TRli) .H. E. WILLARD.
tingency that it might enter upon the manufa·cture of ('()mpeting lamps was contemplated. Its union with the Edison interests has neither hastened nor facilitated the application for the present injunction. We perceive no adequate reason from the facts why the complainants should not obtain the ordinary results which attend It complainant's success in a suit in equity- for the infringement of a patent. The injunction order appealed· from should be moqified so as to cover only lamps made in infringement of the second claim of the patent, the other claims not having been infringed, according to the adjudication of the circuit court or of this court. It should also contain a provision reserving the right to the defendant to move hereafter for the vacati()n, suspension, or modification of the injunction upon proof of specific instances of refusal on the part of the complainants, or either of them, to supply the lamps of the patent upon terms reasonable, under the circumstances of the particular case, to the owners of electric lighting plants which were installed before the rendition of the interlocutory decree of the circuit court sustaining the validity of the patent.
THE H. E. WILLARD. LYMAN et al. v. THE: H. E. WILLARD. (District Court,D. Maine. April 1, 1891.)
ADMIRALTY JURISDIOTION-STATUTORY LIENS.
The llen given by Acts Me. 1889, c. 287, to a part owner of a vessel for debts contracted &nd advances made for certain purposes, not being of a maritime nature, cannot give jurisdiction to a federal court sitting in admiralty. Affirmed in 52 Fed. Rep. 387. A federal court sitting in admiralty has no jurisdi0tion of matters of ac· count between part owners of a vessel for supplies furnished and advances made. The Larch, 2 Curt. 427, followed. Affirmed in 52 Fed. Rep. 387.
SAME-ACCOUNTING BETWEEN PART OWNERS.
In Admiralty. Libel in rem by James P. Lyman, Charles F. Guptill, and others against the schooner H. E. Willard. Dismissed for want of jurisdiction. This decision has been affirmed by the circuit court, the opinion being delivered by Mr. Justice Gray. See 52 Fed.. Rep. 381. Benjamin Thompson, for libelants. George E. Bird, for respondents.
WEBB, District Judge. This is a libel in rem for supplies furnished to schooner H. E. Willard in a home port by libelants, owners of three thirty-seconds of the vessel. The jurisdiction of this court is denied. By the statute of Maine (chapter 287 of the Laws of 1889) it is provided that"All dompst1c vessels shall be subject to a lien to :my part owner or other person to secure the payment of debts contracted and advances made for labor and materials necessary for their repair, provisions, stores, and other supplies necessary for their employment, and for ,the use of a wharf, dry .dQck, or marine
railway, provided, that such lien shall in no event continue for a longer period than two years from the time when the dEbt was contracted or advances made."
Can a. lien thus given be enforced in admiralty in favor of part owners? That state legislatures cannot restrict or extend the admiralty jurisdiction exclusively vested in the federal courts has been often decided and is conclusively settled. Roach v. Chapman, 22 How. 129; The Orleans v. Phoebus, 11 Pet. 175; The Chusan, 2 Story, 455; The Selt, 3 Biss. 344; The St. Lawrence, 1 Black, 522. It follows, necessarily, that a lien given by a state statute is not the test of jurisdiction. If it were, a state legislature might, at pleasure, modify the jurisdiction of courts of admiralty by creating or abrogating liens not given by the maritime law. The distinction between cases in which the cause of action is itself within the admiralty jurisdiction, and the C$es in which the admiralty, independ· ently of the local law, has no jurisdiction, must not be forgotten or neglected. It is apparent that in the present case the real of action is a settlement of accounts between part owners. One has fur· nished supplies for the use and employment of a vessel, their common property. Whether, for the advances thus made, the owner furnishing supplies has any claim for repayment by his co-owners, depends upon the question whether he has advanced more than his just proportion, and for such excess has or has not been reimbursed by a correa spondingly greater share of the earnings. If he. has advanced more than his just share, the inquiry further arises, from which of his co-own· ers, and in what proportion, is he entitled to claim the amounts due him? This is simply an adjustment of aC(l()unts between part owners. It is the principal thing to be settled by litigation. Here is no independent or original cause of action out of which the necessity for examining the vessel't:l accounts incidentally arises; but it is a demand, the justice of which directly and primarily depends on, and must be determined by, a settlement of the accounts between the owners. If such a case, independently of any lien, is one of admiralty jurisdiction, then an admiralty court can enforce a liPn given by the local laws ; but, if the admiralty court has not jurisdiction of the adjustment of accounts of part owners, the defect is not supplied by a statutory lien. "The admiralty has no jurisdiction at all in matters of accounts between part owners," says Story, J. The Orleans, 11 Pet. 182. "A court of admiralty takes cognizance of certain questions between part owners, as to possession and employment of the ship, but will not assume jurisdiction in matters of account between them." Ward v. Thompson, 22 How. 330, 333. "Now, the admiralty has no direct jurisdiction over matters of account, although they may relate purely to maritime affairs." Davis v. Child, 2 Ware, 78. "The subject-matter is not within the COgnIzance of the court." The ::Marengo, 1 Low. 52, 56; Kellum v. Emer· son, 2 Curt. 79. "One insurmountable obstaclE. is that a court of admiralty does not take cognizance of the accounts of part owners, un· less incidentally." Hazard v. Howland, 2 Spr. 68, 71. "I therefore hold that the libelants are to be deemed co-owners for this voyage, and. if their claim constitutes a portion of the accounts of the part
THE H. E. WILLARD.
