The words, "the method. herein described," "BubstanHaliy/ as set forth,"shouJd not be ignored. The oniy described by which the sheet of paper is punctured with numerotIs' small holes iaby the use of the, electric pen. To permit. any puncturing method to be"substituted in place of the electric pen would be to give the claim aeon" struction which invalidates it,and whlch is not warranted by the proof. The claim,when properly construed, is not infringed by the defendant. r His method is as follows: Bamboo-fiber paper,prepared with a lay of wax or paraffine, is laid upon a zinc plate. On this paper, so placed, autographip writing or any design may be produced,-not byal). electric pen, for the hard bed would destroy the reciprocating needle, but by a. little instrument like a pen-holder, to the end of which is attached a diminutive wheel, with microscopic corrugations which cut lit,.; tle slits ini the paper as it rolls, being forced along by the band of the writer. . , For this instrument, and for the transfer paper, patents wel'e to David Gestetner, dated,respectively, November 28, 1882, and December 22, 1885. The printing from the stencil thus formed is done in the manner.' The" Cyc1ostyle" of the another step in the art. It is simple, and comparatively inexpensive. It is as much an' improvement on Edison's method as that W8l!l improvement on what preceded it. The bill is dismissed.
(Circuit Oourt, W. D. Michigan, 8. D.
May 21, 1889.)
The circuit court of the United States h,as. no jllrisdictiQn of a suit .by the assignee of a patent against the licensee of Ilis assignor, for infringement, where the preliminary questions to be determined are-Fir8t, the construction of the contract licensing defendant; 8econd, whether the 'terms ofo'the contract have been complied with by defendant; third. if they have not, whether the non-compliance has worked a forfeiture of the contract. so that comprainant can enforce his righls as owner of the patent. instead of those arising to him as licensor, by virtue of the assignment of the contract to him by the original licensor. Such preliminary questions do not arise under. the patent laws. and the court has no jurisdiction, both parties being citizellB· of the S'8me state. '
In Equity. On final hearing. Taggart Denison, for Dallas Boudernan, for defendant.
JACKSON, Je. The complainant, as assignee ofletters patent No. 146,. 632, issued November 6, 1873, to James Allen, for certain improve. mentsin lath machines (Jr mills, brings this suit against defendtllltas an alleged infringer of said patent, seeking to restrain said defendant froln
further infringement, and for an account of profits. It appears on the face of the bill that both complainant and defendant are citizens of the state of Michigan. At the thrElshold of the case there is presented a preliminary question which affects the jurisdiction of the court to hear and determine the matters involved in, the controversy. The bill alleges, and the answer adnlits. that on the 21st day of March, 1874, said James the owners of said patent, made Allen and John W. Kelsey, being and entered into a written contract with defendant in respect to said letter!! patent as follows, viz.: "This agreement. made this 21st day of March. 1874. betwt>en J. Allen and J. Kelsey, partIes of the first part. and the Three Rivers ManUfacturing Co.· 9f the second as follows: J. Allen and if. Kelsey, of the fi rst part. agree to let the Three, Rivers Manufaotllring Co.· of the second part, have the sole rig,ht tomanufactllre Allen's Patent G",uge Lath-Mill, patented January 20th. 1814.00 royalty.' The Three Rivers Manufacturing Co.· of the second part. they agreeing to pay J. Allen and J. Kelsey. parties of the first part, or their assigns. $30;00 bn each gauge rath-mitl of Allen's patent. sold. ' A record of eaoh and alls!l1es of such machine shall be kept by the parties of the second part.8nd a 8·wornstatement py thl'! secretary of the Three Riverl;l Manufact. 00. !lh#P lDade to the parties pf the first part on the first day of each PilontJt. I.t is' also further agreed. by the parties ,of the first partthat they will pay tile partiM the second part' $150.00 for each gauge lath-'mill, by tHem: or upon the deli very of the same on board of the' cars in Three Rivers. Millhigao. billed as they. shall order; and the p/l.l'tiesof ondpart agree to make and have on hand the gauge lath-mills, to fill all orders that the parties of the first part, or their authorized agents, shall give; and the parties of the first part agree to give the Three Rivers Manufacturing Co., parties of the second part, all the orders that they. J. Allen and J. Kelsey, parties of the first part. or their authorized agents. shall receive for said Allen's Gauge for the term of! three years." ; This contract was transferred and assigned by said Allen and Kelsey to complainant in June, 1874, at or about the time complainaat acquired the title W the letters patent. and he and the defendant thereafter recog-' nized itS existence,and acted' under it. for many years, their transactions and mutual liabilities. After setting out said contract and its assignment to complainant, the bill allegf's that' the defendlInt"never fulfilled its part of said contract, aud never made; the sta.tement under oath, as provided l!lsaid contract, and never paid over any royalty to said James Allen, nor' to said John W· Kelsey, nor to your orator; th'at said defendant has forfeited all rightsand privileges' uJ;lder sailf'contract by refusing and by neglecting to fulfill its part of said.agreement, and prior to the commencement of this suit has been notified to desist from and cease the manufacture and sale of Said machines, so as aforesaid patented." The defendant, ih its. answer, denies thatit didinot 'fulfill its part of said contract; denies that it is, ore;ver has been, in ;default on it in any way; denies that it did not pay to said Allen and Kelthemja,nd alleges that- since said' Co.n.tract wa,s',as· ;compla\mmt, the latterru..s been, und still, is, indebted tait ()f:thein;lealings and transactions in and about saidlath...mills, 1lW,.,; ,c9Q\rflc,t, upon its face, no· provision ita
DENSMORE 'l1. THREE RIVERS MANUF'G CO.
