398

FEDERAL REPORTER,

vol. 70.

mounted upon the same carriage, and made adjustable toward the cutting diSk, to brtng the cigarette laterally against the plate for cutting it into lengths, as described."

This .again was objected to, and. finally the claim was put in as it is before us:
"The combination, with the rotary cutting disk, the carriage carrying the same, and means for moving the carriage parallel to the feed of the cigarette, of a holder for the cigarette, mounted on the same carriage, and means for projecting said holder and the cigarette toward the relatively stationary cutting disk, substantially as and for the purposes described."

Now, when it is remembered that claimed, as an improvement on methods existing alr,eady, that he brought the cigarette to the cutter,and so avoided the movement of a heavY,cumbrous machine, and that in his original claim and in the amendments to it he had the same idea, distinctly stated, the conclusion must follow that by reason of the phraseology of his specifications and claims as first drawn and afterwards amended he has limited himself to the mechanism which he· describeS, in which the cigarette holder travels to the knife, anduot the knife tothe cigarette. The last point open for consideration is that which applies specifically to the present defendants.. It does not affect the other' parties charged with in,fringement, who have stipulated to abide the result of this. suit. An action was brought by the present complainants against the .present defendants and the Pollard or International Oompany, in which suit the same patents set up by complainants in this case were said to have been infringed. The result of this suit was that their patents were declared to be valid. Oomplainants contend that, as to these defendants, that question is res judicata. Defendants deny the. right of complainants to set up this ground of estoppel in evidence, they having failed to set it up in the pleadings. The conclusion reaChed in this opinion renders the discussion of this question unnecessary. Giving to the decree set up as an estoppel its full force, and, for the sakeof argument, admitting it into this case, th<;>ngh not set up in the pleadings, it would defeat any objection these defendants now set up to the validity of the Bonsack patents. The defendants may be precluded from discussing this question, but the other question-whether the Briggs machine is an infringement of them-still remains; and that has been decided in the negative. This case came on to be heard upon the pleadings, evidence, and exhibits. Oonsidering the same, and the arguments of counsel thereon, it is ordered, adjudged, and decreed, that the bill be dismissed, with costs.
THE DANIA. NETHERLANDS-AMERICAN STEAM NAV. CO. et al. v. THE DANIA. (District Court,
SALVAGE-COMPENSATION.

m. D. New York.

November 11, 1895.)

A steamship valued,' with her cargo' and. freight, at $426,000, becoming utterly helpless from a broken shaft. about 360 miles from New York,

THE DANIA.

899

was towed to that port by another steamer In two days and two hours, without difficulty, dUring weather which was tine, excepting that a dense fog prevailed about half tl:J.e time. The towing steamer was a slow vessel, to which the loss of a few days was not important. Held, that tbe service was a salvage service for which $17;500 was a proper award, including therein some $700 of expenses. The Daniel Steinman, 19 Ii'ed. 919, di r tingutshed.

Tbis was a libel by the Netherlands-American Steam NavigatioL Company and others against the steamsbip Dania, her cargo and freight, to recover for salvage services embracing a towage occuR ing two days and two hours. Wing, Putnam & Burlingham, f<ir libelants. Wheeler & Cortis, for claimants. BENEDICT, District Judge. This is an action brought by the owners of the steamship Werkendam against the steamship Dania, to recover salvage compensation for services rendered to the Dania in June last, under the following circumstances: The steamship Dania, owned by the Hamburg-American .Packet Company, bound on a voyage to New !or).{, having on board 402 passengers, and valued, with cargo and freight, at $426,000, when she arrived at a point some 360 miles from Sandy Hook, in·Long. 66 03,Lat,411l,stoppedto take on board a pilot. When she attempted to start again, it was found impossible to move her propeller, and examination showed that the shaft was broken in the nut outside the hull. When the shaft broke is not known, but it appears that the propeller revolved under the action of the engine until the engine stopped; and, when the engine stopped, the propeller dropped away from the shaft, and it was impossible to move it or to repair the shaft, the break being outside the hUll. The steamer absolutely helpless. Her hull, however, was sound and staunch. As soon as the break of the shaft was discovered, the pilot boat,which had not passed out of sight, was hailed; and, when her boat returned to the steamer, the request was made that any steamer that might be fallen in with by the pilot boat should be notified of the position and situation of the Dania; and danger signals were given to the pilot boat in order to enable her to stop any vessel she might meet. This was about 7 o'clock p. m. The weather was fair, and the sea smooth. At this time the Dania was about 70 miles son,theasterly from George's Shoal, and, as subsequent observation shows, she was slowly drifting towards that shoal. No vessel was then insight. About 3:30 of the next morning, the pilot boat sighted the Werkendam, bound for New York, being some 10 miles distant from the Dania, but not visible to her on the . horizon. The Werkendam, upon beip.g informed by the pilot boat of the position and the danger of the Dania, changed her course, and, after about an hour's steaming, approached the Dania. At that time the Dania was showing three lights in the forerigging, and flags, indio cating a desire to be taken in tow. The undertook to render her that service, and, at a little after '7 o'clock a. m., made a hawser fast to her, and I!ltarted for.New York, where she arrived with the· Dania at 9 o'clock on Saturday morning. The voyage of theWerkendamWith the Dania in tow was un eventful. The weather was fine, and no hawser was broken. The

J'EDERA)j REPOR:l!El't,

vol. 70.

