THE JOHN C.F1SHER. '
703
eurved·front·and sides, andftat back. It is useless to multiply examples of manufacturers from single sheets of wrought metals, possessing every , merit and peculiarity claimed for this sink. ,The list might be indefinitely prolonged. The catalogue of patented machines and process for swaging, :ktamping; and striking up ];lOusehold'and miscellaneous utensils' and conveniences which were jointless and seamless, and preserved the entirety of the material of the article, is as voluminous. The instances cited of the application of this art tooommonuses deprive these features ohhis sink to all claim to novelty. While an exact counterpart of Kilbourne's sink in shape, had not been produced in wrought metal,its prototype in form appears in Bignall's cast·iron sink, for which letters patent were issued January 1, 1867, to L. C. and M. C. Bignall. This is without joint, seam, or interior angle, and has a grooved or recessed flange, in its ,upper and outer edge, projecting horizontally, into which the ,upholdinf}; framework or inclosure is fitted. The flat flange ofcomplainanfi'ssink serves the same purpose. The form or pattern, therefore, lacks originality. ' 3. The Use of wrought steel or iron in lieu of cast metal is mere substitution of materials, which, whatever the degree of superiority given to the manufacture thereby,is not patentable. HowhkisB v. Greellwood, 11 How. 248; Hicks v. Kelsey, 18 Wall. 670; Phillips v. Detroit, 111 U. S. 604, 4 Sup. Ct. Rep. 580; Gardner v. HerZ,118 U. S. 180-192,6 Sup. Ct. Rep. 1027; Brown v. District of Columbia, 130 U. S. 87, 9 Sup. Ct. Rep. 437; F'lorsheim v. Schilling, 137 U. S. 64, 11 Sup. Ct. Rep. 20. rfhe decree of the circuit court dismissing the complainant's bill is clearly correct, and is affirmed, with costs.
atrUck up from·8o single piece o{ rnetal,and formed with' 'a flat bottom,
THE
J omt C.
FISHER.
THE TOM
Ross. GRUBBS. April 22, 189B.)
Ross et al. v. (CircuU ClYU1't
oJ
Th1n'd OirCUit.
t.
L COLLISTON-RJVBR STEAMER LA.NDING-BoAT ATWHARP. A large river steamer, which in landing, head ,on, swung her stern around so all to strike a smaller steamer. safely moored at an adjacent private wharf, where she had a right to be, is liable for the damages caused thereby.
'IilSdmiraltya note does not extinguish'the lien of the claim for which it isglven unless such is the understanding of the parties at the time. The Generat Meade, 20 Fed. Rep. 923, followed.
'.
.
,.
Appeal from the District Court of the United States for the Western District of Pennsylvania.
J'ED,E1RAL
vol. 50.
e.... Fieber.
,In Admiralty.' Suit by r. W. G.rubbs, owner of the steamer Tom Ross j against William Ross and others, claimants of the steamboat John
David S. McGann, for .appellees. ,Before ACHESON, Circuit Judge, and BUTLER and GREEN, District Judges. ACHESON, Circuit Judge. .On December 10,1889, the small steamer Tom Ross was safely moored and securely tied at a private wharf in the port of Cincinnati, Ohio. The boat was lying along the outside of a barge1 and was at her usual berth; and. in a place she had a right to occupy. About noon of thn'day the large and powerful steamboat John C. Fisher came into port, and in landing immediately above the Pooss, head aD; swung her stern around so as to strike the. Ross with great force, and squeeze that vessel between the Fisher and the barge, crushing in both sides of the Ross. It does not appear that the Ross was culpable in any particular. She was plainly visible to those in charge or the ·Fisher, and it was their duty to steer clear of her. Culbertson v. The Southern Belle, 18 How. 584; The Gmnite State. 3 Wall. 310. No good reason for not avoiding the Ross is shown. The conclusion of the court below that the Fisher was wholly at fault, and was liable for the damages caused by the collision, was clearly warranted by the proofs. .. Some months after the occurrence, the captain of the John C. Fisher, acting on behalfof that borttand the owners, signed as captain, and gave to the owner of the Tom Ross, a 90-days promissory note on account of the damages occasioned by the collil:'ion, anil, if this note had. been paid, the amount, although less than the claim, would have been aecepted in full satisfaction. But it was not paid, and after default the libel in this case was filed against the Fisher. It is now contended that the taking of the note discharged the lien, and this is set up in bar of the libel. It is, however, welllilettled in admiralty that a note does not extinguish the lien of the claim for which it is given unless such is the understanding of the parties. TAe Kimball, 3 Wall. 37; The General Meade, 20 Fed. Rep. 923. Here it is not proved that there was any express agreement that the note should operate as a discharge of the lien. Neither do the circumstances under which the note was accepted warrant the inference that a waiver of the lien was intended. But the decided weight of the evidence is towards the conclusion that the note was taken by the owner of the Ross upon the express condition that it was not to operate as satisfu.ction of the claim unless it was paid. This defense altogether failed upon the proofs. .. We find no error in tllis record, and the decree of the court below is affirmed.