in any event, or for any cause. If it is still in force as an operative contract between the parties, it is clear that complainant cannot maintain a suit for infringement against defendant. Complainant has attempted to show by parol testimony that said contract was intended to be operative only for the period of three years. The second paragraph of the contract, which stipulates that Allen and Kelsey will pay the defendant $150 for each lath-mill furnished them, and that defendant will make and keep on hand such mills to fill all orders that said Allen and Kelsey, or their authorized agents, may give for the same, fixes the period of three years as the duration or limit of this part or feature of the agreement. But this second paragraph contains a distinct, separate, and independent agreement from that provided for in the first clause of the contract. It embodies a "further" agreement than that set out in the first paragraph relating to the royalty to be paid by defendant on all the lath-mills manufactured and sold by it. In respect .to the agreement embodied in the first branch of the contract, no period is fixed for its duration or termination, nor is any provision made for its forfeiture. As forfeitures are not favored, especially in courts of equity, the right to declare or treat sucha contract as forfeited will not be readily or lightly implied. It will not arise from mere failure to pay over the stipulated royalties, or to make the monthly statements provided for in the contract. But if the right existed on the part of complainant to have said contract forfeited because of defendant's non-compliance with its terms respecting the payment of royalties and the making of monthly statements, as stipulated, such noncompliance on defendant's part is disputed, and directly put in issue by the answer. Now, the parties plaintiff and defendant, being citizens of Michigan, cannot litigate in this court the question whether said contract has or has not been performed or fulfilled, nor whether it is or should be forfeited, nor what construction should properly be placed upon its terms and provisions. These and similar matters arising under or involved in said contract are not questions arising under the patent laws of the United States, over which this court has jurisdiction irrespective of the citizenship of the parties to the suit. In order to reach the questions connected with the validity of the patent sued on, and of its infringement by the defendant, this court is asked and required to pass-FJirst, upon the construction of said contract of March 21, 1874; 8econdly, to determine provisions have been fulfilled and performed by whether its terms the defendant; and, thirdly, if they have not, whether such non-compliance therewith has worked a forJeiture of said contract, so that complainant may assert and enforce his rights and remedies, as patente.e or owner of the pat.ent, instead of those arising to him as licensor under the contract assigned to him by Allen and Kelsey. We think it settled by the authorities that these preliminary questions are not such as arise under the patent laws, and that this court has no jurisdiction to hear and determine the same because of the citizenship of the parties to this suit, both sides being citizens of the state of Michigan. Wilson \'. Sandford, 10 How. 99; Brown v. Shannon, 20 How. 56; Hartell v.
