making many pairs of shoes monthly; and that since August or September, 1881, they have wholly neglected to purchase and affix stamps to the shoes made by the machines, and that they have refused to pay any license fees, neglected to render any accounts, and that they the indicator registering the amount have removed from the of work done. The prayer of the bills is for discovery and account; also that the defendants may be decreed to pay the license fees found due,and that they may be enjoined from using the machines until they have paid the amount found due under the license. The only question raised by these motions to dismiss is whether, upon the allegations coqtained in the bills, the plaintiff has made a case cognizable in a court of equity, or whether his proper remedy is at law. I think the plaintiff has brought himself within recognized grounds of equitable jurisdiction, and that the motions should be denied. The bills not only pray for discovery and account, which of themselves might be deemed insufficient in this class of cases, but they also pray for an injunction against the use of machines embodying patents which are unexpired. Billa of this character have frequently been sustained by the courts. Goodyear v. Oongress Rubber 00., 3 Blatchf.449; Woodworth v. Weed, 1 Blatch£. 165; Wilson v. Sherman, Id.536; Eureka 00. v. Bailey 00., 11 Wall. 488; Magic Ruifie 00. v. Elm OityOo., 13 Blatchf. 151; White v. Lee, 3 Fed. Rep. 222; Nesmith v. Oalvert, 1 Wood & M. 34. In Orandall v. Plano 00., 24 Fed. Rep. 738, and in.Perkins v. Hend7'yX, 23 Fed. Rep. 418, no injunction was asked for. Motions denied.
THE ZOUAVE. MCWILLIAMS
and another v.
(Di8trict Gourt, D. New Jer8ey.
December 8, 1886.)
The original libel was for repairs made to a boiler, which had been con· structed by the libelants for the respondent under a contract which stipu laterl for the use of a certain well known brand of iron. A different quality of iron from that agreed on was used, with the consent of the respondent, on the representations of the libelants that it was equally as good and just as expensive as the other; and the boiler was, on delivery, accepted and paid for by the respondent. Subsequently the repltirs now sued for were put on the boiler, and the respondent files a cross-lihel for a counter-claim for damages for breach of the original contract. Held, that such counter-claim does not arise out of the same cause of action for which the original libel was brought, as contemplated by admiralty rule 53. .
To authorize a set-off, the debts must be between the same parties in their own right, and be of the same kind or quality, and be clearly ascertained or liq uidated. Neither at law nor in equity can unliquidated damages be allowed under the defense of a set-off. (Syllabus by the Gourt.)
SET-OFF AND COUNTER-CLAIM-UNLIQUIDATED DAMAGES.
In Admiralty. Bedle, Muirheid McGee, for libelants. Griffin Romeyn, for respondents and cross-libelants.
WALES, J. This is a libel for work done and materials furnished in making repairs to the boiler of the tug-boat Zouave. The boiler had been originally constructed by the libelants, under a contract between them and the owner of the tug, in which it was stipulated that the iron used in .making the furnace ahd flue-heads should be of the best quality, known to' the. trade by the brand of "E. L. F. B. ," which means traLocomotive Fire-box: Iron." The owner and respondent discovered, before the completion of the boiler, that the libelants were using another and different quality of iron from that agreed on, and complained of tIle change, but, on assured by the libelants that the.substituted iron wItS equally' as good, and Jnst as expensive, as the other, and not being himself'& jlidge of the article, he waived further objections at the time, on the representations of the libelants,"and notifying them that he -vyoul4 .1:l0ldthemresponsible for any damage that might ensue from the change of material. The was entered into September 7, 1883, ahd tl;i.eboilerw8s put in the tUg about One year after that date, and was accepted and paid for by the'iespondent. From the schedules to, and forming a part of, the libel, it appears that the first bill for repairs was contracted in March, 1885, and that further repairs were made at intervals, until January of the present year, amounting in all to the stim of $820. The cross-libel seeks to recover damages from the libelants for