"the lo.cking part of block for throwing the block," and was again rejected, in the following language:
"Claim 1 covers no more, broadly, than the mere use of the Idea ot the Independent locks of 435,152 on the switches of 427,328. Such use, broadly, is not patentable. The applicant Is limited to hIs specIfic construction."
Patent No. 435,152 is the Norton patent, already discussed. The claim was again amended; the attorney for the expert arguing as to said claim as follows:
"It cannot be said to cover merely the use ot the Norton lock on a Johnson switch. ThIs claim is lImited to a specific construction, and the structure claimed Is not found In the references cited against the former first claim."
The claim was again rejected, and claim 1 of the patent in suit substituted therefor; the attorney for the applicant saying, inter alia:
"The reference cited does not have a screw thread bearIng a two-part blOCk, one part having conducting poles, and the other part engaging With a lock on the base, which Is now an element of the first claIm."
Claims 2' and 3, which are limited in terms to a screw-threaded spindle and threaded nut, were allowed as filed, .and the objection to the first claim was amended so as to cover a certain specific construction. In these circumstances, complainant's claim should be limit· ed to the precise construction stated by the patentee, and should not be extended to cover the broad construction abandoned by him in the patent office. And inasmuch as the defendants do not use "a screw thread bearing a two-part block," and operating horizontally, but a rack and pinion .moving at right angles to the axis of the spindle, they do not infringe said first, second, and third claims. The. fourth claim is a narrow claim in terms. It was narrowed by the action of the applicant i,ll the patent office to a "block of insulating ma.terial, bearing loose poles of conducting material." It abundantly appears from the record that this claim means "poles free to move a little longitudinally in the block/, as stated in the specification, The defendants' conducting poles are rigidly screwed to the block of inSUlating material, and therefore said block holds rigid and fixed poles, not loose poles, of conducting material. Let the bill be dismissed.
(DIstrict Court, D. South Carolina.
J'nne 2, 1898.)
A Splj.llish merchant· .ve,ssel .captured, after the declaration of war, by a States cruiser While bound from a neutral to a Spanish port, Is lawful prize, not being withIn the exceptions mentioned In the presIdent's proclamatlo'n ot April 26, 1898. . . 'Thea.ct of April 25, 1898, declaring. that war has existed sInce AprIl 21, 1898, l.!etween the UI11ted States and the kingdom of Spain, fixes the preGlse period when the peCUlIar duties and obligations imposed by the condItion ot war a r i s e . ' .
BAME-::'DECLARATION OF WAR.
87 FEDERAL REPORTER.
, Tpililw,as aprjze proceedin,g,instituted, to procure the c:;ondemnation of the SpM'ish steamship 'Rita; which was captured by the auxil'\ary cruiser Yale on May S,1898.
BRAWLEY, J)istrict. Judge.: ,',l'he Spanish steawsb.ip, Rita was captured off the Island of Ctilebra, May 8, United Sta:te$ cruiser Yale, and sent into this port in charge of a prizemaster for adjudication. A'libel for condeIilIiation was filed May 17th, and a June 1, 1898, proclamation monition was duly made, and no claimant has appeared. It aPPears from the testim(my taken by the prize commissioners dn preparatorio, and from the examination of the ship's papers, that ,the Rita belongs to a corporation ,of Bilboa, Spain,-tlle)"ineade Vapores Serra; that she is a steamship of 1,396 net she carried ,a crew of 31 persons, all subjects of the ,king ofrSpain, and a miscellane<,lus cargo; that, she sailed from Liverpool,England, on April 9th, touched, at Santander, Spa,in, on April ;14th,: and at Corunna; Spain, on 'April 16th, she took on six passengers and a part of her carg6, consisting of'wine, niacal'oni, andp6tatoes, and that she was bound for Sf. Juan and other ports on the island of Puerto Rico; and thlit the voyage was to the port of H umacao, on that island. The cargo is, now'beingunIM&D' unller the direction of the prize commissioners, and, pending ali inverltbryand report thereon, all questions respecting the same . The libel filed by the attorney for the United States for tbis district (jlaims that the vessel and are lawful priZe of war, and subject to be condemned and forfeited tp the United States as snch,aIid the proofs in respect to the vessel are sufficient to enaNe' the court to proceeq to adjudication. The congress of the United' SbHes, an act approved April 25, 1898, has declared tiJ.at war ha,s April 21, 1898, between the United Statesap,d the of", Spain. ' The testimony' shows is a Spanish merchant vessel, Qwned bya corporationin,;\ne of Spaln; ,that w.hile on a voyage to a 'port belonging' to th'at kingdom, on May 8, 1898, in latitude 18.25 north, and longitude 65.18 west, she was captured by the United States cruiser Yale. The case does Ilot come within the exceptions declared in the fourth and fifth paragraphs of the proclamation of the president dated April 26, 1898,which exempt from capture merchant vessels loading or bound fQrallY: port of the UnitegStates within limitations as to time therein mentioned. This act of congress fixes the precise period when the peculi'arduties and obligations imposed hy,tlie condition of war arise;and,asthis yesselwas enemy property, .captu,red after, the ,of hostilities, it is py'the law of nations subject to condemnation and forfeiture. 1Jnderthe of the milder sentiments of recent years, the priv.:ate property of ,non.combatantsiupon landis'genenaUyineld'not liable to seizure as booty by an invading army; and <it is' to the credit ·of the government of the United 'States that on several, occasions; to, have
THE BUENA VENTtJRA.