Tilghman, 99U. S. 547-556; A7.brightv. Teas, 106 U. S. 618, 619,620, 1 Sup. Ct; Rep. 550. These cases hold that suits brought to enforce contrilets between parties pertaining-to patent-rights, are not actions arising under the patent laws of the United States, and are not, therefore, cognizable in the federal courts irrespective of the citizenship of the parties; and further, that suits to set aside such contracts, or to terminate them, fall within the same rule. In the present case the complainant sets up a patent-right, which he claims defendant has infringed. He alleges that his assignor and the defendant, before the acquisition of his exclusive right to said patent, had entered into a written contract. which is made an exhibit to the bill, under and by virtue of which the defendant was authoriied and licensed solely to manufacture and sell the pat. ented machine indefinitely, both 8S to time and territory, upon the payment of a fixed royalty upon each machine manufactured and sold. This contract is sought to be set aside for alleged breaches thereof by de. fendant, in order that complainant. may then or thereafter have considered and detennined the question whether defendant, with said contract out of the way, or declared forfeited, is an infringer of said patent. Defendant, while denying the validity of the patent and its infringe. ment thereof, sets up its performance of said contract, and denies com. plainant's right to have it terminated or declared forfeited. Under these circumstances; the case falls directly within the principle of the cases of Wilson v. Sand/ord, 10 How. 101, andHarteU v. Tilghman, 99 U. S. 547. The questions growing out of said contract,as presented by the pleadings, necessarily precede, and must be first settled and determined by the court, before the questions or controversy as to the"validity of tRe patent or of its alleged infringement by defendant .can be reached and considered. Of these preliminary questions presented by the bill this court cannot take jurisdiction, because both complainant and defendant are citizens of Michigan. It follows that the suit should be dismissed for want of jurisdiction in this court to hear and determine the matters which precede the questions arising under the patent laws. Aside from this question of jurisdiction, the court is clearly of the opinion that upon the tnerits of the case the bill should be dismissed on the ground that the alleged infringement by defendant is not established by the evidence. nut, without disposing of the case on this ground, which would involve 'theassertiori ofjurisdiction, the bill, for the reason above stated, will be dismissed, without prejudice, for want of jurisdiction.
So e.WalTE DENTAL CO V. SIBLEY.
DENTAL CO· .". SmLEY.
(OirfYUit (Jowrt, E. D. P8nnB1/lvania.
Mav 10. 1889.)
The plaintiff's assignor devised and copyrighted a chart showing "gum sections" of artificial teeth of his manufacture, each section being arranged in a certain way. and having thereon certain auxiliary lines and fignres.by means of which the dentists who used said "gum sections" could obtain informationthat could notbe conveyed by any old method of illustration.;Defendant made a similar chart. in which his teeth we're illustrated in the same mamier as complainant's. Held plaintiff's copyright did not cover the plan or arrangement of the gum sections of his chart, and therefore defendant did not infringe;
To Infringe a copyright the defendant must have actually copied or" pirated " the prod\l,ction of the plaintiff. and not merely. while ignorant of it. have made something similar.
bil. the (lowt.)
In Equity. Bill by .the S. s. White Dental Manufacturing against GideonSipley, to restrain infringement of copyrighted. chart of artificial teeth. ,. . ., . ' '. Jos. 0. Fhiley, for complainant. Joshua for defendant. BUTLlllB,,;r. The plaintiff's aB$ignor devised an ingenious plaD for advertising. artificial teeth. , By the publication of charts showing illustrated sectionEl of teeth, (in connection with numbers,) so arranged as to cqnvey info:rrnatioll. respecting their character, size, shape, etc., purchasers are ,toorder what they need without inspection. The object is well the complainant's argument, as follows: "The object of thus including the copyrighted matter in a general catalogue :was as follo,ws; Complainant is the leading manufaoturer of ar.tificial teeth in the worl4; .its last sales amounting to the neighborhood of seven millions of teeth·. About one-half of these were manufactured andllold in groups of teeth connected together, and called' gum sections,' one of "which is' offered in evidenee as' Complainant's Exhibit, Gum Section.' These sections are of course used in makinQ; sets of artificial' teeth, and imitate,as closely as possible, in size and arrangement, the various groupsof teeth and .configurations of gum found in the human mouth, Certain definite types in .the shape of the teeth, and tI,e curvature of the section, are well recognized as characteristic. and are made by all .manufacturers. Where a dentisG resides in the neighborhood of a dental depot he can, if he so desires, bring tile mould or impression made from the mouth, directly to the store, aud by actually trying the.secttons therein, obtain one which will fit the mOUld. Where, however, he resides atadilltance, orfor other reasons does. not make the selectiol) with the mOIlI<l th.e se-ction oUeet4 actually in his b.ands. he order the sections trom a dealer by mail or otherWise." The objeQt is further iUustrated by the testiolQ,J1Y
"(a) It is the custom Of the bouse to issue from time to time,catalogues containing pictorial representations of goods they are placing before the professIOn, and, among other things, artificial teeth. The difficulty has been to convey a proper representation of artificial teeth. lllustrations heretofore have been made which do not convey a correct representation. as in all selections for teeth in the mouth the central incisor is ta,ken asa key to the whole set, and such representations did not convey a correct representation of that tooth. Therefore my inventive qualities were set to w@rk to devise some means of giving such a correct representation, not only of the profile view of its size as to length and width, but also the outline view of its anterior surCllfvatures with the relation to its gum, and the curvature or face, giving arrangement of the adjoining teeth, making up one-half of the curvature of the arch oUhe maxillary ridge. This View was designed to Lit the opposing teeth in the opposite jaw. also the curvature line of the upper margin of the gum. .As these two curves are never to be found alike in a mouth where teeth have been lost. (as, after extraction, the process in which the roots of the teeth are imbedded absorbs, changing the arch,) it is necessary, in mounting a set of teeth, to first not only ascertain the median line of the face, but the fullness or inclination of the tooth. This ansngement of cuts or illustrations was so placed as to convey to the dentist at It glance the pitch of this central tooth, and the relation of the adjoining teeth to it."
