The Talcott buckle has a metal box to receive the free end of the strap. It is both useful and ornamental for a carriage curtain, but could not be applied to a shoe. The box is clamped to the fixed part of the strap very much as Hersome's is, but the plate of Hersome differs velY decidedly from the box, and Talcott's buckle could not be decribed in the words of Hersome's patent. In these patents for small articles slight differences are often important; and, if such things are patentable at all, it must almost always be in virtue of a more useful adaptation to the needs of commerce by small ohanges of struoture, whioh in a great machine might be merely alternate modes of reaohing a part of a general result. The defendant's expert says that the Hersomebuckle is not suggested by the description of the Smith or Anchor buokle, and would be likely to be preferred; and the evidence of the plaintiffs proves that it is preferred. '1'he changes made by Hersome, the subjeot-matter being considered, were patentable improvements upon what was known before; and the defendant makes use of those improvements; Decree for the complainants.
DODGE, Trustee, v. FEABEY and others.
(Uircuit Court, N.]). New York. June, 1881.)
& BUDDING'S PATENTS-BoOT AND SHOE MACHINE-INFRINGEMENT. If the correct construction oj' Ingalls & Budding's patents reqUire that one
element of their combination shall consist of a holding mechanism in which a !lhoe, while being polished, is held more or less rigidly, one who dispenses with such mechanism mayor may not effect a practical improvement, but he has. done that which distinguishes his machine from the class to which these patents refer, and has not appropriated their inventions.
Wadleigh Fish and Chauncey Smith, for complainant. J. E. Ma.lJnadier, for defendants. . WALLAOE, D. J. It will not be expected that this court will disregard the deliberate judgment of Judge Shepley in Sweetser v. Holmes:
upon the precise questions presented now, and place itself in direct antagonism to his conclusions, unless contrained to do so by the clearest convictions that he erred. That judgment is entitled not only to· the respect due to a oourt of co-ordinate authority, but also to the high consideration due to the deliberate conclusions of a judge of large learning and experience in patent causes. In S:oetser v. Holmes Judge Shepley construes the complainant's. patents to belong to a class of inventions in whioh there is a combi-
nation of certain mechanism for holding the or heel of the shoe (or both) to be polished with the mechanism of the polishing tool, under such conditions of mechanical combination that either the holding mechanism can be so moved as to bring the heel of the shoe in proper relations to the polishfng tool, or the polishing tool can be so operated as to bring it into proper relations with' the he£::l by means of the holding mechanism; and his judgment was that in the defendant's machine there is no attempt to combine a shoe-holding mechanism with the polishing tool so that the two will operate properly together. The criticism made upon his statement that there is no attempt in the defendant's machine to combine a shoe-holding mechanism with the polishing tool, so that the two will operate properly together, is unwarranted, because it is obvious that he does not mean any kind of shoe-holding mechanism, but refers to such as travel in a fixed path in relation to the polishing tool, and within certain limits maintains the heel adjustably in this relation. Aside from the weight to be accorded to his judgment as authority, I agree with his conclusions both as to the construction of the complainant's patents and as to the question of infringement, and am of the opinion that in the defendant's machine the shoe-holding mechanism of the complainant's patent is dispensed with. It may be forcibly urged that a narrower construction of the complainant's patents should be adopted than was necessary in the case before Judge Shepley, or is necessary in this case. There is much to indicate th,at in the Ingalls & Budding patents the shoe-holding mechanism is designed to hold the shoe rigidly, although the mechan-, ism itself is to be adjustable in its relations with the polishing tool by the manipulation of the operator, and is especially contrived with this view. Plainly, the object of the second Budding patent was to remove the practical difficulty resulting from this feature of the mechanism, and he devised a mechanism which could be more freely manipulated by the operator, thus allowing the shoe to be more freely turned and guided. But it does not appear to have been conceived by Budding that the true way to obviate the difficulty was by dis·' pensing with all devices for rigidly holding the shoe during the polish. ing operation, and substituting such as would enable the operator to guide and control the shoe by holding it in his hands. If the correct construction of complainant's patents requires that one element of their combination shall consist of a holdingmechanisffi, in which the shoe is rigidly neldby the mechanism, the defendant, by dispensing
THE FRANK G·. FOWLER.
with this, mayor may not have effected a practical improvement, but he has done that which distinguishes his machine from the class to which the complainant's patents refer, and has not appropriated the invention conceived by Ingalls or Budding. The bill is dismissed, with costs.
(District Court, S. D. New York. May 16, 1881.)
PRIORITY-MARITIME LIENs-MATERIAL MEN-THE TRIUMPH-THE GLOBELIENS FOR SUCCESSIVE TORTS AND THE ORDER OF THEIR PAYMENT-LACHES.
