The New York herald., 1869-08-17
NEW YORK CITY.
TnE COURTS.
UNITED STATES CIRCUIT couaT.

snE VOtwfSs
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UNITED STATES CIRCUIT couaT.
The Impressment Of a Vessel q sunscicns De-
fence for the Violation Of n Charter-De.
cision.
Judge Nelson.
Eberhard Faoer Us. The Schooner 0nruss.-The
libel is nled In this case to recover damages on a
charter party. by which the owner bound his vessel
on voyage from place or places designated IN tne
State OF Florida to the port OF New York. to bring
cargo OF cedar. The charter which Is dated Decem-
Der H. 1885, recyes:"t Is understood that the ves-
sci Is now loading for Key West or tho Tortugas,
and il to proceed thence direct 0load ON this char
tern The vessel reached Fort Jefferson, at the Tor
trgas, January Is, 1SC6 and discharged her cargo
ana was ready to start for the port in Florida
qulred by tho charter when she was seized by
the authorities OF the Fort and compelled to
90 two voyages to Key West for cargoes
OF coal, for the alleged necessities OF tho
place. The allegation was that the officers
ana soldiers in the fort depended upon
coal to condense water for the post There Ia no
doubt but that the vessel was impressed by the
authorities for the voyages stated against the Will
and protest OF the master, ana that wae thus en-
gagged sho was under the direction ana control OF
the public auihoriues, without any Iault his
part. This detention occasoned the delay COM,
planned OF In the libel as inlraction Of the charter
party. In Mitchell vs. Harmeny tl3 How, p, 134)
the Chief Justice says:'There are, without doubt,
occasions IN Ynish otlyate property may hwiuiy be
taken possession OF Or destroyed to prevent IL from
falling INTO The nonos or the pubic enemy; ana aiso
where IA military oflcor. charged With particular
service OF take 1t Tor public use. Ungues-
tiorabiyu he further says, 'in such cases
nsnsat,op, but the oiiicef Is not % trespasser"
Ee admits 'nat IN all these cases the danger
nlnat be ihmediate ana iapealng, Or the ne esslty
urgent for Tue puolic service, sucn as will admit OF
no delay. In that the Court bea upou the tes-
tIuony, whicn wss uncisputed, case OF danger or
necessity within she raie OF law had not been made
ont ana snstaDed Tie Judgment Tor the palJin. He
further observed tAaI IN aecdlng upon the neces-
sy, tue state OF the facts they appeared 10 the
officer at TIE tiae he acted must govern the deci-
Sion; l0F ne must necessarily act upon the nforma
ron OF others Qs well as nus own observations and
Ii Win sueh Information as he had right to rely
upon there IS raasotaOie ground for believing thai
the peru Is Immediate and menacing or the neces-
discovery aitcrward that 1t was false or erroneous
win not MAKE hiIn trespasser." Now within
tae case before us, tiat the authorities
at Fort Jefferson were justified In Impress
lug the vessel for the uses aud PURPOSES as alleged.
Something Is due 10 The decision OF these officers,
under tie circumstances and relative situation and
condition OF the tort. remote from any supply OF
fresh water for the garrison. aud dependent upon
the article Of coal rs necessary maGeria in obtain.
ing 1t. The officers may have erred. but II this was
simply an error o. Judgment on t,e facts they ap-
peared TO them they will still be justified. 1t has
been argued, however, assuming tnis to be So 1t
consntuSas no deeace AGAINST delay in the voyage
would proceed Directly from the Tortugas. on on
OF lading in florida; ana having thus in
terms, covenanted TO proceed directly and with
Out any delay this fOrclDle detention VIII not
excuse him within the rulc laid down in Paradine
ys. jayne tA1eyn 27, anu that class. OF cases. IN
othsr words Il m naTs ~ ShaFge himself with with an an obi
good unless It's performance Is rendered Impossible
by te act of God, the Law Or the other party. The
law. however, Is otherwise II The obligation or duty
u created by law. 1t Is supposed by the learned
counsel for the liDelant by the clause in the
charter party, to which we have referred, there IL
express aud aud positive Obligation entered into
by the carrier TO proceed Ut once from Tortugas on
N oading hs outward cargo 70 the port or ports In
fi0rtoa ond that tne Only excuse for delay ts to be
found IN instances gwen IN the case OF Paradine Vs.
sayne. Weare OF opinlon that this Is too narrow and
connection In whlcht Is found and that iatrer and
more Datura Interpretation Is that 1t was used to
formed by the vessel after arriving at tie TortuTas
She was to go direct; that is she was to take
direct course thence to the port or ports in Florida
without deviation or unreasonable delay, and,
giving TO the phrase tnis interpretation the duty to
perform the covenant with diligence. and In rea-
sonable time, was an obligation imposed by law. as
Contradistngui5hed from one by positive contract.
IL did not mean that the vessel should depart from
the Tortugas Instantly, or immediately but that she
Should, that place, enter upon voyage provided
for In the charter. proceeding IN direct course to
sss paSsd snd q a 70 i. S p
ton is question OF law under the particular CIR.
cumsiances OF the ease case. II M s s insisted however
IN sezing the vessel aud the party was disabled
from performing his contract without any fault Of
his, still aS he has remedy over against the gov.
ernment, he Is not exempt from responsibility for
the delay. The answe ls that the remedy over
saync. is a legal remedy that may be enforced In
court OF justice. Upon the interpretation that We
have given TO contract tho defence here Is complete,
even assuming that the ohcers OF the fort had been
tresspas5crs in seizing and detaning the vessel.
(laIminy ys. Bingham, = Kern, %; Parsons vs.:
ERE Rsiroad. Kern, 2a5; 10 Barb. 'se; 8 Duer.,
S15.) Decree affirmed.
Infringement Of q Patent Cut-Ofr--NIotion for
IN Injunction Decentralization.
George II. Co19tss us. The Drv Doct Rolling MIL,
Ingnan, Corveu and John Taompson.-This is o mo-
ton for injunction TO restrain defendants from in
fringing the patented invention of complainant for
certain 'new and useful Improvement in cut-of and
working valves OF steam engines" The patent Is
dated March 10, 1s4s. The suit is founded on re.
issue dated July IL, 1852 and which was extended
by the Commissioner Of Patents for seven years
from tho 10th OF March, Is43. This patent has
heretofore been under our consideration In
the case OF Corliss w. The Wheeler q Wilson
Manufacturing Company, In the District Of Connec-
ucnt, september, 1861. IN Una. case tne man
Greer the 13th OF March, 1865. A decree was rem
Gered In favor of the complainant The defence in
TO William Wright. dated November 20 1885, The
present suit was commenced III June, 1888.
Tne patent on which 1t is founded expires on the
a0th OF March, 1870, Within about year and nine
months after the commencement OF the suit, aud
some seven months hence. There is no sugges-
sion or evidence before us that the defendants
are Irresponsible or unable to pay any amount
OF prodts that may DO ultimately recovered
against them, on the nnal hearing Of the case.
upon the pleadngs and proofs; and in the alb
seDce Of such evidence, however satisfied we
may be as to the right OF the complainant TO such
4
the application had been made at earlier period
OF THE term OF the patent we think 1t would be un-
reasonable, ana not agreeable to the course Of pro-
cceding In equity Ia tie case presented to Interfere
rnd break up the ESTABLISHMENT and business Of the
Islendauts, on the above grounds we must deny
the motion. Motion for Injunction denied.
circuit court, United States District Vermont
George II. Cor'iss Us. The Adams Manufacturing
C0np1nu Ghd N.rdn1 0. B'olcn. Srnle Us. ne Rn[