The plaintift',3 manufacturer of artificial teeth, published and filed copiesofthechitrts; and in other respects complied with the statute ralatinK to copyrights. The defendant, also a manufacturer of artificial teeth, procured engraved illustrations ofhis teeth; arranged in sections, (accompanied by numbers,) and printed them onchartsj and thus conveyed to purchasers the same character of information respecting his manufactureas the plaintiff's charts afford. Neither the teeth nor the numbers are the same as the plaintiff's, either in fact or appearance. The 'object of the defendant's <Jharts, however, and the plan of conveying information, as well as the' information conveyed,are in character the same. It is thus seen that the defendant has not copied and published the plaintiff's cha'rts, but has employed simply the same pl'an of adver,tising his own manufacture. That he has done more cannot justly be urged. Has he trespassed upon the plaintiff1s rights by so doing? With'out considering the question whether the plaintiff has secured a valid copyright for anything, it is sufficient to say that weare well, satisfied 'he has not secureu a monopoly of this plan. The copyright laws do not embracesl1ch ,an object. It could be secured, if at all, only by letters 'patent. That it could be thus secured we do not mean to suggest. To enlarge upon this pointwould not be profitable. Its truth, indeed, seems S9,6b'Violls as to forbid, if not preClude, enlargement. The subject is by the few lines to it by the court in Perr'iiJ v. Hexarner,
'''It needs no argument tosbow tbat the defendant's maps sr" not \lopies. either in whole or in part, of the plaintiff's. They are arranged on the same 'plan,'but those of the defendant represent Philadelpllia. while the plaintiff's represent New York," " ,I ," " . ' :ThisJanguage is applicable here as it was there. Independently of this, however J and in any view that can be taken of the case, the de-
THE PORT ADELAIDE.
fendant is not liable, unless he has copied-"pirated "-the plaintiff's charts, or some part of them. If he devised the same plan in ignorance of what the plaintiff had done, it is clear, we believe, that he has not infringed any privilege secured by the plaintiff. The proofs do not justify a conclusion that he has so copied. His own positive testimony that he has not, but that he worked out the scheme in ignorance of what the plamtiff,had done. is not overborne by the circumstances which the plaintiff invokes to prove the contrary. Emerson v. Davies, 3 Story, 768. on which the plaintiff mainly relies for the support of his legal proposition, does not, in our judgment, sustain him. The question there, as repeatedly stated by the court, was whether the defendant had piratically copied the plaintiff's work. It was not doubted thM he was not liable to the charge of infringement unless he had.
(DilirUt Court, 8. D. NClD York. May, 24, 1889.)
BBI:PJ:>Jl'(J-.-,.CARRJAGE OF GOODS-PLACE OF DELIVERy-CUSTOM.
A vessel is required to make delivery of cargo within such parts of the port as have become fixed by established usage. if a customary berth can be obtime. If the vessel go elsewhere. Rhe must tained there within a make good the additional expense thereby caused to the consignee. A vessel arrived December 26,1888. with a cargo of tea to be delivered to numerous consignees at the "port of New York." It had long been the custom to deliver teas on the New York side between piers 16 and 47. East river. Th,e vessel might have obtained a berth at pier 47 on the 27th. For her con· venience, and on promise of indemnity by warehousemen in Brooklyn, she discharged her cargo in Brooklyn against the protest of many consignees. Held, that the latter should recover their extra expenses of cartage, ferriage, etc., from Brooklyn to New York.
