stantiaUy tbesameway as that of the patent, and embodies all the elemElnts of this claim of tbe patent. Upon these considerations it appears to be an infrinll:ement. Morley S. M. 00. v. Lancaster, 129. U. S. 263, 9 Sup. Ct. Rep. 299. And on the wbole the orators appear to be entitled to a decree for an injunction and an 'account, according. to the prayer of the bill. Let there be a decree for the orators tbat the first claim of the patent is valid, that the defendant has infringed, and for an injunction and an account, with costs.
(OlrcuU Court. E. D. Lou1.Bmna. Aprn, 1881.)
DICJ8ION ON AppBAL-EFFBOT OJ'M"ANDATE-COMPROMI8B.
A deoreewaB rendered upon a bond against the prinoipal and agatnst twosurettea for oertal,n lUnited amounts in whioh they were bound. The sureties compromised their liability, but the principal afterwards appealed to the 8upreme oourt, where the deoree was aftlrmed in all respeots. Held, that the circuit oourt was not bound by the mandate, so 88 to allow exeoution to go against the 8ureties, either for the whole of the decree against them or for the excess over the 8um8 paid in satisfaction of the. whole.
In Admiralty. Heard upon motions to quash executions. Granted. The original case was a suit in admiralty. brought February 16, 1872, by the owners of the Sabine against the steamboat Richmond, to recover damages sustained by the Sabine resulting from a collision between her and the Richmond, near Twelve Mile point, on the Mississippi river, on February 11, 1872. The owners of the Richmond filed an answer, and also a cross libel against the owners of the Sabine. In the latter they claimed a decree for damages sustained, in consequence of the collision, by the Richmond, they alleging that the collision was caused by the fault· of the Sabine. Upon the filing of the cross libel the district court, by the authority of the admiralty rule No. 53, ordered that all proceed. ings upon the original libel be suspended until theoriginallibelantllgave bond to respond in damages to the cross libel. In pursuance of this order, on March 14, 1872, the owners of the Sabine, with Alfred Moulton, Jules Tuyes, Charles Cavaroc, and Achille Chiapella as sureties, executed a bOlld of that date in favor of the owners of the Richmond in the sum of $8,000. By the terms of the bond, Moulton and Tuyes each became bound in the sum of $2,000 only, and they each justified in that amount. Upon trial a decree was rendered dismissing the libel of the SabiM,liI.gainst the Richmond, but sustaining the libel of the Richmond against the Sabine, and awarding to the owners of the Richmond the sum of $9,750 for the damage sustained by her, and rendering a decree in their favor against Jules ,Tuyes and Alfred Moulton for $2,000 each. From this decreEj, an apPeal being taken to the circuit court by
thij sutetiesupon the bond given by the owners of the Sabine upon a. cross libel of the Richmond, the circuit court, on April 10, 1875, rendered allecree in favorofthe Richmond against the Sabine for the damages sustained by the former in consequence of the collision. Afterwards, on March 11, 1876, upon the report of the master, the amount of the damages was fixed at $8,000, which the owners of the Sabine were cond.emned in 8olido to pat. At the same time decrees were rendered against Jules Tuyes llnd Alfred Moulton, sureties on the bond aforesaid, for $2,000 each. On July 3, 1876, Jules Tuyes compromised the decree against him in favor of the owners of the Richmond by paying the latter, in full satisfaction thereof, the sum of $1,166.66, and was by them subrogated to their rights as owners of the decree. The following is a copy of the paper by which this settlement was evidenced: "SHIRLEY et als., OWNERS 'OF THE SABINE V. THE RICHMOND. "United States Circuit Court: Received, New Orleans, July 3, 1876, from Jules Tuyes, Esq., security on the bond given by the libelants in the above cause to respond to the cross libel Illed by N. S. Green and others, claimants of the steamboat Richmond. ,the sum of ,$1,166, and in fnllsatisfaction of the decree rendered against bim' in the above-entitled cause, and I hereby subrogate hUn to the rights of 'N. S. Green and owners of the steamboat Rich,I\:ENNARD, HOWE & PRENTISS. mond. . . .·· Attorneys for Owners of Richmond."
Afterwards, September 28, 1876, the Home Insurance Company paid, in behalf of Alfred Moulton, to the owners of the Richmond, the sum of $1,500, which the owners of the Richmond acknowledged to be in full settlement as a compromise of the liability of Moulton on said bond, signed by him. It was in. faot a compromise of the decree for $2,000 which had been rendei'ed against Moulton oli said bond. On November 2, 1876, the owners of the Sabine filed a petition for appeal from the decrees of the circuit court hereinbefore mentioned, upon giving bond to costs, which was allowed, and on December 16, 1876, they gave an appeal bond in the sum of $500. Neither Tuyes nor Moulton joined in the petition for appeal, and neither of them became obligors upon the appealbbnd. At the October term, 1880, of the supreme court the decree of the circuit court of March 11, 1876, was in all respects affirmed, and a: mandate was sent down to the circuit court. After the mandate of the supreme court, showing the affirmance of the decree of the circuit Court, had been entered in the latter court, an execution was issued on the decree against Ttiyes and Moulton rendered by the circuit court Mai'ch 11, 1876, on their bond above mentioned, and affirmed as aforesaid by the supreme court. The marshal being about to seize the property of Tuyes and Moulton to satisfy the execution, they each for himself filed a motion to quash the execution, on the ground that thedecrees against them respectively had been satisfied. Upon these motions the cause was heard. a. E. Schmidt, for J:u1esTuyes. C. B. Singleton and R. H. Browne, for Alfred Moulton. John A. Campbell, for owners of the Richmond.
