77 FEDERAL REPORTER.
ing combed. All this is accomplished by making the comb flexible, flO as to yield to the lumps and hollows of the animal's body and hide. In. these respects the defendants' comb is entirely different. It is more rigid, constructed more in the nature of the currycomb generally in use, and could be used in the very inhuman and cruel respects referred to by the complainant. The complainant's patent was granted in 1879. The patent which it is claimed infringes com· plainant's patent was granted in 1889. The patent office had before it the complainant's patent and all other patents showing the state of the art when the Du Shane patent was granted. The presumption of noninfringement referred to by the circuit court in the ca,se of Ney Manuf'g Co. v. Superior Drill Co" 64 O. G. 1133, 56 Fed. 152, arises in this case, and has not been overcome by any testimony on the part of the complainant. I think, therefore, no infringement is Shown, and the bill must be dismissed for want of proof upon this point.
HUDSON et al. v. WHITMIRE.
(District Court, N. D. Florida.
SALVAGE-cSUITS IN REM AND PERSONAM.
November 13, 1896.)
Under the general admiralty law (which is not limited in this respect by admiralty rule 19), a sal-ror of property which has been taken from his possession by replevin In a state court may maintain a suit In personam against the owner to recover salvage compensation.
This was an action in personam by Benjamin Hudson and others against K. J. Whitmire to recover compensation for salving timber found adrift on Pensacola Bay. The cause was heard on exceptions to the libel. B. C. Tunison, for libelants. Blount & Blount, for respondent. SWAYNE, District Judge. This is an action in personam by Benjamin Hudson et al. against K. J. Whitmire to recover compensation for saving timber adrift and in peril of loss and damage in Pensacola Bay. The libel sets up the finding and saving of 550 pieces, more or less, of timber; that respondent subsequently, and while said timber was in possession of salvors, caused a writ of refrom the state court, against libelant Hudson; and plevin to the sheriff of Santa Rosa county, Fla., by virtue of a writ of replevin, took said timber into his possession, and would deliver the same to the respondent, K. J. Whitmire, in three days. Libel further charges that the said replevin proceedings were instituted in the state COl}rt by said respondent for the purpose of defeating the claim of libelants for salvage, and that the value of the timber is about $2,000: '1'0 this libel the respondent excepts, because-First, it does not show any lillbility of the respondent to the libelants;
second, it does not show any cause of action cognizable in this court as a court of admiralty; third, it shows that the property mentioned therein and the controversy in this suit were at the time of the institution thereof, and still are, in litigation in the state court of Santa Rosa county, Fla. The principal question raised in the brief and on the argument by the proctors for the respondent was that the libel' does not show any personal liability in this court upon the respondent, contendingFirst, that it is not allowed by admiralty rule No. 19, promulgated by the supreme court of the United States; second, that it is not allowed by the general principles of the admiralty law. Admiralty rule No. 19 provides:
"In all suits for salvage, the suit may be In rem against the property saved, or the proceeds thereof, or in personam against the party at whose request, and for whose benefit the salvage service has been performed."
No one questions the authority of the supreme court to establish this rule, nor the force of law that it carries with it, the court itself having always treated it as obligatory; but the respondent's contention that the rule prescribes the cases in which suits for salvage in rem and in personam may be prosecuted, and distinctly limits suits against persons at whose request and for whose benefit the salvage service has been performed, is not sustained by the authority cited, that of The Mayflower v. The Sabine, 101 U. S. 384. In this case, Justice Clifford delivered tne opinion of the court; the principal question disposed of there being that salvors proceed in rem against the ship and cargo, and in personam against the consignees, in the same libel. He admits that in some cases the salvors may proceed against the ship and cargo in rem, or in personam against the ownerS of the property saved; and he adds that, if the property is "removed from the jurisdiction to defeat the remedy, no doubt is entertained that they may proceed in personam against the owners of the property saved, though the case is not specifically provided for in the nineteenth admiralty rule, to which reference has been made." McLean, Circuit Justice, speaking of the nineteenth rule in admiralty, in Gates v. Johnson, Fed. Cas. No. 5,268, says:
"'l'he rules in admiralty prescribing proceedings in certain cases are not to he regarded as restrictive, but only as enumerating the more common remedies, leaving such other and further proceedings to be had by the courts as might be found necessary In any case to give effect to theIr jmisdiction."
Benedict, District Judge, in Seaman v. Railway Co., Fed. Cas. No.