only noteworthy .circumstance .attending the'serviceill'that, for half 'the' time at least, the vessels. were en,veloped' in a fog. The : ",eiglit of the evidence .that during part of the time the fog was so dense that the Dania could not he seen from the Werkendam. The most that the witnesses from the Dania claim is that the WeI'· kendam was always visible to them two ship's lengths away. This circumstance increased the perBof the services wry much. Fog may be said to be the peril of the seas. In this instance the peril was increased by the fact that the code of signals makes no provision for notifying approaching vessels of the presence ofa tow behind a steamer. It was not impossible, therefore, that if the Werkendam had fallen in with a vessel crossing her course, while the Werkendam might have 'escaped collision, the Dania, being towed by a long hawser,would be liable to be struck, and perhaps sunk; in which case a,Ilsalvage compensation would be lost to the Werkendam. The risk which ordinarily attends ,the towing of a steamer at sea was, ,in my opinion, very considerably increased in this instance by the fog. I have no hesitation, therefore, in holding that the Dania was rescued from a position of peril by meritorious services per· formed by the Werkendam, and that the Werkendam is entitled to salvage compensation therefor. As to the proper amount, reference has been made to the case of The Daniel Steinman (decided by this court) '.19 Fed. 9i9, where this court awarded $25,000 for a salvage service rendered to the steamship Daniel Steinman by the steamex; Republic. The injury to the Daniel Steinman was very similar to the injury to the Dania. The service to the ,Daniel Stein· map occupied 36 hours. It was rendered in fine weather, and there The differences between that case and this one are that was no the, Daniel Steinman could possibly. have reached a port of safety under berQwn, sail without assistance; thereis no evidence in this case that the Dania could have done so. The value of the Daniel Steinmap, freight and cargo, ,was $252,500; the value of the Dania, and freight" is. ,'426,000. The services to the Daniel her . a powerful steamer Steinman were rendered by the steamer regullj.rity of arrival and departure of the ,White Star Line, are considered of the.greatest importance; the Werkendam was delay was unimportant. The a slow steamer, to which a few Republk, :was loaded with passengers and freight bound for New York. Her value, including cargo and freight, was $780,000. She bad on· board 697 cabin passengers, and the mails. The distance the Daniel Steinplan was towed by the Republic was. about twice as great as the distance in this case, but the risk in this case was more, on account of. the fog. No two salvage cases are alike, and the difference the steaD;l,ship Republic and the steamship Werkenda,mmakes.a difference between the case of. The Daniel Steinman and the present case. into consideration, I am Taking all, the circumstances. ofth1s of the opinion that $l;7,5Q9 is a proper sum to be awarded as salvage -:ompensation. in this the $700 expenses of the Wel'kenpaid to the owners of the Werkendam, dam; this sum is first and the remaLnder distribp.ted ,am(mg,the owners, master, and crew.

PAUL V. CHILSOQUIE.

401

PAUL v. CIULSOQUIE at al.

(Circuit

COUrt,

D. Indiana. November 21, 1895.)

No. 9.255.

REMOVAL OF CAUSES-CITIZENSHIP-INDIANS.

A member of an Indian tribe residing within the limits of the United States, who has not been naturalized, is not a citizen of the United States nor of the state of his residence, nor is he a citizen or subject of it foreign state, within the meaning of the constitution or the statutes conferring jurisdiction on the federal courts; and such unnaturalized Indian cannot remove into a fede].'al court a civil suit, brought against bim in a state court, unless it appears upon the face of the complaint or declaration that a federal question is necessarily involved.

This was an action of ejectment, brought in a court of the state of Indiana, by Henry O. Paul, against Chilsoquie, a Miami Indian, and others. Defendant Chilsoquie petitioned for the removal of the cause to the federal court. Denied. Spencer & Branyan, for plaintiff. Buell M. Cobb, for petitioner. BAKER, District Judge. This is an action pending in the circuit court of Wabash county, in the state of Indiana, for the recovery of the possession of a parcel of real estate situate in the county of Huntington, in the state of Indiana, of which the defendant Chilsoquie is alleged to have possession without right. The petitioner seeks removal on the ground of bias and local prejudice which will prevent her from obtaining a fair and impartial trial either in the court where her cause is now pending or in any other court of the state into which the cause can be removed. There is no claim that the cause of action is removable into this court on the ground that the suit is one arising under the constitution or laws of the United States, or under any treaty made under their authority. Nor is it shown in the petition that this court can assume or exercise jurisdiction because the controversy or suit is one between citizens of different states. The petition avers that the plaintiff, Henry C. Paul, is a citizen of the state of Indiana, and that the defendant Chilsoquie "is a Miami Indian, and that she has never exercised any rights of citizenship in the state of Indiana; that for many years the Miami Indians have been residents of, and maintained tribal relations in, the state of Kansas, and that she has always been recognized, both by the chiefs and the head men of said tribe, as well as by the government of the United States, as a member of said tribe, and that she is not a citizen of the state of Indiana, and that at the time said tribe was removed from the state of Indiana to the state of, Kansas. she, having been married to Francis Revarre, remained in the state of Indiana,'1and that she had never removed therefrom. There is DO statement in the petition that she is taxed or.taxable. The counsel for the petitioner maintains that the Miami tribe of Indians has been reccgnized by the government as a state or nation having the right to make treaties, to carry: on v.70F.no.5-26