!lKB T. oJ. ICJlUYLEa
TIIB I1llC H. TILLYBB.
the jurisdiction of the court, so that its process shall operate upon him individually. It has not bElen the practice of this court to render a personal decree for damages or costs against an officer of a corporation, except in cases where there was such intentional and willful action of the officer, shown from the proofs, as indicated an individual purpose to infringe the patent, and violate the rights of the complainant, and when, as in one case, it was made to appear on hearing that the company was organized for the express purpose of violating the patent. So much in regard to the practice of the court. But. even if an officer of a corporation is joined as a co-defendant in such a case, with the usual allegation charging an infringement of the patent by all the defendants, does that· . make the bill demurrable, so far as the officer is concerned? If the bill charges an infringement by several defendants, one of which is a corporation"mustlt make any different case against the individual than against the corporation? The allegation that A., B., and O. have infringed a patent is enough to put them all upon answer, if the bill is otherwise sufficient; and the fact that the bill shows the individual defendant to be an officer of the defendant corporation does not require that any different or more specific words be used to charge him than if he were not such officer. The allegation in the bill that the United States RollingStock Oompany, and A. B., its president, have infringed complainant's patent, is sufficient on its face to require an answer or plea from each defendant which shall put such allegation at issue. .In neither of the cases cited by defendant was the question of the liability of an individual officer of a corporation raised by demurrer, but the question as to such liability came up on final hearing in the first two cases, and on a plea in the last olie. 1'he demurrer is overruled.
its chief executive officer, seems to me to be ordinarily the proper person to be joined as a defendant for the purpose of him directly within
SCHUYLER 11. THE ISAAC
H. TILLYEB. 1
(Otrcuit Oourt, E. D. Penn81/l'Vanw. November 2, 1889.)
A large,schooner at anchor at .the mouth of the Schuylkill r:l,ver was taken In tow by a tug at low water, to be <;arried to her wharf on that river, the tug choosing her 'oWl1' time. While passirlg ,through a' draw, she was drawn by the set of the agalnst an obstnwtioJrab()ut six feet from the pier of the bridge, and BJIJIle below the surface of the water. Held, as the towage could have 'heeupert'ormed at a time of higher'water, and as the tug could have kept·further away; from the pier, shewaaohargeablewith neltligenoe. 2. B.uora-Ihl'rY OP Tow. . .' :A: tow th'atendeavora, *hUe under the· control of the tug, to follow as nearly as in her wake, w:not l'esponsible for any injury haPPltDing to her while Iio by obstructions..
TOWAGll-NBGLIGllNCB OP TuG.
Esq., Of .the Philadelphia bar·. Rep; ooL . '.' " . ..
tourt. Fpr formeropilliQp,ee· ,Rep. J551.: c' '¥bel by, the sohooner IsaaeR. tug I1\ !J.: Schuy:-lert to'll..ecover dawagessu&tained;,whil,e'being .towed up ",:' j '-"),,-. ; t: ' .. "<:': · :1', Dr.iviJr., jHlQCtors.for TheSchuyler,apl>ellant., "j Fltmdef1 Pugh" .proctors: ,to ,the .resp0D&ibility Robert H., Burnett, 30 Fed. :Rep.,:2(1;4jWilley 12,Ath Rep. 45:3,1; Lady Pi"",' 2t';Wall.l jThe iMaklerpld; 230jTheJ!)elaware, 20"Fed.;Rep. 798; TAd,: Henr:yOhapel. ·10':Fed.Rep.777;:;'l'M Etfi6 J. Sim'l7'ftm8. 6 Fed. :Rep.;6S9i Th6Ellen 27 Fed. Rep. 868; :;, . .i ,. ,', r' I" , ;'1,; 1:" :,,) j:·IMcKEkNAN, J. On the2d day'of,jnly, 1886, about 1 o'clock 'schooner; Isaac H., Tillyer . the mouth of. the S.chuylkill, there. She had about, 869 tonsidf ice" which iwb.oonsigned to the Knickerbocker Ice Company, and,waS to be deliV''tlredlat.,thePihe-Street·'whurf.J\.bout9 L Y. :of;that' day she was to beconveyedto"herdestination;at and was towed astern by' cross"hawsers of'25(to 30 fathoms in' length; , The tide was then running down the river. Some'distance up:tW:river a new bridge, had been constructed across.it, known as the :"Baltimore& Ohio Railroad Bridge," between the piers of which it was 'necessary for the tow to pass. Before, this point waBreached there was a shoahunning out from the westerly side of thenver; and extending nearlyacrGss'it.