In Admiralty. Ubel for damages. Norwood CoggeshaU and R. D. Benedift" for libelant. Owen, Gray Sturges, for claimants.
Bn.OWN, J. On the night of December 26, 1888, the steamer Port Adelaide, from Shanghai, arrived at this port with a cargo consisting almost wholly of tea; About 6,000 packages-one-tenth of the cargowere con,signed to the libelant. Early on the 27th she proceeded to RobeIis'atores, Brooklyn, where she began to discharge on the morning of the 29th. The libf;llant and various other consignees, on learning that the had gone, or to Brooklyn discharge, notified the ship's' agents of their objection to receiving the cargo there, and claimed that by the custom of the port it was deliverable on the New York shore, ",.38F.no.9-48
within'the two tea from pier 16 to pier 47,East river. The vessel was entered at the customhouse on the 27th, and a general orderand permit to discharge were obtained on the 29th. This suit was brought to recover the additional expense of $77, caused to the libelant for cartferriage, etc., through the discharge of his part of the cargo at Brooklyn, instead of within one of the New York districts. Several similar claims of other consignees are understood to abide the result of this 'suit, which was instituted in order to test the righttQ discharge such cargoes in Brooklyn under the- existing usages of this port. In the case of Devato v· Barrek of Plumbago, 20 Fed. Rep. 510, this court had under consideration the rights and duties ofship and cargo in regard to the place of delivery, as between New York and Brooklyn, at the where the bill of lading provided, as in this case, fora "port of New York." It was there said, pages 516, 517: "The limits of the port, as respects a delivery under the bill of lading, turn purely upon the question of fact Within what limits ships and merchants have been accustomed to receive and deliver cargoes consigned here, without regard to geographical divisions. III III III Consignees of goods have a right to expect a delivery according, to, the'established custom and usage of the port, and in that part of the port customarily used for the discharge of such goods; and the vessel is hqund, anll has a right, to make delivery Q(lcordingly. III III III The question in any particular case must be whether the practice of landing at such parts 9f the );lort. has becQmeso general and so 6!ltilblished as to be fairly and reasonably entitled to be recognized as within those limits wherein the merchants of the port ordinarily receive, and, vessels suchgo,ods.Toshbw this, proof 'ofueage is. and suCh Is its ;0l:1l!:e. " . See, also, 00. v· Demp8ey, L. R. lO.P.nlv. 654. In that case it was held that, Brooklyn being within the port of New York, a delivery there at Pierrepont's soores l where formany had beencul?tomarily a delivery under the ·bill of lading, notwithstanding the consigmee's ,objection. In the present c,ltse the proof is clear'that until very recentl,y cargoes conpHncipallyo£ teas, the Port Adelll:l<;le, consigned to the port of New York, have been accustomed to be discharged only on the New York side of the East river. The three or four instances of a delivery of similar cargoes in Brooklyn within the lasts:iXtnonths have arisen largely thl'ough the efforts of warehousemen in. Brooklyn to procure the delivery ofthe cargoes there for storage, and upon arrangements made by them for indemnifying the vessel for her disregard of the longestablished custom. A similaragree1l1lent of indemllity :wasgiven in this circumstance that recognizes both the fixity of the usage to deliver in New York, and the obligaJ;ion or the ship to observe it. These .fewinstl1llcesaf recent discharge in Brooklyn, and under such provisiQns, wholly fail to show any such change of usage as to warrant delivery there, except 'on consent of the owners of the cargo. It was contended that the Port Adelaide could not obtain a berth ;within the. usual' tea districts' in New York immediatelyupon her: .rivalj and that the faciliti6s for delivering on the south side of pier 47,
'IHE ,poRT ADELAIDE.