the breach of their contract in using anillferior quality of iron in building the boiler, whereby the repairs were made necessary, and the tug thrown out of employment for several days. It is also alleged that, in consequence of the leaky condition of the boiler, an extra quantity of coal was required to keep up steam, and that additional repairs will be needed to put it in good working order. These separate items of loss , and damage amount by estimation to the sum of $3,500. The principal exception to the cross-libel is that it sets up acounterclaim which does not arise out of the same cause of action for which the original libel was filed, as contemplated by admiralty rule 53. The exception is well made; for it is evident that here are two distinct and different causes of action,-one action growing out of a breach of one contract, and the other action being for work and materials in making repairs under another and separate contract. The two causes of action are related to each other onlyin so far as the parties to them are the same, and that the thing built and subsequently repaired is the same. But the simple fact that the article which was the subject-matter of the origi,na1 contract is the same artic1eon which the repairs were made, does not create such a connection or union of the claim and counter-claim that the two may be said to spring from the same cause of action, in the sense in which the words are used in the rule. Conceding that the libelants were in fault in making use of an inferior quality of iron in constructing the furnace and flue-heads, arid different from that agreed on, there can
be no presumption here of an implied undertaking that they would keep the boiler in repair after its delivery to and acceptance by the respondent. The libelants sue in rem to ,enforce a lien, for repairs. The cross-libel is for damages growing out of another and former transaction between th6 parties. . claim of tIle libelant and theeounter-claim of the respondent are only indireCtly connected with each other, and the remedy of the latter is at cQInmoillaw. .' In his answer the respondent pleads the damages as a set-off to the libelants'demand. But this defense cannot be sustained in the present case, on th\'l principle, well both at law and in equity, that uilliquidated damages cailllotpe of a'set-:off. To authorize a set-:off the must bebeiween 1he parties in their own right, and must be of the same kind, or ,quality,and be clearly.ascertained or liquidated. must be certain aad determinate del>tB. Duncan v.liyrm, 3 Johns·. Gh,.,3fj9j., Howe v. Sum. And by the civil law it waB,i;leqessarythat the dept of ,claim, to, be' cpmpensated, should be certaip., 'aPd determJnate, and actually due, and'in the same right and of the that on o9ther aide. Story,Eq. Jur. § 144:1." In 22, Fed. the libel,was for materials made to ,I!. steam-tug. In that case the respondent admitte4 tbe libelant's claim, ,filed a cross-libel and set' up a counter-derilan4 f()r services, Dot;maritime in thei,r nature, theretofore rendered to the libelants. rhe set-:off, being for a fixed and ,ascertained amount, , allowed; but the cross-libel, for ,was dismissed. In the CR$e at bar, for the reasons stated, neither be sustained, and the exceptions !)lust be allowed. ,, :, , ,
(District Oourt, E. D. New York. July 2,1686.)
) ., -· ' ' -, !
1.CARRIEW\":"OF PASSENGERS-FALL FROM GANG-PLtiliK OF STEAMER- GANGWAY W'ITJj:OUT ROPES OR BATTlllNS -VESSEL'S LIABU.I'l'Y FOR Loss OF LIFE.
Libelant's husband, a passenger on the steam-ship Australia, while returning to the :wpaJ;ffrom the steamer prior t.o her departure, fell from the gangplank"and'was drowned. , The evidence indicated that the gangway was a singHl harrow, plank, withOut battens or ropes. Suit being brought by libelant under,thestatute of the state ofNew York to recover '5,000 for the death of her, hl111ban4, held, that the owners of the steam-ship were negligent inllot maintaining a. safer and ,libelant was entitled to recover the amoul1t o'f the damage, WhICh was fixed at $2,500.· , , A paBJle1:l,ger on board a vessel; before her departure from the wharf, has the right to 'go ashore to buy tobacco, and it is the vessel's duty to provide 8 safe Dl;6An&.of passage from t:he steamer to the pier. "
, I.,. '.
8.B.AME-Rl'Gm' OF PA.8SENGERWRlilTl11m FROM VESSEL TO PIER-DUTY OF VESSEIJ,roFROVIDB SAFE MEANS OF PASSAGE. .
&Wyllys Benedict, Esqs., olthe New York bar.