(Circuit Court, S. D. New York. .Ju)y 29, 1885.)
PATENTS FOR INVENTION-COSTS-ENFORCING PAYMENT-RECEIVER.
When a bill for infringement of a patent has been dismissed, with costs to defendant, for ",hich an execution has issued and been returned wholly unsatisfied, a receiver will not be appointed, on motion of defendant, to take possession of the patents as equitable assets, to be disposed of for the satisfying of the decree.
In Equity. Josiah P. Fitch, for plaintiff. Frederic H. Betts, for defendant. WHEELER, J. The bill in this case, which is for infringement of patents, has been dismissed, with costs to the defendant, taxed at $950.92, for which execution issued and has been returned wholly unsatisfied. The defendant now moves for a receiver of the patents as equitable assets, to be disposed of for the satisfying of the decree. This decree, eo far as it is for the payment of this sum for costs, is not different from a judgment for the recovery of money. Execution issues upon it under the rule of the supreme court made pursua,nt to statute the same as upon judgments for money. Rev.St.§ 917; Equity Rule, 8. There is no connection between the decree for costs and the relief sought; neither is it of any equitable nature otherwise. The costs are recovered because the bill was not sustained, as costs are in actions at law when the suit is not maintained. The satisfying of the decree is no more equitable relief than the satisfying of any money judgment is. Courts of equity have power to aid in the satisfaction of judgments at law by reaching assets which courts of law cannot reach. This is done upon bill brought to reach particular property; and the bill is to be answered, or proceeded upon for want of answer, as in other cases; and the decree is founded upon the case made in respect to the property, although the right to proceed against the property rests upon the prior judgment. Here the defendant has got no further than to become a judgment creditor of the plaintiff. These patents, as equitable assets, cannot be taken to satisfy a money judgment except upon a decree for that purpose, which can only be had upon bill and answer, or failure to answer, in due course. The remark of the learned judge in Shainwald v. Lewis, 6 FED. REP. 779, relied upon in support of the motion, is not to the contrary of these views, as that remark is understood. Motion denied.
INSURAKCE . co·. V.
INSURANCE CO. OF PENNSYLVANIA 1). PROCEEDS OF THE SALE OF THE BARGE WAUBAUSHENE.
(Oircuit Oourt, N. D. New York.
MARINE INSURANCE-OONTRACT, WHERE J'rlADE-LIBN FOR UNPAID PREMIUMSMAIUTIME LIEN.
No maritiJ;ne lien exists in favor of underwriters for unpaid premiums of marine insurance. Opinion of district judge (i2 FED. HEP. 109) affirml::d.
Appeal from District Court. See 22 FED. REP. 109. fVilliams eX Potter, for appellant. Marshall, Clinton cf; Wilson, for appellee. WALLACE, J. In deciding against the application of the insurance company to be paid the premium due upon the marine policy issued by it upon the barge out of the proceeds arising from her sale in the registry of the court, the learned judge of the district court held that the contract for insurance was made in Canada, and the rights of the parties to a lien were controlled by the lex lod contractus. He also held that such a lien is not recognized by our jurisprudence, and that the statutes of this state creating a lien for premiums in favor of un· derwriters do not apply to foreign vessels. He therefore held that as the company had no lien by the law of Canada, it could assert none here. 'l'hese conclusions are fully approved, and it seems superfluuus to attempt to re·enforce the reasoning of the very able and careful opin. ion of the district judge further than briefly to indicate the reasons which have led this court to deny the existence of the maritime lien for insurance premiums. As early as 1815 Mr. Justice STORY decided, in De Lovio v. Boit, 2 Gall. 398, that a policy of insmance upon a vessel was a maritime contract, in an opinion which has been characterized as "a learned and elaborate essay on admiralty jurisdiction, and one of the most luminous views of the subject extant." 2 Hoff. Leg. Stud. (2d Ed.) 465. Although the doctrine of that case was not uni· formly accepted, (Ramsay v. Allegre, JOHNSON, .T., 12 Wheat. 638; Jackson v. The Magnolia, CAMPBELL, J., 20 How. 335,) the jurisdiction over such contracts was always maintained subsequently in the First cir· cuit, and was generally approved by commentators of authority. Gloucester Ins. Co. v. Younger, 2 Curt. 322; Hale v. Washington Ins. Co. 2 Story, 176; Dunl. Adm. Pro 43; 1 Kent, Comm. 370, note; Ben. Adm. § 294; Conkl. Pl'. 13. Yet until the decision in The Dolphin, 1 Flippin, 580, as is conceded in the opinion of the court in that case, the general understanding of the profession was adverse to the existence of a lien for the premium secured by such a contract. In that case, reasoning from analogies, and influenced by the views recently declared by the learned judge of the Sixth circuit, that every maritime agreement, upon principle, shollld bind the ship as well as the owner, (The Williams, Brown, Adm. 208,) the court held that the lien should be recognized as extending to the premiums for insurance. It was said by Mr. Justice CURTIS, (The Kiersage, 2 Curt. C. C. 424,)-