ing to his invention, on file in the patent-office, he mentions a capsule as a means for effecting the explosion of nitro-glycerine. But he deliberately omitted it from his specification as ultimately framed, and such omission must be held to be either an abandonment of its use to the public, or an irrevocable declaration that as a means of exploding nitro-glycerine it was not his invention.

Let decrees be drawn in these several cases dismissing the bills, with costs.

DEIS v. DOLL.1

(Circuit Court, N. D. Ohio. September, 1884.)

PATENTS-EGG-BEATERS.

Patent No. 254,540, granted to Charles Deis for an improved egg and sugar beater, consisting of a box or receptacle containing a revolving shaft, on which "are set a number of projecting whips or beaters of wire, either in bunches or singly, and in rows or alternately," held that, in view of the state of the art at the time the patent was granted, it must be limited to the combination described, embracing the particular form of beater shown in the specifications and drawings; and that it is not infringed by a beater in all respects like Deis', except that, instead of wire whips, it has, on the revolving shaft, rigid castiron projections arranged in four or more parallel rows, these radial arms being so arranged in each row as to be intermediate with those of the other, and the arms on each row connected at their outer ends by longitudinal stiffening rods; said beater being manufactured by defendant under patent No. 266,679, granted to him.

In Equity.

Charles F. Morgan, for complainant.

M. D. Leggett and John Crowell, for defendant.

MATTHEWS, Justice. This is a bill in equity to restrain the alleged infringement by the defendant of letters patent No. 254,540, granted to the complainant, March 7, 1882, for certain improvements in egg and sugar beaters, and for an account.

"This invention," the specification declares, "is intended for the use of bakeries, where large quantities of eggs and sugar and flour are beaten for cake-making, etc., the object being to supply a cheap and simple machine that will do the work in a much shorter time than by hand-beating, as generally practiced; and the invention consists in the employment of an open box or receptacle, with a rounded bottom, and having hollow (tin) or double side walls, to contain hot water therein, to aid the beating by warming the egg mass in the box, so that it works quicker, and combined with a revolving shaft having a series of projecting whips or dashers thereon, which is operated by gear-wheels and a crank outside the end of said box, all substantially as hereinafter fully explained."

Having reference to the drawings, there is a description of the box,

1 Reported by J. J. Harper, Esq., of the Cincinnati bar.

with rounded bottom and hollow sides, to hold hot water, and set in that a beater, consisting of a horizontal shaft removable therefrom, and revolved by means of a cog-wheel and crank at one end of the journal outside the box. "On this shaft," the specification proceeds, "are set a number of projecting whips or beaters of wire, either in bunches or singly, and In rows or alternately in position, which, when rapidly revolved by the crank, beat up the mass of egg or eggs and sugar and flour, in a very short time, to the required lightness and consistency, giving the same effect as rapid hand-beating." The claim is as follows:

"In a baker's egg and sugar beater the combination of the shaft, d, having the wire whips, i, i, i, thereon, operated by cog-wheels, f, g, and crank, h, with the box, aaa, having the rounded bottom, a, and double walls, b, b, (and bottom,) all arranged and operating substantially as specified.'

The defendant's answer, specially naming the alleged anticipation, denies the validity of the patent for want of novelty, and also the alleged infringement. It is admitted that the defendant had manufactured and sold one or more machines, in all respects like those described in the letters patent of the plaintiff, with this exception : that instead of the wire whips projecting from the shaft, as a beater, they had, on the revolving shaft, rigid cast-iron projections, arranged in four or more parallel rows, these radial arms being so arranged in each row as to be intermediate with those of the other, so that each arm cuts a separate path through the material to be mixed, and the arms in each row connected at their outer ends by longitudinal stiffening rods, which impart rigidity to the entire row of arms. The defendant claims the right to manufacture and sell machines of this character by virtue of letters patent for the same, issued to him October 31, 1882, and that they do not infringe the letters patent of the plaintiff; or that, if they do, the latter are void for want of patentable novelty. The defendant's patent, No. 266,679, is for new and useful improvements in egg and flour mixers, and, after describing in the specification the details of the machine with reference to the drawings, sets forth claims to a combination, consisting of a jacketed mixing trough, having hollow sides for hot or cold water; a horizontal detachable beater, having rows of radial arms, connected by longitu dinal stiffening rods at their outer ends, and means of revolving the beater. The supposed advantage of the radial arms, constructed and arranged as described, is set forth in the specifications as follows:

"In revolving the beater the radial arms of the same agitate the materials placed in the trough, while the longitudinal stiffening rods move closely along the inner walls of the trough, so as to take up the materials deposited thereon and return them into the path of the radial beater-arms, whereby the thorough mixing of the eggs, sugar, flour, or other materials is secured in a very short time, and a dough of the required consistency and lightness obtained."

The advantage and superiority of radial arms so arranged, and united by stiffening rods, are admitted; but it is contended that, if

patentable, they can be only as an improvement upon those covered by the plaintiff's patent, for which, in other respects, they are merely mechanical equivalents; that patent, it is claimed, covering, as a constituent of the combination, every horizontal shaft with projections suitable for beating eggs and sugar, etc. There is no claim for the beater alone, but only in this combination; and in every other respect, except as to this beater, it is admitted that the combination itself, in other applications, and all the several elements which enter into it, were well known and in common use before the alleged invention of the plaintiff. For example, it is admitted that prior to that date churns were made and sold, and in public use, having rounded bottoms and double walled sides for holding hot or cold water, and provided with revolving dashers and mechanism adapted to revolve them, although such dashers were not suitable for beating or treating eggs, or eggs and sugar, or like masses. There is also in proof, letters patent granted to John F. Robe, No. 166,412, dated August 3, 1875, thus antedating those of the plaintiff several years, for an improved egg-beater, in which there is shown a rotating horizontal shaft, with radial arms or prongs projecting from the shaft, operating between like bars in a fixed position, turned in a casing, without, however, the double walls, by means of a crank and cog-wheel. There was certainly nothing patentable in employing such a beater as that of Robe's in a casing having hollow sides; and having in view, therefore, the state of the art at the date of the plaintiff's alleged invention, and by means of that seeking to reconcile the action of the patent-office in granting the two patents,-one to the plaintiff, the other to the defendant,-otherwise inconsistent, it is necessary to limit the patent of the plaintiff to the combination described by him, embracing the particular form of beater shown in the specifications and drawings.

This relieves the defendant from the charge of infringement, and entitles him on that ground to a dismissal of the complainant's bill, with costs; and it is so ordered.

THE HEROE.

(District Court, D. Delaware. August 11, 1884.)

1. SEAMEN'S WAGES-STIPULATIONS-DISCHARGE.

Where seamen were employed on a steam-boat to make the run from Philadelphia to Port of Spain for a stipulated sum, and to have their passage paid on their return to the port of departure, and the vessel, after having gone a short distance to sea, was compelled to put back, and some of them were discharged by the captain because he had no further use for them, held, that they were entitled to be paid the full sum agreed upon for their wages. 2. SAME-LEAVING VESSEL-SEAWORTHINESS.

Two of the libelants having left the vessel on the ground that she was not seaworthy, held, that unseaworthiness justifies a crew in leaving a vessel, and

entitles them to the payment of their wages for the month or voyage; and that the discharge of seamen and unseaworthiness may be proved in the same manner as other facts are proved before a court or jury.

3. SAME-STATUTORY PROVISIONS.

Statutory provisions relating to the discharge of seamen, and the holding of surveys on vessels alleged to be unseaworthy, are not exclusive of other remedies than those therein contained.

In Admiralty.

Bradford & Vandegrift, for libelants.

John M. Arundel, for claimant.

