The orator makes and sells these patented marks them "Patented September" 10, 1889," the date of the former patent, and not as patented at the date of this patent. The statute (section 4900) requires a patentee making or selling the patented articles to give notice of the patent by fixing thereon, or on the packages, the word "Patented," with the day and year of the grant, and provides that, on failure in this, no damages shall be recovered, except on proof that the defendant was duly notified of the in· fringement, and continued it afterwards. This statute prevents a manufacturing patentee from recovering any damages without al· leging and proving, either the marking of the articles or packages as patented, with the day and year of the patent, or actual notice to defendants of the patent and the infringement, as a part of the case. Dunlap v. Schofield, 152 U. S. 244, 14 Sup. Ct. 576. In this case the orator has alleged marking toe articles "Patented," "according to the statnte," without alleging actual notice of the patent or of the infringement. The answer neither admits nor denies this, but puts the orator to proof of it. The pI'oofs do not show marking with the day and year of this patent, and therefore the orator has failed to show any right to recover damages for the infringement of this patent. Upon these considerations the orator seems to be entitled to an injunction only. Let a decree be entered for the orator for an injunction, with
THE WANDRAHM. MERRITT et al. v. THE W ANDRAHM. (District Court. E. D. New York. August 1, 1894.)
!rIAR1TTME LTE!\"S-CONTHACT-RuR1ND SUNKEN VERRET.,
A subcontract to furnish materials and do certain work in the of a vessel sunk in the St. Lawrence river for a stated sum held, in view of all the circumstances, and especially the absence of any reference to the credit of the vessel, to have been made upon the credit of the prin· cipal contractors alone, and to have given the subcontractors no lien.
This was a libel by Israel J. l\feI'ritt and another against the steamship \Vandrahm to enforee an alleged lien. Benedict & Benedict, for libelants. Hyland & Zabriskie, for claimants. BENEDICT, District Judge. The steamship Wandrahm having been wrecked in the S1. Lawrence river, her owners made a contract with the Morse Iron Works, a corporation of the state of New York, by which the vessel was to be raised by the Morse Iron Works, brought to Kew York, and there repaired so as to restore her to her former condition, the whole for the sum of $60,000, to he paid bv the owners to the Morse Iron Works. Thereafter, the Morse 'Works employed the libelants to do certain work in raising the vessel then sunk in the S1. Lawrence river, in pursuance o,f
wll.Wh employment ..the libelants dispatched eight men and some flQ,QOQ of; to the St. Lawrence river, to be used in raising thevessel. They now seek; by' this proceeding, to enforce a lien uPQJ1:thevessel. f.or the contract price of the work done and rna· used,. by them in the performance of their contract with the M,orse If()J1 Works. In view of all the circumstances, the situation of the vessel, and the fact. that the libel3.lIlts' .contract with the Morse Iron Works to the credit of the vessel, I am of the opinion that does not justify holding that the libelants furnished the labp.r and material on the credit of the vessel, bUt, .on the conthat the libelants relied on the credit of the Morse Iron Works w.one. Upon this ground the libel is dismissed.
THE NIKITA:. SUNDSTROM v. FRAGNUL. (Circuit Court ot Appeals, Fifth Circuit. ;rune 5, 1894.)
, Attempts to enforce a lien for supplies and repairs to an Italian vessel at Marse1l1es were made at her first port of arrival in Europe, and, about a year later, on her return to Europe from a voyage to Buenos Ayres; but, though payment was contested, no effort was made to follow the vessel to Buenos Ayres, the only port to which she made regular voyages, and the residence of her owner; and the lien was not Indorsed on her certificate of registry as provided by the law of Italy for giving notice of such liens. E eld, that the lien could not be enforced against an innocent purchaser for full value of the vessel at Buenos Ayres, who made every possible inquiry before purchasing.
Appeal from the District Court of the United States for the Northern Distnct !(jf Florida. This was. a libel by John O. Sundstrom against the bark Nikita, formerly named the Duca di Galliel'a, to enforce claims for repairs and supplies. The district court dismissed the libel. Libelant appealed. John C. Avery, for appellant. W. A. Blount and A. C. Blount, for appellee. Before PARDEE and Circuit Judges, and LOCKE, District Judge. LOCKE, District Judge. The Italian bark Duca di Galliera, declared to bit of (Jenoa, with one G. Maglio, master, was at the port of Marseilles, France, in November, 1888, and had sails and tarpaulins made, and other canvasswork, amounting to 2,921 francs, done, by John O. Sundstrom, for which Maglio, as master, gave him a note payable to his order 20 days after his arrival at a port in Europe from the voyage which he was about to undertake, to Buenos Ayres and Pensacola, 01'1 in the event of the loss of the