saving ships in distress, and: 'devoting themselves assiduously and reputably to that, pursuit, may be gi1l.nted salvage rewards 'as liberally as natural persons so eng8gedmay'be.' , Underwriters'counsel make!l.ls() the point that the fact that the salvage services in the case at bar :were rendered under a contract precludes any claim foi'enhanced reward' on the ground of any supposed impracticability th,at might have existed in December last: of procuring the services of other wreckers in saving the Kimberley and 'her cargo. I have notltllowed that consideration into my view of the service rendered'in this case. It has neit been claimed on behaIfof the salvors that they are Eintitled to a'larger allo\"Vl1nce on anysttch supposed ground; and I do not tMink'the fact that' there were no other wre'ckers available but themselves', it it weres. fact, lshould enhance their compensation; I shall not allow it to influencerny'own award in the case. In their fifth point, underwriters' counsel remark: "Aside from the facitthat thecontracttliidenvhieh the services were rendered platedthat,the'libelants should re:ceive compensation for their services i11 ariy event," the proofs show that they had security always in hand, etc. 'The saine thought is suggested In other passages of the brief. The contract was, in express tertus, Ii. contract for 'salvage, made by the representatives ora/wrecked vessel'imd her cargo, while in imminent peril, 'With a "salvl\ge"company,to "save" the cargo; and to save the ship herself, ifpossible, :or, failing in this; to strip 'the ship, and deliver the cargo, or so mlt(Jh 'as should be sa.vel, at NJrfolk, and the ship, if saved, at Norfolk Ofother place. "It was a contract for saving. It contemplated the saving of property. It provided how the "'salvage" earned should be ?xed' and The comrensationprov.ided for was to be for savmg property, and was to be a salva.ge compensatlon. If the contract, in the use of these terms and expressii:ms, contemplated anything more distinctlythim another, it'wa5 that·therewas to be no payment except for saving propel'ty, and that this lisalvage" wail to be fixed by an admiralty colirt, 01' by arbitration,lls, the ,representatives of the ship and cargo might elect. Whilethere JSM express Clause declaring that nothing was to be ,paid unless f6r'something saved, the' terms used by the contract, in' theil' technical'purpd,tt,as well as hi their ordinary mean-ing, exclude the ideaofanythirlg'becoming dUIHo the salvors unless was saved. I cannot, therefore, entertain the suggestion that 'there wits salvage 'contract for a salvage serv(iee,upon a salvage' compensntioi:r, on whicH nothing would be due or learned' unless some of the property'in peril of the sea was saved. The supreme <lourt, in the (Jase, held, exp'resslyand with emphasis, 'that "nothing shott of a contrac'tto:pay a given 's11m 'for the services to "be ren:dered, ,or a bihding topaY'8:t all events, whether sue''Cessful or unsuccesSful hi tneentel'prise, 'will Its a bar to a meri''funous claiIl1;forsalvage." underconsideratio'n was 'not a ddtitractto pay:n sum. Itwas'nota l;>indingengagement to pay anything; tIiat beil1gleftto arbitration., It was not 'a,contract to pay at 'all' eVentS, whether ilil'c:icessfulor unsuccessful;: fdr'compensation was to
'COLE fl. TOLUSON.
he received only for "saving" property. and was described as "salvage" money. There is nothing, therefore, in this suggestion or contention of underwriters' counsel to prevent the court from decreeing a sal'vage r e w a r d . . .' . IntheSandringham Gbse I awarded a fourth of the values.saved. In the Ctl,Se ;of the Egypt I awarded a fifth, and the outlays made by the ,The saving of the Kimberleywas a more difficult and far more PI:otracted enterprise than either of those. The ship was driven higher upon t4ebeach, and lily; imbedded deeper in the sand. Her size was hugely greater, her leakage was greater, and her distance from deep wa.ter tnany times two reefs instead of one. All of he)." cargo, except the little that did not need, at the close, to, be taken pff, had' to be surf-boated. None of it could be discharged upon 'schooners brought along-side.1.'he value of the cargo wl1S .greater, and was all of it sayed;except the small quantity of grain that had been wet before the got aboard. The value of the ship was greater, costing to build hardly less than a quarter of a. million of dollars; insured. for $180,000; so strong that I doubt if it is seriouslyinjured. WhUethe valuation ofit-$78,000-agreed upon by the parties in interest during disabled state fa conclusive upon me in esthnating the pecunIary award that is to be alloweq. to her salvors, I am not preClqdeJ, in the who moral view ofthe cage, fropl ascribing the highest merit tothe qndertook;and, successtullya,ccomplished, what was regarded the hopele,58 save this great and noble ship. .. . .' EstImating ;the quantum m,eruit due the salvors to be $46,of ,000, and decreeing, that amount, I win decree, in addition, the iagreed value of theprorerty saved, one-fifth of $490,000, equal to $98,000; the, total sum decreed being $144,000. The $.46,000 ,above IXlenti.oned consists o(the sum of $26;00Q expended by 'the salvors upon the chartered vessels and their crews, and' $20,000whichI add as (say ,$375 a Q.lty) to the salvors for the :use in the enterpnsepf property of tlieirowri. consisting of the Peed cables, ha.wsers, and other ma,.terial. " . '.; ,'. " .' "
.BY HVGJIEs. An appeaJ WS$ taken in this ca.seon to the amount would 'have operated so '.oppre·B,eively upon' tlie libelant& that they compromised witli the underwriters bya heavy dis· ·cOllnli upon the and the appeal \\'&8 dismillSed. ".' ": ' : " , :
,ot the salvage award. The delay of the
." , (District
1 ; ,OIl'l:ibel
CoLE' fl. TOLJ.ISON,et
Oourt, D. South.. Oarotina. ()ctoberU, 1889.)
