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lated by screwing the cap in or out. Thus, it will be perceived that in the apparatus of 1887 the supply of oil to the burner de pends altogether upon the pressure of the air, whereas under the patent in suit the oil supply and the air supply are entirely independent of each other. Then the apparatus of 1887 is so organized that, with respect to the oil and air supplies, it is not capable of independent regulation. Thus, the flow of oil cannot be reduced without increasing the flow of air, and so vice versa. This proved to be a most serious defect, for, as a result, the power to vary the character of the flame to meet the necessities of the work in hand was very much limited. But the two supply pipes in the apparatus of 1889, being entirely separate, and drawing their contents from distinct sources, are capable of independent regulation, so that the quantities of oil and air can be controlled independently of each other, and thereby such varying character of flame produced as is required. Undoubtedly, the regulation by means of cocks of the flow of fluids through pipes was old. Many of the prior patents in evidence show cocks employed to perform this function. Indeed, they are obvious and implied devices for the purpose. But here the point is this: that Bullard's 1887 apparatus did not admit of the independent control of the flow of oil and air by cocks, or by any other means. Therein it was radically defective.

Again, Bullard's 1889 apparatus has another important capability not to be found in that of 1887. By the earlier apparatus it was impossible to supply more than one furnace from the same fuel tank; but the 1889 construction permits of the supply of oil and air to a great number of furnaces from one fuel tank, and a single air compressor governed by one regulator. Nor is this great advantage incident to Bullard's later patented apparatus to be left out of view because it is not referred to in the specification, or even may not originally have been perceived by the inventor. Roberts v. Ryer, 91 U. S. 157.

Once more, it appears that in actual practice the Bullard appa ratus of 1887 was a failure, and this chiefly because its construction and mode of operation precluded the independent regulation of the oil and air. In fact, the use of the 1887 apparatus has been aban doned. Furthermore, the evidence shows that the machines which were constructed in accordance with the earlier patent have been replaced by others made under the 1889 patent, and that these latter machines have given entire satisfaction. Upon the whole case, then, we feel quite justified in holding that the plaintiff's patent was not anticipated by Bullard's earlier apparatus. Consolidated Safety-Valve Co. v. Crosby, etc., Valve Co., 113 U. S. 157, 179, 5 Sup. Ct. Rep. 513; The Barbed Wire Patent, 143 U. S. 275, 12 Sup. Ct. Rep. 443.

We do not feel called upon to discuss at length the features of the numerous other patents of prior dates set up by the defendants. Avoiding particularity, we content ourselves with saying that while they show that the several elements here employed are in themselves old, yet none of them discloses the combination of the patent in suit. Finally, not only does the presumption of patent

ability arising from the grant of the patent stand unshaken, but there is affirmative proof of the patentable novelty and utility of the combination. A decree in favor of the plaintiff will be entered in each of the cases.

VIRGINIA HOME INS. CO. v. SUNDBERG.

(Circuit Court, S. D. New York. February 6, 1893.)

1. ADMIRALTY-PLEADING.

The libelant is entitled to an admission or denial of each distinct and separate averment in his libel separately and distinctly, and an answer is insufficient which admits some of the averments of the libel, but concludes: "He denies the other allegations of the fourth article, as therein alleged, and refers to the allegations of the eighth article of the answer;" such eighth article being a narrative somewhat different from the libelant's. 2. SAME.

An averment in the answer to a libel that the persons for whose benefit this action is prosecuted "had full notice and knowledge of and participated in the prosecution" of a former action, does not sufficiently advise the libelant whether evidence of some specific written notice in addition to a general knowledge is to be introduced, but such defect may be cured by amendment.

8. SAME.

A pleader who sets forth a detailed narrative of the movements of his own vessel cannot be required to add thereto averments as to other matters of detail upon which his adversary may wish to have specific averments, but as to which it does not appear that he has knowledge sufficient to enable him to set them forth, nor that he intends to rely upon them at the trial.

In Admiralty. Libel by the Virginia Home Insurance Company against John P. Sundberg. Reargument on exceptions to the an

swer.

Geo. A. Black, for plaintiff.

Goodrich, Deady & Goodrich, for defendant.