Where a judgment for damages to a tow was recovered against a tug for negligence occurring on the sixth of November, and another judgment forsimHar acts of negligence, whieh occurred on the twenty-fifth of November, was recovered by other libellants, but the libel and the process in the latter case were dated December 23d, and in the former case December 24th, and both processes were returned by the marshal as served by arrest of the vessel on the same day, and the damages awarded to the latter exceeded the appraised value of the tug paid into the registry,Held, that the rule in this district as to priority of payment of claims of material men, making the time of the service of process the test, does not apply to the case of successive claims for torts. . , The Triumph, 2 Blatehf. 433, note; 17M Globe, rd.,discussed. Held, that if that rule were applicable to cases of successive torts, it would not give any priority to either party in this case, because upon the proofs the process in hoth cases was served I1t the same time; that there is no presumption from the prior date of filing the iihel, or the prior date of the process, that the process in the first case was sern,j before that in the second, the marshal's returns merely showing service on the same day; that there' is no reason or autliority for distributing the fund between the two libellants; that the party suffering damage from the first tort acquired a lien therefor on the vessel to the extent of his damage, which interest is quasi proprietary in its nature, but without the power or right, except by enforcing the lien through proceedings in rem, to prevent the vessel from being used in commerce, and subjected to the attendant perils of navigation; that the interest in the vessel of this prior lienholder, like the interests of the owners, is subject to the rule of the maritime law, which makes the vessel in SOlido, and without regard to the particular nature of the proprietary interest therein, liable in rem for injuries done by the vessel through the torts of the master and mariners, and on this ground the party suffering the second damage is entitled to priority of payment. Alsoheld; that while the failure of the libellants, who sutfered the first damage, to libel the tug before the voyage commenced, out of which the second cause of damage arose, was not laches operating to forfeit their lien, yet they took the chance of the tug incurring new liabilities, according to the principles of maritime law, and thus rendered the equitrof the subsequent lienholder the stronger.
Carpenter Mosher, for libellants, Conway and others. W. Mynderse, for libellant, the Phamix Insurance Company. CHOATE, D. J. In both of these cases the steam.tug Frank G. Fowler has been condemned to satisfy the claims of the libellants. They are both cases of tort, or damage caused to the tow by faults of navigation on the part 02 the tug. In the case of Conway the cause of action grew out of the negligence and improper navigation of the tug on the sixth of November, 1880. In the case of the Phoonix Insurance Company it grew out of similar act of negligence on the twentyfifth of November, 1880. The Phoonix Insurance Company filed its libel December 23, 1880. Conway and others filed theirs December 24,1880. Processes of attachment were issued upon the same, dated as of the dates of the libel, respectively, and they were served by the marshal on 'the twenty-fourth of December. There is nothing in the marshal's returns or in evidence aliunde to show that either process was in fact served before the other. The tug has been released on an and the deposit in court in the two cases of her appraised value-$4,500. The Phoonix Insurance Company has obtained a report of the commissioner in its favor for $6,383.33 damages. This report has been confirmed nisi and no exceptions have been filed. The libellant now applies for a final decree. The libellants Conway et al. having an interlocutory decree in their favor, and a reference to compute their damage, have not yet obtained a report of the commissioner, but their libel claims damages to the amount of $2,266.91, and they now resist the entering of a final decree in favor of the Phoonix In. surance Company which would absorb the whole fund in court, claiming that they are entitled to a priority of payment, and that the final decree in the case of the Phoonix Insurance Company should be only for such part of the fund as will remain after satisfaction of their damages. The Phoonix Insurance Company, on the other hand, claim that they are entitled to a priority in payment over the libellants Conway and others. The question of the proper order of payment of claims of the same class which constitute maritime liens against vessels has been the subject of much discussion, and there is considerable diversity in the practice in different districts. The case which seems to have settled the rule in this district, as between material men, is the C3se of The Triumph, decided by Judge Betts in 1841, (reported in 2 Blatchf: 433, note.) He there held that where the fund was insufficient to pay all the claims the libellants were entitled to be paid in the order in
THE FRANK G. FOWLER.
which the warrants of arrest were served on the vessel. That'learned judge appears to have based this decision, partly at least, oil the nature of a maritime lien as defined by him. Thus, he says:
"The meaning and ellicacy of a maritime lien is that it the property liable to tIle claim without a previous judgment, or decree of the court, sequestrating or condemning it, or establishing the demand as at common law, and the action in rem carries it into effect. Ingraham v. Phillips,l Day, 117; Barber v. Minturn, ld. 136. 'rhus the appropriation of the res to that end becomes absolute and exclusive, on suit brought, unless superseded by some pledge or lien of paramount order; and it accordingly results, from the nature of the right and the proceedings to enforce it, that the first action which seizes the property is entitled to hold it, as against all other claims of no higher character. Clerke's Praxis, tit. 44; Hall's Adm. Pro 89; People V. Judges of New York, 1 Wend. 39. The lien, so termed, is in reality only a privilege to arrest the vessel for the debt, which of itself constitutes no encumbrance on the vessel, and becomes such only by virtue of an actual attachment. Hall's Adm. fr. tit. 44; Abbott on Shipping, part 2, C. 3,142; 3 Kent's Com. 169, 170; People V. Judges of New York, 1 Wend. 39. Applying these principles to the case before the court, the prosecuting creditors (except seamen suing for wages) are to be satisfied in the order in which the warrants of arrest were served on the property, whether the vessel in kind 01' her proceeds in court. Each action, with its appropriate costs, comes upon the fund according to the period of its commencement."
Although this decision, and the reasoning on which it is founded, especially the remarks quoted above, received the approval of Mr. Justice Nelson in The Globe, 2 Blatchf. 433, (1852,) this rule, as to the order of payment among material men, has been disapproved by other admiralty courts, and it has been held that the claims of material men intervening before a final decree are to be paid without reference to the dates of their attachments, in the inverse order of their creation, without distinction, however, or preference between those concurrently engaged in fitting the vessel for a particular voyage. The America, 6 Law Rep. (N. S.) 264; The Paragon, 1 Ware, 322; The Fanny, 2 Low 508; The Brig Omer, 2 Hughes 96; The E. A. Barnard, 2 FED. REP. 719. The reason given for this inverse order of payment is the same that controls in the case of successive bonds and claims for salvage, that the latest benefit to the ship is a benefit to all parties having a prior encumbrance thereon, including material men who have given her earlier credit. This rule is insisted upon in these cases as one founded in the necessity of commerce, which gives the ship to her entire value, in case of necessity, whoever may be interested in her, as secnrity to the material man