THE S. SHAW.
of any patent, in "the machine" used or operated by the defendants. On all this there is shown a use by the defendants of the machine seen and described by Mr. Abbott. Taking the whole bill together, it must be held to aver a user since the plaintiff's patent was granted, and the proof and the answer must be held to apply to such a case. The proof of user is sufficient without the admission of Mr. O'Shaughnessey, and without reference to the point taken that no admission by him binds Simpson. As to the point that the bill does not allege an infringement by the defendants jointly, if it does not, the objection should have been taken by demurrer; i! it does, the proof and the answer make out a joint infringement. There must be the usual decree for the piaintiff as to the fourth claim of the patent.
(District Court, E. D. Pennsylvania. Jannary 14, 1881.)
ADMlRALTy-COLLISION-ANcHORING IN MID-OHANNEL AND IN RANGE
OF LIGHTs.-A bark proceeding down the Delawal'e river anchored at sundown In mid-channel, and in range of the government lights. A tug following her, with a schooner in tow, did not observe that she was at anchor until too late to prevent a collision by which the bark was injured. Held, that the act of the bark in anchoring where she did tended to produce the collision, and that she was, therefore, in fault.
2.' BAME-AmnSSION OF LIAllIUTy-]<'ROM WHAT CIRCUMSTANCES IMl'LffiD -AGREEMENTTOARIlITR.\'l'E.-'l'he testimony left it doubtful whether the tug should have observed the bark earlier, but it appearing that the owner of the tug had offered to pay for the cost of repairs to the bark without damages for detention, whieh offer was refused, and had then signed an agreement to refer to arbitrators" the amount to be paid," which agreement was afterwards ahandoned because he claimed the right to call witnesses as to the caus.e the collision, held, that this amounted to an admission of some fanlt in the tug, and the damages should be, therefore, equally divided between the bark and the
*Reported by Frank P. Pritchard, Esq., of the Philadelphia bar.
In Admiralty. Libel by the master of the bark Ajace against the steamtug S. Shaw for damages sustained by collision. It appeared from the evidence that the bark, on September 18, 1879, started from Philadelphia and proceeded down the Delaware river in tow of a tug. Late in the afternoon she passed the tug S. Shaw, also bound down the river, and with the schooner Annie M. Allen in tow. About sundown the tug in charge of the bark left her, and she then let go her anchor and swung round with her head to the tide, which was then ebb. The tug Shaw, coming down behind her, did not discover that she was at anchor until the vessels were in close proximity, and was then unable to prevent the schooner from colliding with and injuring the bad.. At the place where the collision occurred the river was about two miles wide. The bark anchored in mid-channel, and also in range of the government lights. It appeared that, by a statute of the state of Delaware, vessels were prohibited from anchoring in range of these lights. There was conflicting testimony as to the time which elapsed between the bark coming to anchor and the collision, and as to whether the bark's anchor light was up before the collision. The theory of the libellant was that while the bark was at anchor the tug attempted to cross her bow, and the schooner was in consequence carried by the tide down upon the bark. The theory of the respondent was that while the tug was following the bark the latter, without warning, suddenly came to anchor in mid-channel, and thus caused the collision. It appeared, also, that a day or two after the collision the owner of the tug offered to pay the captain of the. bark the cost of the necessary repairs to the bark. The captain of the bark demanded $2,400, which included, besides cost of repairs, damages for detention, expenses, etc. An arbitration was then suggested, and a written agreement drawn up and signed, whereby the parties agreed "to submit the question of the amount to be paid the Italian bark Ajace, of which the undersignel, Federico Morice, is master, in consequence of the collision between said bark and the schooner Annie M.
