patent does not say that the bars must be unconnected; on the contrary, the drawings show a connection running around the middle of the bars, as if it were a brace, orsiiffener, to hold the bats at equal distances apart, and to keep them marl) firmly in position. The defendants' grate consists of upright cast-iron bars; with connections between them at intervals, leaving long spaces or slots between the bars, and only interrupted by the connections, exactly like the spaces between the bars required by the patent. The imitation of the invention described in the patent is not exact, but it is substantial. The bars used are the equivalent of the bars described in the patent. I think it is an infringement. I refer, of course, to the gratings used by the defendants in which the bars werl;l upright, and the spaces between them were longitudinally confofl11lj.ble thereto. The complainants are entitled to a decree for an injunction and an account of profits and damages in the usual form.
THE BRANTFORD CITY. 1 HATHAWAY v. THE BRANTFORD CITY.
(Di8trict Oourt, S. D. NI!IJJ York.
On appeal from the district court to the circuit courtft is not necessary for an appellant, who has given security on the release of the vessel, to give a new stipulation for the whole amount of the decree and costs. New security to cover the damages for delay, and the costs and interest on the appeal, is sufficient. A rejustification of the sureties on the original stipulation will, however, be ordered, if reasonably required. It seems that in the case of a bond to the marshal a new bond on appeal, for the whole amount, may be required.
SAME-BoND TO MARSHAL.
North, Ward &: Wagstaff, for libelant. Wheeler &: Gonis, for claimants.
BROWN, J. The decree in this case, in favor of the libelant, is for the sum of $40,000, besides costs. Upon the arrest of the vessel at the time of the commencement of the action, that sum was taken as the agreed value, and a stipulation in that amount, with sureties, was given by the claimants, pursuant to the tenth and eleventh rules of the supreme court in admiralty. Upon appeal from the decree of this court to the circuit court, the question now presented is whether the defendant, in order to stay execution, shall be required to give new security for the whole amount of the decree and costs, or security only in an amount sufficient to secure" just damages for delay, and the costs and interest on the apJReported by Edward G. Benedict, Esq., of the New York bar.
THE BRANTFORD CITY.
peal," upon the analogy of the twenty-ninth general rule of the supreme court. That rule provides only for "supersedeas ponds in the circuit courts." "It does not expressly appeals from the district court to the circuit court, although it covers admiralty causes in which rity tor the value of the property arrested, as in this case, will be in the custody or control of the appellate court, Since the promulgation of this rule in 1867, .and its reaffirmance in the case of Jerome v. McCarter, 21 Wall. 17, there is no question that, upon an appeal from the circuit to the supreme court, the additional security required would only be for the "damages of the delay, with costs and interest on the appeal." There has not been, so far as lam aware, any statutory provision to regulate either the mode of appeal from the district court to the circuit court, or the security to be given in order to stay execution upon such appeals in admiralty causes. Norton v. Rich, 3 Mason, 443; The Glamorgan, 20urt. 236. All the statutory provisions upon these points, beyond merely authorizing an appeal upon decrees for a certain sum, to the supreme court. Rev. St. §§ 1000, .1012; are confined to Judiciary Act 1789, (1 St. at Large, p. 83, § 21;) Act March 3, 1803, § 2, (2 St" at Large, 244.) Upon such appeals every judge signing the citation is required to take "good and sufficient security to answer all damages and costs, where the writ is to stay execution." In the absence of any statutory regulations, BETTS, J., under the general power of the court to regulate its own practice, prior to 1838, formulated rule 152 of this court, providing t.hat, . when an appeal should bel entered, the appellant" shall, within 10 days thereafter, give security for damages and costs," in order to stay the ex.ecution of the decree," This rule was in evident analogy to the statutory requirements upon an appeal from the circuit to thesuprbme court. Under this rule the practice in this court was the same as the practice in the circuit court under the statutes above cited. By repeateddecisions' of the supreme court, up to the year 1867, that practice required new security to be given upon an appeal for the whole amount of the cree, without reference to any security previously given. In the case of Rubber Co. v. Goodyear, 6 Wall. 153, a different struction from what had formerly prevailed was given to the language of the statute requiring security for "all damages and costs." It was then held that any security previously given, and under the control of the court, ought to be taken into account in determining what additional security should be deemed" sufficient for the costs and damages" upon appeal. Rule 29 was at that time promulgated, expressly declaring that, upon supersedeas bonds in the circuit court, "when property was in cug.. tody under admiralty process, or the proceeds, or a bond for the value thereof under the control of the court, indemnity in all snch cases is only required in an amount sufficient to secure just damages for delay, and costs and interest on the appeal." Upon elaborate argument in the case of Jerome v. McCarter, 21 Wall. 17, the supreme court refused to modify this rule, and the equity of its provisions was reaffirmed. These decisions do not, instrictness, embrace the practice in this courtj
