dough from a flat sheet was conceived, the difficulty seeins to have vanished, and \'lUCQeS8 followed the effort, as the only change made was to adapt the old letter dies to the shape of a bretzel."
Justice BlIATCHFORD, speaking for the court, and calling attention to the language of the decision below, that most of the prior unsuccessful attempts to make a machine to cut bretzels were in trying to draw out and twist the dough by machinery, rather than to cut out the form of a bretzel by a single die from a flat sheet, or else were endeavoring to cut bretzels with dies set in revolving cylinders, adds:
"It also appears that those efforts were largl'ly made in attempts to cut out the bretzel by two oppositl' dies, and that as soon as the idea occurred of cutting the dough by a single die from a flat sheet success came at once, by merely changing the shape of the old single die. It also apppars, as suggested by the circuit court, that there was a prejudice against machine-made bretzels." . .
See, also, Florsheim v. Schilling, 5.3 O. G. 1737, 11 Sup. Ct. Rep. 20, (Nov. 10, 1890;) and County of Fonddu Lacv. May, 53 O. G. 1884, 11 , Sup. Ct. Rep. 98, (Dec. 15, 1890.) These cases strongly support the conclusion of the court in this case that the bill must be dismissed, w;ith costs, and it is accordingly so ordered.
THE ALERT." CEBALLOS
(mstni.ct Court, S. D. New York.
Where the owner of the steam-ship A., which bad be6.n libeled by a cargo-owner, caused a steam-ship company to be made co-defendant under the flftr.-nintb admiralty rule, and the evidence upon the trial showed clearly that the libelant was entitled to recover against the A., though it did not clear up the dispute between the co-defendants, held, that, the libelant might take a decree against the A., !lnd the call6 should be continued as between the two defendants, rather than to Bend them to a new Buit.
In Admiralty. North, Ward &- Wagstaff, for libelant. Goodrich, Deady & Goodrich, for the R. D. Benedict, for the steam-ship company.
BROWN, J. The evidence taken in the while that the libelant is entitled to a decree ,against the *ler,t, standing, insufficient to clear up the matters in a,s steamer and the steam-ship into the cause upon the steamer's· petition, and m.ay,
., ,., .
by Edward G. Benedict, Esq., of thll New, Yo.rkbu,
to fespond for any judgment recovered by the libelant. After 80 long a delay, fOf the purpose of securing allllttainable evidence as between the defendants, the libelant's right to a decree, as it now appe:us from the testimony, should not be longer postponed; and a decree may therefore be entered in his behalf as againRt the Alert, which is no dou bt responsible to him, and an order of reference taken to compute his damages. The decree will be made without prejudice to the rights of the co-defendants as between themselves, or to any further decree that may be taken upon additional testimony as to the liability of the steam-ship company to bear the whole, or a part, of the same damages, or to indemnify the steamer in respect thereto. Instead of dismissing the steamshipc::ompany, the case, as between the two delendants, should, I think, be continued as between them, rather than send them to a new action; 110t merely in order to preserve the testimony already taken, but that the company may also be bound by the adjudicntion in regard to the amount of damages, in case the company should ultimately be held ans.werable thereforj it being not improbable that controvprsy may arise as to the rule of damages as well as to the amount. An interlocutor.)' decree may be entered in accordance herewith.
HARRISON t7. ONE THOUSAND BAGS OF SUGAR.
(Dtstrlct Oourt, E. D. Pennsylvania. December 19, 1890.)
A charter-party provided for the "freighting of a complete cargo of sugar, say 2,500 T. weight, "the'vessel to proceed to Philadelphia from "The freight to be paid on unloading and right delivery of cargo, at the rate of nine shillings sterling per twenty cwt. on intake weight." The act of God and peril of the sea excepted.. In drawing the charter the words "intake weight" were substituted for tlie printed word "delivered, n at the end of the sentence. Held, that the freight ·was payable at charter rates on cargo not delivered, by reason ota peril ()f the sea, as well as on that part. deliver\ld.
,Libel for freight by J. Harrison, master of the stpamer Weatherby. charterThe charter-party was in the ordinary form of a party for the full capacity of the vessel, under which cargo could be racflived from other freighters, as in a general ship. The clause' for payment of freight, as it stood in the printed form, read:-"The freight to be paid on unloading and right deli\'ery of cargo at thO) rate of nine shillings sterling per twenty cwt. delivered." The word "delivered" was out, and "intake weight" substituted. , Curtis 'lilum, for libelant. , A: delivery of all cargo, except what was lost by excepted peril; is a right delivery of tsltipping Co..v. Armitage, L. R. 9 Q. B. 99; The NarWall,,·g, Moort>, C. (N. S.) 245; RobiWion v. Knights, L. R. S'O. P. 465; CIl:rv.,oCarriageby'Sea,l 549; The (Juerini Stamphalia, 19 Rep. 126.
lReporteli by Mark Wilks Collet,Esq., of the Philadelphia bar.