00. t1. aOEs.
given, the plaintiffs could not trea.t it as ended upon the facts alleged, and a fortiori when the deed itself provides the method. The court has jurisdiction of the parties, as well as of the subject-matter, and if the complainants merely wish to try the real question, whether certain devices belong to them, it can as well be done by a bill for an account under the agreement as in any other mode; but the frame of the bill, at present, will not raise this issue. Demurrer sustained.
COES and others.
(Circuit Oourt, D. Massaehusetts. July 24, 18BO.)
1. P.ATENT-RE-TSBUE No. 6,294 OJ' No. 50,364 8UST.AINED-MONJDllT_ WRENCHES -COMBIN.ATION-ADDITION OJ' NUT TO COES' WRENCH..
LOWE'LL, C. J. This suit is brought upon the second re.issue, :No. 5,294, February 25, 1873, of a patent issued to Lucius Jordan and Leander E. Smith, in 1865, No. 50,364. The first re-issue is not in evidence, and the propriety and regularity of the second is not attacked. The invention relates to wrenches having a movable jaw, commonly called monkey-wrenches. Loring Coes, one of the defendants, made and patented the great improvement in these tools more than forty years ago, and his wrenches have superseded the older fOrIlls, and are familiar to all machinists. He arranged a rod parallel to the main bar, and upon this rod worked the movable jaw by means of a rosette, which did not move up -and down, but remained constantly in a convenient position, close to the thumb of the operator. Coes made a, plate of iron, called the step plate, which fitted over the main bar, and projected on one side to receive the rod which was pivoted into it. On the side towards the hand this step plate had a recess, operating as a ferrule, to receive the wooden handle or sleeve, which was shipped over v.3,no.4--15
the iron bar and secured by a nut at the end. The ha.ndle and its nut kept the step bar in place. The improvement set forth in the re-issued patent of the plaintiffs may be said to consist of cutting the step plate in two, lengthwise, and putting a screw thread upon the pll,rt nearest the hand, which thus becomes a nut, having a recess for the wooden handle. The utility of this change is said to be (1) that the step plate is secured by the upper nut, independently of the nut at the end of the handle, and thus, if the handle becomes loose, the smooth and regular working of the rod on the step plate is not affected j (2) that, by securing the step plate to the main bar, or iron body of the wrench, by this independent nut, much of the strain which in Coes' wrench is brought upon the wooden handle, which is the weakest part of the tool, is transferred to the solid iron bar. The evidence bears out this claim of utility. The same result of transferring the strain to the bar has since been reached by G. C. Taft, in a patent now owned by the defendants, but in a wholly different way. It is ably argued for the defendants that the mere addition of a nut to the Coes wrench has not invention enough to be patentable. Considering, however, that the change, simple as it seems, was not made for some 25 years after Coes' wrench was patented and came into common use, and that there appears to be a value in it which others have obtained in a different way, it seems to me that the combination is new and useful in the sense of the patent law. There is a disputed question of fact, whether the "Dixie" wrench had a nut which resembled the plaintiffs'. That was not a patented tool, but was made and sold to a considerable extent before the Coes wrench became known. It seems to me to be proved that this wrench was sometimes made with a nut, into which the handle of the wrench was inserted; but it was not always made so, and the specimen in court does not have that construction. The "Dixie" wrench defeats the second claim of the re-issued patent in suit, which is broadly for a nut combined with the wrench bar, and recessed to receive the handle. But there is no reason to suppose that the assign-
THE COLLIN'S CO. V. COES.