WOODS, Circuit Justice. It is insisted by counsel for the owners of the Richmond that the decree of the circuit court, as well that part of it which condemned Tuyes and Moulton to pay $2,000 each as that part by which the owners of the Sabine were compelled to pay $8,000 to the aame parties, having been affirmed by the supreme. court, and the mandate of that court having been received, this court has no discretion, but must execute decree in all respects as it has been affirmed. The result of this contention would be that Tuyes and Moulton, who had once compromised and satisfied the decrees against them respectively, would be compelled to pay them again. I do not think the law requires of this court a course of administration which would produce such a result. This court is not, under all circumstances, bound to render a servile obedience to the mandate of the supreme court. It is bound to exercise -8 judicial discretion in the interpretation and execution of the mandate. In the case of Story v. Livingston, 13 Pet. 373, the supreme court said., in reference to its mandate, that" it is to be interpreted according to the subject-matter to which it has been applied, and not in a manner to do injustice." In Ex patte Morris, 9 wan. 605, the supreme court, having reversed a decree rendered against Morris and Johnson by the district court, by its mandate directed the marshal to make restitution to them of whatever they had been compelled to pay under that decree. Pending the appeal, the whole amount of the decree had been collected fromtbem by execution. A part of the money so collected had been distributed by order of the court. The residue the marshal had; by order of the interior department, deposited in a national bank, which had failed since the deposit had been made. These facts were held by the supreme court to exonerate the marshal, and excuse him from obedi-ence to the mandate of the court. See, also, Supervisors v. Kennicott, 94 U. S. 498. When the appeal taken does not supersede the decree, and such was the appeal taken in this case, the appellee, notwithstanding the appeal, may take· out execution, and enforce the payment of the decree. It has never been.supposed that money so collected could, after the affirmance of the decree, ·be again collected. A voluntary payment stands all the same footing. It is not the practice of the supreme court, in affirming or reversing a deoree, to take notice of payments or adjustments subsequent to the decree of the court below. These matters belong to the circuit court to consider after it shall have received the manoate of the supreme court. Thus in The Kalorama, 10 Wall. 204, it was said by Mr. Justice CLIFFORD: "Payments have been made by the respondents sincetbe decree was entered in the district court, but the court here is not asked to revise the finding of the district court as to the amount, nor to deduct thepa,vments since made, as those matters will be adjusted under the stipulations executed between the parties." , So in Canal Co. v. Gordon, 2 Abb. (U. S.) 479, it was said by Mr. Justice FIELD: "Obedience to the mandate of tbesupreme court will always be rendered by this court. It will be a prompt and implicit obedilmce; but we trust it
wilLbe; &8' iUhoutd be. an intelligent, aOd lnot a blilld" ,Tbe j'l,1dgfounded pn"t}le recqrds before ,it, ,.nlltbese judg.be unhesitatingly liS their enf,orceme'nt maybe by events ':Wbsequent to the pe.dod covered bV tll1srecprd. That such events mayIDodlfy, and often do modIfy, the mode 'iiM ' hia1\her of e'nforcement is well all members of the professlOD. Th\:l,ci\:llitl1,of l'arties, partial ,satisfaction, changes of interest subject to judgmennl.hd sales upon the judgment pending the appe.al, are instances where th.is rasI,l'It is freq ueptly prod ueed. "
:,' 'It'fol19WS from these lluthoritiesrif it, indeed ,needed any authority thlsuppoltlso obvious ;aproposition,thatpayments or compromises made ihbis dWnl'behalf bya'party to ,a'deoreeafter its'rendition in the court be'low ate to be notided Rnd ,enforced tby the inferior. court after the affirmancebfthe decree by the supreme court and the return of its mandate. It is conceded; however, by counsel for thce±ecution creditors Tuyes and Moultoh are entitled to be',oreditedonthe execution with ,the amounts paid by them in compromise oIthe decreeS rendered against themJy..but it is insisted that they are entitled to no more. ,This concesSiOti, it:8eems to me,yields the whble case. Tuyes and Moulton insist that the decrees agMrist ,them- have been discharged by \Acoord and satisfaation. The accord and satisfaetibnis clearly esta,blished. It is impOl!lsibleit,oihold that they would be entitled to the benefit of full or partial payment, and to 'deny them the benefit of their accord and satisfaction.Both these methods of'Satisfying a decree, so far as the question in nand is concerned,staridonprecisely the' same footing. But it is insisted that the adjustments made with Tuyes and Moulton wereoompromises, and that the .compromises failed,; therefore the appellees were remitted 'to, their original rights, and can collect the balance ·of their decrees notoovered by the compromise payments. It is true, :the adjustments were compromises. but the, compromises have not failed. Thoseootnpl"omises were that the ,appellees should receive a certain sum in full, satisfactioD'.of. the decree.., ;This <was agreed to by the debtors; the:money w8!Spaid,and a release executed. So far from the oompromises .failing, they were fully exeoutedand performed. When these ,(lompromises were made it was perfectly well known to the owners of the Riohmondthat Tllyes, and iMoulton, could not prevent the owners of the Sabine al.rryingup the decree by appeal. They never agreed that there should be DO appeal. They compromised and satisfied the decreeS against.themselves. 'fhey took no appeal, for they had nothing to apIt is true that, if the decree of peal from. They were out of the ,1ihe (ll),Urt hadl1eenreversed. the. reversal extended to ,the and Moulton, But that would have been of no benefit to·thern.: They <lould not havereoovered back the compromise fuoneyvo1untaruypaid before the appeal in satisfaction of the decree. No reason is perceived why the execution in question should be allowed ·to proooed agJiinst the property of Tuy',es and Moulton. They have both satisfied the decrees upon which the execution is issued. The affirmlance by the supreme court of the entire deeree of the cirouit court does not make this any the less a fact. ·,It would not be just to compel another