LACOMBE, Circuit Judge. Upon more careful consideration of the points urged upon the reargument, I am led to the conclusion that in some respects I erred in my former decision.1 The fifth article of the answer is an answer to the fourth article of the libel. It admits specifically, separately, and distinctly some of the averments therein contained, and concludes as follows: "He denies the other allegations of the fourth article, as therein alleged, and refers to the allegations of the eighth article of the answer." Such eighth article is a narrative of events in some respects like the libelant's, in some differing therefrom. Except for the denial above quoted, the following allegations of fact in the fourth article of the libel are neither admitted nor denied, nor is there a denial as to them of knowledge or information sufficient to form a belief: (1) That the Newport passed out to sea "through the Swash channel" in part; (2) that she so passed in 'No opinion was then filed.

part "through the South channel;" (3) that she so passed on a "course of about S. E. S.;" (4) which was the "usual channel course;" (5) that "at 5:35 P. M. she had Sandy Hook light bearing abeam;" (6) that "at 5:40 P. M. she had Sandy Hook bearing west;" (7) that when she passed Scotland light-ship at 5:50 P. M. "it bore west;" (8) that at such time it was "about one quarter of a mile distant;" (9) that she took her course of about S. W. "when distant about one quarter of a mile from Scotland light-ship, bearing west." The above-quoted general denial is conjunctive, and does not severally deny these averments. Under the rules and practice, I am satisfied that libelant is entitled to an admission or denial of each distinct and separate averment in its libel, separately and distinctly; and the fifth article of the answer does not thus answer the fourth article of the libel. The exception to it is therefore sustained.

The third article of the answer avers that the persons for whose benefit this action is prosecuted "had full notice and knowledge of and participated in the prosecution" of a former action. To this libelant excepts because it does not state what kind of notice is intended. If, as seems probable, (and which was the view I took of the averment on the original argument,) the word "notice" is used as the equivalent of "knowledge" of the existence of the former suit, the averment is full enough, but as it stands it would warrant proof upon the trial of some specific written notice. The libelant is entitled to be advised by the answer whether anything of that kind is sought to be proved, and for that reason his exception to the third article of the answer is sustained. The answer may be amended either by striking out the word "notice," if it is used merely as the equivalent of "knowledge," or by stating what kind of notice is intended, if some specific one is relied on.

My opinion as to the sufficiency of the exceptions to the fifth and eighth articles of the answer (except as to the denials of the fifth article) remains unchanged. I do not think the pleader who sets forth a detailed narrative of the movements of his own vessel can be required to add thereto averments as to other matters of detail, upon which his adversary may wish to have specific averments, but as to which it does not appear that he has knowledge sufficient to enable him to set them forth, nor that he intends to rely upon them on the trial. Nor do I think the claimant should be required to set forth the details asked for touching the Newport's collision with an unknown schooner. To do so would seem a reversal of the position of the respective parties. It is for the libelant to show that the Newport did collide with the John K. Shaw. The claimant it not called upon to show that she did not, and the details of a collision with some other vessel are irrelevant to this controversy.

The seventh exception, namely to the ninth article, is sustained. The various points as to which express averments are asked for seem material to the sufficiency of the defense set up, and should be pleaded. In all other respects my former opinion remains unchanged. Order accordingly.

THE CERRO GORDO.

TABOR et al. v. THE CERRO GORDO.

(District Court, D. Connecticut. February 28, 1893.)

No. 928.

SEAMEN'S WAGES-LIEN-WAIVER-MERGER-ACTION IN STATE COURT. Seamen recovered a judgment at law for wages in a state court against a part owner, and attached and sold his interest in the vessel, subject to a certain mortgage, but did not obtain full satisfaction of their claim. The purchaser bought in this mortgage, and subsequently became sole owner. Held, that the proceedings in the state court neither operated as a waiver of their lien nor a merger of their cause of action, and the lien could still be enforced against the vessel to the extent of the mortgage and the interests not before sold.

In Admiralty.

Libel by Nelson W. Tabor and others against the schooner Cerro Gordo to enforce a lien for seamen's wages. for libelants.

Arthur L. Shipman, for libelants.
Samuel Park, for claimant.

