whether any useful result is likely to follow from its exercise. Gun. ning does not pretend that he invented enameling on metal, and of course not that he invented signs, or letters for signs. The materials and mode of manufacture were all old. The most that he did, accord· ing to his own story, as now told, was to conceive the idea of making letters out of old materials in an old way. There was nothing new but the purpose. This would not appear to be any patentable invention. Pennsylvania. R. Co. v. Locomotive Safety 1.'ruck Co. 110 U. S. 490; S. C. 4 Sup. Ct. Rep. 220. It does not appear that the patent could be saved from this suit for any good purpose, even if the proposed testimony would save it. Gunning might prefer that the patent should fail from other grounds than his fraud, but he is not asking for anything in this behalf. No costs were allowed against the defendant Ingersoll, and none would be taxable in her favor against the government if she should prevail in this case, and no fraud is proved against her; therefore it can make no difference to her whether the patent fails here or not, unless she wishes to hold it for some improper purpose, which is not to be presumed. Besides this, there is the fact which appears in the case, and which the proposed testimony does not meet, that the patented letters, made by others, were sold by Gunning more than two years prior to his application, which would invalidate the patent, although his affidavit that the inv6l1tion had not been in public use or on sale for two years prior to the application, which accompanied the appli. cation, may not have been made with such fraudulent intent as to warrant a decree setting aside the patent. Motion denied.
(Dz'8trz'ct Court, 8. D. New York. l\1arch 29, 1885.)
ADMIRALTY PRACTICE-ExCEPTIONB-FINAL HEARING-COSTS.
The hearing of exceptions to a pleading in admiralty, where the exceptions are in the nature of a special demurrer, or a motion to make more definite and certain, is not such a "final hearing in equity or admiralty," under section 824 of the Revised Statutes, as to entitle a party to a docket fee or costs.
Scudder ft Ca1'ter and Geo. A. Black, for libelants. Hill, Wing ft Shoudy, for the Anchoria. BROWN, J. The libelants having excepted to the answer for want of sufficiency, fullness, and distinctness, the exceptions were sustained. and the defendant was directed, as provided by rule 28 in admiralty, to answer more fully. On the settlement of the order the libelants claimed costs of the hearing upon the exceptions. Rule 28, promul-
ga.ted in 1844, authorized the conrt torequire the; defendant "to pay such costs as the conrt shall adjudge reasonable." The subsequent fee bill of 1853, as modified by section 823 of the Revised Statutes, provides, however, that "the following and no other compensation shall be taxed to attorneys," etc., "except in cases otherwise expressly provided by law." Among the fees made taxable by the following sections there are no costs provided for the hearing of a motion merely. The only language applicable is the provision for a docket fee "on a final hearing in equity or admiralty," under section 824. In the case of Wooster v. Handy, 23 FED. Rl<1P. 49, Mr. Justice BLATCHFORD has recently carefully considered what constitutes a final hea,ring sufficient to entitle the party to tax a docket fee. In conclusion, it is said that "there must be a hearing of the cause on its merits; that is, a submission oUt to the conrt in such shape as the parties choose to give it, with a view to a determination whether the plaintiff or libelant has made out the case stated by him in his bill or libel as the ground for the permanent relief, which his pleading seeks, on snch proofs as the parties place before the court,-be the case one of pro confesso, or bill, or libel and answer, or pleadings alone, or pleadings and proofs." :From this it is clear that unless the hearing be one upon which it is competent for the court to make either a final or an interlocutory decree binding the parties upon the: merits, it is not such a "final hearing" as authorizes an allowance of costs; but where the hearing is of that character, such a fee may be awarded. This is in accordance with what, since 1853, has been the practice of this court upon the hearing of exceptions to a libel or an answer. Where the exceptions go to the whole cause of action, or to the sufficiency of the libel or answer, and are such as in common law pleading would be equivalent to a general demurrer, the practice has been to allow a docket fee to the successful party. Such 3. hearing is in effect a final hearing upon the cause presented by the pleadings and exceptions. In snch cases it is discretionary with the court whether it will permit any amendment or not; and if none is permitted, a final decree would follow. 'fbe fact that the court may permit further pleading on the payment of the costs, does not make the previous hearing any leSB a final one as respects the cause of action already heard before the court. This rule was applied by Judge BETTS upon exceptions to a libel involving the merits in the case of Whitlock v. The Thales, February term, 18:)9, in which the exceptions were overruled and a fee was allowed to the libelant, and the defendant was permitted to answer. It was applied by BgXEDICT, J., in the case of Aumach v. S. S. Creole, November 24, 1865, upon exceptions to the libel for insufficiency, where the exceptions were sustained, and a decree ordered for the claimant, with liberty to the libelant to file an amended libel on payment of costs. . The exceptions in this case are not to the merits, or to the general
THE NELLI.B: FLAGG.
sufficiency of the libel; but are in the nature of a special demurrer, or of a motion to make the pleadings more definite and certain. Upon exceptions of this limited character, rule 28, before referred directs what order the court shall make; namely, to require the defendant "forth\\'ith to answer the same." As this rule is a specific direction to the court, I think the court would not be fairly authorized or warranted, under the more general provisions of rules 30 and 32, to proceed pro confesso against the defendant in the first instance for default of "due answer." But should a default be afterwards entered for the defendant's contumacy in not obeying an order entered under rule 28, there is no doubt a docket fee could then be taxed. Wooster v. Handy, supra; Hayford v. GrijJith,3 BIatchf. 79; The Bay City, 3 FED. REP. 48; In re Trundy, IS· FED. REP. 607. A hearing on exceptions lilw the present is, therefore, in no sense a final hearing; and the pra:ctice which has previously obtained, in not awarding costs on such hearings, must be adhered to.
THE NELLIE FLAGG.
(District Oourt, N. D. New York.
May 12, 1885.)
TOWAGE-NEGLIGENCE-INJURY TO CANAL-BoAT IN LoCK. On examination of t he evidence in thig case, held,'that negligence
on the part of the steam-lug Nellie Flagg, caus;ng the injurrto the caual-boat WilHamA. Rundell, was not shown, and that the libel shuuld be dismissed.
In Admiralty. J. F. Mosher, for libelant. E. W. Douglas and E. L. Fursman, for claimant. COXE, J. The libelant, Charles P. Moore, as master of the canalboat William A. Rundell, contends that on the eighteenth day of November, 18S2, at West Troy, New York, while his boat was being towed by the steam-tug Nellie Flagg, she was injured by the careless and unskillful navigation of the tug, in running her against the center pier, which divides tile locks between the Hudson river and the State Ba.sin at that point. Through one of these locks it was necessary for the canal-boat to pass in order to reach her destination. The claimant insists, inter alia, that the injury was caused, after the tug had cast the canal-boat loose, by the negligence of the libelant in permitting her to strike, stem on, against the bucking-beam of the lock. The evidence sufficiently establishes the following propositions: First. While the canal-boat was in charge of the tug, her lowest guard, at the corner of the port-bow, came in contact with the north-west corner of the pier. Second. .After the tug had left her she struck the bucking-beam of the lock, stem on. This the libelaut admits. Third. The leak was not discovered until she was in the lock. Fou.rth. .After being put on the dry-dock, it was