De Smet, 10 FED. REP. 490, note. Bonds for latent claims are not now required, except on special order, even in the English practice, (Rule 129, Coote, Adm. Pro 205; The Desdemona, 1 SWi1.b. 159;) and other parties, if any, who have liens, but have not appeared under the monition and after due publication, will be barred from the time of the final decree of distribution, (The Saracen, 2 Wm. Rob. 451; The City of Tawas, 3 FED. REP. 170.) Since the foregoing was written I have consulted the circuit judge, and am authorized to say that a decision to the same substantial effect has been heretofore made by him in a case arising in the Northern district.
(Circuit Court, E. D. Louisiana.
April 11, 1884.)
In the case of marine torts it is the rule of the courts of admiralty to exercise a conscientious discretion, and give or withhold damages upon enlarged principles of justice and equity. A party who is in ddictu oup;ht to make a strong case to entitle himself to general rehef.
Admiralty Appeal. James R. Beckwith, for libelant. Henry C. Miller, for claimant. PARDEE, J. On February 8,1882, the libelant, Thomas McGrath, while descending the main hatchway of the steam-Ship Explorer, had his left arm caught in the wheels of a revolving steam-winch. break1 Reported
by Joseph P. Hornor, Esq., of the New Orleans bar.