WALES, J. Libel for wages and damages. The libelants shipped on board the Heroe, bound from Philadelphia to Port of Spain, in the island of Trinidad,-two of them in the capacity of quartermasters, two as firemen, and the remainder as seamen,-and they were to be paid for the run, $50, $45, and $40, respectively, and on their arrival at the port of destination were to have their passage paid to Philadelphia or New York. The Heroe is a side-wheel steam-boat, designed principally for river navigation, and this was her first voyage. She is of 102 tons burden, 110 feet long and 26 feet beam, provided with a single engine and a single furnace. The furnace was constructed for burning wood, but was temporarily adapted for the consumption of coal. She left Philadelphia on July 6th, last, with a crew of 14 all told. She was about 24 hours in making the breakwater, and after a short delay for some slight repairs to the machinery, put to sea and had gone as far as off Cape Hatteras when she was compelled to come to anchor for further repairs to the engine. Before reaching Hatteras it was found necessary to stop the engine every few hours to clean the fires. By this time, also, it had been discovered that the machinery worked badly, and the vessel could not make more than three and a half or four knots an hour. After repeated efforts to put the engine in good working order, and more than one unsuccessful attempt to proceed on the voyage, the vessel at one time having lost steerageway, becoming unmanageable, and the stock of coal being considerably reduced, it was decided to turn back and make Philadelphia or the nearest port. The Heroe had first arrived off Hatteras on July 10th, and returned to the breakwater on July 17th. Waiting here and at Cape May for orders from the owners, she was finally brought to Delaware City on July 26th. Between Cape May and Delaware City the three lower tiers of tubes of the boilers gave out, and the crown-sheet was split for the length of six inches. The steam-boat was provided with sails, but it was not pretended that they were sufficient for her navigation. The captain surmised that by removing the paddles he might have proceeded under sail. At Delaware City the two quartermasters left the vessel on account of her unseaworthiness, and on the ground that the voyage had been broken up and abandoned, and being refused payment of their wages filed their libel. Subsequently the firemen and seamen filed their libel for wages, alleging that the captain had discharged them. By agreement of counsel the testimony taken under

the first libel applies to the second, and both have been consolidated. I entertain no doubt of the fact of the discharge of the firemen and seamen. The testimony of the libelants establishes the fact, and the captain admitted to the marshal that he had no further use for the men; that they were at liberty to go; and he permitted them to take their effects from the vessel. The answer denies that the men were "regularly" discharged, but the proof is too clear for discussion that they were virtually and practically discharged, and a decree will be entered for the payment of their wages as stipulated in the shipping articles, less advances and credits. I have not been satisfied that they are entitled to any further compensation or damages. It is true, they expected to make the run out and return before August 1st, but they have not suffered a long detention.

The case of the quartermasters turns on a different question, towit, the unseaworthiness of the Heroe, and the deviation from and abandonment of the voyage for which they were engaged. They do not allege that the captain discharged them. The answer specifically denies unseaworthiness or abandonment, and claims that the Heroe was brought back to Delaware City "for the purpose of having her steam-engine put in proper order and repair, so as to enable said steam-boat to resume or proceed on her voyage to said Port of Spain," etc., "which repairs, as respondent has been informed, will be completed on or about Tuesday next, the fifth instant." "Seaworthiness implies the ability of a ship or other vessel to make a sea voyage with probable safety; that is, that she shall be tight, stanch, and strong, properly manned, provided with all necessary stores, and in all respects fit for the intended voyage." Bouv. Law Dict. Confining the inquiry to the fitness of this vessel to make the run from Philadelphia to the island of Trinidad, a distance of 2,300 miles, the testimony, not alone of the libelants but of the captain and chief engineer, is conclusive. The vessel is well built for one of her class, and her officers appear to be experienced and competent, but there was such a defect in her machinery, owing to faulty construction, or the ill adjustment of its various parts, that the chief engineer reported at the time when it was decided to turn back that he could do nothing with the engine. The experiment of sending such a vessel on a voyage of 2,000 miles was somewhat hazardous, and the refusal of these libelants to stand by her is not remarkable. The vessel was altogether dependent on her engine for propelling power, and when that failed from faulty construction, or by reason of the negligence or want of skill on the part of the owners, the vessel could no longer be considered as fit for the voyage for which she was intended. A rotten or leaky hull or broken masts are no greater evidences of unseaworthiness than is a defective engine, under the circumstances surrounding this case. The libelants shipped on the Heroe on the faith that she was in all respects well found and provided as a steamboat should be, and when they had good reason to believe that she was