patentable, they can be only as an improvement upon those covered in other respects, they are merely by the plaintiff's patent, for mechanical equivalents; that patent, it is claimed, covering, as a constituent of the combination, every horizontal shaft with projections suitable for beating eggs and sugar, etc. There is no claim for the beater alone, but only in this combination; and in every other respect, except as to this beater, it is admitted that the combination itself, in other applications, and all the several elements which enter into it, were well known and in common use before the alleged invention of the plaintiff. For example, it is admitted that prior to that date churns were made and sold, ailLl in public use, having rounded bottoms and double walled sides for holding hot or cold water, and provided with revolving dashers and mecllanism adapted to revolve them, although such dashers were not suitable for beating or treating eggs, Dr eggs and sugar, or like masses. There is also in proof, letters patent granted to John F. Robe, No. 166,412, dated August 3, 1875, thus antedating those of the plaintiff several years, for an improved egg-beater, in which there is shown a rotating horizontal shaft, with mdial arms or prongs projecting from the shaft, operating between like bars in a fixed position, turned in a casing, without, however, the double walls, by means of a crank and cog-wheel. There was certainly nothing patentable in employing such a beater as that of Robe's in a casing having hollow sides; and having in view, therefore, the state of the art at the date of the plaintiff's alleged invention, and by means of that seeking to reconcile the action of the patent-office in granting the. two patents,-one to the plaintiff, the other to the defendant,-otherwise inconsistent, it is necessary to limit the patent of the plaintiff to the combination. described by him, embracing the particular form of beater shown in the specifications and drawings. This relieves the, defendant from the charge of infringement, and entitles him on that ground to a dismissal of the complainant's bill, .with costs; and it is so ordered.
(District Court, D. Delaware. August 11, 1884.)
Where seamen were employed on a steam-boat to make the run Jrom Philadelphia to Port of Spain for a stipulated sum, and to have their passage paid on their return to the port of departure, and the vessel, after haVing gone a short distance to sea, was compelled to put back, and some of them were discharged by the captain because he had no further use for them., keZd, that they were entitled to be paid the full Bum agreed upon for their wages.
2. SAME-LEAVING VESSEL-SEAWORTHINESS.
Two of the libelants having left the vessel on the ground that she was not seaworthy. held, that unseaworthiness justifies a crew in h:avlng a vessel, and
entltlesthem to the payment of for the month or voyage; and that the discharge of seamen and unseaworthlness may be proved in the sarno manner as. other facts are proved before Ie court or jury.
Statutory provisions relating to the discharge of seamen, and the holding of surveys on vessels alleged to be unseaworthy, are not exclusive of other remedies than those therein contained.
In Admiralty. Bradford ct Vandegrift, for libelants. John M. Arundel, for claimant. WALES, J. Libel for wages and damages. The libelants shipped on board the Heroe, bound from Philadelphia to Port of Spain, in the island of 'rrinidad,-two of them in the capacity of quartermasters, two as firemen, and the remainder as seamen,-and they were to be paid for the run, $50, $45, and $40, respectively, and on their arrival at the port of destination were to have their passage paid to Philadelphia or New York. The Heroe is a side-wheel steam-boat, designed principally for river navigation, and this was her first voyage. She is of 102 tons burden, 110 feet long and 26 feet beam, provided with a. single engine and a single furnace. The furnace was constructed for burning wood, but was temporarily adapted for the consumption of coal. She left Philadelphia on July 6th,last, with a crew of 14 all told. She was about 24 hours in making the breakwater, and after a short delay for some slight repairs to the machinery, put to sea and had gone as far as off Cape Hatteras when she was compelled to come to anchor for further repairs to the engine. Before reaching Hatteras it was found necessary to stop the engine every few hours to clean the fires. By this time, also, it had been discovered that the machinery worked badly, and the vessel could not make more than three and a half or four knots an hour. After repeated efforts to put the engine in good working order, and more than one unsuccessful attempt to proceed on the voyage, the vessel at one time having lost steerageway, becoming unmanageable, and the· stock of coal being considerably reduced, it was