DITTMAR V. RIX.
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mon powder. It is not sensitive to concussion, will not de,compose by itself, nor cake or pack together, may be readily filled into cartridges, and it matters not whether the place where it is stored be warm or cold, dry or damp. Dualin has irom four to ten times the strength of common powder, is stronger than dynamite, an improvement on nitro-glycerSome of the advantages claimed for dualin over other -explosive agents are-First, it may be stored, transported, manipulated and applied with less risk than common powder; second, it may be used in cold weather without first requiring the warming process, which nitro-glycerine and dynamite require, and which frequently become inexplosive at a low temperature; third, its explosiondoes not develop any noxious gases; fourth, absolutely cheaper than either nitro-glycerine -or dynamite, dualin is also relatively cheaper than common powder, for, possessing four to ten times the strength of the latter, its use will proportionately reduce the labor and cost of mining and blasting operations; fifth, the effect of a dualin ,explosion is to tear and rend the material exposed to its action, less than to pulverize it, as is the case with nitro-glycerine and dynamite, when applied to mining and blasting operations in coal and rock; sixth, dualin does not. necessitate the application of a cap containing fulminate, but may be exploded by a fuse, like common powder; seventh, its entire want of sensitiveness to concussion renders dualin a suitable material for the blasting charge of shells. "Description of the prooess:. Dualin consists of cellulose, nitro-cellulose, nitro-starch, nitro-mannite and nitro-glycerine, mixed in different combinations, depending on the degree of strength which it is desired the powder should possess in adapting its use to various purposes. Cellulose is prepared by reducing wood of a soft texture (for instance, pine or poplar) to small grains, resembling sawdust, and treating them with diluted acids, and then boiling them in a solution of soda. After having been thoroughly dried, by a quick drying process, the cellulose is mixed with-No.!. Nitre and nitro-glycerine. Or No.2. Being first changed into nitro-cellusose, by being treated with nitric acid (48 0 B.) and sulphuric acid, (66 0 B.,)
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FEDERAL REPORTER.
it is then mixed with nitro-glycerine. No.3. The dried cellulose is mixed with anhydrous glycerine, until the mass beof the consistency of thick broth. This is gradually to a bath composed of a mixture of sulphuric acid (66 0 B.) and nitric acid (48 0 B.) of eight to ten times its quantity, 'during which process the greatest care must be taken to stir the hei,tted mixture and cool it. The stirring is continued for at least half an hour, after which the mix.ture is placed in a water bath of ten times its quantity. The acid water being repeatedly drawn off and replaced by pure water the mixture is now placed in a bath of diluted soda lye. In this it is stirred from one to two hours, again washed in pure water, and then rendered anhydrous by means of hot water heating, and treating it with concentrated sulphuric acid and chloride of calcium. After having been,rendered anhydrous, it is mixed with cellulose, prepared by process described under No.1, 2 or 4, until a dry and not very greasy powder is obtained. The dust is sifted out, and this, if packed into cartridges, is serviceable. The powder remaining possesses the advantages above enumerated. No.4. The cellulose is charred, finely pulverized, boiled in concentrated nitre lye, and, after soda has been added, is rapi(lly dried, and mixed with nitro-glycerine or dualin, prepared by process No.1, 2 or 3. No.5. The process of preparing nitro-starch, another ingredient of duaEn, is also new. It will prevent the forma· tion of lumps after the starch has been subjected to the acids, and also render the dried preparation less sensitive to dampness. a. Starch is thoroughly dried until it assumes a yellowish brown color. It is then finely pUlverized and mixed with anhydrous glycerine. The mass is slowly placed in a mixture of nitric acid (48 0 B.) and sulphuric acid (66 0 B.) of ten times its quantity, during which process the greatest care must again be taken to stir the mixture and cool it. The stirring is continued for half an hour, when the mixture is placed .in a water bath. The acid water being repeatedly drawn off and replaced by pure water, the mixture is now placed.irl a bath of soda lye, then placed in another water bath, f+nd finally rendered anhydrous by means of hot water
345
heating and treating it with concentrated sulphuric acid and chloride of calcium. It is now pressed through a fine sieve, and mixed with either dried pulverized starch that. has been treated with nitre lye, .01' it is mixed with cellulose prepared as above described, until a dry and not very greasy powder is obtained. b. After the starch has been dried it is mixed with pulverized cellulose, or with the dualin dust prepared by process No.3. This mass is then placed in a mixture of nitric acid (48 0 B.) and sulphuric acid, (66 0 B.,) and for the rest, treated as described by process No.5. No.6. In an entirely analogous manner, mannite is mixed with anhydrous glycerine and compounded with the other ingredients of dualin. I do not claim nitro-glycerine, nor mixtures of nitro-glycerine with other explosive or non-explosive materials, as such have been made, but they do not possess the properties of my compound." There are two claims, as follows: "1. The process of manufacture or preparation of a oompound which I denominate 'dualin,' of the ingredients, in the proportions and for the purposes set forth. 2. Also the new compound, herein described, called dualin, made by the process herein set forth, or its chemical equivalent." The powder alleged to infringe the patent is one which, by an analysis shown by plaintiff, contains, in 100 parts by weight, the following substances, in the following proportions: Nitro-glycerine, 36.78 per cent.; nitre, 47.45 per cent.; cellulose, 13.50 per cent.; volatile matter, moisture, 212<;1 Fahr., 2.27 per cent. It is claimed by the plaintiff that the nitre and the cellulose in such powder are the ingredients specifically mentioned in the plaintiff's patent, under process No.1 therein, as to be mixed with nitro-glycerine, and that the resulting powder is a powder answering the description of said patent. The powder is one made and sold by the defendants as "Giant Powder No.2." The defendants admit that they use, in making it, nitro-glycerine and nitre, the latter in the form of nitrate of potash or nitrate of soda, and a carbon or hydrocarbon, such as soft or hard coal, resin or wood fiber. They allege that the wood fiber is mostly common saw-
346
FEDERAL REPOR TER.
