of al?ipe t(), convey the air intp ,the reservoir: above tll.e infringe. the second claim: of the '.Mack patent, !lnd I· do ;not think such a construction of the cl!lim is allowable. The decree originally entered dismissing complaiollDt's bill wijl. therefore be affirmed, and it is' so ordered.
PnA'l"l' t7. THE
CoOMBS et. al. v. SAME.
(C«rmdt (tOO" oj Avpea't8. Second 01.rcuu. . Ocf,Qber ..81;'1891.) '1:
, ' · ' > '. ". " , , ' . :
obtmntl iCotrltT OJ'
Al'PEALS-ADHIlU.LTY APPEALs. Feb. 16, 1871!."to facUitatethe of Cases in the supreme "provIdes tbatafter the the circuit courts in deciding ad· shalf make separate findings of fact and of law, and that, on appeal ' .. /:.Cl:tbE\18qpreme court, the review shall he Ihnited to questions 'of law apparent on 'record or by a bill of excel1Wons. Bela, that although the act estabUslHng the circuit court' of appeals' (A:6t Congo March 3, 1891) declares that" all law now in forceregulatiDg·tbe methods and system of appeals and writs of error" shan regulate appeals and writs of error to thl!ot court, yet the act , Of :t815 dMs' not apply td appeals in admiralty from the existing circuit courts to that .llQ\lrt;'lIJId the same may be heard 'without separate findings of fact and of billa Of exoeptions, as i/lappeals from the district to tIle cirouit
, :from tbecircttit court of the United Statesfor the sQuthern distrietof, New York. . . of the schooner Helen AuLibel by Edwin N. Pratt, as the brig I;Ilt\ri)ah, .her tackle, Decree belo'\f to! LllleolntJoombs and othets,clalmants, appeal. Heard on motion. to dlllappeal. Motion overruled. ., ;,1M1trp Arden, for the mqtioll. ,. ,'RdOet't D·.Benedict,' opposed. , BElforeWALLAcE and LACOMBE, Circuit Judges.
.'PElt 'CURIAM. . Thisie an. appeal from a decree of the circuit. court affirmiillfadecree oftne district court 'for the southern district of New Yotkiii'litiadmiralty c,ause. 33 Fed.nep. 875. The:cause was heard bythtd:ircuit court subsequent to July 1, 1891. Amotion has been mlide tddismiss the appeal. The motionp.roceeds u,P0nthe ground that no' findill,gB of fact weremttde by the circuit court upon the d,ecision of no exceptions appear in the record; aIidthat thifi court, iti'rtWiMring appeals islimited tOR determination of the questU)]:is'oflaw arising' upon the record, lind to such rulings ofthe court below, excepted to at the time, as are presented by a bill of exceptions. Prior:to tbe act of February 16, 1875, "to facilitate' the ,dispoAition of
. c : ;.1
cases in the supreme court and for other purposes, "1 neither special findings of facts nor exceptions were a necessary, part of the record upon an appeal in an admiralty cause, and the hearing in the supreme court and was a trial de novo. It was the purpose of that act in the circuit to relieve the supreme court from the necessity of-deciding questions of fact in admiralty causes, and the provisions whereby findings of facts and, conclusions of law were required to be separately stated by the circuit courts had no application to caseswhich could not, because the amount w!ls insufficient, be reviewed by the supreme court. Vitill rified Pipe8, 14 BIatchf. 279; Richardsv. Hansen, 1 Fed. Rep. 67. Obviously that act does not apply to an appeal to the circuit court of appeals.. The eleventhseqtion oLthe act of March 3,,)891, establishing the circuit court of appeals, provides that "all provisions of law now, in force regulating the methods and system of review through appeals or writs of error shall' regulate the. methods and system ofappeals and writs of error proviqed,Jol.' in this 'act in respect of the ,cirCUit courts ofappeals." henceforth'lie direct from the district By the act appeals in court to thecc;>urt of appeals, and no method or system review by findings or. bill ofexceptions was in force for the review by appeals in addistrict court when the act was pa$sed. It would be miralty [roni unreasonable to hold that congress intended a different practice to aplies, from the ,circuit ply to the limltedJ;lumber aCcases court to the circuit court of appeals (solely because. they were pending and undecided when th,eact was passed) from that would apply to appeals in admiralty from the district court. As the act of1875,provided a method and sYl:item of review, through appeals, only for such cases iIi the citcuitcourt as went to the supreme' cot1Ft, there seems no good reason for' extending the general language of the eleventh section of the new act to cover cases in the circuit court which are not to go to that tribunal. '
lThe act of 1875 provides, among other things, "that the' circuit courts of the United States. in deciding of admiralty and maritime jurisdiction on the instanC6&ide of the court; shall :lind the facts and the conclusions :ef law upon Which it renders: its iudlments or· dec,rees, aDd 84811 state the ,facts and, conclusions. of law Bel'aratelv. . * The review of the judgments and decrees entered upon luch findings by toe' supreme court upon (l,ppeal shall be limited 'to a determination of the questions of law arising upontJ;1e allcJ, to of thll 9ircuit <;oun, .exceptedtoat the time, as may be by a bUl exceptiolls prepared ils, m at law."
