292 the
FEDERAL REPORTER,
vol. 60.
for the purpose of avoiding inThe chtim,s might. have been broader. Nothing in of. the art required the .limitations upon· which the defendant relies, and it should be the endeavor of the court not to permit these limitatio¥ to deprive the inventor of the fruits of hi,s if it can be done with()Ut violence to the well-known canons,of construction. . Infringenient. The first machine used by the defendant concededly did not infringe the machine patent for the reason that it employed no fa· cing Im!l.fe and the dishes made by this machine did not infringe the third and· fourth claims of the product patent for the reason that they did not have hOrizontal upper edges. ' Subsequently a machiIre was used by the defendant which possessed every element of complainants' combination. The only material differences are that defendant's cutting knife .was. made to oscillate instead of revolve and the facing knife to reciprocate vertically instead of revolve around a shaft. Both move in. the same plane and do identically .the same work. That this. construction was adopted for the of evasion Is very apparent. It· is thought that the changes adopted by the defendant were equivalents for the parts the 'identical functions in the combinations of the claim$ an.d'. this is true of both the machines used by the defendant "*l:\ie1i contained· facing-off knives. The fact that the facingoff ",as· dbne in the second machine by two knives, each cutting haIf way across the face of the block is immaterial. The <lompla.i'nants are entitled to a decree for an injunction and an upon the claims of No. 273,773 andthetlrst and ilea· ond claims of No., 276,198, but· without costs. THE HAYTIA.N REPUBLIO. KODIAK PA.OKING 00. v.THE HA.YTIAN REPUBLIO.
(District Oourt, D. Oregon. February No. 3,624. LEVY.
1894.)
Where a vessel is in, the custody of the marsbal, his receipt of a W8.l'o rant of arrest. in another suit, with intent to levy it, is a constructive levy, notwithstanding that he returns the warrant "Withheld," because he was advised that he had no right to make service on a vessel in custody, as it was, at the suit of the United States.
In admiralty.. On exceptions to service. Libel by the Kodiak Packing Company against the steamship Haytian Republic. Exceptions overruled. C. E. S. Wood, for libelant. W. H. Gorham and O. F. Paxton, for claimant. BELLINGER, District Judge. On and prior to January 17,1894, the Haytian Republic was in the custody of the United
THE HAYTIAN REPUBUC.
293
States marshal by virtue of process issued in thE:. suit of the United States in a cause nf forfeiture wherein the Northwest Loan & Trust Company, through Hartman, its receiver, in the state circuit court for Multnomah county, was claimant. On said date a decree was signed and entered by the judge of this court, dismissing the libel of the Unitand directing the marshal to deliver the vessel to said reed ceiver. Previous to this, and on the 22d day of December, 1893, a warrant for the arrest of the vessel was placed in the hands of the mar-shal in this suit, but, on the advice of the attorney for the United States that he had no right to. make service upon a vessel held in a suit by the United States, he "withheld," according to pre;sion in his return, such process. Hartman and his attorneys had notice of this suit and process. On January 17th the marshal, acting upon the belief that he was required to make a seizure under such second pr-ocess, and also to deliver the possession of the vessel to the receiver as the order of the court directed, undertook to liver the possession of the vessel to Hartman, receiver, in pursuance of the direction in the order, and simultaneously therewith to arrest her on the writ already.in his hands for semce. Upon these facts, the receiver claims that the right and possession of the vessel are in him, and that this court is without jurisdiction in the suit of the Kodiak Packing Company, and upon this ground he excepts to the libel of the latter herein. The receipt by the marshal of the warrant of arrest in this suit, the first levy being in force, operated as a constructive levy, and an actual levy was unnecessary. In re Smith. 