ors of the plaintiffs knew of this form of wrench, which had been superseded by the Ooes tool long before their originaJ pa;tent was granted. Nor does it appeaJ.: that the "Dixie" wrench, with a recessed nut, was well known to all competent mechanics. This was not a ODes wrench. It had no rod parallel to the bar; but the movable jaw was worked upon the bar itself, a form of tool which no one has been willing to use since Ooes' invention was made public. Therefore, the phintiffs' wrench is not, or was not, when made, such a mere obvious appropriation of the Dixie nut, for the use of the Ooes wrench, as to be an alternative fairly within the knowledge of a constructor. The first claim of the plaintiffs' patent is: "The step, combined with the wrench bar a'nd supported by the nut, F, or its equivalent, at the place where the step is connected wjth the bar, in such manner that the ste::?' can be removed from the bar without cutting or abrasion of parts." The last clause of this claim refers to a statement in the specification that steps (that is step plates) have before been made solid with the bar, and that others had been riveted to reach a similar result. This narrative of what was o:d appears to have been inserted by order of the patent office; and it is doubtful whether such solid or ·riveted step plates had, in fact, been used, though they had been described in rejected applications for patents. The courts have no right to disregard such a disclaimer, without which the patent might never have been granted; and th'e fact that some such wrenches had been made is taken for granted by me; but I still think the movable nut a patentable improvement. The defendants have used the old Ooes recessed step plate with the addition of a small nut inserted in the recess. This is plainly an infringement of the first claim, because the nut performs the usual office of a nut, and the recess in the step plate, though old, was not before combined with a nut at this point; and it makes no difference in the combination of the step plate and nut whether you put the recess into the one or the other. The old nut at the end of the handle is not the equivalent of this nut, because it does not do all the work;
is present in both wrenches, and its addition in the plaintiffs'
wrench is the improvement. The third claim is very like the first j but seems to be intended to claim the combination when a nut exactly like that described in the patent is used. This claim is not infringed. Interlocutory decree for the complainants.
THE GENERAL BURNSIDllI.
((Jireui' Oowr', E. D. Mic!iigtm.
orr CLAIMs-DOMESTIC AND FOREIGN MATERIAL MBN.Claims of domel'ltic material men, for supplies furnished under the Itate' law, are entitled to stand upon an equal footing and be paid pro rata with the claims of foreign material men. Per Baweer, C. J., reversing the opinion of BI'own, D. J.
On exceptions to the commissioner's report of the classi:6lion of claims. It was referred to the clerk of this court, as commissioner, to classify the claims and report the order in which they should be paid. By the report made in compliance with this order it appeared that certain claims for repairs and supplies furnished in Canadian ports were placed in the seoond class, before other claims for like repairs and supplies furnished at Detroit and other places in Michigan, which were placed in the third class. The Burnside was owned in Detroit, and was therefore & domestio vessel, &8 to a.ll claims in the t.hird 01as8. Exoeptions were taken by the Detroit Dry Dock Company upon the ground that all material men, whether foreign or domestic, should be ranked alike. John J. Speed and Geo. E. Holiday, for the 6xceptors. J. J. Atkinson, contra. BROWN, D. J. The sole question presented by the exceptions fB whether claims for necessaries furnished in foreign porta are entitled to be paid in preference to those furnished in ·
THE GENERAL BURNSIDE.
port of the state where the vessel is owned, for which a lien is given only by the state law, or whether they should share alike and be paid pro rata. The gist of the argument contained in the very elaborate brief' of Mr. Speed is to the effect that while there is no lien by the general law maritime as administered in this country, for necessaries furnished in the home port, such lien may be created by the state law, and when so created is not only enforceable in this court, as laid down in the case of The Lotawanna, 21 Wall. but beoomes to all intents and purposes a maritime lien of equal rank with those existing in favor of foreign creditors. The last inference, however, does not necessarily follow. In determining the relative rank of different liens, courts are constantly in the habit of examining their character, and the time and oircumstances under, which they accrued, marshalling them in the order of their merit. I think there is a well-founded distinction between liens created at home and abroad, in the presumed necessity for credit in a foreign port, which does not exist in the domicile of the owner. This necessity of credit is recognized in the law maritime, but not in the state legislation, which confers the lien whenever the supplies are furnished, whether it be necessary to pledge the credit of the vessel or not; at least, such is the general construction given to the state statutes. 2 Pars. on Shipping, 154; The 'young Sam, 20 Law Rep. 608. Now, if foreign and domestic material men are put upon the same footing, the former, who furnish upon the credit of the vessel, really labor under & disadvantage, since the proceeds, which would otherwise be used to pay them, are absorbed by the home creditors, who, in reality, trusted to the credit of the owner; and as it is not every state which oonfers these liens it would be necessary for the foreign creditor, in order to protect himself, not only to inquire where the vessel is owned, but how far the laws of the owner's domicile put him at the mercy of domestic creditors. This is substantially the line of argument adopted by Judge Leavitt in the case of The Stf4Je1'ior, (Newberry, 176-184,) where the question at issue here wai discussed. Although at that
