but admits.i'tssufficiency;: by setting it down for argument he admits its truth, but denies its sufficiency· In this case the complainants have chosen the latter course. They have admitted the facts, and have, in legal effect, demurred to the plea. Rlwde Island v. Massachusetts, 14 Pet. 210; J!yerav. Dorr,13 Blatchf. 22; Birdseyev. Heiln&r, 26 Fed. Rep. 147; Oottle. v.Kreriteri,tz, 25 Fed. Rep; 494; Korn v. Wiebusch, 33 Fed. Rep. 50; Newtonv.'.l(f!aYer, 17.Pick. 129; Pat. § 590; Story, Eq. PL§ 697. The counsel for the complainants has, apparently, overlooked this rule. In contending that an examination of the file-wrapper will show an abandoned application and a return of the patent, he is unmindful of the fact that tlie complainants have expressly admitted that the proceedings are still pending, and that the patent is now in the possession and under the control of the commissioner. The simple question presented by th.El plea is this: Can a party who has surrendered his patent for reissue as inoperative or invalid maintain an action upon it,while it is the hands of the commissioner of patents, awaiting his decision? It is thought that he cannot. No controlling authority has beerl. produced by the counselor found by the court. But the reasonil1g,of the opinione delivered in causes decided prior to the act· of 1870 are all in support of the view here taken. Peckv. Collins, 103 U. S.660; MoJIiU v. Gaar, 1 Fish. Pat.'Cas. 610, affirmed, 1 Black, 273; Forbes v. Stooe Oo;;2C!iff. 385. It is true that underthepresentlaw the "sur.!l1:J.aU effect upon the issue of the amended patent." Rev. St. § 4916. But this language should not be construed to mean that the 8tatus of the original patent undergoes no change after its return to the commissioner. '1'0 permit the patentee to surrender his patent as inoperative or invalill,and the next day commence an action upon it as 8 valid instrument, would lead to endless confusion and inconsistencies. The reissue may be granted, and all prior right of action be superseded. The patentees may have a contingent right of action depending upon the happening ohome future event, but it is suspended during the time the jurisdictionnpon the question of reissue. Having surrendered the patent, and having declared it to be inoperative or invalid, it is incumbent upon the patentee t.o present some proof that he. has resumed control over it. The plea is allowed.
BURRELL et al. tl. PRATT.
(Oircuit Oourt, N. D. New York. August 9,1888.)
COD, J. As this cause involves the 'same question decided In Burrell.,. Hackley, ante, 833. the plea must be allowed·
. THE· L'AMERIQUE.
COMPAGNIE GEN:EJRALE TRANSATLAl'tTIQUE
8. D. New York. JulylO,1888.)
AVERAGE-tlTRANDED VESSEL-CARGO SUBSEQUENT EXPENSE-FREIGHT.
In Admiralty. The above libel was filed by the owners of the French steam-ship L'Amerique to recover $1,911.90, claimed as a general average charge assessed upon 16 bales of raw silk, part of her cargo consigned to the respondents. The steam-ship, being of about 3,000 tons register, and bound from Havre to New York, when about three miles south of Sandy Hook, and in charge of a pilot, on January 7, 1877, stranded on the beach at Seabright, on the Jersey coast, in thick weather, and in an easterly gale. On the following day Mr. De Bebian, the libelant's agent in New York, visited the steamer, and in conjunction with some of the .underwriters employed the Merritt Coast Wrecking Company to unload and deliver the cargo,and get the ship off the beach. The wrecking company immediately commenced unloading, with the assistance of the master and crew. A part was landed on the beach; a part in lighters and schooners. That landed on the beach was carried by the railroad near at hand to Sandy Hook, and thence by steamer some 20 miles to New York, and delivered to the That loaded upon lighters was mostly put 1m board schooners and carried up to the port, and likewise delivered to the owners. All· the cargo, except a very small amount that remained on board the ship, was thus unloaded and delivered by the 1st of February; the respondents' goods were all delivered by January 23d. Prior to the delivery of the cargo, the respondents" and the