"The maritime law, while it is careful to secure the salvors their compensation, by giving them a lien upon the property saved, does not compel them in all cases to proceed against the property to secure the benefits of their lien. Such a rule would cause unnecessary expense, and in many cases serious embarrassment to commerce, to avoid which the salvor is to surrender the property to its owner, and, to the extent of its value, to hold him personally liable for the pr()per salvage compensation for the benefits received:'
Ware, District Judge, in The Emblem, Fed. Cas. No. 4,434, says:
"If the owner wishes to receive the property before the proceedings at law are instituted, and the salvor delivers it to him, a personal libel may be maintained for
And he adds:
"This is solelyon the ground of his possession of the property."
The matter of salvage was not in litigation in the state court, that question not being cognizable there; and if a salvor is permitted to voluntarily surrooder the property, and have his remedy in personam, he has the same right to let the possession of the property be wrested from him by a sheriff by virtue of a writ of replevin, and look to the personal remedy for proper salvage compensation. The libelants had a lien upon the timber saved, which they could have enforced in a proceeding in rem in this court, and which the respondent would have been compelled to satisfy; and having taken this property from the libelants, in the manner above stated, thereby defeating their action in rem, he is liable in personam to make reasonable compensation to the salvors for their service. This result would seem to be the just and natural conclusion, not only from the allegations in the libel, but from the decisions hereinbefore cited. The respondent has possessed himself of the property saved, and he has received the benefit of the labor of the salvors. They no longer can proceed in rem, in consequence of his action in the state court, and he is charged in the libel with having so proceeded for the purpose of defeating the claim of the libelants for compensation for their salvage service. It is the duty of the court to so hold, that the salvors may secure the benefit of their lien of this property without unnecessary expense or embarrassment to them, and not to allow the respondent to thus defeat the libelants' claim for salvage service, though the case is not specifically provided for in the nineteenth admiralty rule. The exceptions to the libel are overruled.
BERNA.RDIN V. NORTHALL.
NORTHALL et ...
Janual'1 I, 1891.)
(Oircuit Court, D. Indiana. No. 9,858.
JlBDIIUL CoURTS-JURISDIOTION-ApPEALS IN PATENT INTERFERENOES.
The fact that an appeal has been given from the commissioner of patents, in interference cases. to the court of appeals for the District of Columbia (Act Feb. 9, 1898), does not take away the jurisdiction of the circuit courts, under ReT. St. § 4915, to entertain a bill in equity by the defeated contestant, to determine his right to a patent. This right may be exercised after the court of appealll hili made its decision, and the commissioner hal obeyed ita mandate. In suits under Rev. St. § 4915, to determine the right to a patent, the circuit courts haTe jurisdiction, without regard to the citizenship of the partie..
This was a bill in equity, under Rev. St. § 4915, by Alfred L. Bernardin against William H. Northall and John S. Seymour, commissioner of patents, to review the decision of the commissioner in an interference case, and determine the complainant's alleged right to a patent for a· bottle-sealing device. Butterworth & Dowell and Gilchrist & De Bruler, for complainant. Robert H. Parkinson and William H. Gudgel, for defendant Northall. BAKER, District Judge. This is a lluit In equity by the complainant, who alleges that he was the true, original, and sole inventor of a new and useful improvement in bottle-sealing devices, known as the "beaded sealing cap," or ''beaded cap," which inven· tion was not known or used by others in this country, and not patented, or described in any printed publication, in this or any foreign country, before his invention or discovery thereof, and which had not been in public use o,r on sale in the United States for more than two years prior to his application for a patent therefor; that William H. Northall was employed by complainant as his foreman, and that he thereby became acquainted with this invention, and had knowledge of every step taken complainant to procure a patent therefor, and of his application for such patent, and of the allowance of .the same by the commissioner of patents; that, while still in complainant's employ, Northall entered into secret and clandestine correspondence with the Crown Cork & Seal Company of Baltimore, Md., which resulted in Northall, in the interest of said company, applying for a patent for said invention as his own, and in thus getting up an interference with complainant, which resulted in tying up the issuance of the patent which had been already allowed to the, complainant. The interference was prosecuted to final hearing in the patent office, and was there disallowed, and the patent ordered to be issued to complainant. From .this decision of the (.'Om· missioner, Northall took an appeal to the court of appeals of the District of Columbia, by which court the decision of the commissioner