Allen and steam-tug tl. Shaw, to two arbitrators." Immediately afterwards the parties entered into a conversation, in the course of which the owner of the Shaw claimed that he had the right under the agreement to call witnesses, not only as to the amount of damages, but also as to the cause of the collision. This was denied by the captain of the Ajace, and the parties thereupon separated without attempting to carry out the agreement of arbitration. 'rhis libel was then: filed. Henry Flanders, for libellant. Henry R. Edmttnds, for respondent. BUTLER, D. J. I find both v!3ssels in fault. The Ajace should not have anchored where she did, - virtually in mid-channel, and within range of the government lights. The act tended directly to produce the collision which followed. It did not, however, relieve the Shaw of her duty to observe proper care and keep off if the Ajace was seen in time. Whether the latter vessel's lights were up, and whether she was, or should have been, seen in time to avoid the collision, is open to doubt, if the testimony of witnesses, bearing directly upon the question, 1110ne, is considered. But con· sidering also the subsequent· conduct ot Captain Bougher, owner of the Shaw, I am satisfied this vessel, too, was in fault. Taking the agreement to arbitrate signed by him, with his testimony, and that of Captain Guneo, respecting it, he must be regarded as admitting that his vessel was in fault. The paper, viewed alone, would justify a conclusion that he acknowledged responsibility for the entire consequences of the collision. But the testimony of Captain Guneo, as well as his own, shows that so broad an admission was not intended. At the outset he offered, unhesitatingly, to pay the cost of repairs,-covering as he supposed the entire injury sustained by the vessel-but refused to compensate for loss of time, or anything beyond such repairs. It was Captain Guneo's claim to more that led to the agreement to arbitrate. Immediately after signing the paper, the parties disagreed about its meaning. Captain Bougher, supposing himself entitled to show fault in the Ajace, offered testimony to that
point. His antagonist, denying the right to do this, objected to the offer; and in consequence of this disagreement the arbitration was abandoned. Viewed in the light of the testimony referred to, the proper interpretation of the paper is that Captain Bougher admitted liability for the loss sustained, but not the entire liability. This view is consistent with all he did. At the outset he asserted, on the information of his captain, that the Ajace was in fault; and he subsequently offered to prove it,-to show, as I must suppose, the extent of his liability. This liability depended,-the extent of it, (whether for the whole or lit part only,)-on the conduct of the Ajace. No other interpretation of the paper is consistent with the conduct of Captain Bougher. If he did not intend to admit liability, he would not have agreed to confine the arbitration to the subject of damages; and if he intended to admit liability for the entire amount, he would not have insisted, when making the admission, that the Ajace was in fault, and immediately after, when the agreement was being carried out, have insisted on showing such fault. The only rational conclusion is that he intended to admit his own fault, and to hold the Ajace liable for hers. A decree will accordingly be entered for the libellant for one-half the damages sustained.
BENDECKER V. ROSENBAUM.
(Circuit Oourt, S. D. New York. February 1,1881.)
1·. Tnm· OF OF MARCH 3, 1875, § 3. , The words, "before or at the term at which said cause could be first tried, and before the trial thereof," contained in section 3 Of the aCt of March 3, 1875, relating to the removal of causes, mean, in regard to suits then pending, the first trial after the right of removal attaches, subsequently to the passage of the act. 2. SAME-SAME. Suit was brought in a state court, January, 1872; put at issue March, lS72; tried by a jury, June, 1878; verdict and judgment ob. tained by plaintiff, July,. 1878; judgment affirmed by the general term of.the court, March, 1879; judgment reversed by the court of' appeals, and new trial ordered, June, 1880; judgment of court of appeals n;lade' jUdgment of court below, June 11; 1880; petition for removal filed by plaintiff December 31, 1880. Held, upon -motion to remand, that the petition for removal was not filed in time, under sec. tion 3 of the act of 1875.-[ED.
Motion to Remand. W. H. McDougall, for plaintiff. Nash « Holt, for defendants. BLATCHFORD, C. J. This suit was brought in a court of the state of New York, in January, 1872, and put at issue by an answer in March, 1872, making an issue of fact triable 'by a' jury. It was tried before a jury in June, 1878, and the plaintiff had a verdict and a judgment in July, 1878, thereon. On appeal, the judgment was affirmed by the general term of the court in March, 1879. In June, 1880; the court of appeals reversed and annulled the judgments of the court below, and ordered a new trial. On June 11, 1880, the state court, by order, made the judgment of the court of appeals its judgment. In December, 1880, the plaintiff took proceedings in the state court for the removal of the cause to this court, before the second trial of it. The defendants now move to remand the cause to the state court on the ground that the removal was not made in time.It is not claimed that the removal can be sustained under any provision of section 639 of the Revised Statutes. It v.6,no.2-7