FEDERAL REPORTER.
of complainant to make the kind of slates' he was putting upon the market, the defendant, in a bullying and menacing style, asserts, to the trade by these circulars that complainant is infringillg the Goodrich patent, and threatens all who deal in complainant's slates with lawsuits, and all the perils and vexations which attend upon a patent suit. The average business man undoubtedly dreads, and avoids, if he can, a lawsuit of any kind,blita suit for infringement of a patent is so far outside of the comIllon man's experience that he is terrorized by even a threat of such a suit.' There seems to me certainly good grounds for doubting the validity of the Goodrich patent in the light of the state of the art at the time he entered the fieldj and that any lawyer in the law of patents would surely hesitateto'advise that the the Goodrich patent, either before 'or after the reissuejandtheconduct of the defendant in dismissing his suits for such alleged inf'ringement without'trial,shows that he did not believe that such infringement could be established. :' ' , IRm'i of opiniot. that the complainant has made a case entitling'hiin to the interposition of a court of equity to prevent the issue of c:ifQulars, or other written or oral assemons, that the slates made by tbe:complainant are an' infringement upon the defendant's patent; and be entered aspraJ'ed in the bill. a
THE SEA LARK.! HUDGINS
et al. v.
THE SEA LARK.
(DiStrict Oourt, E. D. Virginia. January 14, 1888.) When the time fixed by the rules of court for makmg dllfensellas :elapse<t. and the libel has been taken for confessed,'but the formal decree, of condemnation8nd sale 'has not been entered, on account of the absence of the judge, any maritime clalmant who comes in by petition subsequllnt thereto" dO,es so subject to the libel, and cannot be paid till the libelant is paid in full, although his claim' was'originally prior to the libelin dignity.' ,,' CLAIM.. · "." .' I .,
In A d m i r a J t y . , , , Libel by Hudgins and Hurst for the cost of sails fUrlJ;isaed-ihesloop Sea at issue is whether,the claim of libelantsishould the claim of one ¥itchell, a seamM1r, fo.t:w:a,gea ,accruing prior ,110 the <llaims of libelants. Whitehurst for libelan'ts. W. A.Swank, for the seaman· . libelants, having a claim of $63 for sails furnished' the Sea Lark ill January, 1887, filed a and issued process C?f,.arres,t on the of December, last. The libel duly served, l:J,nd 1
M. Hughes, Esq., of the Norfolk bal'.
53
a sale of the vessel has been ordered. By admiralty rule 156 of this court, it is provided that under the requirements of general rule 29 in admiralty, prescribed by the supreme court of the United States, the answer of the claimant or of any respondent in a libel suit must be filed with the clerk at the return-day of the process, or within ten days thereafter. And rule 154 of this court provides that "in every libel in rem process of monition shall be made returnable on Tuesday of the week next after the filing of the libel." In the present case, process issued on the twenty-second ofDecember, was duly served, and was returned on Tuesday, the twenty-seventh of the same month. All claims against the sloop, whether by answer, petition, or otherwise, should have been filed on the 27th, or within the next 10 days following, up to and including Januuary the 6th. In point of fact, no answer or petition was filed, llndthe {'..ase matured as to the libelant; and if the judge of the court had been in Norfolk, a decree could have been taken as of right by the libelant. The judge, however, WllS absent on the sixth January, holding court at· Alexandria; and the case which had matured stood. over, underrule, ,32 of this court, until he should be in Norfolk. On the seventh January, one Mitchell, who had been an employe as cook on the Sea Lark, but had left her in August last, filed a petition in this C8\lSe, claiming wa.ges for six months antecedent to his leaving the sloop, at $20 per month. As the lilloop will not sell for money to pay both claims, question at this stage of the, cause, before sale, is raised and by <lounsel, whether the claim at this Mitchell, who was once a seaman on the sloop, will have priority over the claim of the libelants, who supplied her with sails. To say nothing of the greater or less staleness of Mitchell's claim, I think the claim of the libelant against this sloop be<lame vested as against those of all other creditors of the vessel all the sixth of January, when he became entitled toa decree. Before libels :ue filed, the claims against ships for maritime services of seamen or -other cllissesof creditors are not of the nature of liens at common law. These creditors merely' possess the privilege of proceeding against the vessel herself as a debtor', and of arresting and holding her for their claims. After the issuing of process, arrest of the vessel, and time given for claimantS ahd other' creditors to come forward and' file their claims, .and the libel suit thereby matures for hearing, then, and not before, do the rights of the libelant in the vessel become vested and operate as a lien for such amount aS'may be decreed by the court. If the claimant does not answer, and other creditors do ndt prefer fheir claims within the period of 10 days allowed by the court for that purpose, then .thecase matures in favor of the libelant as against all the world; and those ha\"ing claims against the vessel who come in afterwards, come in, 'in every .case, subject to the clairriof the libelant. Their petitions filedsubse.quently to the maturing of'the libel do not affect the lien of the libelant for the amount decreed. . The rules of priority .as between maritime -claims, though binding as between other claimants, do not affect him. He is protected by his matured libel, and by the rule much respected in admiralty courts, vigilantibua non dormientibu8 jura subveniunt.
