'UNITED STATES ". THE FRANK SILVIA.
Jackson, who was 8 mechanic, and said to complainant that he would make and sell all lie 'cob.ld. Jackson, through his attorney, in answer to a letter notifying him that he was infringing complainant's patent, said that complainant had copied the invention from him, (Jackson,) and that Colling must disclaim or be prosecuted for perjury, and damages. The witness Sherw()od testified that he called at Jackson's house; and asked for electric belts; that Mrs. Jackson showed him a belt, a similar one to Exhibit C, offered in evidence. She offered to sell the bl:lit to him, but said she would rather the witness would call when Mr. Jackson was in, because he had the day before given her a great scold'ingfor exhibiting belts;for fear it might get him into trouble. The testimony of the defendant is in many respects secretive, evasive, and unsatisfactory. Especially is this true of the testimony of Jackson. Upon the whole case, after a careful consideration of all the testimony, I am of opinion that complainant.ih entitled to recover. Complainant's counsel will prepare and submit the usual decree in easel;! of this character, that· there has been ani<nfringement by defendants; with an order referring the case to the'111aster in chancery to ascertain the damages.
UNITED STATES'll. THE FRANK SILVIA.
(Circuit Oourt, N.D. California. February 23,1891.)
Under Rev. St. U. S. § 4499, providing that vessels violating the law relating to the carrying of passengers "may be seized .and proceededagaillst by way of libel," in the district court) such cOurt 'hM no jurisdiction until there has been a seizure of the vessel. ReverslDg 37 Fed. Rep. 155.
John T. 'Carey, for libelant. Milton Andro8, for claimants.
In Admiralty. Before
Appeal from dIstrict court. Judge.
SAWYER, J. Since the order of proceeding required seems purely technical, I regret to say, that.Ishan be compelled· to sustain the point as to the jurisdiction. The libel of information in the case is promoted to recover a fine of $500 under title 52, c. 2, Rev. St. U. S. §§ 4499 and 4500, for carrying passengers without complying with the terms of the title.. The point is made, that the district court does not appear to have acquired jurisdiction, before filing the. libel, by a seizure ·of the vessel by the collector, or other executiverofficer ofthe government. There is no allegatiQn that any seizure was made, and, I understand, none was, in fact, made. A seizure of the vessel before filing the libel is necessary to give jurisdiction. This has been settled by numerous cases. The first appeal in v.45F.no.9-41
admiralty :'heard"by,ine, when ,ldirst the oircuit .bench, iQ;', volved this 'question,- and the decl'eewas reversed and, the libel dismissed ,See PheFideliter ,v. U. 8., lSawy. 164, and cases cited; and the question of jurisdiction in that case, was not raised in the district court. See also The May, ,6 Biss. 243. The statute under which this pros6cutionds,had,as it did in the case· of ,The May, rec-: ognizes this order of proceeding-:-fi:rst a seizure,! and the,n the procedure against the: vessel. The .lanp;uage is, "and may be and proceeded against by way of libel in any district court of the United, States having jurisaootion of the, offense." Seotion 4:499, Section 4496 provides: "All collectors or other chief officers of the ctlstoma" and all inspectors within the several districtsahall enfor-eethe provisions of this title against all steamers.arriving and departing."'lThe firstthiI)g to be done, is for some of these ,officers to seize the vessel; as smuggled goods are seized,' thereby acqtliring jurisdiction. Having thuE\acqujrfld jurisdiction,by'seizuro"by the proper, officers, the prdceedings maybe hl,\p in the district court; to enforce thepenaltios arisi.ng under section 4499. As before reltmrked· .l regret:beimg obliged tod®jdl:l the case OIl this ground, but so the law appears to require. Let the decree be reversed, and the libel dismissed.
D.NeW<York. :March "i,1891.).
LIMITATION Oll' LUBILITy-VALUE Oll' OWNER'S INTEREST-SALE-AMOUNT Oll' BOND.
In proceedings to limit the liability ota ship-owDer, the price realized at a marshal's sale of the vesssel, flxingthe value foI' which, a bond will be required, is not concluslve, and the court, upon cause shown, may require a bond for the actual value, as proved.
SAME-WHAT OWNER MUST SURRENDER.
In order to obtain a limitation of liability with respeot t9 o'ait;ns arising upon a voyage subsequent to the accruing of pl"evious liens thesuip-owner must sur· render the vellsel, or her proceeds, free from such previous liens.
·In Admiralty. ,'Onipe,tition for limitation of liability. Carpenter & Mosher; for petitioners. A. B. Stewart and 'Alexander. & Aah, opposed.
BROWN, J. Prima facie the price realized on the marshal's sale is ·deemed to ba'the value of the' tug when sold; ,and the last clause in the 'fi.fty-'Seventh rule or the in admiralty permits the proceeds ofsuch a sale to" repre!l$nt the vessel' upon Rll 'application for a limitation ofliability.' It 'VaS oaJ:tsm]y nottheintention1oHhatrule, however; to
'! r F" '.:: by Edward G. Be!:ledlct,Esq.,of the New York bar.