time the lien created by the Ohio statute did not attach until seizure, the decision was not put upon that ground; but the rule was broadly laid down that in distributing the proceeds of sale liens would be preferred to those created by the state law. "I am not aware that it has been anywhero admitted that state legislation can interfere with, supersede, or destroy a right or lien previously acquired under the national maritime law. On the contrary, the existence of such a power in the states has been strongly denied. They may declare that a lien shall exist in cases designated, and provide for its enforcement by a seizure in rem; but, clearly. the lien so acquired must be subordinate to those existing before in favor of other parties." This decision has been followed, so far as I know, throughout this circuit. Reported cases are rare, but they are uniform. The principle was acquiesced in by court and counsel in The St. Joseph, (Brown's Admiralty, 202,) and in the recent case, decided by the same judge, of The Alice Getty. In the still later case of The John T. iVIoore, in the circuit court for the district of Louisiana, Judge Woods held that, even if the state liens were recorded pursuant to the statute, they must be postponed to maritime liens. In Scott's Casc, (1 Abb. U. S. 336,) the relative p.riority of mortgages and mao terial men in the home port was elaborately argued, but no question was made that foreign material men were entitled to be preferred to mortgagees. The court observes, in speaking of maritime liens: "There was no question as to the validity and priority of these liens, and under former orders of the court they have been paid." Incleed, in all the cases where the mortgagee has been held to rank lien holders under the state laws it has, apparently, been assumed that the decision would be different if the contract were between a mortgagee and foreign creditors. In Thc Gmce Greenwood, 2 Biss. 131, the admiralty liens were paid before the contest was made. I had occasion to consider those authorities in the case of The Theodore Derry, in which I held that the mortgagees stood only in the place of owners to the amount of their mortgage. and that domestic material men were entitled to rank them.
'rHE GENERAL BURNSIDE.
The only adjudication claimed by counsel for domestic creditors to be direetJ.y in their favor is that of The C",nnon Raleigh and A,toria, recently decided in the district of Virginia. On a careful perusal of this case I do not find this question to have been passed upon, though there are intimations, as in other easell, that the liens of the state laws are of equ.a.l nlidity with strictly maritime liens. The leal'ned judge did say that these liens took precedence 0f all liens, other than those for mariners' wages, but the question wa's not between foreign and domestic creditors, but between material men and a mortgagee, and the court a:dopted what I have considered the better law, that such liens were entitled to rank a mortgage; following Keeder v. Steam-ship Gurgi8 Creek, 3 Am. Law Reg. 236. I ani informed, too, that the practice of the clerks in many of the eastern districts, in the distribution of proceeds, is to place domestic and foreign materia.! men in the same rank; but if this practice, unsanctioned by judicial authority, is entitled to any weight -in other districts, it is fairly offset by the uniform practice in this district, ever since the organization of the court, to prefer th0 claims of foreign creditors. It is not denied that the application of this rule will lead to apparent injustice in certain cases where the foreign port is much nea.rer the domicile of the owner than many ports in his own state, which, under the law as settled by the supreme court, must be considered as home ports; as, for example, in holding Jersey City to be a foreign port to a New York vessel, while Buffalo and Ogdensburg are domestic, or in regarding Toledo and as foreign to Detroit, while Ontonagon and St. Joseph are domesti-c. This difficulty, however, has arisen from the practice of treating any port in the same state as a home port. Indeed, tho use of the term home port is unfortunate and misleading. The true distinction is between foreign and domestic vessels, the. uniform current of American authorities holding each sta.te in this regard foreign to every other. The General Smith, 4: Whea.t. 4:38; Tke Beljl'Ut, 7 Wa.ll. 624-43; NesWr, 1 Sum. 73; LtilM, 10 The IN4, 1 CU. 308. This adopted from·the
admiralty law of Engla.nd, where the line between foreign and domestic commeroe is of course clearly marked, is founded in no good reason here, since nearly all the domestic commerce, properly speaking, of this country is between different states, and therefore legally foreign to each other. Taking into considera.tion the national character of our interstate commerce, it seoms to me that either all vessels of the United States should be considered domestic, or, if the words "home port" were used, that oBly the actual domicile of the owner should be considered the home port, and every other port, either in the same or another state, should be considered foreign. The latter view was actually adopted by the learned judge for the of Oregon in the case of The Favorite, 7 Chicago Legal News, 395, but was criticised by Judge Dillon in The Albany, 4 Cent. Law Jour. 16. In view of the settled course of decisions upon this point, I cannot but regard The Favorite as a departure from the hitherto accepted law, and so far unsound, but I regard it as extremely unfortunate that tho line between foreign and domestic creditors was drawn exactly ss it is. As an enunciation of what the law ought to be .1 fully coincide in the opinion of Judge Deady. But with regard to the main question in this case, viz., the preferential character of foreign material men, it seems to me too well settled, both in practice and upon authority, to be now disturbed. The exceptions are, therefore, overruled.