decided to turn back and make Philadelphia or the nearest port. The Heroe had first arrived off Hatteras on July 10th, and returned to the breakwater on July 17th. Waiting here and at Cape May for orders from the owners, she was finally brought to Delaware City on July 26th. Between Cape May and Delaware City the three lower tiers of tubes of the boilers gave out, and the crown-sheet was split for the length of six inches. The steam-boat was provided with sails, but it was not pretended that they were sufficient for her navigation. The captain surmised that by removing the paddles he might have proceeded under sail, At Delaware City the two the vessel on account of her unsea.worthiness, and on the ground that the voyage had· heen broken up and abandoned,. and being refused payment of their wages filed their libel. Subsequently the firemen and sealDen filed' their libel for wages, alleging that .the captain had discharged them. By agreement of counsel the testimony taken under
527 .thefirst libel applies to the been consolidated. I entertain no doubt of the fact of the discharge of the firemen and seamen. The testimony of the libelants establishes the fact, and the captain admitted to the marshal that he had no further use for the men; that they were at liberty to go; he permitted them to take their effects from the vessel. The answer denies that the men were "regularly" discharged, but the proof is too clear for discussion that they were virtually and practically discharged, and a decree will be entered for the payment of their wages as stipulated in the shipping articles, less advances and credits. I have not been satisfied that they are entitled to any further compensation or damages. It is true, they expected to make the run out and return before August 1st, but they have not suffered a long detention. The case of the quartermasters turns on a different question, towit, the of the Heroe, and the deviation from and abandonment of the voyage for which they were engaged. They do not allege that the captain discharged them. The answer specifically denies unseaworthiness or abandonment, and claims that the Heroe was brought back to Delaware City "for the purpose of having her steam-engine put in proper order and repair, so as to enable said steam-boat to resume or proceed on her voyage to said Port of Spain," etc., "which repairs, as respondent has been informed, will be completed on or about Tuesday next, the fifth instant." "Seaworthiness implies the a})ilityof a ship or other vossel to make a sea voyage with probable safety; that is, that she shall be tight, stanch, and strong, properly manned, provided \lith all necessary stores, and in all respects fit for the intended voyage." Bouv. Law Dict. Con.fining the inquiry to the fitness of this vessel to make the run from Philadelphia to the island of Trinidad, a distance of 2,300 miles, the testimony: not alone of the libelants but of the captain and chief engineer, is conclusive. The vessel is well built for one of her class, and her officers appear to be experienced and competent, but ther.e was such a defect in her machinery, owing to faulty constmction, or the ill adjustment of its various that the chief engineer reported at the time when it was decided to turn back that he could do nothing with the engine. The experiment of sending such a vessel on a voyage of 2,000 miles was somewhat hazardous"and the refusal of these libelants to stand by her is not remarkable. The vessel was altogether dependent on her engine for propelling power, and when that failed from faulty construction, or by reason ofthe negligence qr want of skill on the part of the owners, the vessel could no longer be considered as fit for the voyage for which she was intended. A rotten or leaky hull or broken masts are no greater evidences of uri.seaworthiness than is a defective .engine, under the surrounding this case. The on. the Heroe on the faith t,hat she walii in all respects well found' and provided as a steamboat should be, and when they reason to believe that she was
a failure, and that their lives would be endangered by again going to Bea in her, their conduct in leaving cannot be considered as censurable. It is quite probable that the machinery may be rectified and made to work as originally designed, and the vessel ultimately reach its destination, but in the mean time are the libelants compelled to remain on board indefinitely, without additional compensation, and to forfeit their stipulated wages unless they make the run to Trinidad? Had the steam-boat encountered storms or head-winds, and her voyage been delayed by these or other perils of the sea, the libelants must have been without warrant or justification for their action, and it would have been their duty to remain on the vessel until the voyage was ended. But this is obviously a different case. She was not thwarted