the law, ot nations the more mild and mitigated practice merchant vessels from capture; but except in isolated cases,provided for by treaty, this policy has not met with general acceptance. While these. considerations are. proper for that depart· ll\:lnt of the government which can make or modify the law as policy or humanity may dictate, they have DO place in that department which must administer the law as it is found. It is adjudgro and decreed that the steamship Rita, together with her tackle, apparel, and furniture,be condemned, forfeited, and sold as lawful prize of war; and an order will be entered providing for the distribution of the proceeds as prize money as may hereafter be adjudged.
THE BUENA VENTURA et a1. (District .court, S. D. Florida. May 27, 1898.) .
PRIZE-RIGHT OF CAPTURE.
By the prize law, as accepted. at the· present time, the war vessels ot a belligerent have the right, In the absence of any declaration of exemption by political power, to capture wherever and whenever found afloat, anything which belongs to or Is the property of the enemy. Whenever it Is claimed 'tllatan e:x;¢mptlon Is made by proclamation or ordinance, the burden of proof Is on the claimant to show that the particular case comes within the exemption; and, although such proclamation or ordinance Is to b'e liberally construed'in behalf of 'the clalmanis, there must be found therein sufficient language to justify the court in finding that the. IntenUonWas ,t6 exempt from seizure the class of property under Investigation.
SAME-VVAR WITH !5PAIN-PRESIDENT'S PROCLA1tIATION-SPANISH VESSELS IN A}4ERICAN PORTS.
Tile declaration1nthe president's proclamation of April 26, 1898, that, "Spanish merchant vessels In any ports or places within the United States, shall be allowed until May 21, 1898," for loading cargoes and departing, and shall not ,be subject to seizure on the voyage, applied not only to vessels In such ports at the date of the proclamation, but also to In ,American ports at, the breaking out of the war on April 21, 1898, and! w,blch sailed prior to the proclamation. The cargoes of such vessels 'are e:riHtIed to the same exemption as the vessels themselves.
'BOUND FOR AMERICAN PORTS.
The.fifth article of the president's proclamation of April 26, 189S r declaring that any Spanish merchant vessel which, prior to April 21,,1898, sailed from any foreign port bound to any port of the United States, shall permitted 'to enter such port and discharge her cargo, and afterwards depart ·without molestation, does not exempt from seizure vessels sailing from European ports for Spanish ports In Cuba, to there discharge their cargoes, and which, In the ordinary course, would then come to a port or the United States to receive cargo.
SA1tUD__ENEMY;S PUOPERTy-NEUTRALS HAVING TRADING HOUSES IN ENEMY'S COUNTRy-CORPORATIONS.
Vesselsori'prpperty belonging to a trading house established In an enemy's ,lJQuntry Is liable to condemnation as prize whatever the domicile of the partJ;1ers; and this principle applies with even greater force to the property 'of a corporation formed under the laws of the enemy's country, regardless of the domicile of the Individual stockholders, or of any equitableilnterest neutrals may have therein.
SAME.....VESSEI;S SEIZED BEFORE FORMAL DECLARATION OF WAR.
The of 'a formal proclamation before recognizing an existing war and capturing enemy's property has fallen into disuse In modern times, and actual hostilities may determine the date of the commencement ot