Mr, .Barton, for appellant.
Decree fodibelant.
Libelee appeals.
Affirmed·.
AHLHAUSER
v.
BUTLER.
706
AHLHAUSER V. BUT!,ER ef,
ale
(Circuit Court, E. p. Wisconrin. June 6. 1892.) 1. REMOVAL Oll' CAUSES-WAIVER OF OBJECTIONs-JURISDICTION OF STATB C011R'!'. The filing of the petition for removal of 110 cause from a state to a federal cout
is no waiver of an objection that the state court was without jurisdiction of the cause for want of personal service of process, and of a res to support service by publication. .Atchison v. Morris, 11 Fed. Rep. 582, followed.
I.
BAMB-GARNISHMENT-PRIOR FEDERAL l:'lUIT.
B., a nonresident, brought suit in the federal circuit court against C., a resident, to recover moneys due. Pending that action, and before trial, A., a resident, brought suit in the state court against B., and therein C. as debtor of B. B. filed a petition for removal of the suit to the federal Circuit court. .!Ield, that the pendency of the suit against C. in tbefederal court, being in perRonam only, did not deprive the state court (and the federal court, on removal) of jurisdiction of the garnishment, which was a proceeding in rem, though no judgment should have been rendered against the garnishee had the suit remained in the state court.
a.
SAME-PLEA OF PRIOR SUIT.
Whether, both suits being now within the same jurisdiction, the plea of prior suit within another jurisdiction Is longer availing, qumre.
At Law. Action by William Ahlhauser against William Allen Butler and others. Heard on motion to dismiss for want ofjurisdiction. MOo tion denied. Charles Quarles, for the motion. W. H. Timlin and O. H. Hamilton, opposed. JENKINS, District Judge. The defendants, citizens of New York, brought suit in this court against Messrs. Cotzhausen, Sylvester & Scheiber, citizens of Wisconsin, to recover certain moneys claimed to be owing from them. Pending that action, and before trial thereof, the plaintiff here, a citizen of Wisconsin, brought this suit in a court of the state of Wisconsin, and therein garnished the defendants in the other suit as debtors of the defendants here, and for the debt which was the subjectmatter of controversy in that other suit. The garnishees answered, and inter alia pleaded the pendency of the prior suit against them in this court. There was no personal service of process upon the defendants, substituted service being had by publication under the state law. 'I'he basis of jurisdiction was that the debt garnished was property of the defendants within the state, and subject to attachment. Within the time and without otherwise appearing to the suit, the defendfor ants filed in the state court their petition for the removal of the suit into this court, and it was removed accordingly. The defendants now appear specially to a motion to dismiss this suit for want of jurisdiction of the state court in this: that the debt was not subject to garnishment because of the pendency of the prior suit against the garnishees in another jurisdiction; that, therefore, no property or debt was impounded in the state court which could be subjected to the payment of the plaintiff's demand if and when ascertained, and there was no res for the exercise of any jurisdiction by the state tribunal. It is objected preliminarily that the filing of the petition for removal v.50F.no.9-45