lows by the prior state of the art. Such a construction should be given to the first claim of his patent as will cover his real invention, and it therefore should not be limited to a method in which a perfect cone-shaped body is first made. It is held that the defendant infringes the first claim of the complainant's patent. The second claim is not infringed. The defendant's hod does not have a botton so crimped as to form a series of annular ribs, or rings of progressively increasing diameter. A decree is ordered accordingly.
THE NATCHEZ. l VAN HORN V. THE NATCHEZ.
(OiJreuit Oourt, E. D. Louisiana. January 27, 1886.)
ADMIRALTY-PRACTICE-MoTION TO DISMISS ApPEAL.
The appearance of the appellee, and his participation in taking evidence in the appellate court, estop him from denying that there is a valid appeal pend· ing. If. in the opinion of his proctor, another and more specific bond is necwill be directed essary for the due prosecution of the appeal, the to furnish one.
Admiralty Appeal. On motion to dismiss. Ernest B. Kruttschnitt, for libelant. O. B. Sansum, for claimant.
PARDEE, J. This case has been submitted on a motion to dismiss the appeal on the grounds that (1) there has been no bond given in this caue e to the claimant; (2) the bond given in this cause is not such as the law demands. The bond given is in favor of "the owner of the steam-boat Natchez, claimant." The record discloses that Thomas P. Leathers is the owner of the Natchez, and is the sole claimant in the case. It is urged that the bond should have been in favor of the claimant by name, and that the defect is fatal to the appeal. The record further discloses that the appeal was allowed after term on a petition; that citation issued and was served on proctor for claimant, the claimant himself being absent from the district; and the proceedings in this court show an appearance by proctor for Leathers, claimant, and evidence taken, prior to the motion to dismiss.
by Joseph P. Hornor, Esq., of tlie New Orleans bar.
The case of The City of Lincoln, decided by this conrt in 1883, and reported in 19 Fed. Rep. 460, and a late decision in this court in the case of Mason v. Et'vine, ante, 240, are relied on to sustain the motion to dismiss. In The City of Lincoln, supra, a number of libelants, with separate interests, had joined in a libel, and all had recovered judgment in various sums .in the district court. The motion for appeal was against Kelly and others, and the bond was in favor of Daniel Kelly and intervening libelants. In Mason v. In:ine the suit was against a large number of persons; the motion for appeal was entitled in no particular case; the bond was entitled in the case of "J. L. Mason v. John Irvine et al.," and was in favor of "John Irvine et al., the respondents' above mentioned.''' In each case it was held that the bond was apparently the only appeal process to bring the case to this court, and as that was defective, upon the adjudged cases of Smith v. Clark, 12 How. 21; Deneale v. Stump, 8 Pet. 526; Holliday v. Bcttson, 4 How. 645; and The Protector, 11 Wall. 82,-it was decided that there was no appeal against any other party than the one mentioned specifically in the bond; and, further, that no amendment could be allowed, the effect of which wOldd be to bring new parties into the case on appeal. The present case is entirely different. An appeal. has been taken by petition and citation, the party has been served with notice and has appeared, and the appeal has a standing irrespective of the bond. In Peugh v. Davis, 110 U. S. 227, S. C. 4 Sup. Ct. Rep. 17, and in Dodge v. Knowles, 114 U. S. 430, S. C. 5 Sup. Ct. Rep. 1197, it was held that where a valid appeal has been taken either by motion, or by petition and citation, that the giving of the bond was not essential to the taking, though it might be to the due prosecution of the appeal, and that, in proper cases, the supreme court would give permission to supply the defective bond before dismissing the appeal. Under sections 1005 and 1012 of the Revised Statutes the supreme court can undoubtedly allow an amendment in an appeal process when the statement'of the title of the action or parties thereto is defective, if the defect can be remedied by reference to the accompanying record. Whether the circuit courts have such power, or are hampered, as was the supreme court prior to the enactment of section 1005, (see The Protector, 11 Wall. 82; Moore v. Simonds, 100 U. S. 145; Gumbel v. Pitkin, 113 U. S. 545; S. C. 5 Sup. Ct. Rep. 616,) is at best doubtful, and in the present case it is not necessary to decide. The appearance of the claimant, and his participation in taking evidence in the court, estop him from denying that there is a valid appeal pending. If, in the opinion of his proctor, another ann more specific bond is necessary for the due prosecution of the appeal, the appells,nts will be directed to furnish one j but the motion to dismiss is denied.
WESLEY A. GOVE.
,District CQurt, D. Massachusettl.
April 6, 1886.)
COLT.TSTON - DIMINISHED VISION DEMANDS DIMINISHED SPEED - Rur,Es Oll' THl!l ROAD - CONS'fRUCTION OF - NINE'l'EENTH RULE-STEAM- W HISTLE-!NSPEOT· ORS' RULES·-HALF DAMAGES.
A steamer, shortly after backing out from her wharf, was obliged to stop and reverse in order to thereby avoid colliding with a schooner. While lying motionless, she was run into by a tug. The latter vessel was, at the time, crossing the steamer's track from starboard, so that the position of the vessels was that the steamer had the tug on her own starboard side. Held, that it was the duty of the tug. under the circumstances, to have kept out of the way of the steamer, notwithstanding the fact that if both vessels had been under way their courses would have been crossing, and their respective obligations reversed. The steamer being motionless, and without the power to alter her position immediately, must be considered as a vessel at anchor, and rule 19 IS therefore inapplicable. Held, that if the circumstances were such as to obstruct partially the range of vision, it was incumbent on the tug to have stopped or slowed. Held that, both by usage and law, "in a crowded harbor, in the vicinity of wharves, steamers are required to sound their whistles as often as may be necessary to guard collision," and that the steamer. notwithstanding her position, was at lault in this regard.
In Admiralty. L. S. Dabney, for libelant. J. C. Dodge cf Sons, for claimant.
NELSON, J. This case was a libel for collision, by the Boston & Hingham Steam-boat Company, as owner of the Rose Standish, a passenger steam.boat plying between Boston, Pemberton Landing, and Strawberry Hill, against the steam-tug Wesley A. Gave. On the twenty-fourth of August, 1884, at 5: 15 P. M., the Rose Standish backed out of her dock on the north side of Rowe's wharf, in BostOD, with her stern to the southward, on her afternoon trip down the harbor, having on board about 100 passengers, and proceeded in a. north-easterly direction to pass round a group made up of a dredging boat, several mud scows, and a tug.boat, employed in dredging the flats, and stationed some 200 yards off Central wharf, the second wharf north of Rowe's wharf. As she was rounding the dredging group under a port wheel, her engine was stopped and reversed to had gone past the avoid a schooner on her port bow bound out. dredger about three lengths, and had come nearly or quite to a standstill, when the tug, which was crossing the harbor from the South Boston side, ran into her starboard bow at the forward gangway, and sunk her. 'I'here is sufficient proof that the Rose Standish stopped and reversed to avoid the schooner, though this is denied hy the owners of the tug, and the schooner does not appear to have been seen by the men on the tug. The fact is proved by the testimony of a. large num-
Reported by Theodore M. Etting, Esq., of the Philadelphia bar.