On appeal to the circuit eourt the following opinion was delivered byBAXTER, C. J.: This case presents a question which has frequently arisen in the admiralty courts of the lake districts, as well as at other points. This was a Michigan vessel, owned in Detroit. Upon the sale it did not realize enough to pay all the liens existing in favor of the material men here, and the foreign creditors-I mean foreign in the 'riew of the admira,lty law-&re ela.iming precedence over the
rEE GENERAL BURNSIDE.
Michigan creditors, upon the ground that their clai"tns are for. eign, while the Michigan claims are domestic. I find, on examination, that in every commercial country excepting the United States this distinction between foreign and home liens has been entirely ignored; that it does not exist anywhere else, and that it does not exist in the United States as it does in England, and that it exists here only in a modified form. Various reasons have been given for drawing a distinction between a home port and a foreign port in the English admiralty law. It is supposed by some that the distinction is founded upon the fact that the owner of the vessel is presumed to have credit in his own port, and that, therefore, the credit is given to the owner and not to the vessel. But the true reason, I think, is very plain, and grew out of the contest that was waged for a long time between the admiralty and common-law jurisdictions of Engl:tnd, in which the common-law courts prevailed, and settled and determined all cases of admiralty jurisdiction, unless the question arose with reference to matters which occurred upon the high seas, asserting that no maritime liens could attach except upon the high seas, &s they were not maritime transactions. When our own courts began the administration of the admiralty law they departed from this practice and adopted the opposite doctrine, asserting the admiralty jurisdiction upon all waters, including the interior navigable rivers and lakes, disIregarding the criterion of tide-water, etc.; and, if I may be permitted to say so, necessarily, and, I think, upon principle, placed themselves in a position which should have induced them to adopt the theories of other commercial countries, which ignored distinctions made between home and foreign ports. Our commercial marine is a. national affair. It is made 80 by the constitution. Exclusive jurisdiction in admiraUy is given to the federal courts, and it ought to be treated ass. national a.ffair and delocalized. But we have fallen into a kind of mongrel system, between the Civil and English admiralty practice; and have adopted the idea that" vessel, owned and registered in one sta.te, is as t<> another a foreign Tessel, and have given to our commercial
marine a double character, national in one respect and local in another. I am aware of the fact that many decisions have been made in cases of this kind, upon the precise question upon which I have to pass, to the effect that the lien of a creditor from another state is entitled to preference over the lien of the home creditor. It has been well determined by the supreme court of the United States, and by all the courts, that the general admiralty law-following the English law in that respect-there is no lien for supplies furnished in a home port. But the court has stated that it is competent for the states to legislate and gi ve a lien; and the states of Ohio and Michigan have so legislated, and have given that lien. The supreme court has decided, further, that this lien can only be enforced through the federal tribunals. There are different grades attached to admiralty liens. A material man is always ranked by a salvor or by a seaman; but the creditors who are protesting here, as I understand the facts, are claiming for supplies furnished, and the question is whether a state can give a lien, and if in point of fact the states have given a lien. If they have, that lien, under the decision of ths supreme court, can only be enforced through the federal court, exercising its admiralty jurisdiction. And the question is, is there any reason left for drawing a distinction between these classes of claimants, giving the preference to one who has acquired a lien under the general admi.. ralty law, over one who has acquired a valid lien under the state law? The weight of authority-that is, the greater number of decisions that have been made upon this question-is decidedly in favor of the decree rendered by the district court. There are decisions, however, the other way. This particular question has never been decided by the supreme court. The doctrine which had been established by the majority of the adjudications of the minor courts would, in my judgment, lead to a good deal of injustice, conflict, and confusion. Sit· ting a8 a federal judge in the state of Michigan, administering law for the aitizens of Michigan, it would seem to be the mit duty of the court, if it made any distinctions, to take