THE. ·R:r.vER MERSEY.
Co. t1. THE
(,D,istr£ct Oourt,S. D. Nf/U) York. January 8,1892.)
Upon the subihission of the cause on the pleadings. averments of new matter in in the,libel and denied generally, must be wholly disregarded, as unproved, except hi so far as they may'be admissions against interest.· ' "
DEll,EJ,WTS iT SEA-DANGEROUS OBSTBUCTIONS-DESTJllJ.(lTION. OF.BY OTHER VESBIILB PERS()NAL .TORT.
.A:. scOW hi tow of a steaUler on a voYage from Charleston to Nicaragua having broken adrift off Fortune island in ll:!90, was driftiI\g in the.track of steamers up and down tbe ' coast for over three weeks, When she was taken in tow by the defendant steamer, and on the rollowing day set fire to for the purpose of destruction. The libelants, according to the libel, had ,n.otice f,rom tiIDe t() time this interval of.the w.hereabouts of the scow,lbut ,gave no eviden,ce that they made any efforts to rescue her, or that they intendlkl to do so.' Held, that the inference from these facts was that the scow was abandoned bY the owners, to be dealt with by other vess,els tbat might meet lier as prudence shOUld dictate; that bY,th, nature of the vessel' sbe was an obstruction dangerous to navigation; and there',being no evidencecof her value,or that sbe was worth salvage, held, that was no presumntion, in the absence of evidence, t1\at the aot of the master, of tbe Riover Mersey In (1estroyln,:( this obstruction was either tortious or negligent; but that it was presumptively a beneficial servioe in the publio interest, for the sl,lfety of and propf:lUY IltVea,-a work similar to that. in whioh the publio vessels of 'maritime lIat10n8, including our own, are more or less engaged. Held, alllo. tbat· the"mallter'saot, if tortious. was a personal tort, and not being done for the the ship, or thecoursll Qr navigating the ,shiP. or within the scope of his: powers as 'representative of the owners, neither the owners nor their property Were liable. ' ' ' ,. '
In Admiralty., North .America.n. Dredging & ImproveRiver to recover for the ment .Col:npanyagainst deBtructiC)u;ol'a scow I the,.property of libelant. Wheeler, Cartis &: Godkin, for libelant. &: Kirlin, , for claimants. ;.( ;",,.> ;'; ,;' ':;;:
BROWN,J. li;hal was filed to recover· for alleged damages to the libel!J.nt for setting:'pl;l,:JiI'El a scow belongin,gto the libelant, which was adrift at sea. ThesoOw waaone 01 four which, while on l\ voyage
of the West Indies. No evidence was introduced on either side in support of the allegations of the libel or answer. The case was submitted upon the pleadings. The answer admits that the scow was picked up on the 6th of August, about 3 P. M., and taken in tow uutil noon of the following day. The scow had then been drifting to the north-eastward for a little over three weeks. The libel alleged "that the libelant, on or about the 16th of July, 1890, received notice that said scow had gone adrift; that at various times thereafter the libelant received from incoming steamers and other vessels notice of the whereabouts of the saill scow, lind kept itself generally informed both of the position and condition thereof; that about the 7th or 8th of August, the libelant received