by the elements, but by reason of her own inherent defects. The engine and boiler of the Heroe will require considerable repair and alteration before she is fit for sea, and the evidence affords no satisfactory information when these repairs will be completed. I think this vessel was unseaworthy frbm the facts already stated. The chief engineer testified that the air-pump was too small, and that the dl'aughtsman of the machinery had made a mistake as to its size. The engine worked stiffly and slowly, being new and untried. The speed never exceeded, if it reached, five knots an hour. The furnace. was not intended for wood-burning, and before the officers had decided to put back to the Delaware there was not coal enough left to carry her to Bermuda. The sails were not sufficient for ber navigation, and had she met tempestuous weather the lives of the crew would have been imperiled, and probably lost. It is not denied that unseaworthiness releases a crew, and that they become entitled to their full wages for the month or for the voyage; and, if by the month, then for the time they served, witq the allow· ance of a reasonable time for their return to the port of departure. The objection made by respondent's counsel, that this court cannot entertain jurisdiction of the libels because these libelants have not complied with certain provisions of the acts of congress relating to the discharge of seamen and to the holding of surveys on ships alleged to be unseaworthy, comes too late. The case has been heard on its merits. The discharge and the fact of unseaworthiness can be proved at any stage of the proceedings. Besides, the statutes referred to are not exclusive of other remedies. It is not necessary to consider the question of abandonment of the voyage. A decree will also be entered for the payment of the quartermasters. Authority for the positions taken will be found in 3 Kent, Comm. 181,204,205; Work v. Leathers, 97 U. S. 379; U. S. v. Nyc, 2 Curt. C. C. 225; 1 Abb. Adm. 409; 1 Pars. Adm. Law, 41; Bray v. Atlanta, Bee, 48; The Cyrus, 2 Pet. Adm. 407; The-Prank C. Barker, 1,9 FED. REP. 332; The Edward, Blatchf. & H. 286.
BLOCK 'V. ATCHISON, T. & S. F. B. CO.
T & S. F. R. CO.
(Circuit Court, E. D. Missouri. September 17,1884.)
1 OF ACT OF MAROH3, 1871S/\ :A>NSTRUED. Where a railroad corporation organized, and, having its road ill one state, lIaR an office in another for the purpose of soliciting business, and has an agent in charge of such office, employed for the purpose of furthering"the busIness of the company in the state in which its road runs, it may be sued in the district where such office is located, and is to be considered" found" in such district, within the meaning of section 1 of the act of March 3,1875, concerning the jurisdiction of circuit courts. in such cases, service of process upon the agent in charge of the office is valiu.
SAME-SERVICE OF PROCESS.
Plea to the Jurisdiction. 'rhis is an action for an injury alleged to have been received in Kansas through the negligence of defendant, a Kansas corporation. The defendant's road does not extend into Missouri, but it has an office in both Kansas City and St. Louis. The service in this case was upon the officer in charge of the company's office at the latter place. The defendant claims in its plea that the court has no jurisdiction for the following reasons, viz. : Because it is not an inhabitant of or found within this district, within the meaning of the act of congress; because no part of its road was or is in the Eastern district of Missouri; because the cause of action did not accrue in Missouri; and because the defendant did not keep, at the commencement of this suit or service of writ, an officer or agen't for the transaction of its uAual and customary business in this district, within the meaning of the laws of the state of Missouri and the acts of congress, and therefore cannot be sued in this district; because the agent served was not such an agent as could be legally served with process against this d')· fendant. Dyer, Lee J; Ellis, for plaintiff. James Hagerman, for defendant. BREWER, J., (orally.) I have well-settled convictions in reference to this matter, because I have had this question of service on foreign corporations before me in two or three districts. True, it was presented in different phases; but I have had occasion to fully examine the question. In Kansas we have a statute that authorizes service upon railroad corporations by delivering process to an agent who sells tickets; and in one case I had before me, service was attempted to be made on the Chicago. Burlington & Quincy Railroad Company by serving an agent of the Kansas City, St. Joe & Council Bluffs Railroad, on the claim that he was in the habit of selling coupon tickets over the Chicago, Burlington & Quincy Railroad, and
by Benj, 1<'. Rex, Esq" of the St. Louis bar.