..gaitlat.themas.terfand,twOID,aWIl ofa vessel tor an \Ulssult*d,jbattery \>y; the tWO,lIla.tes, :w,ho a.re not in \Yherethere il'o no Idetlce thll.'l;' themastel: kneW'of the mates' ·intention ,to assault libelant,'Groould have prevented it, lion order of Bnest will not be issued without the securitf usually required in such cases.
. . ,...'. , ; , .
In Admiralty. Libel for damages. O. B. NCY1'flJ,rop, for libelant.
As was intirnated in The Phamix, 36 Fed. Rep. 272, no general rule will be laid down permitting suit to be brought in forma' pauperis with juratory caution. Each case will sta,nd on its own merits, and will be ex!Lmined prima facie before warranf is issued. Such an examination was held in this The libel is for damages for an assault and battery on the high seas, the respondents being the two mates and the master of the American schooner Lewis Ehrman. The schooner was on a voyage from Norfolk to Charleston, with a master, two mates, a steward, and four seamen, of whom libelant was one. While on the high seas libelant got into an altercation with the second'mate, who thrust a hammer in his face. He went aft and compla.ined to the master. The latter ordered him to go forward to his work, telling him not to use" so much lip," and he would not get into trouble. Returning forward, and just about !Lmid-ships, he was struck in the head by the secol\d mate with a marline-spike, and at the same time the first mate beat him with his fists. rhe marline-spike cut the skin of his scalp to the bone, and he was shamefully treated. Reaching port, he began criminal proceedings against the tW()niates for assault and battery. They cannot be found. He now brings a civil action for dilqtages against the two mates and the master. The two mates are not in this jurisdiction. All the other perlions on the schooner have been examined before me. The sailors describe the assault by the two mates,as above set forth. One of them says that at that moment the master 'was near him at the wheel on the starboard side 'of the schooner. does not know whether the master witnessed the occurrence or not. Another did not see the master at all. The lhird says .that be,saw the master on the port. side when the blows were struck, and. that the master saw them. The libel does not say whether the master witnessed it or not: Now, if We assume that these statements are all true, that the master was on deck, and that he saw the blowirstl'uck: there is no evidence that he was aware of the intention of the mates to.assault the libelant,or that he could have prevented it; so he cannot be held for the assault and battery. The assault was momentary, and there was no need for further interference. The case does not come within U. S. v. Taylor,2 Sum. 584; Murray v. White. 9 Fed. Rep. 564. The proctor for libelant insists that the master should have relieved him from duty after this assault, as it disabled him. There is no evidence that any complaint of inability to work was made to the master, nor that he'really was disabled. ' Under these circumstances, without discussing the of plead'lng, it does not o-ppear to bea ease in which an order of arrest should is: 8ueiD a Qh'U case without the 8!lCurity usually required in such <*Ses.
to file it without giving the bOlid required under rule 12 of this court.
The libelant, having prepared his libel, moves for leave
(lONSOLIDATED ROLLER-MILL CO. II. GEORGE T. SMITH MIDDLINGS P. CO.
CoNSOLIDAT1CD ROLLEJt.MILL Co. V. GEORGE PURIFIER CO.
(OlrcuU COUrt, E. D. Michigan. October 7, 1889.)
While one court will ordinarily, as matter of comity, defer to the opinion of an· other court of co-ordinate jurisdiction with regard to the validity of a patent, it is too late to call upon it to do so after it has come to a diflerent conoluslon, and entered a deoree in ignorance of the prior adjudication.
S. PATENTS FOR INVENTION-RES ADJUDIOATA. ", A decree declaring the invalidity of a patent is not a proceeding in rem, and does not prevent the same or a di:tIerent plainti:tI from prosecutinllasuit against another defendant, and establishing its valiillty upon the same or di:lterent evidence. 8. SAME-INFRINGEMENT. Patent No. 222,895. to William D. Gray, for an improvement in roller grinding mills, does not cover a machine having no lever or swinging arm which may be raised or lowered for a vertical adjustment, and no rod corresponding to the roa. G, of the Gray patent, and fitted at either end with devices for horizontal adjustments. .(SyU,abus by the Court.)
On Motion for Preliminary Injunction. This was a bill in equity to recover damages foT' the infringement of letters patent No. 222,895, issued to William D. Gray, December 28, 1879, for an improvement in roller grinding mills. The invention covered by the patent was stated in the preamble to consist "in a peculiar construction and arrangement of devices for adjusting 'the rolls vertically, as well as horizontally, whereby any unevenness in the wear the rolls, or in their journals or bearings, may be compensated for, and the grinding or crushing surfaces kept exactly in line;" "and also in the special devices for separating the rolls when not in action, and in other details." The defense raised upon this motion is fUlly lltated in the opinion of the court. George H. LothrlYp, for plaintiff. Parker &: Burtoo, for defendant.
judicata is taken by the defendant against the issue of this injunction.
J. A preliminary objection in the nature of a plea of res
Prior to the opinion of this court in the case of RoUer-MiU Co. V.Coomh8, 39 Fed. Rep. 25, sustaining the validity of the plaintiff's patent, a bill had been filed in the western· district of Wisconsin by one Allis against Freeman to compel the defendant to desist from using a machine which 'Was claimed to infringe several patents, among which was the Gray patent, upon which this suit is based. A decree was made dismissing the bill;! and it would appear from a letter of the learned judge to the solicitors, put in evidence in thiscasl', that the court' was of the opinion that the Gray patent had been anticipated by an English patent to one Lake, and' hence was invalid for want of novelty. It appeared that plaintiff in that case claimed and perfected an appeal to the supreme court from
'No opinion filed.