dust, produced by sawing and dried; that they have never treated it with any acid or liquid, and have never boiled it in a solution of soda or any other solution; that, when dried, it is mixed with dry and pulverized nitre; and that that mix· ture is mixed with nitro-glycerine. It is contended, for the plaintiff, that the defendants' powder infringes his patent, because it is made according to process No.1 therein. The first claim of the patent is for the process set forth. The second claim is for the compound made by the process set forth. The process is made essential in each claim. The process for preparing the cellulose is to treat the grains of wood or sawdust with diluted acids and then boil them in a solution of soda. They are then dried and mixed with nitre and nitro-glycerine. The defendants do not treat the sawdust with any acid or boil it in any solution. _The plaintiff con· tends that the treatment of the sawdust or wood fiber with the acids and the alkali is designed to rid it of impurities, and leave the carbon, as the explosive force of the mixture depends on the purity of the carbon; and that the advantages of the compound are attained by the defendants, though in an inferior degree. But the difficulty is that the defendants use nothing in the place of the treatment by acids and an alkali, and the plaintiff has made such treatment essential, and does not say that it may be dispensed with. It is an essential part of the process, and is not used, nor is any chemical equivalent for it used. The compound is claimed only when made by the process set forth, and the process is claimed only as set forth. It is unnecessary to pass on any of the other numerous questions discussed on the motion. The motion is denied because of non-infringement.
GUIDING STAB.
THE GUIDING STAR. (District lJqurl, D. Kentucky. March 4, 1880.) ADMIltALTY-ACTION IN !{.E1II-(,'LAD!: FOR AN AsSAULT BY AN OFFICER.-
In an action in rem a seaman cannot join a claim for wages with one for an assault and battery by an officer of vessel
In admiralty. Exceptions to libel for multifariousness. The libel claimed for the services of libellant as seaman upon a round trip from Madison, Indiana, to New Orleans, and alleged that the master shipped him under a contract to serve as roustabout at one dollar per day, and also "to receive kind and humane treatment, and his board or rations during the trip, and to be brought back to Madison." It further alleged that before the completion of the round trip, and near Caseyville, Ky., the mate struck him, "by color of his authority as such mate, several blows upon his head and neck, and kicked him in the sides; threw him against the front steps, and landed him against his will, at the coal mines near Caseyville, and, the master of the boat permitted this to be done without protecting libellant or preventing any of these outrages." He claimed for wages, for rations, and for his fare back to his home, amounting in all to $39.50, and also claimed $3,000 for the assault, by reason of which he alleged he had been crippled and made sick, and his health had been greatly injured, and he had been incapacitated from doing work. Claimant excepted to the libel upon the ground that libellant had joined causes of action ex delicto and ex contractu, and because the steamer was not liable in rem for the beating complained of, and this court had no jurisdiction to condemn and subject it to the satisfaction of said alleged damages. I. H. Trabue and L. N. Dembitz, for libellant. Barr, Goodloe &; Hnmphrey, for claimant. BROWN, J. The only question raised by the exceptions is, whether a seaman, in an action in rem, join a claim for wages with a claim for an assault and battery by an officer of the vessel. Doubtless a court of admiralty ma.y entertain
FBDEBAL
jurisdiction in personam of suits for assaults, and I see no reason to doubt that a seaman may join in an action for wages a claim against the vessel for injuries received by such acts of negligence as the ship is liable for, in a proceeding in rem; but, by General Admiralty Rule 16, "in all suits for an assault or beating on the high seas, or elsewhere within the admiralty and maritime jurisdiction, the suit shall be in personam only." It seems to be the opinion of Mr. Benedict, however, (Benedict's Admiralty, § 309,) that this rule is confined to cases technically for assault and battery as a mere tort, and that if the action be brought on a contract, as for not carrying a passenger safely, or witho!1t injury, or for not treating with kindness a passenger or seaman, an assault or beating being the gravamen of the breach, that the suit may be in rem against the vessel. No authorities, however, are cited to this proposition, and upon a careful examination I have been unable to find any which lends it support. It is true there are certain cases in rem in which the libellant may join any nl'l.mber of demands, and in cases in claims ex delicto and ex contractu are not infrequently joined in the same libel. Dunlap's Admiralty, 89. The question here involved is discussed in but a single case, viz., Pratt v. Thomas, 1 Ware's Rep. 427, in which the learned judge for the district of Maine considers the subject with his usual thoroughness, and comes to a conclusion that a claim for damages for a personal wrong is an entirely independent claim, and perfectly unconnected with that for wages. This case is a much stronger one against a joinder than the one at the bar, as it was a libel in personam against the master. If it had been supposed that the court could entertain jurisdiction in rem of a suit for an assault, it is incredible that precedents for such suits should not be found in the books, for cases of aggravated assaults upon seamen are of the commonest occurrence. "Upon the contrary, in all reported ca.ses of this kind the actions are in personam only. The Agincourt, 1 Hagg. 271; The Lowther Oastle, Id. 384; The Enchantre..,