· It was necessary ,to, go round this shoal,and hence the schooner, as directed by the tug, pnt her wheel to port, and so held it untjLshe passed a point of rocks on the eastern side, when, as she was ordered, she put her wheel tostarboll.i'd in order tdpasa·through the eastern draw of the bridge. By the set of the current, and being drawn too near to the pier, she was brought into contact with some obstruction about six feet below the surface of tlHfwater, and about the same distance from the pier. A large hole was knocked in her bottom, and she . ,T4JSAuit was therefOl:e, to recover the damages caused lo the schooner by the alleged negligent or unservice which. 81::te :undertook to skillful perfQnnance by the tug of .' .".. '. '. '.. . perform. '. Whethershe did so or not is mainly, if not entirely, a question of :fact;' not to detail. It is sufficientfo'oBtatethe·conclusions ab'bich I,have arrived from the evi·. WhilGthe the of the :Schooner;; yel,Jlhe to meet,suchrequirement9of.her service as would enable her to reMe!' 'it with 'safety to the schooner. She must the Q.6pijl.4)f in j itl' Btate;·of,thetidesj .tJ;1e time, of her servICej and, generally. all condItIOnS whIch are essentIal to'the safe of her Jf tb.ese menta, or In the exerCIse of adequate s'knt orcare.,'lilie·lS JUstly subject to
anirriputationof negligence'. , Was the tug derelictin <JIiyof spepts,? She: might have started when the tide JVIl,tLat .a higher than it was when she began her movement up.the nvef, and thus, with deeper wmet, have insured the safety of her tow·. approached bridge she might .and rightly ought to h3ve kept· furthet away from it, for which there was ample room, and thus. have avoided the, risk of collision with',it, Qtwith the obsU'uctionunder the surface of the This was .the mistake, which haEl'resulted in the injury complained of, and I am satisfied it is chargeable solely,to the tug.. Was' thescbooner in fault? Her movements were under the control of the tug,: and that sbe endeavored to follow as neatly in the wake (jf she could is not. only probable, but. the hypothesis is sug.. the weight of the evidence. Upon the wholeca.se, I isfied:thatthedecision of the ,district court is right,and therefore the amount awarded by it, viz., $1,333.40, is decreed by this court to be paid by Thomas Gould, <Jlaiman.t,and William R.Morris his stipu. latal, to the libelant, with interest from 7, 1888, and with costs ,to be taxed.
(.DlBtrict Oourt, D. Mas,ach.usettB.
DmnmBAGB-LIA.BILlTY OJ' CONSIGNEB-BILL OJ' LADING-STIPUI...l.TIONB.
Where the bill of does not provide for lay-days, nor stipulate as to the time of unloading, the consIgnees are not liable for demurrage because a cargo was not unloaded until 17 days after arrival, where it appears that the delay was caused by the vessel waiting her turn at the consiA"llees' wharf according to the usage of the port, and that she was then unloaded with reasonable dispatob.
In Admiralty. Libel in personam for damages. E. P. ilirver, for libelant. C. T. HUBBell, Jr., for respondents.
NELSON, J. The respondents are lumber merchants, with a wharC in Boston, where it is customary for vessels, arriving with cargoes oflumber to them, to be unloaded in turn in the order of their arrival, according to the usage of the port. The schooner City of Ellsworth, of which the libelant was master, arrived in Boston, July 10, 1888, with a cargo of lumber on board, consigned to the respondents. The next morning the master reported to the consignees, and, as their wharf was then fully occupied in unloading other vessels, which had arrived before the City of Ellsworth, he was told he must wait his turn. On the 24th a part of the cargo, consisting of laths on deck, was unloaded, and the vessel again hauled into the stream. On the 29th the rest of the cargo was discharged. Nineteen days elapsed from the time the master r&o