FEDERAL BEFOBTER.
r;;
Wn'IPPLE
"
PACKET CO.
(Di8trict
Oourt.S. D. Miln,s:imJi.lVo D. January Term, 1888.)
1.
Libelant. the owner of a river steamer at Louisville. Kentucky, contracted with respondents that the master of the steamer should take her to Vicksburg. Mississippi, and emplo'y her in respondents' service upon the Yazoo river for five. months, guarantyIng that,the.. should have the necessary under· inspected at Louisville, , writefs' certificate as to her seaworthiness.,. She , and Q; c\ltdficate frOD1the secretary of th,e underwriters, btit, upon a SUbsalt,tient: ,inspection. d,urin g h,e, tS6,,rvi,ce. the certificate was With,drawn. ,T:Q.p W!listel"charged till! undefwriterS with fraud, threatened suit agILinst the1X!:. s,ettled up ;with resppndcllts. t90k possession of the vessel, and respond,'etIte declared the contract at 'an end; Held that, under all the circumstances. the ,guaranty must be construed, as a continuing one, not limited to the time the went into respondent's employment. , , Respondents. In a suit for daU}ages for breach of charter-party, filed a crosslibel fodfamages for false representations; It appeared that before the com:mencement' of the suit the master of the vessel had 1lettled wirth respondents; givingtheIJI a receipt and acquittan,ce for U}oneys due, :frqm them, ';lnd had, taken possession of the vessel. Held,that the settlement was conclUSive, and the cross'libel should be dismissed," ' ' DrSCHARGE-]jJFFlllCT,
BmPPINa-'-.-CBABTER,PARTy-BSA.WORTHINEBS-CONTINUING GUARANTY.
2. RELEASE,
,
In and cross-libel ,: '" " Lee &: McKee;' for libelant. Miller, Smith .," &:Hir'sh, ,'for respondents. . ' -, -
Tqis case is submitte4 uppo.1ibel. all'swer, and cfoss-libei,' an/>wer, 'fhe libel, in substance, charges that the libelant ,on the 9th day of was the owpar, Af ,the steamer, Ed, lfpster, ,and by.J. W. )Vhipple.,the: lIlaster of said steaUll:lr, entered POI;ltTl;\ct in the deffiJnqapt iq; the of which said J,W. nature of agreed, as said ,steamer, t9 take he.r to Vicksburg, Mississ\ppi, ,andemploy he!, iI,lthe service otthe for a period ,of five mon,ths j the service of said master ,said vessel the defenp.ant company ",aliltq paythell1:1W of$225 of each plOnth" and would slap the expense of., transporting said vessel from ville, Kentucky,; to Vicksburg, Mississippi. ,Thapll, fulfillment of said .·:-c;-said mal:lter did transport saidvessel written where she waS,pl:lt into the Yazoo and ,so re,the .26th day of pctqber, 1887, \Yhe» ,the defendant corndeclineq.to use her any longer under sai,d and clared end" aIt,hough libelant. had" 011 part" perfQrmedall the obligations on her u,nder contract. That ,the for libelant, ,the of said contract, l;Ipon the par,t,o("s:ti,d defenqan;t company,' who absolutely refuse,d to com,ply part.pf llajd ,contract, alleging that libelant had forfei t;ed the satre.; by of an, ;alleged breach thereof by Iibelaut of'!Ii guaranty in touchingtheb9at's ul,lder;writers' papers.