where a place was in fact provided for her in the afternoon of the 28th December, were insufficient; and that the vessel was also in need of cer'tain repairs, which made berthing in Brooklyn more desirable. These circumstances do not justify the Adelaide in departing from the established usage so far as to throw upon the consignees the burden of the extra expense thereby caused. Within reasonable limits, the ship must take the risk of delay in obtaining a berth where by custom the contract requires her to make delivery. In case of apprehended delay, if her own interest, or needful repair, makes it desirable to her to discharge elsewhere within the port, ! do not say that she may not do so; but it can be'Qnlyupon paying the extra expense which the departure from the usage Inflicts upon the consignees. It is the same as respects facilities for a rapid discharge. No doubt the improvements and greater space at 'many of the new Brooklyn docks are of great advantage to the ship; but untU the eRtablishment (:If a new custom, or the consent of the consignees to a change from the former customary place of dischaJ;ge, the ship i,s entitled to avail herself of these superior advantages without compensation to the cargo-owners for the injuries the change imposes on them. In the present case! cannot find that there was any serious endeavor to procure a berth for the Port Adelaide within the accustomed districts on the New York side. On the morning of the 26th a Clerk of the ship's agents made inquiries at the proper office inthe lower district, and was informed that no berth ill that district would be open until the 7th of January. Proceeding to the office in the. upper district, and not finding the officer in, not'urther inquiry there was made; but ments were immediatt3ly effected for berthing her at Brooklyn, under an agreement with the warehousemen for indemnity, as above stated. All this was before the ship had arrived in the upper. bay. On the morning of the '27th, as soon as the consignees were informed of the ship's arrival and intention to go ,to Brooklyn, arrangements were made by some of them, upon application in the upper New York district, for a berth on the lower side of pier 47, which was in fact vacated and made ready for the ship by 4 o'clock P. 'M. of that day. Previous notice thereof was given to the ship's agents early on the 27th. Had the latter made any reasonahleendeavors to procure a berth in New York, they could not have failed to have procured the same berth through the officer in charge, who promised tbis berth as soon as applied to. Such cargoes had long been ,accustomed to be discharged there, whether the opposite side of the pier was in use for discharging or not. As the vessel was not ready to commence unloading until the 29th she would not have been subjected to anydel$.y had she gone there 'in the afternoon of the 27th, as she might ha"e done. The libelant is therefore entitled to the extra expense caused him by the ship's not discharging within the limits allow.ed by ,theestllblished usage; and the ship must look to her indemnito1'8 for reimbursement. ;\,;
THE BOHEMIA. I COHN
'V. THE BOHEMIA.
(Di8triet Court, 8. D. New York. April 9, 1889.)
SHIPPING-CARRIAGE OF GOODs-DAMAGE BY DEI,AY AT QUARANTINlil.
A vessel, detained 14 days at quarantine, .and afterwards delivering ber rargo of potatoes damaged by rot, whose bill of lading excepted liabilitr for "decay, It for damage caused by "rllstraint of princes, rulers. or people.' and "loss or damage caused by the prolong-ation of the voyage, or by causes beyond the carrier's control, " is not liable for such damage to her cargo, unless (J'8used by negligence. A vessel carrying both and cargo was detall)edat quarantine, and rio request was made by the carg·o-owners to deliver the carg-o there. though they were fully notified of the detention, and it did not appear that anyone apprehended damage to the cargo by reason of. the detentIOn. Held, that no netl'ligence was imputable to the ship for not trllonsshipping the cargo at quarantlne for the purpose of more speedy delivery, and that she was not liable. Upon a temporary detention a vessel is not bound to transship cargo, unless damage is to be expected from the probable delay.
In Admiralty. Libel for ,damages to a cargo of potatoes. Abbett <:t- jiUl1er, for libelants. Butler, StiUrnan<:t- Hubbard, for claimant.
BROWN, J. On the 28th of April, 1888, the steamer Bohemia arrived aUhis portfrom Hamburg, with·481 bags of potatoes belonging to the libelant, deliverable, according to the bill of lading, "at Hoboken, or elsewhere within the port of New York." The usual delivery of merchandise by vessels of the line was at Hoboken. The vessel had about 1,200 passengers in the steerage. who fully occupied the two between-decks. The goods. A few potatoes were stowed in the lower hold, on top of cases of small-pox appearing among the immigrants about the time the vessel reached Sandy Hook, she was detained at quarantine .for 14 days, when she proceeded to her dock at Hoboken, and discharged the potatoes during the following day. The potatoes were much damaged by rot, one-half of them being worthless. The libel was filed to recover for the loss of the potatoes. charging bad stowage and negligent delay in delivery. Although there is no proof of the actual condition ofthe potatoes within the bags at the time they were shipped, inasmuch as the evidence shows that the bags were then in good order, and without stains indicating rotten potatoes, I assume that they we'rein good order when shipped. It is contended that the damage was owing to the 14 days' detention at quarJ1ntine. This tact is not strictly proved, and it is doubtf!,ll whether it is .fairly to be inferred from the mere fact that another shipment of potatoes, made by the same shipper at Hamburg at about the sam&.time,by another vessel, which was not detained at quarantine, turned out good.
Reported by Edward G. Benedict, Esq., of the New York bar.