owners and enters into the same, then this court h38 no jurisdiction concerning it. * * *. It appears, then, that such bills were settled in an accounting of part owners, with which admiralty h38 nothing to do." Hall v. Hudson, Id. 65, 66. "The admiralty has, however, no jurisdiction in matters of account between part owners or others, except when taking an account constitutes a mere incident to a maritime cause of action." Ben. Adm. § 263a. "The court has no jurisdiction in matters of account between part owners of a vessel." The Ocean Belle, 6 Ben. 257. "The admi· ralty courts take no jurisdiction of matters of account, even between part owners." Daily v. Doe, 3 Fed. Rep. 922. "A proceeding in rem is not a method allowed to be taken to compel an accounting." The Fairplay, Blatchf. & H. 136. Judge Curtis says: "A court of admiralty has no jurisdiction to take an account between part owners." The Larch, 2 Curt. 427. It is unnecessary to cite further authorities to show that this court has no jurisdiction of accounts between part owners. Numerous cases have been cited in argument, and many others have been ex· amined, in which the power to deal with accounts has been asserted. All except The Charles Hemje (reported in 5 Hughes, 359) were cases in which jurisdiction on the principal subject-matter was undisputed, and in· most the disposal of funds remaining in the registry. called for an accounting incidentally to the principal matter giving the juris· diction. In The Charles Hemje, Judge Ware's opinion in the case of The Larch is followed in preference to that of Judge Curtis; but, while adopting the opinion which was overruled, Judge Hughes ad· mits that, in the circuit wherein the decision was rendered, the law as laid down by the circuit court must prevail. Were it not so, my conclusions would not be changed. I have not been content to rest the decision of this cause solely on the authority of The Larch, 2 Curt. 427, because the statute giving to part owners a lien is of a date subsequent to that decision, and calls for a consideration of the question as affected by the statute. Moreover, it was urged at the hearing that Judge Lowell (since circuit judge in this circuit) denied the cor· rectness of that decision. It is true that that learned judge, sitting as district judge in the case of The Tangier, 2 Low. 7, and in the case of The J. A. Brown, Id. 464, criticised the reasoning of Mr. Justice Curtis in that case, but not in respect to the principle now in ques· tion. Yet in The Sarah J. Weed, 2 Low. 562, though expressing dis· sa.tisfaction with that reasoning, Judge Lowell follows the decision, declaring it binding upon him 38 district judge. In The Jennie B. Gilkey, 20 Fed. Rep. 161, Judge Lowell, then circuit judge, cites and follows the case of The Larch without comment. Let the entry be made, dismissed for want of jurisdiction, without costs.
Nlll':LSON v. THE WILLA-METrE et at
D. December 1$, 1892.)
'J'hetiet fixing the Ulnes and places of holding federal ,COjlrt8 in the state of WllShington, 81;. at Large, p. 45, 54) provides thataetl.ons not of a localllaPu'e shallbe brought in the diVision where the defendant resides. Hcld,that it is the lntentof the act that actions ofa local nature shall be 'brought in the divlslon Where the res Is when the suitlsbegun.
OASES-DIVISIONS OF DISTRICT OF WASIDNGTON.
2. SAllE-LmEL IN R E M . ,
, A llbelin "-'emie an. aotion of a 100111 character, within tlie meaning of ;t:,iples and places for 1l01Uing federal the state of (2(j St. at Large, p; 45,§ 4,) and must be lJrought in the division Where the 'res is! When the suit is begun. thereto bejng
SAllE-OHANGE TO PROPER DIVISION.,
Where' ll.'Ubelln, rem
is brought 'In the wrong cUvision, the objections and it is probable that the .c;ase will be tried
to transfer the cause to the
In in rem against the steamship Willamette to reeover damages for a pel'8Onal injury received in a collision between to transfer the oause to the northern division of the distriot,in which the oollision ooollrred, and in which the vessel was arrested. her home port being in another state. Granted. A, R. Titlow. for libelant. , ',' Crowley, &; Sullivan, for intervening libelants. A. F. Burleigh and ,J. ;E. for claimant. HANFORD, District Judge. The Oregon Improvement Company, a. corporation of the state of Oregon, has filed its claim as owner of the vessel pro,*eded against in this case, and filed exceptions to the libel, and .moved to transfer the cause to the division of this district. I have considered all the questions raised by said exceptions and Iij,otion, and, as there appears to be probability that the will to a trial :upon questions of fact, it is proper to pass upon tp,e motionuow. It is shown that the vessel was found and ar· rested by tJ,le,,marshal in the northern division,although her home port isPortla:n1l, the state of Oregon; that her officers reside in the northern <!ivision,;andthat the case arises out of a collision between vessel and the passenger steamer Premier, whioh occurred upon inlet, ,Seattle and Port Townsend, in the northern, .division. The libelant and intervening libelants reside in the western division, and for their9wn convenience have brought the suit in said division. The fourth section of the act to provide for the times and places to hold terms of court in this district (26 St. at , Large, 45) reads as follows:
"Sec. 4. That all civil suits, not of a local chat'acter, which shall be brought in the district or circuit courts of the United States for the district of Wash· ington, in either of said divisions, against a single defendant, or where all the df'fendante reside in the same division of said district, be brought in the divlslon in which the defendant or defendants reside. * * * All issues of