hasf(oiBcovered lt and given it to'he public, the latter will be protecte"d, that the public is indebted; it is from him that the ptiblichas received and, as no one can-impart that which he does not possess, it must appear that theallllged prior inventor was aware, not but alsoofit.<s lttility. These considerations leadt<> the conclusion that complainant is entitled toa decree in accordance with the prayer of the bill for an injunction and accounting. Let a decree be entered accordingly.
(Df.8triet Oourt; D.Sonth CaroUna. April 20,1899.)
Asuit in general average was brought by libelant, a ship.m9"ter, against elit; who denied the necessity-for the jettison, thus making the main iS8ue whether libe,laht'eentire claim was a fraud. This suit was the only method of arriving at a solution of the question. Libelant was successful on the main issue t thouA'h the amOUnt of his olaim was diminished, for want of evidence whichooula satiefy the court.. BeZd, that respondent should pay the costs.
In . 1. ;:V. Nathans, for libelant. 1. P.K.. .Bryan and D, B. Gilliland, for respondent.
SIMONTON, . District Judge. The only question remaininglis as to the costs. Upon whom must the burden fall? In law cases costs tute the ,penalty pro falso clamore; they inevitably [oHow the. verdict or decision.)n this court; as in..equity, they do not necess$rily fall on the and ,are; altogether within . the discretion of the court. When the litigation has arisen unnecessarily, either: by haste before a or. by unreas<:mable conduct post litem, rendering hnpracticable ; or when there in the testimony such actiQJ;l QO the part of the litigant as repders him obnoxious to the disapproval of. the court ; and sometimes when the question involved is of such a 'fihnracterthat both parties are equally interested in the decision madei"':':"in'these instances, audin maDy others, varying sometimes w'ith sometimes with the disposition a.nd .temper of the judge, costs are divided, or apportioned, or put upon the successful party. In the present case the ship reached port, a jettison of cargo and other having occurred during the voyage. The usual and proper steps were taken. An average bOlld was executed, and the cargo delivered. i,·Ail iadjustment was made by an experienced adjuster. Respondentsbeingdissatisfied, not with the manner of, but with the occa';lion for, theciaHjustment, this libel was The answer denied for the jettison, especially and particularly for much of the ship's property·
The adjustment, having been based on an No solution of the question c01;lld be had in any other way. The result has been a reduction of the amount due on general average, but has established the fact that it is a caee of general average. I do not perceive any impropriety in bringing the suit, or any conduct on the part of the libelant which would have prevented a settlement if practicable. The main issue was, was alLthiEl claim for general average a fraud? This issue has been decided in favor.of the libelant. The amount of his claim was diminished for want of. evidence which could satisfy the court. There is an atmosphere of suspicion hanging ll.round cases of this character which, resist it as we may, has its influence. The libelant has had the disadvantage of this. I am not disposed to burden him further. Let respondent pay the, costs.
ex parte statement, could not bind the parties.
The suit was necessary.
THE GRACE LITTLETON.
v. THE GRACE LITTLETON.
Aprll 28, 1899.)
(District Court, D. South Carolina.
a.AMAN'e WAGES-REFUSAL TOGo ABOARD-INTOXIOATION-CONTRAO'1'.
WlUlre. a seaman, who has signed shipping articles, went to hie vessel, on her sailing,day, intoxicated, and declined to go aboard. and the master, being pressed for time, thereupon shipped. another man, heW that, while theJact that he was dl'unk'W6lil . not a sufficient ground for a rescis6ion of his contract, his refusal to go aboard entitled .the master to supp!y his place, and, when the place was 1lllecl, DO 'SUbsequent appbcation could help hIm.
In Admiralty. Huger Sinkler, for libelant. Bryan Bryan, for respondent. SnwNToN, District Judge. This is a libel for damages for breach of contract of hire of a seaman. Libelant signed shipping articles for the Grace Littleton on 19th March, for a voyage to West Indies, at $20 per month. When he signed he was told to go aboard the next day at 7 o'clock .A. M., as the vessel would sail that afternoon. The vessel was at the Northeastern Railroad wharf, and libelant did go to her the next day about 9 A.M. Now comes the inevitable oonfliot of testimony. He says that he went to the vessel with his duds, ready to enter upon his engagement, and that the master refused· to let him go aboard, alleging that he was drunk; that, although he had taken a glass of beer or so, he was sober; that during the day he sought the master, with his counsel, and offered again to fulfill his contract. Mr. Getty, a clerk at the wharf, says that he saw a sailor at that wharf that morning going towards the schooner, and that, although he evidently had been on a heavy spree, he had sobered up. I will come to his testimony again. Hendrix, the