heoapse 'neither the nor thestatn-tory provisions, expressly includes appeals fron). the district court. But as rule 152 was based upon the analogy and ,the equity of the statute, and designed to assimilatethepractice in both courts, the reasons for the twenty-ninth rule, and the decisions of the supreme court in construing the application of the phrase "damages and costs," as well as consistencyin practice, would seem to require a corresponding modificntion of the practice, and of the . interpretation of the same words in the rules of this court. In the English practice new security for the whole amount was required upon appeal for the reason that" the sureties below are not bound in the cause on appeal." The same reason is assigned in Clarke,Pr. tit. 59. See 2 Brown, Civil & Adm. Law, 437; Hall, Adm. Pro 108.109; Dunl. Adm. Pr.322. By the tenth and eleventh. rules of the supreme court in admiralty, stipulations fur the release of property under arrest must require the parties to abide by and pay the money awarded by the final decree rendered by the court, (Yf appellate court, if any appeal intervenes; and such is the stipulation given in this case. The general rules in admiralty were promulgated under the act of August 23, 1842, (5 St. at Large, 518,) some years after rule 152 of this court, before referred to. Supreme court rule 10 provides expressly that the security given shall run to the appellate court all well· as to the court below. There is no other rule of the' supreme court on this point. There is no question that stipulations which are given under these rules, and which in terms agree to pay the amount awarded in the ap-, pellat-e court, are as available.in the court as in the district court. The ,reason given in the ancient practice for requiring new security on appeal no longer exists in such cases. Such seems to be the intimation of Judge CONKUNGin his Treatise, (Adm. 387, 405.) The very stipUlation itself, so long,at least, as the sureties are responsible, is a continuing security, and seems so far to answer the requirements of the rule. ,For the rule does not require security for the amount of the decree and costs, but only for" damages and costs." If the vessel had remained in custody until the appeal were perfected, she would be released upon the same security that already exists. and the additional security required would be for the delay and costs only. The bond already given goes into the circuit court with precisely the same effect. So, -also, a new bond for the whole amount, with the same sureties, could not be rejected, if the sureties are responsible. To give a new stipulation, with the same sureties, would be an idle form, except for the purpose of a new justification; and a rejustification of the old sureties may be ordered upon the reasonable demand of the respondent, as a condition of accepting the existing bond pro tanto. If the old sureties are unable or are unwilling to justify anew, a new bond for the whole decree should be executed. The court will at all times sedulously endeavor to proteot the parties from loss through insufficient security; but this, Ithink, should be done by the care and scrutiny exercised upon the acceptance of sureties, and in their justification, rather than in the duplication of bonds or stipula-
tions for thE'· same thing. Considering the long time that often elapses after the release of the vessel from arrest at the time of the commencement of the action until the appeal, a rejustification of the sureties will be ordered as a condition of their acceptance, if reasonably required; but, if the sureties are entirely satisfactory, the existing stipulation, which runs in terms for payment in the appellate court, should be accepted as far as it goes. Bonds given to the marShal under the act of 1847 do not, in terms, provide for the payment of the decree in the appellate court, but only to abide and answer "the decree of the court" in such cause. In such cases it may be necessary to take a new bond for the whole amount. I do not pass upon that question now. In the present case, if the sureties in the existing stipulation are approved, additional security for $7,000 will be sufficient to cover the damages and costs in the circuit. Should an appeal be taken to the supreme court on an affirmance by the circuit court, the additional delay-will be then provided for by the requirement of still another bond. .
Oourt, B. D. New York.
October 26, 1885.)
REUARING-Al'PLICATION AFTER 'fERM;-ENTRY OF DECREE.
An application for rehearing not made during the term when final decree was entered comes too late.
Application for Rehearing. 25 Fell. Rep. 158. Wilcox, Adams &- Macklin, for libelants. R. M. Sherman, for claimant. BLATCHFORD, Justice. In this case, which is a suit in admiralty, there was a decree in the district court in favor of the libelants, from which the claimant appealed to this court. The appeal was heard in June, 1885, and the decision of this court was filed July 8, 1885, directing a deoree in favor of the libelants, to the same effect with that of the district court, with costs in this court. The decree of this court was, on notice to the proctor for the signed by the judge, and filed and entered in this court on the fifteenth of July, 1885. It decreed that the libelants recover against the yacht and her claimant $248.23, with interest from August 13,1884, amounting to and $192.80 costs in the district court, and $58.49 costs in this court; and awarded execution therefor. It also decreed that as there was then in the registry of this court $274, deposited by the claimant to the credit of this action, in lieu of the yacht, and as security for the claim of the libelants, and as security for the costs of the clerk of the district court, to-wit, $15.50, and the marshal's costs,taxed at $100, had been paid by the claimant, the clerk of this court should pay to the libelants, out of the moneys so deposited,