care of the rights of its own citizens as against foreign citithat has found its way into the books, and zens. The which has been sustained by quite a number of able and respectable jurists, is, in effect, that in a conflict between a. material man in Windsor, across the river, and a material man in the state of Michigan, in the city of Detroit, this court would be bound to exclude its own citizens ·for the benefit of the citizens living across the river. The confusion and conflict that would arise in the frequent passage of vessels up and down these waters can readily be imagined. The courts of the United ·States have made some innovations in order to adapt the admiralty laws to the exigencies uf our situation to inland navigation; and, if there were decisions by the supreme court of the United States upon this question, I should, of course, adhere to them, and so administer the law; but as there are none, though there are conflicting cases in the minor courts, and I think the majority are in favor of the decree of the district court, the same ruling having been made by the learned judge of the western district, by Judge Drummond of Chicago, and by Judge Sherman of Cleveland, yet these are deoisions reached by subordinate tribuna.ls, reasoning from analogy, and I do not know but they have gone so far as to be obligatory upon other judges. In this particular case, however, I hold that I am at liberty to look to and decide upon first principles, considering the question as an open one. In administering the law upon this question I have determined to mete out equal justice to every' one, and to recognize the claims which the laws of the state give to parties. It cannot be said that when It law of Michigan confers upon or invests a party with a good and valid lien, that that lien, thus created, cannot assume an equality of right with liens arising by implication of law. If I should make a mistake in thus holding, it will not affect a great deal in thiil particular case, and rerhaps the decision may attract some attention from congress, inducing some legislation reconciling this conflict and establishing a uniform . national code. I think a point has been reached where we ,ean only get out of these numerous difficulties, originating, I
think, in an erroneous holding in the beginning of our government, by congressional legislation. Acting upon these views I will direct an order to be entered reversing the decree of the court below, and distributing the proceeds pro rata among the parties.
NOTE.-See Th8 Brig E· ..i. Barnard, 2 FED.
and others v. SCHOONER DELOS DE
(Di8triet Gourt, N. D. Ohio. May 10, 1880.)
CLASSIFICATION OF LIENS- STATUTORY LIENS-HoME AND FOREIGIil
Burn8id" ante, 228, followed.
In Admiralty. Th9 undersigned, to whom it was referred to determine the proper distribution of the proceeds of the sale of said schooner Delos De Wolf, submits the following report: The gross proceeds of said sale, as appears from the return of the marshal, in this cause was $4,325, out of which there was retained by the marshal, on account of his fees and costs, $281.11, and the balance, $4,04:3.89, was paid into the registry of the court. From this sum, pursuant to an order of the court heretofore made, the sum of $122.75 has bp.en paid, being the amount of damages decreed by the court against said schooner in favor of Charles Wright and others, on account of their seamen's wages, leaving now for distribution, in the registry, the sum of $3,921.14. The amount and aggregate of the several decrees of this ;court against said schooner and against said proceeds is as stated in the annexed schedule, marked A, the aggregate amount being: Damages, $9,919.30, (including the. damages of said Wright and others;) costs, $491.77, (including the marshal's fees retained by him as aforesaid;) in all the sum of $9,711.07; and, after deducting the payment of said seamen's wages and the amount retained by the marshal, the bala.nce of charge on