2 Ben. 433, Fed. Cas. No. 12,973; Cresson v. Stout, 17 Johns, 116; Van Winkle v. Udall, 1 Hill, 559. In the case last cited the sheriff had levied on all the property in question in that suit under an execution in favor of one party. Then came the plaintiff's execution, the mere receipt of which by the sheriff, it was held, operated as a constructive levy. The first writ having been subsequently withdrawn, that of the plaintiff took complete effect, the levy under it becoming absolute. This case is not taken out of the operation of this rule by what the marshal thought, or did or did not do, in deciding not to make a seizure while the property was held under the process already levied by him. The warrant was received by him for service, and with the intention on his part that it should be served. Nothing further was necessary or legally possible to be done. He could not seize or arrest what was already in his possession under arrest. That he thought something of that kind necessary does not alter the effect of what was already done. Nor does it make any difference that he undertook to go through the ceremony of restoring the vessel to the claimant, and simultaneously therewith seizing her. There was nothing in this jugglery to affect the rights of parties or the jurisdiction of the court. There was no intention on the part of the marshal to lose possession of the ship. Hartman and his attorney, standing by, both knew perfectly well that the marshal had a second warrant of arrest, and that he held it for service. The fact that both the marshal and the receiver seem to have been laboring under- the mistake that some further ceremony was necessary to constitute·
'a levy QfJ the :. Second warrant' does' not' make' the' reeeipt· by , the Jll.arshal'off8bchwarl'arit 'any' the less effective to constitute a levy. The proctors :for the cla;inlant, in a brief :filed herein, say: "Where: the·otl:l.eer ha.stheiproperty bHmstody under a prior right, he may . levy by.: 'makfng a.rerorn to that effect, thereby showto be tl? bold, ,the property under the second writ, subIng jecttotheflrst. This he 4Idnotdo in: the ca,se at bar. ,It will be conth,at there' has been a cOnsq-uctlve levy, tended ,;W icoUDl;leI 'fO;f' but the-,record shows an make even a constructive levy."
. T)iEfhlal'Slialdoes notInalFea by mak.ing his return to that effect.; The is.no ,part of.the levy. It .merely evi· dehce ()fit,and may be.made atanytiW:e, and is subject to amend· ment or to. COl;lfo to tb.e fa¢t. The fact in this case is,asllliJeady stated, that:themarsb.al,atd tbat there should be a levy mllde under the he held such 'process for that . The law gives to theSe facts th.e con$equences of. a levy. them operate asa lyt;Y,. which became absolute on the dismiss'al of the suit of the goYernII).et),t; and 1:4is consequence is not affected by the belief, more was necessary, or by his intenti()nthat. spmethPig more should be done, or by hi$ failure to make a retupl, Which, tllat matter, may yet be made, showing a levy by-a simple holding under a secon,d writ subject to the first, instead' of the return which he did make. The exceptions are overruled.
rm
. 'tHE NEW IDEA. THE NEW IDEA et eL (DistrIct Court, S. D. MississippJ., W. D. February 5, 1892.) MARITIME
A tOl'maI'Itlme. wages is assIgnable, and the lien also passes by the assIgnment, so that the assignee Is' entitled to enforce such lien in bllil OWll name.. .. ..
.
In Admiralty. Interven,tion of Harvey Rockwood in suit by R9bert Mark aga.inst the steamboat New Idea and barges. Decree forintervener. : .A. M. Lea,for interVener. M. F. Smith, for claimant. NILES, District Judge.. In the matter of the proceeds of the steamQoat New Idea and barges, heard on the intervention of Harvey Bockwoop,. who sues as the assignee of certain" claims for maritime wages, I ,that these claims are assignable. I do not think the aSsignment. iUvests the lien. In Cobb v. Howard, 3 Blatchf. 525, Judge NelspD says, "It is every day's practice, in the admiralty, to allow suit to .be b1'Oughtin the name of an assignee of a chose in action." lIliThe Hull of a New Ship,2 Ware, 203, I!"ed. Cas. No. 6,859, JudgeiWare. examined the point on principle and authority, and held that the. debt due a material man could be assigned, and that the hypothecation went with it. The general rule of equity