Decree

TOWNSEND, District Judge. Libel in rem. There is no dispute as to the facts in this case. The libelants, with three other seamen, originally brought actions at law in the state court against one Henry G. Chapman, then master of the schooner Cerro Gordo, and owner of three eighths thereof, for wages as seamen on board said schooner. In said actions said schooner was attached, judg ment was rendered in favor of plaintiffs, and the said interest of said Chapman was sold, under the execution, to the present claimant. The sale was made subject to certain claims, the only one among them which is of any importance in the consideration of this case being a mortgage for $1,200, which was afterwards bought by this claimant. He is now the sole owner of the schooner. The amount received by libelants under the execution sale being insufficient to satisfy their claims for wages, they now seek to recover the balance thereof by a libel in rem against the schooner.

The claimant contends that the libelants, by the sale under the execution, waived the right to again proceed against the vessel for the same cause of action. Counsel for libelants claims that the favor shown by courts of admiralty to the lien of seamen for wages gives them a peculiar right to enforce such lien in this court, and illustrates his claim by the distinction between their lien and the implied lien of the material man.

It is true that seamen are treated as a privileged class, and that, as their services are presumably necessary for the preservation of the res, their liens for wages are of the highest rank; and the reme dies allowed them for the enforcement of their claims "ought not to be abridged, except in cases of a clear, common understanding to that effect." Judge Brown, in Russell v. Rackett, 46 Fed. Rep. 201. But I do not see how these facts can give them any greater rights

in the proceedings for the enforcement of their lien. A lien is a jus in re. Once acquired, whether by a seaman, or by a material man, under a state statute, the admiralty will recognize and enforce it, subject only to the rules of priority adopted in its courts. Henry, Adm. Jur. & Proc. pp. 197, 198; The Lottawanna, 21 Wall. 558; The Guiding Star, 18 Fed. Rep. 263; The William T. Graves, 14 Blatchf. 189. The favor shown to the lien of the seaman does not affect the question of the nature or extent of his remedy, but only that of priority of satisfaction.

But the effect of the prior attachment, judgment, and sale on execution presents a novel and difficult question. It seems to be settled that the mere fact that libelants had already brought suit in the state court for the same claim is no bar to this proceeding in admiralty. The Highlander, 1 Spr. 510; The Brothers Apap, 34 Fed. Rep. 352; The Kalorama, 10 Wall. 218. If the two suits were pending at the same time, that might be ground for a stay of proceedings. The Edith, 34 Fed. Rep. 927; The John and Mary, Swab. 473. It would seem from some of the cases that a sale by libelants under the former execution might have operated as a waiver of their lien, provided they had thereby assumed to sell the entire vessel, and all rights and interests therein. The Kalorama, supra; The Mary Morgan, 28 Fed. Rep. 202. And it makes no difference whether such conduct would operate as an estoppel. Under the doctrine of admiralty, applicable to the enforcement of liens, the vendor at the execution sale in such a case would be held to have lost his lien by laches. The Seminole, 42 Fed. Rep. 924; The Scow Bolivar, Olcott, 478.

But the attachments and sale under the execution affected only the part interest of the defendant therein. The attachments could not interfere with the interest of the mortgagee, for they were subsequent to it. Furthermore, the execution sale was made expressly subject to this mortgage. The present claimant is not only the purchaser of the execution debtor's interest, but he is also the assignee of the mortgagee. Prior to his purchase of the mortgage, the liens of these libelants had already become vested. He therefore acquired the title of said mortgagee, subject to said liens, (The Guiding Star, 18 Fed. Rep. 263;) and of course the purchase under the execution did not impair said liens in the absence of laches, (The Gazelle, 1 Spr. 378; The Julia Ann, Id. 382; Crosby v. The Lillie, 40 Fed. Rep. 368.) It does not appear that the claimant has been in any way prejudiced by the action of libelants. It does not appear that there have been any laches on their part. The claim accrued between March 9 and April 7, 1892. The attachment was made on said April 7, the execution sale was on May 10, and the libel was filed on June 15, 1892. Nor does it appear that they made any misrepresentations, or failed to make any representations which it was their duty to make. Crosby v. The Lillie, 42 Fed. Rep. 238. They were not called upon to speak at the execution sale, for they assumed to sell only the interest of Chapman in the vessel. Their present claim is not inconsistent with a waiver, by such sale, of all rights to said interest. Crosby v. The Lillie, 40 Fed. Rep. 368.

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